Saji Koduvath, Advocate, Kottayam.

Synopsis.

1. Administration of Trusts
2. Rights and Duties/Liabilities of Trustees in a Nut Shell
3. Rights of a Trustee
4. Duties of a Trustee
5. Liabilities of a Trustee
6. Trustee ‘Holds’ Trust-Property for ‘Administration’
7. How Can a Trust Execute Deeds and Enter Contract?
8. Is Trusteeship a Property?
9. Application of Indian Trusts Act
10. Trustee is bound to fulfill the purpose of the trust
11. Trustees Should Act Jointly
12. Suit by One of its Trustees: Effect
13. In Strict Legal Sense, Shebait is not Trustee
14. Trustee Cannot Renounce
15. ‘Cy pres’ Doctrine
16. Representation of Beneficiaries, Under O 31 R 1 CPC
17. Trustee has to Act Gratuitously
18. Doesn’t Revert Even If Trustee Refuses to Accept Office
19. Trustee not to Benefit
20. Trustee Must Exercise on His Own Judgment
21. Fiduciary Capacity
22. Trustee Cannot Claim Adverse Title
23. Claim of Adverse Title by a Trustee Entails his Removal
24. Accounting by Trustees
25. Shebait: Whether Similar to Guardian of Infant Heir
26. Degree of Prudence Expected
27. Doctrine of ‘Conditions of Modern Life’
28. Shebait has, to some extent, Rights of a Limited Owner
29. Succession of Office of Shebait
30. Right of Suit in the Shebait; and Not in the Idol
31. Dharmakartha/Shebait has Vide Discretion
32. When Estate of a Deceased Trustee Liable
33. Removal of Trustees on Breach of Trust

Introduction

A trust is what the author intended. The Indian Trusts Act, 1882 is basically meant for private trusts. Still, the principles of English Law of Trusts which have been incorporated in this Act will apply to public trusts also. Those principles will not become untouchable for it is incorporated in the Trusts Act.[1] Sec. 92 of the CPC and various (State) Public Trusts Acts govern public trusts. With respect to the applicability of the Indian Trusts Act, 1882, upon public trusts the Supreme Court observed, in Sheikh Abdul Kayum  Vs. Mulla Alibhai,[2] as under:

• “It is true that Sec. 1 of the Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so these sections may not in terms apply to the trust of that kind. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries.”

The rights and liabilities of the trustees and beneficiaries are given in detail in the Indian Trusts Act enacted in 1882. The courts in India thoroughly followed the principles in the Trusts Act in the matters of public and religious trusts with regard to various rights, duties and liabilities of the trustees. The trustee is bound to fulfill the purpose of the trust, and to obey the directions of the author of the trust given at the time of its creation.[3] Usually, trustees are appointed by the founders, and new trustees are selected as directed by the founders.

Life is Bestowed upon Endowment When Trustee is Appointed

An ‘endowment’ is created by dedication of property for the purpose of religion or charity. For a valid trust both the subject and object should be certain and capable of ascertainment.[4] Though a trust is not a juristic person, legal recognition and vitality is bestowed upon the endowment by the appointment of a trustee. An endowment, sans trustee, remains static.

Trustee ‘Holds’ Trust-Property

Indian Trusts Act Sec. 10 states that every person capable of ‘holding’ property may be a trustee. The trustee ‘holds’ trust-property, for administration, as its legal owner. The Trusts Act denotes the relation between the trust property and trustee as ‘holding’, in preference to ‘possessing’.  Apart from Sec. 10, it is clear from Sec. 29, 83 etc. and illustrations in Sec. 10, 61 etc. 

‘Obligation Annexed to the Ownership of Property’  Imports  ‘Administration’

The obligation, or fiduciary duty, in a trust, annexed to the ownership of property, is for ‘executing the trust’ by ‘administering’ the endowed property.  The trustee has to administer the trust-property as if he is its (legal) owner.  Because, as per the definition of trust, the obligation stands attached to the endowed property. By the very nature of ‘Trust’, the obligation ‘annexed’ to the trust-property is for administration.[5]  It is clear from Sec. 11 of the Indian Trust Act. Sec. 11 of the Trusts Act casts duty on trustee to execute the trust, by fulfilling the purpose of the trust ‘obeying the directions of the author of the trust’.  Therefore, the pertinent linkage  of obligation to the endowed property is ‘management or administration’. 

Sec. 11 of the Indian Trust Act, 1882 reads:

• 11. Trustee to execute trust.—The trustee is bound to fulfill the purpose of the trust, and to obey the directions of the author of the trust given at the time of its creation…
• Nothing in this section shall be deemed to require a trustee to obey any direction when to do so would be impracticable, illegal or manifestly injurious to the beneficiaries.

As per the Indian Trust Act. 1882, the trustee holds the trust-property for ‘management’ or ‘administration’.  The legal ownership vests in the trustee for the purposes of the trust, and its administration should be in accordance with the provisions of the deed of trust.[6] Sections 34, 35 and 60 of the Indian Trusts Act, 1882 specifically refer ‘administration’. Indian Trusts Act, 1882 reads:

• Sec.34. Right to apply to Court for opinion in management of trust property.—Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property ….
• Sec. 35. Right to settlement of accounts.—When the duties of a trustee, as such, are completed, he is entitled to have the accounts of his administration of the trust property examined and settled; ….
• Sec. 60. Right to proper trustees.—The beneficiary has a right (subject to the provisions of the instrument of trust) that the trust property shall be properly protected and held and administered by proper persons and by a proper number of such persons.
  •        Explanation I.—…
  •        Explanation II.—When the administration of the trust involves the receipt and custody of money, the number of trustees should be two at least.

Trustee Administers as the ‘owner’of Trust

A trust is administered by the trustee, as its legal owner. As per the definition, a trust is (i) an obligation annexed to the ownership of property and (ii) arising out of a confidence accepted by the trustee as owner. And, the ‘beneficial interest’ of the beneficiary is his right against the trustee as owner of the trust property.

The trustee should have been appointed with clear directions for management. The trustee is bound to obey the directions of the author. The mode and modalities of administration of trusts are primarily determined under the terms of the trust (written or otherwise). Lewin on Trusts[7] reads as under:

• “The person who created the trust may mould it in whatever form he pleases.”

Duty of the trustees may be passive or active according to the nature of the trust. With regard to duties of trustees it is stated in ‘Principles of Equity’ by H. A. Smith[8] as under: 

• “A trust is a duty seemed in equity to rest on the conscience of a legal owner. This duty may be either passive, such as to allow the beneficial ownership to be enjoyed the some other person, named the cestui que trust, in which case the legal owner is styled a bare trustee; or it may be some active duty, such as to sell, or to administer for the benefit of some other person or persons; such for example are the duties of a trustee in bankruptcy.”[9]

Underhill has defined a simple trust as a trust in which the trustee is a mere repository of the trust property, with no active duties to perform.[10]Trustees are bound by customs and usages. Apart from the enactments applicable, trusts and trustees are also governed under the directions of the competent authorities concerned.

A Compny can be a Trustee of a Public Trust

It was held in See M.Gomathinarayagam Pillai v. Sri.Manthramurthi High School Committee, Tirunelveli, AIR 1963 Mad 387, as under:

• “For the application of that section (Section 92 CPC)  it makes no difference whether the trustees is an individual or a company, nor is there any distinction between a company in whom the office of trustee vests and one which is specially formed for the purpose of executing the trust.” (Referred to in: S.N.D.P.  Yogum v. G.  Krishnamoorthy, ILR 2022-3 Ker 494; 2022-4 KHC 168; 2022-4 KLT 36)

Trustee is Bound to Fulfill the Purpose of the Trust

Indian Trusts Act, 1882 reads as under:

• 11. Trustee to execute trust.     The trustee is bound to fulfill the purpose of the trust, and to obey the directions of the author of the trust given at the time of its creation, except as modified by the consent of all the beneficiaries being competent to contract.
•        Where the beneficiary is incompetent to contract, his consent may, for the purposes of this section, be given by a principal civil court of original jurisdiction.
•        Nothing in this section shall be deemed to require a trustee to obey any direction when to do so would be impracticable, illegal or manifestly injurious to the beneficiaries.
•        Explanation – Unless a contrary intention be expressed, the purpose of a trust for the payment of debts shall be deemed to be (a) to pay only the debts of the author of the trust existing and recoverable at the date of the instrument of trust, or, when such instrument is a will, at the date of his death, and (b) in the case of debts not bearing interest, to make such payment without interest. The trustee is bound to fulfill the purpose of the trust, and to obey the directions of the author…..
• 13. Trustee to protect title to trust property.—A trustee is bound to maintain and defend all suits, and to take such other steps as may be reasonably requisite for the preservation of the trust property.

Sec. 11 of the Indian Trusts Act casts an obligation on the trustees to fulfill the purpose of the trust. The trustees are bound to obey the directions of the author of the trust given at the lime of its creation, except as modified by consent of all the beneficiaries who are being competent to contract. The liability of trustees is also subject to the exception that the trustees are under no obligation to obey the directions that would be impractical illegal or manifestly injurious to the beneficiaries. The only way in which the directions of the testament may be varied is by applying cy-prus doctrine. It is applied where from lapse of time and change of circumstances it is no longer possible to apply the property left by the founder or donor in the precise way in which it was directed to be applied.[11] Correspondingly if the trustees fail or disclaim to carryout the lawful directions of the settlement it would amount to a breach of trust and any person having interest in the trust has a right to approach the competent authority for appointment of new trustees or for appropriate directions as the nature of the case may require.

In Abdul Kayum Vs. Alibhai[12] our Apex Court expounded the following legal incidents of trusteeship:

• (i) Trustees cannot transfer their duties, functions & powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries (Sec. 48);
• (ii) A trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself (Sec. 46).
• (iii) A trustee cannot delegate his office or any of his functions except in some specified cases (Sec. 47).

Public Trust Depends on Charity and Donatins

Referring Sec. 14 of the Bombay Public Trust Act, 1950, it is observed in Khasgi (Devi Ahilyabai Holkar Charities) Trust, Indore v. Vipin Dhanaitkar,  2022-11 SCALE 1,  2022-17 SCR 173, as under:

• “A Public Trust invariably depends on charity done by individuals by donating immovable property or by making cash donations.”

Eventhough the above observation is made invoking Sec. 14 of the BPT Act, it is clear that it is a common law principle applicable to all Public Trusts.

Legal Obligations of Trustees to Administer and Give Effect to Objects of Trust

It is held further in Khasgi (Devi Ahilyabai Holkar Charities) Trust, Indore v. Vipin Dhanaitkar,  2022-11 SCALE 1,  as under:

• “Though in law, the assets and properties of a Public Trust vest in its Trustees, they hold the Trust property in a fiduciary capacity for the benefit of the beneficiaries of the Trust. They hold the property for giving effect to the objects of the Public Trust. A Trust property cannot be alienated unless it is for the benefit of the Trust and/or its beneficiaries. The Trustees are not expected to deal with the Trust property, as if it is their private property. It is the legal obligation of the Trustees to administer the Trust and to give effect to the objects of the Trust. …. There are statutory constraints on the power of the Trustees to alienate the property of a Public Charitable Trust. …. The Trustees are the custodians of Trust properties. The Trustees have a duty to safeguard the interests of the beneficiaries of the Public Trust. That is how, a provision in Public Trust Law, like Sec.  14 of the Public Trusts Act, is of importance. This provision seeks to protect the Trust property in the hands of the Trustees from unwarranted alienations.”  

Administration Should Not be Ultra Vires

The trustees are bound to administer the affairs of the trust to attain the objects[13] envisioned by the founder and in accordance with his directions laid down in the trust-deed; and the acts and actions of trustees ultra vires such objects or directions are void.  If a trustee fails to administer in accordance with the terms of the trust, it amounts to breach of trust.[14]

The basic principle of foundation of a trust cannot be changed.  Tudor on Charities[15] explained it as under:

• “When a charity has been founded and trusts have been declared, the founder has no power to revoke, vary or add to the trusts. This is so irrespective of whether the trusts have been declared by an individual, or by a body of subscribers, or by the trustees. “[16]

Fundamental principles upon which an association is founded are also not open to alter even for the majority of its members, unless such a power is specifically reserved. This principle laid down in Milligan Vs.  Mitchel,[17]Attorney General Vs. Anderson[18] and Free Church of England Vs. Overtoun[19] is referred to in Prasanna Venkitesa Rao Vs. Srinivasa Rao.[20]

Ultra Vires Acts, Void & Constitutes ‘Breach of Trust’.

A company is a juristic person. The actions and functioning of a company differ from that of a natural person who is free to act on his whims and fancies. The actions and functioning of a company are limited by its Memorandum of Association and Articles of Association.[21] A corporation, an association or a company has no inherent or natural common law rights. A company is competent to carry out its objects specified in the Memorandum of Association and cannot travel beyond the objects.[22] Any act of a company (save a case of indoor management) ultra vires its Memorandum and Articles of Association, even if backed by the Resolution of the Board of Directors, is void and not enforceable.[23]

These principles on doctrine of ‘ultra vires’ that are attached to companies and associations, equally apply to Trusts.[24]  Under law of trusts, such acts constitute  ‘breach of trust’.

Doctrine of Indoor Management

In MRF Ltd. Vs. Manohar Parrikar[25] our Apex Court discussed the concept of indoor management as under:

• “The doctrine of indoor management is in direct contrast to the doctrine or rule of constructive notice, which is essentially a presumption operating in favour of the company against the outsider. It prevents the outsider from alleging that he did not know that the constitution of the company rendered a particular act or a particular delegation of authority ultra vires. The doctrine of indoor management is an exception to the rule of constructive notice. It imposes an important limitation on the doctrine of constructive notice. According to this doctrine, persons dealing with the company are entitled to presume that internal requirements prescribed in memorandum and articles have been properly observed. Therefore doctrine of indoor management protects outsiders dealing or contracting with a company, whereas doctrine of constructive notice protects the insiders of a company or corporation against dealings with the outsiders. However suspicion of irregularity has been widely recognized as an exception to the doctrine of indoor management. The protection of the doctrine is not available where the circumstances surrounding the contract are suspicious and therefore invite inquiry. This exception to the doctrine of indoor management has been subsequently adopted in many Indian cases. They are B. Anand Behari Lal v. Dinshaw and Co. (Bankers) Ltd, AIR 1942 Oudh 417 and Abdul Rehman Khan and Anr. v. Muffasal Bank Ltd. and Ors, AIR 1926 All 497. “

Ultra Vires Contracts

A contract made by the directors of a company upon a matter not included in the Memorandum of Association is ultra vires. Such a contract does not become binding on the company, even if, afterwards, expressly assented to by the shareholders at a General Meeting, it being void in its inception.

An ultra vires contract by a company is analogous to and stands on the same footing as a contract by an infant and in which case there is total incapacity. Just like a consent decree founded on the fortitude of an incompetent minor is void and a nullity, a contract founded by an incompetent company is void and a nullity.[26] An agreement arrived at between the shareholders and directors of a company with respect to management of the affairs of the company, without being incorporated in the Articles of Association is not enforceable against the company.[27]  These principles are recapped in Ashbury Railway Carriage and Iron Co. Ltd. Vs. Riche.[28]

The principles in Ashbury Railway Carriage and Iron Co. Ltd. Vs. Riche[29]  have been followed by our Apex Court in A. Lakshmanaswami Mudaliar Vs. Life Insurance Corporation of India,[30] In Re Steel Equipment and Construction Co. (P) Ltd. etc.[31]

In A. Lakshmanaswami Mudaliar Vs. Life Insurance Corporation of India[32]it is observed as under:

• “A company is competent to carry out its objects specified in the memorandum of association and cannot travel beyond the objects.”

As to the applicability of doctrine of ultra  vires in relation to the contractual capacity of a Corporation or a Company, it is stated in Anson’s Law of Contract 24^th  Edition[33] as follows:

• “The contractual capacity of a Corporation incorporated by statute is limited by the fact that any act done by the Corporation outside its statutory powers is, at common law, Ultra Vires and void. Since the Corporation has no existence independent of the Act of Parliament which creates the Corporation or authorities its creation, it follows that its capacity is limited to the exercise of such powers as are actually conferred by, or may reasonably be deduced from, the language of the statute.  Thus a company incorporated under the Companies Act is bound by the objects listed in its  memorandum of association, for it is incorporated  for the purposes set out in the  memorandum. The company can make no contracts inconsistent with, or foreign to, those objects,  and if it does so, the contract so made is, at common law, void and unenforceable as being Ultra Vires the company.  The leading case on the application of  the ultra vires doctrine is Ashbury Railway carriage And Iron Co. Vs Riche (1875 LR 7 HL 653): A company was incorporated with  objects (set out in the memorandum of association)as follows: (i) to make, and sell, or  to lend on hire, railway wagons and carriages  and other rolling stock, (ii) to carry on the  business of mechanical engineers and general  contractors, (iii) to purchase, lease, work  and sell mines, minerals, land and buildings,  and (iv) to buy and sell as merchants, timber,  coal, metals, or other materials. The Company  contracted to assign to another company a  concession which it had bought for the construction  of a railway in Belgium.  The House of Lords held that the contract,  being related to the actual construction of  a railway, as opposed to railway stock, was  Ultra Vires the objects in the memorandum and  void. Even if the shareholders subsequently  ratified the contract, it could not thereby  be rendered binding on the company.”[34]

A. Ramaiya, in ‘Companies Act’ stated as under:

• “It is ultra vires for a company to act beyond the scope of its memorandum. Any attempted departure will be invalid and cannot be validated even if assented to by all the members of the company. By ultra vires is meant an act or transaction of a company, which, though it may not be illegal, is beyond the company’s powers by reason of not being within the objects of the memorandum is, so to speak, the area beyond which a company cannot travel. Ashbury Ry. Carriage Company v. Riche, (1875) 7 HL 653. An act beyond the objects mentioned in the memorandum is ultra vires and void and cannot be ratified. Dr. Lakshmanaswami Mudaliar v. Life Insurance Corporation, (1963) 1 Com LJ 248 : (AIR 1963 SC 1185)”.

These principles pertained to companies and associations, equally apply to Trusts.[35]

Breach of Trust Will Not Put An End to the Trust

In Agasthyar Trust Vs. CIT, Madras[36]our Apex Court quoted with approval the following passage of Madras High Court in Thanthi Trust Vs. ITO.[37]

• “If the trust had been really and validly created, any deviation by the founder of the trust or the trustees from the declared purposes would amount only to a breach of trust and would not detract from the declaration of trust. Therefore, the subsequent conduct of the founder in dealing with the funds of the trust long after the creation of the trust may not put an end to the trust itself.”

Ultra Vires Acts Cannot Be Ratified

The Articles of Association of a Company are contract between members and are binding not only on the members but also on the company.[38] It is not permissible for directors to act contrary to the powers conferred by the Articles. Any such action would be ultra vires the Articles, as also Section 10 of the Companies Act, 2013.[39]

Consequently, any action contrary to or in defeasance of these participatory rights or objects mentioned in the memorandum is ultra vires and void;[40] and for its inherent illegalities, the issue of ratification of such acts would not arise at all.[41]

Trustee is the Legal Owner for Limited Purpose

Under Common Law of India and as per the definition[42]  of trust in the Indian Trusts Act, 1882 the trustee holds the trust property as its legal owner.The properties ‘vest in the trustee’, or he holds the same, for the limited purpose of administration and management.[43] He has the obligation to use this ownership for the benefit of the beneficiaries.[44] It is not the legal (or trust) ownership referred to in English law. In English law, when ‘legal ownership’ is referred, it denotes: ‘legal estate’; one of the ownerships bifurcated from the ‘duel ownership’.

Similarly, the Indian Trusts Act does not refer to ‘beneficial ownership’ with the beneficiary; it refers to ‘interest’ or ‘beneficial interest’ alone with the beneficiary[45]. In English law, when ‘beneficial interest’ is referred, it denotes: ‘beneficial ownership’ or ‘beneficial estate’; the other bifurcated ownerships in the ‘duel ownership’.

A founder can also be a beneficiary of a trust after its dedication. (But, he cannot claim any special right on that score, unless he reserved the same positively.) It is observed by the Kerala High Court in Mohammed Basheer Vs. Ahmed Kutty,[46] following the decision of the Privy Council in Chhatra Kumari Vs.  Mohan Bikram[47] and the definition of trust in the Indian Trusts Act, that, ‘unlike English law, in Indian law the owner of the trust property is the trustee, and beneficial interest of course is to be conveyed to the beneficiary’. Under Indian law, beneficiaries have beneficial interest (pertaining to beneficiaries) alone; and it is not ‘proprietary interest’ or ‘beneficial interest pertaining to owner’. ‘Beneficial interest pertaining  to the owner’ is also dedicated ‘in the trust’ when a trust is established.

Property Vests in Trustee; But No  ‘Proprietary Interest’

Under Indian law, beneficial interest pertaining to beneficiaries alone is with beneficiaries; and it is not beneficial interest pertaining to owner. ‘Beneficial interest pertaining to the owner’ is also ‘dedicated’ in favour of the ‘trust’ when a trust is established.

As pointed out in WO Holdsworth  Vs. State of Uttar Pradesh[48]  by our Apex Court the Indian Trusts Act, 1882 declares legal ownership with trustees while defining trust and beneficial interest in Sec. 3. Trust is defined to be an obligation annexed to the ownership of property for the benefit of another, the ‘beneficial interest’ as the beneficiary’s right against the trustee as owner of the trust property.

Sec. 6 of the Indian Trusts Act lays down that transfer of the dedicated property to the trustee is essential for creation of a trust. Inasmuch as the vesting of ownership of trust property with the trustee is under an obligation to manage it for the benefit of the beneficiaries (Sec 3, definition of trust of in the Indian Trusts Act), it can be concluded that the trust properties vest in the (sole) ‘legal ownership’ of the trustees.[49]

Though legal or trust ownership[50] is ‘vested’ with the trustee, as in English law, in Indian law also, the trustee has no ‘proprietory interest’, inasmuch as the beneficial interest is ‘carved out’, or impressed upon, in the property itself.  In dealings with the world at large, the trustee personates or represents as the owner of the property.[51]

The Privy Council explained in M. E. Moolla Sons Vs Official Assignee of The High Court of Judicature at Rangoon (1936)[52]  that the beneficiary has no interest(proprietary interest) in immovable property because his right was only to call upon the trustees to carry out their trust, or because the distinction between legal and equitable estates did not as such exist in the law of India.

Sec. 10 and 75 of the Indian Trusts Act denotes ‘vesting of property in trustees’.

Sec. 10 of the Indian Trust Act, 1882 reads:

• 10. ….. Disclaimer of trust.—Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it, and such disclaimer shall prevent the trust property from vesting in him. A disclaimer by one of two or more co-trustees vests the trust property in the other or others and makes him or them sole trustee or trustees from the date of the creation of the trust.

Sec. 75 of the Indian Trust Act, 1882 reads:

• 75. Vesting of trust property in new trustees.—Whenever any new trustee is appointed under section 73 or section 74, all the trust property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee, as the case may require.

Trustee Must Exercise on His Own Judgment

A trustee cannot delegate the exercise of powers which he ought to personally perform. Although a trustee may listen to the opinions and wishes of others, he must exercise his own judgment. Thus a trustee for sale of property, cannot leave the whole conduct of the sale to his co-trustees. The reason for this proposition is that the settler has entrusted the trust property and its management to all the trustees, and the beneficiaries are entitled to the benefit of their collective wisdom and experience[53].

Fiduciary Capacity of Trustees of Religious Trusts

Because of the fiduciary position, liability of a Shebait or Mutawalli equates trustee.[54] Archakas[55] are also deemed to be in possession in a fiduciary capacity and as such they could not claim adverse possession.

In Balram Chunnilal Vs. Durgalal Shivnarain[56]  it was found that an appointed pujari, for the purpose of worship and of maintaining the temple, was a servant and he got possession of temple property in a fiduciary capacity and that he was estopped as long as he continued to be in possession in that capacity from asserting his own title. When a servant occupied or came into possession of property belonging to his employer he was nothing more than a licensee or a bailee. In a general sense it was also a trust.

Trustee has to Act Gratuitously

Trustee, under English Law, has to perform his duties gratuitously. No remuneration can be claimed from the trust property or income unless the terms of the trust do not allow it.  But that does not mean that the trustee has to meet the expenses from his pocket. He can charge actual expenses from the trust/property.

Indian Trusts Act , 1882 reads as under:

• 32.Right to re-imbursement of expenses.—Every trustee may re-imburse himself, or pay or discharge out of the trust property, all expenses properly incurred in or about the execution of the trust.
• 36. General authority of trustee.— A trustee may do all acts which are reasonable and proper for the realisation, protection or benefit of the trust property.
• 44. Power to several trustees of whom one disclaims or dies.—When an authority to deal with the trust property is given to several trustees and one of them disclaims or dies, the authority may be exercised by the continuing trustees.

West and Buhler in Digest of Hindu Law[57] states as under:

• “Even when no emoluments are attached to the office of a Shebait, he enjoys some sort of right or interest in the endowed property which has partially at least the characteristics of a proprietary right….. The Shebait’ spower to alienate the debutter property is very much limited and can be exercised only when there is a justifying legal necessity or benefit to the Deity; yet he can create derivative tenures in respect of the endowed property, which, even if not supported by legal necessity, cannot be impeached so long as he is alive and remains in office. The Shebait therefore has to some extent the rights of a limited owner.”

West and Buhler in Digest of Hindu Law[58]reads further as under:

• “Like the trustee in English law, a Shebait has to act gratuitously and he cannot charge the debutter estate for any remuneration on account of the time and labour he spends over his affairs. The position would certainly be different if there is a provision in the deed of dedication to that effect; or, in the absence of any deed of endowment, there is a usage sanctioning such remuneration to the Shebait. The law is well established that, in the absence of any provision in the deed of dedication or any usage to that effect, a Shebait has no right to take any portion of the income of the debutter estate nor even the surplus that remains after meeting the expenses of the deity. In this income would be included not merely the rents and profits of the debutter property but the offerings which are made to the deity by its devotees. “

Underhill in his treatise Law relating to Trusts and Trustees under the caption, Right to Reimbursement and Indemnity, it has been stated as under:

• “Trustee is entitled to be reimbursed out of the trust property all expenses which he has properly incurred having regard to the circumstances of each particular case but without interest unless he has paid an interest bearing claim in which case he stands in the shoes of the creditor by subrogation.”

Section 32 of the Indian Trusts Act, 1882 which provides that the trustee is entitled to get reimbursement out of the trust property all expenses properly incurred in relation to the execution of the trust property and for preservation of the trust property is a principle of the English law of Trusts which has been incorporated in the Indian Trusts Act. Therefore such principles in Sec. 32 of the Indian Trusts Act are applied to public trusts also.[59]

Trustee not to Benefit

It is the duty of the trustee to administer the trust solely in the interest of the beneficiaries. He is not permitted to place himself in a position where it would be for his own benefit or to violate his duty to the beneficiaries.[60]

Indian Trusts Act , 1882 reads as under:

• Sec. 50.  Trustee may not charge for services.—In the absence of express directions to the contrary contained in the instrument of trust or of a contract to the contrary entered into with the beneficiary or the Court at the time of accepting the trust, a trustee has no right to remuneration for his trouble, skill and loss of time in executing the trust.

Indian Trusts Act , 1882 reads as under:

• 51. Trustee may not use trust property for his own profit.—A trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust.

Appointment of Trustees Irrevocable

A dedication of property to a trust is irrevocable, and the rules, if any, laid down by the founder at the time of dedication regulating succession to the office of the trustee should also be deemed to be irrevocable unless the power of revocation is reserved by the grantor. The condition relating to the rule of succession of trusteeship forms an integral part of the dedication and formation of trust itself.[61]

Can a Foreigner be Appointed as a Trustee

Unless an enactment explicitly prevents, a foreigner can be a trustee of a trust in India. The Division Bench of the Madras High Court, in an appeal, Government of TamilnaduVs. K. Sevanthinatha Pandarasannathi,[62]upheld an amendment effected to the Tamil Nadu Hindu Religious and Charitable Endowments Act which barred non-citizens to be qualified to be trustees of any religious institution under Tamil Nadu Hindu Religious and Charitable Endowments Act. This appeal arose from the decision in K. Sevanthinatha Pandarasannathi Vs. Government of Tamilnadu.[63]Calling upon Article 14 of the Constitution of India, the Single Judgehad observed that there was no bar for a Christian or Muslim to be a Head of the Wakf or Church in India, even though he may happen to be a foreigner. The Division Bench, in appeal, pointed out that the State was not prevented from making a special provision with regard to Hindu Religious and Charitable Institutions, without making a similar provision for other Religious Minority Institution.

Trustee Cannot Renounce

Indian Trusts Act , 1882 reads as under:

• 46. Trustee cannot renounce after acceptance.—A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal Civil Court of original jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.

A person/trustee is not bound to accept the trust; but having once accepted, he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or under the authority of the trust deed itself.

Trustee Cannot Delegate

S. 47 of the Trusts Act reads as follows:

• 47. Trustee cannot delegate.—” A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.”

Section 48 provides:

• 48. Co-trustees cannot act singly.—”When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.”

Delegatus Non Potest Delegare (a delegate has no power to delegate, unless sub-delegation of the power is authorised by express words by the terms of the deed or necessary implication[64]) is a well-settled principle of law;[65] but, they can appoint a manager in the absence of any indication prohibiting the same or get him appointed through court. Our Apex Court held in Barium Chemicals Limited  Vs. The Company Law Board[66] that the maxim Delegatus Non Potest Delegare did not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority.

The trustee may be allowed to delegate his functions, in cases of necessity or with the consent of the entire beneficiaries if the beneficiaries are identifiable. Trustees can appoint servants or managers.[67] If manager appointed is one among the trustees, he acts as agent of other trustees. The principles arise in Sec. 46 and 47 of the Indian Trusts Act, which deal with renunciation and delegation of the powers and duties of the trustees, are applied to matters of public trust by our Courts, as they contain the common law principles of the universal rules of equity, justice and good conscience upheld by the English judges. Sec. 46 and 47 of the Indian Trusts Act make it clear that the fiduciary relationship, and duties[68] attached thereto, should not be allowed to be unilaterally terminated or varied, as it would be against the interests of society in general.

These principles would apply with equal force to servants and, in fact, to anybody who has entered on another’s property in a fiduciary capacity.[69]

Appointment and Succession of Trustees

Method of appointment of trustees and the mode of their succession are the matters for the author of the trust. If sought for, court will give effect to the same. In the absence of an instrument of trust, custom and usage will hold the field. Under Sec. 92 CPC, when the trustees fail to take administration of the trust, the designated court is destined to interfere in the appointment of new trustees if the trust deed is silent as to the appointment of the new trustees.

Under Hindu Law, when there is no provision in the deed of endowment about the succession of office of Shebait, or the succession provided therein comes to an end, the management and control of the property follows the ordinary rule of inheritance from the founder and passes to his heirs.[70] Where a founder does not provide for the management of the property, the right to nominate trustees remains vested in him until his death and continues to his heirs after him.[71]The property dedicated to a trust beingre-vested in the donor or his legal representatives when all the trustees failed to administer the trust, the Court would interfere for the purpose of appointing of trustees if only the legal representatives were not available or they do not take charge of the trust.[72]

Rights, Duties and Liabilities of Trustees in a Nut Shell

Trustee has all rights as a legal-owner of the trust property. It includes possession of the trust property. Rights enumerated under Chapter IV (The Rights And Powers of Trustee) of the Indian Trusts Act, in a nut shell, are the following:

• Sec.31. Right to title-deed.
• 32. Right to re-imbursement of expenses.
• Right to be recouped for erroneous over-payment.
• 33. Right to indemnity from gainer by breach of trust.
• 34. Right to apply to Court for opinion in management of trust property.
• 35. Right to settlement of accounts.
• 36. General authority of trustee.
• 37. Power to sell in lots and either by public auction or private contract.
• 38. Power to sell under special conditions power to buy-in and re-sell.
• 39. Power to convey.
• 40. Power to vary investments.
• 41. Power to apply property of minors, etc., for their maintenance, etc.
• 42. Power to give receipts.
• 43. Power to compound, etc.
• 44. Power to several trustees of whom one disclaims or dies.
• 45. Suspension of trustee’s powers by decree.
• The Duties and Liabilities of a Trustee:

The duties and liabilities of trustees include the following:

• voluntarily accept the position.
• must be aware of the responsibilities.
• faithfully discharge obligations, solely in the interest of the beneficiaries.
• should not use the trust property for his own profit.
• not to comingle trust property and personal property.
• cannot renounce without the consent of all of the beneficiaries or the court.
• do not delegate duties (even to a co-trustee) that would reasonably be required to personally perform.
• take reasonable care and caution when selecting agents and attorneys.
• if co-trustees, do not act unilaterally unless the duties are effectively divided.
• should not purchase or appropriate the trust property (even as an agent of a third person)
• act gratuitously (but, entitled reimbursement)
• if one trustee breaches, the other trustees to compel him to redress it.

Liabilities of a Trustee:

• personally liable for a breach of duties.
• beneficiaries can recover trust property if a trustee misappropriates or wrongfully disposes.
• beneficiaries can enforce the trust on the newly acquired property purchased utilising the proceeds of the wrongful sale.
• account to beneficiaries if they enforce the same.

The duties and liabilities of trustees enumerated under Chapter III (The Duties and Liabilities of Trustees) of the Indian Trusts Act, in a nut shell, are the following:

• 11. Trustee to execute trust.
• 12. Trustee to inform himself of state of trust property.
• 13. Trustee to protect title to trust property.
• 14. Trustee not to set up title adverse to beneficiary.
• 15. Care required from trustee: as carefully as a man of ordinary prudence. would deal with such property if it were his own
• 16. Convert perishable property.
• 17. Trustee to be impartial.
• 18. Trustee to prevent waste.
• 19. Keep clear and accurate accounts and information.
• 20. Investment of trust-money as directed in the Trusts Act.
• 20A. Power to purchase redeemable stock at a premium.
• 21. Mortgage of land pledged to Govt: Deposit in Govt. Savings Bank.
• 22. Sale by trustee directed to sell within specified time.
• 23. Liable for breach of trust.
• 24. No set-off allowed to trustee.
• 25. Non-liability for predecessor’s default.
• 26. Non-liability for co-trustee’s default.
• 27. Several liability of co-trustee.
• 28. Non-liability of trustee paying without notice of transfer by beneficiary.
• 29. Liability of trustee where beneficiary’s interest is forfeited to Govt.
• 30. Indemnity of trustees- Chargeable for such amounts actually received.

Trustees may Execute Title Deeds and Enter into Contracts

As explained in previous chapters, jurisprudentially, trust is neither an association of persons nor a juristic person.[73] The affairs of a trust have to be dealt with in the name of its trustees; and not in the name of the trust, it being not a legal person. The trusts are not authorised in the CPC to sue in their name, as allowed in the case of firms.[74]

Therefore, the proper way to execute title deeds or enter into contracts relating to matters of a trust is to execute the same by the trustees in their name for and on behalf of the trust. It must also be in accordance with the specific directions in the trust deed, if any.

All Trustees Should Act Jointly

Indian Trusts Act, 1882 reads as under:

• 48. Co-trustees cannot act singly.—When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust, otherwise provides.

The instrument of trust may provide that one or more trustees shall be managing trustees and where such provision is made, those who are empowered to act as managing trustees would be entitled to execute the duties of the office without the concurrence of the other co-trustees.

Lewin on Trusts reads as under:[75]

• “In the case of co-trustees of a private trust, the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee and therefore must execute the duties of the office in their joint capacity. Sometimes, one of several trustees is spoken of as the acting trustees, but the Court knows of no such distinction: all who accept the office are in the eyes of the law acting trustees. If anyone refuses or is incapable to join, it is not competent for the others to proceed without him, and, if for any reason they are unable to appoint a new trustee in his place under Section 36(1) of the Act, the administration of the trust must devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both, though such sanction or approval must be strictly proved.”[76]

No trustee can delegate his powers and duties to another trustee and any agreement to do so would be against the obligations he had undertaken, illegal and void.[77] But in the absence of such provision, all co-trustees must join in the execution of the duties of the office.[78]This principle applies both to Public and private trusts.[79]

In Kishore Joo Vs. Guman Behari Joodeo[80]it has been held that the trustees would join to file an application to execute the decree obtained on behalf of the idol of a temple. However, it was also observed that it was a settled law that it was Shebait alone who can file a suit. But in exceptional circumstances, persons other than Shebait can institute a suit on behalf of the idol. Our Apex Court in M/s. Shanti Vijay and Co. Vs. Princess Fatima Fouzfa[81] held as under:

• “The act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved.”[82]

Is Trusteeship a Property?

Shebaits and Mahants have proprietary interest in the properties of the trust. Such a right to receive beneficial interest creates proprietary interest in them. But, in most other cases, the trustees are ‘bare trustees’ to administer the trust property and to perform their duties without any proprietary interest.[83]

Managing Trustees Would be Entitled to Execute the Duties

The instrument of trust may provide that one or more trustees shall be managing trustees and where such provision is made, those who are empowered to act as managing trustees would be entitled to execute the duties of the office without the concurrence of the other co-trustees. But in the absence of such provision, all co-trustees must join in the execution of the duties of the office.[84]

In JP Srivastava and Sons Ltd. Vs. Gwalior Sugar Co[85] it is held by the Supreme Court as follows:

• “Therefore, although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all:
• (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees;
• (2) where there is express sanction or approval of the act by co-trustees;
• (3) where the delegation of power is necessary;
• (4) where the beneficiaries competent to contract consent to the delegation;
• (5) where the delegation to a co-trustee is in the regular course of the business,
• (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly.”

Doesn’t Revert Even If Trustee Refuses to Accept Office

It is an established principle of equity jurisprudence that a trust never fails even if there is no trustee;[86] that in proper cases the court enforces trust; and that the beneficiaries can enforce the trust. The property does not revert to the settlor or his heirs. Dr. BK Mukherjea, J. on The Hindu Law of Religious and Charitable Trusts reads as follows:

• “The trust itself does not fail. Only the property ceases to vest in the trustee who refuses to accept the office. The person in possession of the property undertakes the obligation in the nature of trust. The property does not revert to the representatives or the heirs of the settlor testator who has already divested himself of the title and interest in the property by creating a valid and complete trust. Refer to Narasingha Charan Vs.  Radha Kant, ILR 1950 Cut 374. But compare Robson Vs.  Flight (1865) 4 De G. J. & Subject matter 608 with Mallot Vs. Wilson (1980) Ch 494. In the latter case it was held that where all the trustees disclaim, the property reverts in the disposer, or if he is dead, in his legal representative, who becomes, by operation of law, the trustee thereof for the purpose of the trust. In the former case, it was held that so far as the trust itself is concerned, the disclaimer by a trustee or by all the trustees does not have the effect of avoiding the trust. That is, the beneficiaries can enforce it, or the object of the trust can be enforced where beneficiaries are not capable of suing”[87]

Trustee Cannot Claim Adverse Title

See Chapter: Breach Trust and Removal of Trustees

Accounting by Trustees

Indian Trusts Act , 1882 Sec. 19 and 23 read as under:

• 19. Accounts and information.—A trustee is bound (a) to keep clear and accurate accounts of the trust property, and (b) at all reasonable times, at the request of the beneficiary to furnish him with full and accurate information as to the amount and state of the trust property.
• 23. Liability for breach of trust.—Where the trustee commits a breach of trust, he is liable to make good the loss which the trust property or the beneficiary has thereby sustained.

No trustee can get a discharge unless he renders accounts of his management even when there is no allegation of misfeasance, malfeasance and nonfeasance and also gross negligence Courts have discretion in regard to the fixing the period of accounting in a suit for accounting against a trustee of a charity. [88]

In Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddi[89] new trustees alleged misfeasance, malfeasance and non-feasance and also gross negligence against former trustees. On the questions whether the present trustees can demand rendition of account from the ex-trustees in respect of their management without alleging against them any acts of negligence or willful default and, if so, whether there was a bar to the maintainability of a suit for the relief of rendition of accounts in a civil court, it was observed by our Apex Court that  it was ‘common place that no trustee can get a discharge unless he renders accounts of his management’ and that this liability was irrespective of any question of negligence or wilful default. They are, therefore, held liable to render accounts of their management to the present trustees.

When Estate of a Deceased Trustee Liable

In Gore-Browne, Handbook of Joint Stock Companies,[90] it is stated:

• “In the case of the death of a director his estate remains liable for any breach of trust he may have committed (including any wrongful dealing with the company’s property, such as a payment of dividend out of capital or sale of its assets at an undervalue).”

An action for misrepresentation or negligence survives against the personal representatives of deceased director. In Halsbury’s Laws of England[91] it is stated:

• “A director who has misapplied or retained or become liable or accountable for any money or property of the company, or who has been guilty of any breach of trust in relation to the company must make restitution or compensate the company for the loss. Where the money of the company has been applied for purposes which the company cannot sanction, the directors must replace it, however honestly they may have acted. The estate of a deceased director has always been liable for his breaches of trust.”

‘Cy pres’ Doctrine

When it is found by the court that the particular mode of charity, indicated by the donor, cannot be carried on for impossibility or impracticability, the court will execute and accomplish the donor’s intention applying ‘cy pres’ doctrine.  It is applied where from lapse of time or change of circumstances it is no longer possible to apply the property left by the founder or donor in the precise way in which it was directed to be applied.[92] It is based on the principle that the court is the protector of all charities;[93] and that the court will not allow to fail a validly created trust or objects of foundation. 

Invoking ‘cy pres’ doctrine the court will apply the property of the Trust to a charitable purpose ‘as nearly as possible’[94] resembling the original Trust. Besides physical impossibility, becoming the trust valueless, owing to attendant circumstances, also invites application of cy pres doctrine[95].

The trustees are bound to carry out the directions of the author under Sec. 11 of the Trusts Act and the only way in which the directions of the testament may be varied is by applying ‘cy  pres’ doctrine.

Charitable and Religious Trusts Act, 1920

This Act permits ‘any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature’ to apply “ for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property”.

Following are the important provisions.

• “2. Interpretation. — In this Act, unless there is anything repugnant in the subject or context, ‘the Court’ means the Court of the District Judge or any other Court empowered in that behalf by the State Government and includes the High Court in the exercise of its ordinary original civil jurisdiction.
• 7. Powers of trustee to apply for directions.—
• .(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon:
• Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
• (2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction hereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the person interested in the trust, or to be published for information in such manner, as it thinks fit.
• (3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
• (4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.

9. Savings.— No petition under the foregoing provisions of this Act in relation to any trust shall be entertained in any of the following circumstances, namely:—

• .(a) if a suit instituted in accordance with the provisions of section 92 of the Code of Civil Procedure 1908 (5 of 1908), is pending in respect of the trust in question;
• (b) if the trust property is vested in the Treasurer of Charitable Endowments, the Administrator General, the Official Trustee, or any Society registered under the Societies Registration Act, 1860 (21 of 1860); or
• (c) if a scheme for the administration of the trust property has been settled or approved by any Court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.
• 12. Barring of appeals.— No appeal shall lie from any order passed or against any opinion, advice or direction given under this Act.”

Court is Guardian or Protector of All Public Trusts

In Sennimalai Swamy Madam Trust, Palani v. NIL, 1999-3 CTC 390 it is observed as under:

• “10. In view of these decisions, it has to be held that petitioner is competent to file an application before lower court seeking opinion. Unless Court finds that the opinion cannot be given since there are complicated facts or question of law is to be decided, it may not be proper on its part to refuse to give opinion.  After all, Court is guardian or Protector of all public trusts and it cannot refuse to give its opinion, when the same is sought for by a Trustee.” (Avoch Thevar v. Chummar, AIR 1957 Ker 171, In Re Birla Jankalyan Trust, AIR 1971 Cal. 290, In Re Dhanalat, AIR 1975 Cal. 67, referred to)

Courts desist if Complicated Facts or Question of Law

In Avoch Thevar v. Chummar, AIR 1957 Ker 171, it is observed that serious questions of res judicata, estoppel, good faith etc. could not be adjudicated under Sec. 7 of the  Charitable and Religious Trusts Act, 1920. It is said as under:

• “6. …. “The Court under the section exercises what might be called its consultative jurisdiction, giving guidance to the trustee. The court is not, however, to grant sanction merely because it is applied for. The limitation is that the court will refuse to consider the matter if in its opinion the question is one not capable of summary disposal e.g. if it is one of the detail or difficulty. In any event the court will consider judicially the matters placed before it before disposing of the matter.”

This Kerala decision is followed in Hasan Bin Mubarak v. Chief Judge, City Civil Court, Hyderabad AIR 1999 AP 11, observing as under:

• “Section 34 of the Act contemplates only a summary disposal on non-controversial issues. The mental condition of a person being an important personal problem, the Court cannot dispose of the same in a summary manner. What the Court below has done was to examine 3rd respondent, who is alleged to be an insane person and give the opinion on the basis of her statement. Though Ex.R-1, certificate, alleged to have been given by a psychiatrist, was marked, the Court made no effort to examine the said doctor. Obviously, this could not have been done because the matter has to be disposed of in a summary manner. Thus, it is evident that the advice that was sought for by the trustee required a determination on contentious facts and the jurisdiction of the Court under section 34 being only in the nature of giving guidelines or directions without entering into the merits, the application ought not to have been entertained by the Court. The trustee might have got a valid and satisfactory opinion had he approached a qualified medical man or the Court in a properly instituted suit.
• 23. In Avoch Thevar case (supra) following the decision in Armugan Chetty vs. Raja Jagaveera ILR 28 Madras 444, it was clearly held that while providing the trustees a right to apply to the Court for opinion to the Management and the Members, Section 34 embodied at the same time, a limitation governing the questions to be asked viz. that there should not be hypothetical and any questions of details or difficulty or importance, not proper in the opinion of the Court for summary disposal……” (quoted in Ashok Kumar Kapur VS Ashok Khanna, AIR 2007 SC  6; 2007-5 SCC 189)

Avoch Thevar v. Chummar, AIR 1957 Ker 171, is followed in P. D. Jaiswal v. Dwarikadhish Temple Trust, 2006 2 ADJ 680; 2006 3 AllLR 21; 2006 3 AWC 2823 saying as under:

• “39. The last strand of Mr. Ravi Kant’s arguments was a Kerala Division Bench decision given in the case of Avoch Thevar v. Chummar, A.I.R. 1957 Ker 171, which was delivered for the Court by Hon’ble Mr. Justice Varadaraja lyengar. With the greatest of respect, it is a beautiful learned judgment which should be read by any reader of this judgment and we do not set out the materials collected therein simply because we cannot do it better or in a briefer way. We respectfully referred the reader to paragraph-6, 7, 8 and 9 of the said judgment.
• 40. Following the said judgment and the authorities quoted there, which are fully persuasive in our respectful opinion, we must opine that a decision under Section 7 of the 1920 Act is not to be given at all by the District Court in matters which are seriously disputed or contested, or which required difficult decisions on questions of fact or law,”

Appointment of Manager by Trustees or Courts

A public trust is perpetual. Rule against perpetuities does not apply to it. It is the onerous duty of the persons entrusted with such endowment, to carry out the objectives of this entrustment. It can never be put to an end through its nature may be changed.[96] If entrustment is to any juristic person, mere absence of a manager would not negate the existence of a juristic person.

The Supreme Court held in SGPC Vs. Som Nath Dass[97] that the identity of an endowment or juristic person is not depended on the appointment of a manager. It may be proper or advisable to appoint such a manager while making any endowment but in its absence, it may be done either by trustees or courts in accordance with law. Mere absence of a manager does not negative the existence of a juristic person.

The Rights and Liabilities of the Beneficiaries

Indian Trusts Act, 1882 permits the beneficiaries, as a whole, who are competent to contract, to do, act or perform the following matters, as stated in those sections.

• Sec.11. Modify the purpose of the trust and the directions for management.
•          23.  Acquiesce a breach of trust of trustee.
•          46.  Allow the trustee to renounce.
•          47.  Allow the trustee to delegate his office or any of his duties.
•          56.  Require trustee to transfer the trust property to them, or to another.
•          58.  Transfer the interest of beneficiary.
•          62.  Ratify the sale to the trustee.
•          71.  Discharge the trustee.
•          77.  Allow to extinguish trust.
• 78.  Revoke the trust.

Chapter VI of the Indian Trusts Act speaks the rights and liabilities of the beneficiaries. The following are substance of such enumerated rights and liabilities in the Act:

• 55. Right to rents and profits.—The beneficiary has a right to the rents and profits of the trust property.
• 56. Right to specific execution.—The beneficiary is entitled to have the intention of the author of the trust specifically executed.
• Right to transfer of possession.—where thebeneficiaries may require the trustee to transfer the trust property to them, or to such person as they may direct.
• 57. Right to inspect and take copies of instrument of trust accounts, etc.—
• 58. Right to transfer beneficial interest.—The beneficiary may transfer his interest and dispose of such interest.
• 59. Right to sue for execution of trust.—Where no trustees are appointed or all the trustees die, disclaim or are discharged, the beneficiary may institute a suit for the execution of the trust.
• 60. Right to proper trustees.—The beneficiary has a right (subject to the provisions of the instrument of trust) that the trust property shall be properly protected and held and administered by proper persons and by a proper number of such persons.
• 61. Right to compel to any act of duty.—The beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty and restrained from committing any breach of trust.
• 62. Wrongful purchase by trustee.—Where a trustee has wrongfully bought trust property, the beneficiary has a right to have the property declared subject to the trust or re-transferred by the trustee.
• 63. Following trust property into the hands of third persons.—Where trust property comes into the hands of a third person inconsistently with the trust, the beneficiary may institute a suit for a declaration, that the property is comprised in the trust.
• Where the trustee has disposed of trust property, the beneficiary has rights as nearly as may be the same as his rights in respect of the original trust property.
• 64. Saving of rights of certain transferees.—…
• 65. Acquisition by trustee of trust property wrongfully converted.—Where a trustee wrongfully transfers trust property and afterwards himself becomes the owner of the property, the property again becomes subject to the trust.
• 66. Right in case of blended property.—Where the trustee wrongfully mingles the trust property with his own, the beneficiary is entitled to a charge on the whole fund for the amount due to him.
• 67. Wrongful employment by partner-trustee of trust property for partnership purposes.—If a partner, being a trustee, wrongfully employs trust property in the business, other partners having such notice of the breach of trust are jointly and severally liable for the breach of trust.
• 68. Liability of beneficiary joining in breach of trust.—Where one of several beneficiaries joins in committing breach of trust, the other beneficiaries are entitled to have all his beneficial interest impounded as against him
• 69. Rights and liabilities of beneficiary’s transferee.—Every person to whom a beneficiary transfers his interest has the rights of the beneficiary in respect of such interest at the date of the transfer.

Removal of Trustees on Breach of Trust

See Chapter: Breach of Trust and Removal of Trustees.

All Trustees Together to File the Suit for Eviction

See Chapter: How to Sue trust and Trustees

In our law, trustee alone is the ‘landlord’ to file a suit for eviction as held in Kansara Abdulrehman Sadruddin  Vs. Trustees of the Maniar Jamat Ahmedabad.[98] It is observed in Kishorelal Asera  Vs. Haji Essa Abba Sait Endowments[99] as under:

• “Order XXXI, Rule 1 C.P.C. dealing with the representation of beneficiaries in suits concerning property vested in Trustees says that the Trustee shall represent the persons so interested. …. Therefore, in a suit for evicting the tenant from the Trust premises, the Trustees jointly or any one of them, when authorised in that behalf by the rest of them, can maintain the suit.”

TRUST in Transfer of Property to MINORS, under the TP Act

Transfer for benefit of Unborn Person

(Similar provision in Section 113 of the Indian Succession Act, 1925)

Sections 13 and 14 of the TP Act are worded in a tiresome manner. It is too difficult to understand the purport of the Section, in its correct perspective, without a thorough exploration. Both these sections says about transfer of property to unborn persons.

Sec. 13 of the TP Act reads as under:

• 13. Transfer for benefit of unborn person. Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.

As articulated in Sec. 5 of the Transfer of Property Act, ‘Transfer of Property’ must be by a living person, to another living person. Sec. 13 is an enabling provision to transfer property to an unborn person. It directs that following conditions must be satisfied for a valid transfer to an unborn person:

• (i) Prior-Interest must have been created in ‘someone’:
  • The interest in the property (referred to in this Section as prior interest), for the period between the transfer and the birth of the unborn person, must have been created (in someone), by the same transfer.
    • [The aforesaid proposition can be deduced from the clause in Sec. 13 – “subject to a prior interest created by the same transfer“];
• (ii) Whole of the remaining interest of the transferormust be created in the unborn person:
  • The ‘prior-interest-holder’ must have been directed (by the transferor) to create/transfer the whole remaining interest (directly) to such unborn person.
  • That is, if a life-interest stands created, or continues, on another, (even after the birth of the said ‘unborn’) it will not ‘take effect‘.
    • [These can be deduced from the clause in Sec. 13 – “the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property”; and from the illustration in Sec. 13.]

The Illustration in Sec. 13 of the TP Act reads as under:

• Illustration: A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.

“For the benefit of” – Implies ‘TRUST’

Sec. 13 begins with the words – “Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence”. The words ‘for the benefit of‘ definitely brings-in the concept of ‘trust’.

Prior interest holders will be ‘TRUSTEES’ for unborn persons, if not directed otherwise

The transferor of property to the unborn person is free to provide ‘beneficial enjoyment’ to the ‘prior-interest-holder’. If it is not so specifically provided, going by the principles of law, the prior-interest-holder (in Sec. 13) will be a mere ‘trustee’ for the unborn person (the beneficiary).

• Note: Trust is ‘an obligation’ upon the trustee to administer the trust property, as if he is its owner and as required by the author, for the benefit of the beneficiaries.

“TRANSFER OF PROPERTY” and ‘CREATION OF INTEREST’ in Sec. 13

It is clear that the words, ‘transfer of property‘ and ‘an interest created therein’ are used in Sec. 13 to denote two different notions. Transfer of property to the ‘unborn’ should take place on his/her birth. Creation of interest can be done only on attaining his/her majority.

Upto the birth of the ‘unborn’, the enjoyment can be had by two ways:

• One, creating beneficial enjoyment on anyone.
• Second, creating a trustee (for administering the property; and if so provided by the transferor, he would continue upto the majority of the ‘unborn’).

Even if no trustee is appointed, and it does not come out from the deed of transfer as to who should be the trustee, the court will appoint a trustee, on the principle – ‘no trust will fail for want of trustees’.

Transfer to Unborn can only be made by a Machinery of Trust

Mulla, on The Transfer of Property Act, in commentary to Sec, 122, Gifts, it is stated:

• “A gift may be made by the equitable machinery of a trust; and the interposition of the trustees enables a gift to be made to a person not yet in existence and, therefore, incapable of being the donee of a direct gift.” (See: Controller of Estate Duty, Bombay v. Bhagwandas Velji Joshi, 1983-139 ITR 316 (Bom); 1981-6 TAXMAN 202; Saraswathi v. Devaki Amma, ILR 1986-1 Ker 550; 1985 KLT 217.)

In Mathen Mathew v. Kunjika Bharathi: AIR 1968 Ker 12, it is held as under:

• “18. The gift can be to the named donees as representing the group of persons composed of the wife and children including children to be born. Such a gift can be made only through the machinery of a trust, the named donees holding as trustees for themselves and the other beneficiaries.”

In The Commissioner of Income Tax v. Brig. Kapil Mohan, [2001] 252 ITR 830: 118 Taxman 430 (Delhi ) observed as under:

• “5. A transfer cannot be made directly to an unborn person, for the definition of transfer in Section 5 is limited to living persons. Such transfer can only be made by the machinery of trusts. Possibly, to express this distinction, the expression “for the benefit of” has been used, since trustees being the transferees hold the property for the benefit of the unborn person.”

The Madras High Court in T Subramania Nadar v. T Varadharajan, AIR 2003 Mad 364, pointed out as under:

• “12. Under Section 13 of Transfer of Property Act transfer cannot be made directly to an unborn person as the definition of transfer in Section 5 of Transfer of Property Act is limited to living persons. The transfer in favour of an unborn person can be made by a machinery. It is intended to express this distinction by the words “for the benefit of“, the trustees being the transferees who hold the property for the benefit of the unborn persons. The estate must vest in some person between the date of the transfer and the coming into existence of the unborn person. The interest of the unborn person must therefore be in every case preceded by a prior interest. Section 13 says that the interest of the unborn person must be the whole remainder.” 

Sec. 13 does not specifically refer to Prior Interest “HOLDERS”. Why?

• The (main) object of this section is to provide – ‘whole remainder interest … in the unborn person‘.
• The creation of interest, in a prior interest HOLDER, for the period between the transfer and the birth of such unborn person, is an inevitable coincident.
• The prior interest HOLDER may be a person who is entitled for ‘beneficial enjoyment’; or, he may be a mere trustee, not entitled for ‘beneficial enjoyment’. In either case, the ‘the whole of the remaining interest‘ must have been directed to be vested in the (unborn) person (when he born).
• For the above, only an indication as to creation of prior interest was sufficient.

Sec. 14. Rule against perpetuity – Analysed.

(Similar provision in Section 114 of the Indian Succession Act, 1925)

Sec. 14 of the TP Act reads as under:

• 14. Rule against perpetuity. No transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.

Sec. 14 of the TP Act lays down the following:

• Property can be transferred to an unborn person.
• Sec. 14 basically declares the maximum period (perpetuity period) for creating an interest in an unborn person as regards an immovable property.
• For transferring property to an unborn person, such (unborn) person must have born within the life-time of ‘one or more persons’ named in the transfer deed (who must be one living at the date of such transfer).
• The interest in the property can be created in favour of such (unborn) person only on attaining majority by such (unborn) person (i.e., 18 years).
  • Therefore, the maximum period (perpetuity period) for creating the interest in the property in favour of such (unborn) person will be the remaining (after transfer) ‘life-time‘ of such ‘one or more persons‘ (who were living at the date of such transfer) plus (+) the ‘minority’ of such (unborn) person (i.e., 18 years).
  • It is clear – such (unborn) person must have born at least on the day of death of such ‘one or more persons‘.
• Sec. 14 allows the transferor to name any ‘one or more persons‘ whose ‘life-time’ is to be taken into consideration for Sec. 14.
• Who are such ‘one or more persons‘ has to be inferred from the transfer deed.
• As stated in Sec. 13, the interest in the property, for the period between the transfer and the birth of such unborn person (referred to as prior interest), must have been created in ‘some’ (prior interest) holder.
  • Note: The prior interest holder in Sec. 13 need not necessarily be the ‘one or more persons‘ stated in Sec. 14.

G. Ramakrishniah v. Dasaratharama Reddiar, AIR 1970 Mad 484 ( Natesan, J.), vividly explains these matters, as under:

• “The perpetuity period under Section 14 of the Act consists of the lifetime of one or more persons living at the time the transfer takes effect, and the further period of the minority of a person in existence at the close of the person living at the time of the transfer. ….. Section 14 of the Act however does not place any restriction as to who can be the living person whose existence can postpone the vesting. It allows the settlor to use any life for the purpose…… It may be any person or any number of persons, but the person or persons must be living at the date of such transfer. True, one must infer from the document itself the person or persons whose life has to be considered.”

Status of the ‘one or more persons‘ whose ‘life-time’ is to be taken into consideration

• As stated earlier, the prior interest holder in Sec. 13 need not necessarily be the ‘one or more persons‘ stated in Sec. 14.
• They are not ‘trustees’ inasmuch as no property is entrusted for their administration, and no obligation is casted upon them.

Therefore, they are persons merely chosen by the transferor of property (to an unborn), for the purpose of Sec. 14.

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[1]      Sk. Abdul Kayum  Vs. MullaAlibhai: AIR 1963 SC 309;

Uttar Pradesh Vs. BansiDhar: AIR 1974 SC 1084;

BaiDosabai  Vs.  MathurdasGovinddas: AIR 1980 SC 1334.

[2]      AIR 1963 SC 309

[3] Sec. 11 of the Indian Trusts Act, 1882.

[4]      Pratap SinghjiVs. Charity Commissioner: AIR 1987 SC 2064.

M R Goda Rao Sahib Vs. State of Madras: AIR 1966 SC 653.

See also: Ram Charan Das Vs. Mst. Girjanandani Devi: AIR 1959 All 473;

S. Shanmugam Pillai Vs. K. Shanmugam Pillai: AIR 1972 SC 2069;

Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.

[5]      State Bank of India Vs. Spl Secretary: 1995-Supp. 4 SCC 30;

Bhavna Nalinkant Vs. Commr. Gift Tax: 2002-174 CTR 152: 2002-255 ITR 529;

Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106. 

[6]      Ramabai Govind  Vs. Raghunath Vasudevo: AIR 1952 Bom 106.

[7]      12th Edn., p.805

[8] 4^th Edition, Page 23

[9] Quoted in Arjan Singh Vs. Deputy Mal Jain: ILR 1982-1 Del 11.

[10] Underhill: ‘Law relating to Trusts and Trustees’:13th Edition, Page 23;

Quoted in Arjan Singh Vs. Deputy Mal Jain: ILR 1982-1 Del 11

[11] Balkrishna Vishvanath Vs. Vinayak Narayan: AIR 1932 Bom 191;

AP Shah Vs. BM Institute of Mental Health: 1986  GLH 262.

[12]    AIR 1963 SC 309

[13]   Commr of IT Vs. Rajmitra Bhailal: 1964-54 ITR 241

[14]    RP Kapur Vs. Kaushalya Educational Trust:1982-21 DLT 46; ILR  1982-1Del 801

[15]   6th Edn.  At p. 131,

[16]    Agasthyar Trust Vs. Commr IT Madras ; 1998 AIR (SCW)3945 ;1998-5 SCC 588

[17]    40 ER 852

[18]    (1888) 57 LJ Ch 543

[19]    (1904) AC 515:

[20]    AIR 1931 Mad. 12. See also: Inderpal Singh Vs. Avtar Singh: 2007-4 Raj LW 3547; 

        Allahabad High School Society Vs. State of UP: 2010-5 ADJ 734, 2010-82 All LR 83;

        P. Jayader  Vs. Thiruneelakanta Nadar Chinnaneela Nadar: ILR  1966-2 Mad 92.

[21]   Jaiveer Singh Virk Vs. Sir Sobha Singh: LAWS(DLH) 2020-3 120;

Maniuddin Bepari Vs. The Chairman Municipal Commrs, Dacca: 40 CWN 17

Scotte (P) Ltd. Vs. Corporation of Calcutta: 79 CWN 883

Sasanka Sekhar Panda Vs. State of West Bengal: 90 CWN 924.

[22]Lakshmanaswami Mudaliar Vs. LIC: AIR 1963 SC 1185

[23]   Jaiveer Singh Virk Vs. Sir Sobha Singh: LAWS(DLH) 2020-3 120.

[24]    Mool Chand Khairati Ram Trust Vs. Director of Income Tax: 2015-280 CTR 121: 2015-222 DLT 102: 2015-377 ITR 650: TAXMAN 2015-234 222

[25]2010-11 SCC 374

[26]Jaiveer Singh Virk Vs. Sir Sobha Singh: LAWS(DLH) 2020 3 120,

[27] V.B. Rangaraj Vs. V.B. Gopalakrishnan: (1992) 1 SCC 160;

Vodafone International Holdings Vs. Union of India: (2012) 6 SCC 613;

World Phone India Vs. WPI Group Inc.: (2013) SCC OnLine Del 1098.

[28] (1875) LR 7 HL 653 (DC)

[29] (1875) LR 7 HL 653 (DC)

[30] AIR 1963 SC 1185

[31] 1966 SCC OnLine Cal 44

[32] AIR 1963 SC 1185

[33]At pages 219 and 229.

[34]Quoted in: B. UmeshVs. Bangalore Development Authority: ILR1991 Kar 824.

[35]Mool Chand Khairati Ram Trust Vs. Director of Income Tax: 2015-280 CTR 121: 2015-222 DLT 102: 2015-377 ITR 650: TAXMAN 2015-234 222

[36] 1998 AIR (SCW)3945 ;1998-5 SCC 588

[37]Thanthi Trust Vs. ITO: 91 ITR 261

[38]Naresh Chandra Sanyal Vs. Calcutta Stock Exchange Assn: 1971-1 SCC 50

[39]Section: 10, Companies Act, 2013 reads as under:

10. Effect of memorandum and articles: (1) Subject to the provisions of this Act, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed by the company and by each member, and contained covenants on its and his part to observe all the provisions of the memorandum and of the articles.

(2) All monies payable by any member to the company under the memorandum or articles shall be a debt due from him to the company.

[40]Claude Lila ParulekarVs. Sakal Papers:  AIR 2005 SC 4074: 2005-11 SCC 73.

[41] Ashbury Railway Carriage and Iron Co. Ltd. Vs. Riche:  (1875) LR 7 HL 653 (DC)

Re. Birkbeck Permanent Benefit Building Society, (1912) 2 Ch 183;

Folloed in: Lakshmanaswami MudaliarVs. LIC: AIR 1963 SC 1185.

Gajadhar Prasad Choudhary Vs. State of Bihar: AIR 1984 Pat 105

Asma AlsamVs. State of UP: 2015- 4 ADJ 607: 2015 -4 AWC 3615: 2015-111 All LR 341;

Nirbhay Kapoor Vs. Kamero Technosys: 2019-8 ADJ 11: 2019-135 AllLR606,

[42]    Sec. 3 of the Indian Trusts Act, 1882.

[43]    Thiagesar Dharma Vanikam VS Comner. IT, Madras: AIR 1964   Mad 483

[44]   Kansara Abdulrehman SadruddinVs. Trustees of the Maniar Jamat: AIR 1968 Guj 184.

[45]   See: Ram Bharose Sharma Vs. Mahant Ram Swaroop: 2001 AIR- SCW  4062: 

Mitar Sain Vs. Data Ram: AIR 1926 All 7;

UrshottamVs. Kanhaiyalal: AIR 1966 Raj 70.

[46]    2011 (3) Ker L J 767.

[47]    AIR 1931 PC 196.

[48]   AIR1957 SC 887;

See also: Ramabai GovindVs. Raghunath Vasudevo: AIR 1952 Bom 106.

[49]   Chhatra Kumari Vs.  Mohan Bikram: AIR 1931 PC 196;

Kansara Abdulrehman Sadruddin  Vs. Trustees, Maniar Jamat: AIR 1968 Guj 184.

See also: Ramabai GovindVs. Raghunath Vasudevo: AIR 1952 Bom 106.

[50]   Salmond on Jurisprudence: 12^th  Edition, page 256.

[51] Govardhandhari Devsthan  Vs. Collector of Ahmednagar: AIR 1982  Bom 332.

Kapoorchand Rajendra Kumar Jain Vs. Parasnath Digambar: 2000-1 MPJR 199

[52] 1936  AIR PC 230

[53]    Shanti Vijay And Co Vs. Princess Fatima Fouzia AIR  1980 SC  17;

Also see: Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309;

Underhill’s Law relating to Trusts and Trustees, 12th Ed., PP. 434, 442-43;

Scot on Trusts, Vol. 2, p. 1033.

[54]    See: AIR 1952 Mad 613.

[55]    Padmanabha  Vs. Ramachandra Rao; AIR 1953 Mad 842

[56]    AIR1968 MP 81

[57] at page 199

[58] at page 248

[59]    Kishore Joo Vs. Guman BehariJooDeo: AIR  1978 All 1;

Bapalal Godadbhai Kothari Vs. Charity Commissioner Gujarat: 1966  GLR 825

[60]    Scott on Trusts Vol. II Sec. 170.

        The leading case on the subject is Kench  Vs. Gandford (1726) (White and Tudor Leading Cases in Equity page 693)

        Referred to in: Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[61]    Radhika Mohan Nandy v. Amrita Lal Nandy and another: AIR1947 Cal  301

Virbala K. Kewalram Vs. Ramchand Lalchandlaws: AIR 1997 Bom 46

[62]    2009 5 MLJ 571

[63]    2006-1 Mad LJ 134

[64]    Director General, ESI Vs. T. Abdul Razak AIR 1996  SC 2292.

Shanti Vijay And Co Vs. Princess Fatima Fouzia: AIR1980 SC  17;

Also see: Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309.

[65]    Sidhartha Sarawgi Vs. Board of Trustees For The Port of Kolkata  2014 (5) Scale 113. 2014-5 MadLJ  377: JT-2014-6-629. 

[66]    AIR 1967 SC 295

[67]    See: Vrandan Bhaichand Shah Vs. Parshottam Motichand Shah: 1927 Bom 75.

[68]    Bonnerji  Vs. Sitanath 49 IA 46:

Referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

See also: Sk. Abdul Kayum  Vs. MullaAlibhai: AIR 1963 SC 309;

State of Uttar Pradesh Vs. BansiDhar:  AIR 1974 SC 1084.

[69]    BalramChunnilal  Vs. DurgalalShivnarain: AIR1968 MP 81

[70]    Bhagauti Prasad Khetan Vs. Laxminathji Maharaj: AIR 1985 All 228.

[71]Sukbir Singh Vs.Nihal Singh: (1913) 18 IndCas 232 (All);

Bhabatarini Devi Vs.AshalataDevi:AIR 1943 PC 89;

Gauranga SahuVs.Sudevi Matha:AIR 1918 Mad 1278 

R Venugopala Reddiar Vs. Krishnaswamy:AIR 1971 Mad 262.

[72]    Vadivelu MudaliarVs.Kuppuswamy Mudaliar: 1972 (1) Mad LJ 265.

[73]    Government of the Province of Bombay Vs. Pestonji Ardeshir Wadia:  AIR 1949 PC 143

Duli Chand Vs. Mahabir Pershad Trilok Chand Charitable Trust: AIR 1984 Del 144;

Ramdass Trust Vs. Damodardas: 1967 Raj LW 273;

Referred to in: Sagar Sharma Vs. Ad Comr IT: 2011-239 CTR 169: 2011-336  ITR 611;  

See also: Thiagesar Dharma Vanikam Vs.  CIT: AIR 1964 Mad 483; 

Kishorelal Asera Vs. Haji Essa Abba Sait Endts: 2003-3 Mad LW 372: 2003-3 CCC367.

Thanthi Trust Vs. Wealth Tax Officer: 1989-78 CTR 54: 45 TAXMAN 121: 1989-178-ITR 28

Sambandam Died Vs. NatarajaChettiar: 2012-1 Mad LW 530. 

[74]    K. R. Rajan Vs. Cherian K. Cherian

K. Dhondoji Rao Vs Dominion of India, AIR 1957  Kar 94;

Devireddy Sulochanamma Vs. RebalaPattabhiramireddy Charities: AIR  2005 AP 64;

Union of India Railway Administration Vs. Eastern Match Co: AIR  1964 AP 172;

Goshir Gyaltsab Rinpoche Vs. Karmapa Charitable Trust: 2018-192 AIC 708.

[75]    Sixteenth Edition, page 181

[76]    Quoted in: Atmaram Ranchhodbhai  Vs. Gulamhusein Gulam Mohiyaddin, AIR 1973 Guj 113

Also See: Man Mohan Das Vs. Janki Prasad: AIR 1945 PC 23.

[77]    H.E.H. The Nizam’s Jewellery Trust (in re:): AIR 1980 SC 17

[78]    Atmaram Ranchhodbhai  Vs. Gulamhusein Gulam Mohiyaddin: AIR 1973 Guj 113

[79]   Atmaram RanchhodbhaiVs.Gulamhusein Gulam Mohiyaddin: AIR 1973 Guj 113. Also See: Man Mohan Das Vs. Janki Prasad, AIR 1945 PC 23.

[80]    AIR 1978 All 1 

[81]    AIR 1980 SC 17

[82]    Quoted in: JP Srivastava and Sons Vs. Gwalior Sugar Co.AIR2005 SC 83.

[83]    Bai Zabu Khima vs. Amardas Balakdas AIR 1967 Guj. 214;

Ram Nath Das Vs. Ram Nagina Choubey; AIR 1962 Pat. 481;

Sm. Angurbai Mullick Vs. Debabrate Mullick: AIR 1951 SC 293;

Banku B. Das Vs. Kashi N. Das: AIR 1963 Cal. 88;

TulsidasKalichand Vs. Commissioner of Income Tax: AIR 1961 SC 1023 .

[84]   Atmaram Ranchhodbhai Vs. Gulamhusein Gulam Mohiyaddin: AIR 1973 Guj 113;

Kishore Joo Vs. Guman Behari Joo Deo: AIR 1978 All 1;

Shanti Vijay and Co. Vs. Princess Fatima Fouzfa: AIR 1980 SC 17.

[85]AIR 2005 SC 83.

[86]    Yelandau Arasikere Deshikendra Sammthana  Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

[87]    Quoted in: Yelandau Arasikere Deshikendra Sammthana Vs.Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

See also: Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[88]    Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddi: AIR 1967 SC 781;

Attorney General Vs. Exetor Mayor: (1822) 37 ER 918;

Anyasayya Vs. Muthamma: AIR 1919 Mad 943;

Hariharabrahman Vs. Janakiramiah: AIR 1955 Andhra 18

[89]    AIR 1967 SC 781

[90]    Forty-First Edition, Page 374.

        Quoted in: V S RamaswamyIyer  Vs. Brahmayya and Company Official Liquidators Hanuman Bank: 1966 36 Comp. Cases270, 1966-1 Mad LJ 234.

[91]    Third Edition, page 307.

        Quoted in: V S RamaswamyIyer  Vs. Brahmayya and Company Official Liquidators Hanuman Bank: 1966-36 Comp. Cases 270, 1966-1 Mad LJ 234.

[92]Balkrishna Vishvanath Vs. Vinayak Narayan: AIR 1932 Bom 191;

AP Shah Vs. BM Institute of Mental Health: 1986  GLH 262.

[93]    C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296;

Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar14 .

[94]    In Re Man Singh and Others, AIR 1974 Del. 228

[95]    Hormusji Franji Warden, ILR 32  B. 214.

[96]    In Re Man Singh and Others, AIR 1974 Del. 228

[97]    Shriomani Gurudwara Prabandhak Committee, Amritsar Vs.   Shri Som Nath Dass: AIR 2000 SC 1421

[98]   AIR 1968 Guj 184.

See also: Ramabai GovindVs. Raghunath Vasudevo: AIR 1952 Bom 106;

Uma Ray Vs. Smt. Meghamala: AIR 1989  NOC. 166 (Cal);

Iswardas  Vs. Maharashtra Revenue Tribunal: AIR 1968 SC 1364;

Baisnab Das Sen Vs. Bholanath Sen: AIR 1986 Cal 118;

MM Nagalinga Nadar Sons Vs. Sri. Lakshmi Family Trust: (2001) 3 MLJ 523.

[99]   2003-3 Mad LW 372: 2003-3 CCC367

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

• Relevant provisions of Kerala Land Reforms Act (on Purchase Certificate,  Plantation-Exemption & Ceiling Area) in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Civil Rights and Jurisdiction of Civil Courts
• Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
• Best Evidence Rule in Indian Law
• Pleadings Should be Specific; Why?
• Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
• Modes of Proof of Documents
• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
• Res Judicata and Constructive Res Judicata
• When ‘Possession Follows Title’; When ‘Title Follows Possession’?
• Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
• Can Courts Award Interest on Equitable Grounds?
• Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
• Sec. 91 CPC and Suits Against Wrongful Acts
• The Law and Principles of Mandatory Injunction
• Declaration and Injunction
• Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
• Unstamped & Unregistered Documents and Collateral Purpose
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
• Adverse Possession: An Evolving Concept

Evidence Act

• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• Sec. 65B Evidence Act Simplified
• Oral Evidence on Contents of Document, Irrelevant
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Notary-Attested Documents: Presumption, Rebuttable
• Significance of Scientific Evidence in Judicial Process
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation

Constitution

• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Judicial & Legislative Activism in India: Principles and Instances
• Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
• Article 370: Is There Little Chance for Supreme Court Interference
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
• CAA Challenge: Divergent Views
• Secularism & Freedom of Religion in Indian Panorama
• Can Legislature Overpower Court Decisions by an Enactment?

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?

Easement

• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Club/Society

• State-Interference in Affairs of Societies & Clubs
• Election & Challenge in Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Suits By or Against Societies, Clubs and Companies
• How to Sue Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
• Vesting of Property in Societies and Clubs
• Legal Personality of Trustees and Office Bearers of Societies
• Incidents of Trust in Clubs and Societies.
• Management of Societies and Clubs, And Powers of General Body and Governing Body
• Court Interference in Election Process
• Clubs and Societies, Bye Laws Fundamental
• Juristic Personality of Societies and Clubs
• Societies and Branches
• Effect of Registration of Societies and Incorporation of Clubs
• Clubs and Societies: General Features

Trusts/Religion

• Philosophy of Idol Worship
• Vesting of Property in Public Trusts
• Dedication of Property in Public Trusts
• Is an Idol a Perpetual Minor?
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Public & Private Trusts in India.
• What is Trust in Indian Law?
• Incidents of Trust in Clubs and Societies
• Vesting of Property in Trusts
• Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional.