S. H. SHETH, T. U. MEHTA, J. ( 1 ) THIS appeal is directed against the order made by the learned District Judge Navsari by which he has applied the doctrine of cypres to a public trust. The facts of the case briefly stated are as under. ( 2 ) IN Umbergaon in Bulsar District there is a public trust called Karulkar Family Dharmadaya Fund. It has been registered under the Bombay Public Trusts Act 1950 Sometime in 1900 this fund was created by one Karulkar and certain lands were set apart for the purpose of spending its income for supplying water to the poor during famine and for carrying on other charitable activities as may be decided from time to time by the majority of the adult male members of the Karulkar family. At the time when this application was filed in the District Court there was an accumulated income of about Rs. 53000. 00. The respondent No. 1 Sakharam Laxman Karulkar is the sole trustee of the trust. It appears that the Charity Commissioner on having noticed a large amount of pecuniary income which had remained unspent requested the trustee to discuss the matter with him in order that this accumulated income may be spent for appropriate charitable objects It appears that the trustee in the first instance agreed to do so and further agreed to submit proposals for the utilization of that income but later on he went back upon it and did not take any step in the matter. The Charity Commissioner therefore issued to the trustee notice on 14th September 1962 under sec. 55 of the Bombay Public Trusts Act calling upon him to apply to the District Court within three months from the date of the receipt of the notice for directions to utilize the said amount for appropriate charitable purposes. It appears that advancement of secular education and medical relief in general were regarded as good objects on which the said income could be spent. The trustee failed to apply to the District Court in pursuance of the said notice of the Charity Commissioner. The Charity Commissioner therefore made the present application to the District Court at Navsari for obtaining directions for the the utilization of the said amount. The trustee failed to apply to the District Court in pursuance of the said notice of the Charity Commissioner. The Charity Commissioner therefore made the present application to the District Court at Navsari for obtaining directions for the the utilization of the said amount. ( 3 ) THE learned District Judge after having heard the parties held that the doctrine of cypres can be applied to the present trust for the purpose of utilization of its accumulated income. He therefore directed the Charity Commissioner and the parties to submit draft schemes for the consideration of the Court and for framing the final scheme in the matter. ( 4 ) IT is that order which is challenged by some of the original opponents in this appeal. ( 5 ) MR. Nanavaty appearing for the Charity Commissioner has raised a preliminary objection to the maintainability of this appeal. According to him the appeal is not competent because sub-sec. (2) of sec. 56 of the Bombay Public Trusts Act 1950 does not provide for any such appeal to be filed. In order to examine the preliminary contention raised by Mr. Nanavaty it is necessary to turn to sec. 56. Sub-sec. (2) thereof provides as underany decision or order passed by the court under sub-sec. (1) shall be deemed to be a decree of such court and an appeal shall lie therefrom to the High Court. IT is therefore clear that any order which the Court may pass under sub-sec. (1) of sec. 56 has the force of a decree and is appealable to the High Court. Let us therefore see the nature of the order or decision which sub-sec. (1) of sec. 56 contemplates. Sub-sec. (1) provides as follows:-ON such application being made the Court after hearing the parties and making an inquiry shall decide the matter and shall give directions. In giving the directions the Court shall so far as may be expedient practicable desirable necessary or proper in public interest give effect to the original intention of the author of the public trust or the object for which the public trust was created. In giving the directions the Court shall so far as may be expedient practicable desirable necessary or proper in public interest give effect to the original intention of the author of the public trust or the object for which the public trust was created. If the Court is of opinion that the carrying out of such intention or object is not wholly or partially expedient practicable desirable necessary or proper in public interest the court may direct the property or income of the public trust or any portion thereof to be applied cypres to any other charitable or religious object. In doing so it shall be lawful for the court to alter any scheme already settled or to vary the terms of any decree or order already passed in respect of the public trust or the conditions contained in the instrument of the public trust. IT is necessary to analyse the provisions of this sub-section. In our opinions it is divisible in four parts. The first part relates to the power of the Court in a case where an application has been made under sec. 55. The Court has the power to make an inquiry to decide the matter and to give directions. In our opinion this is the basic power which has been conferred upon the Court. While exercising that power the Court has to bear in mind certain matters which are specified in that sub-section While exercising that power the Court has to give effect to the original intention of the author of the public trust or the object for which the public trust was created in so far as it is expedient practicable desirable necessary or proper in public interest so to do. Secondly if the Court records the conclusion that it is not wholly or partially expedient practicable desirable necessary or proper in public interest to carry out the original intention of the author of the public trust or the object for Which the public trust was created it may direct the application of the property or income of the public trust or any portion thereof cypres to any other charitable or religious object. Lastly while so doing if it becomes necessary for the Court to alter any scheme which has been already settled or to vary the terms of any decree or order which has already been passed in respect of the public trust or to vary the conditions contained in the instrument of the public trust it has the power to do so. This analysis of sub-sec. (1) of sec. 56 brings into bold relief the fact that the power which has been conferred upon the Court is the power to give directions. While exercising that basic power it has got to bear the aforesaid things in mind and if the circumstances of the case so require it has got the ancillary or incidental power of doing things which have been mentioned in the last sentence of sub-sec. (1) of sec. 56. ( 6 ) IN view of this analysis of sub-sec. (1) of sec. 56 the question which we have to decide is whether the order made by the learned District Judge amounts to a direction. If it amounts to a direction within the meaning of sub-sec. (1) of sec. 56 that order or decision shall have the force of a decree of that Court. ( 7 ) MR. Nanavaty has contended that what the learned District Judge has done is to decide that the doctrine of cypres be applied to the instant case. He has not framed a scheme or given actual direction for the utili- zation of the accumulated income of the public trust. His analysis of the impugned order is correct. It appears to us that in a matter of this type there is always a likelihood of two orders being passed. The first or the preliminary order will be in the nature of a decision on the question whether the doctrine of cypres should be applied to the trust. Thereafter there will be a final order by which a scheme for the utilization of the accumulated income or unspent balance of the public trust will be framed. Indeed it will be framed after hearing all the parties concerned. It is therefore clear to us that in the very nature of things there are likely to be two orders in such cases one preliminary order and another final order. The expression decision or order used in sub- sec. Indeed it will be framed after hearing all the parties concerned. It is therefore clear to us that in the very nature of things there are likely to be two orders in such cases one preliminary order and another final order. The expression decision or order used in sub- sec. (2) when read in light of the expression shall give directions used in sub-sec. (1) comtemplates in our opinion both kinds of orders preliminary as well as final. Where there is a preliminary order which decides upon the appli cability of the doctrine of cypres there is bound to be a final order. We see no reason to narrow down the compass of the expression decision or order used in sub-sec. (2) of sec. 56 so as to mean only final order and none else. If the direction as to the applicability of the doctrine of cypres can be given by a preliminary order and if the direction for the utilization of the accumulated income of the surplus balance can be given by a final order both those orders fall within the expression decision or order used in sub-sec. (2) of sec. 56. In our opinion therefore under sub-sec. (2) of sec. 56 appeal lies to the High Court both against the preliminary order by which the applicability of the doctrine of cypres has been decided and also against the final order by which the actual direction for the utilization of the accumulated income or the surplus balance has been given by the District Court. In that view of the matter we are of the opinion that the present appeal is maintainable under sub-sec. (2) of sec. 56 because it is directed against the preliminary order by which the learned District Judge has recorded the decision and held that the doctrine of cypres is applicable to the instant case. The preliminary contention raised by Mr. Nanavaty therefore fails and is rejected. ( 8 ) THE next contention which Mr. Purandare has raised before us is that the present application made under sec. 56 of the Bombay Public Trusts Act is not maintainable because it falls under sec. 50 of that Act. He has invited our attention to clause (iii) of sec. Nanavaty therefore fails and is rejected. ( 8 ) THE next contention which Mr. Purandare has raised before us is that the present application made under sec. 56 of the Bombay Public Trusts Act is not maintainable because it falls under sec. 50 of that Act. He has invited our attention to clause (iii) of sec. 50 which enables the Charity Commissioner to make an application to the District Court where the direction of the Court is deemed necessary for the administration of a public trust. He has also invited our attention to item (e) in sec. 50 under which the Charity Commissioner can seek a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust. In our opinion the areas in which secs. 50 and 55 operate are altogether different. Secs. 55 and 56 operate in an area where application of the doctrine of cypres is to be invoked. It is a special area which has been demarcated by the legislature. When we read sec. 50 on one hand and secs. 55 and 56 on the other hand together we find that sec. 50 operates in areas other than the area in which secs. 55 and 56 operate. The Charity Commissioner in the instant case has in terms invoked the application of the doctrine of cypres to the accumulated income of this public trust. Obviously therefore the only section that he could invoke was sec. 56. He cannot invoke sec. 50. The second contention raised by Mr. Purandare therefore fails and is rejected. ( 9 ) THE last contention which Mr. Purandare has raised before us is that what this public trust has is the accumulated income and not the income or any surplus balance within the meaning of clause (b) of sub- sec. (1) of sec. 55. He has tried to distinguish between the accumulated income and the surplus balance. In our opinion accumulated income is the result to which unspent surplus balances lead. It is difficult to distinguish between the two in the facts and circumstances of the case. It is indisputable in the instant case that the income of the properties dedicated to this public trust is much larger every year than it can be spent on the implementation of the original object thereof. It is difficult to distinguish between the two in the facts and circumstances of the case. It is indisputable in the instant case that the income of the properties dedicated to this public trust is much larger every year than it can be spent on the implementation of the original object thereof. Obviously therefore the large unspent balances year after year have led to the accumulated income. If this is the nature of the accumulated income it is hardly distinguishable from surplus income. What Mr. Purandare has tried to argue appears to us to be aimed at the capitalization of the unspent surplus balance. There is nothing on record to show that the accumulation of the unspent balance of the income from year to year has been capitalized in the instant case and if so for what purpose. Capitalization of accumulated unspent surplus balances may have an object. If there is one such object the Court looks into it and determines as to what it should do. In the instant case there is no evidence to show that unspent surplus income from year to year has been capitalized and if it is so for what purpose. Therefore in the facts and circumstances of this case it is very difficult for us to draw the minute and sophisticated distinction which Mr. Purandare has tried to draw between what he calls accumulated income and surplus balance. So far as the facts of this case are concerned they are inter changeable expressions. ( 10 ) HE has relied upon the decision of this Court in the Charity Commissioner v. Haridas Narandas and others 13 Gujarat Law Reporter 447. It is a decision rendered by my learned brother. It has been held in that decision that every accumulation of income of a trust is not by itself a surplus to which the doctrine of cypres can be applied. Whether a particular accumulation becomes a surplus within the meaning of sec. 55 or not is to be determined only with reference to the particular facts of each case. There is no evidence to show whether the unspent surplus balance from year to year has been capitalized and if so for what purpose. It is the absence of this evidence in this case which obliterates the distinction between accumulated income and the surplus balance. There is no evidence to show whether the unspent surplus balance from year to year has been capitalized and if so for what purpose. It is the absence of this evidence in this case which obliterates the distinction between accumulated income and the surplus balance. It has been further observed in that decision that some reserved income of a public trust may be necessary to meet future contingencies which cannot at a particular time be visualized. It may as well happen that the balance left unspent in a particular year may not be utilized in course of that year for the objects of the trust. It is also quite probable it has been observed in that decision that such a balance may be wiped out on account of the happening of unforeseeable events. A public trust may take into account such circumstances and constitute a reserved fund. If such a reserved fund has been constituted to meet unforeseeable events in future the amount which constitutes that reserved fund cannot be said to be a surplus balance. That is in our opinion one of the principles laid down in that decision. The second principle which has been laid down in that decision is that a temporary surplus may sometimes come into existence. Such a temporary surplus is not prima facie surplus balance within the meaning of clause (b) of sub-sec. (1) of sec. 55 to which the principle of cypres can be applied. The principles laid down in that decision cannot be applied to the facts of the present case for three reasons. Firstly there is no capitalization of the accumulated income. Secondly there is no reserved fund which has been constituted to meet any future contingencies and thirdly the surplus of the income which is left after it has been spent on the implementation of the original object of the public trust is not a temporary surplus but it is a regular feature happening year after year. . . . . . . . . . . . . . . . . . . . . . [ The rest of the judgment is not material for the reports. ] .