Religious Endowments and Trusts Law in Colonial India

In his speech introducing the draft Indian Trusts Bill, Whitley Stokes described the Bill as part of the colonial government's project of creating ‘a system of codified law adjusted to the best Native customs and the ascertained interests of the country’ to replace ‘English rules ill-suited to Oriental habits and institutions’. This paper uses the history of trust law in India from the middle of the 19th century to the close of the colonial period to examine that process of adjustment and adaptation. Its central thesis is that the transplantation and adaptation of trust law shows the influence of two themes, one facilitatory in character and the other regulatory in character. The focus of prior work on Indian trust law has been the facilitatory theme, which sought to ensure that trusts could be used by British subjects in India (European as well as Indian) without risking the accidental importation by Indian courts of the distinction between legal and equitable title. As I show in this paper, however, a second and equally important theme in the development of trust law was the regulatory use of the trust - in particular, the use of rules and concepts taken from trust law to regulate the management of pre-colonial institutions such as the Muslim wakf and the Hindu charitable endowment. This process formed part of a broader trend in colonial India in which equitable concepts were used in legislation in order to give the courts power to deal responsively with social issues. A closer focus on it highlights the manner in which the adaptation of trust law to Indian conditions involved close interaction with and, ultimately, close intertwining with Indian institutions and Indian social needs.