CONTENTS

Preface to the Sixth Edition

Acknowledgement
Preface to the Fifth Edition
Preface to the Third Edition
Preface to the Second Edition
Preface to the First Edition
Table of Cases
List of Abbreviations
List of Statutes Referred

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THE INDIAN TRUSTS ACT, 1882

1.

2.
3.

4.
5.
6.

7.

8.
9.
10.
11.

INTRODUCTION
Origin and Development of Trusts in England
Resulting Trust
Resulting, Implied or Constructive Trust
Unjust Enrichment: Approach to
Conception of Trusts in Hindu and Mohammedan Law
Summary of the Act
Scheme of the Act
Local Extent
Savings
Religions: Freedom and Religion: Constitution of India, Articles 25 and 26
Definition of Trust
Creation of Trust
Requisites of Valid Trust
Parties
Lawful Purpose
Capacity of Parties
Declaration
Subject-matter
Acceptance
Duties of the Trustee
Preliminary Duties
Positive Duties
Negative Duties
Rights and Powers of the Trustees
Powers
Liabilities of the Trustee
Rights of the Beneficiary
Liabilities of the Beneficiary
xi

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6
7
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9
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17
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The Indian Trusts Act, 1882

12. Vacating the Office of Trustee
13. Extinction of Trusts
14. Certain Obligations in the Nature of Trusts
Duties & Liabilities
Bona fide Purchasers
15. Charitable Trusts and section 11, Income-tax Act
16. Exemption under Stamp Act
17. Trusts under State Laws
Revisional Power of Commissioner of Endowments - Section 43 and
92 of A.P. Charitable and Endowments Act, 1987
Cv pres doctrine
Removal of Trustee - Section 6 of Nagpur Improvement Trusts Act, 1936
Temples of Society are Public - Section 3(15) of Orissa Hindu Religious
Endowments Act, 1952
Whether Temple is Private or Public - Section 44 of Orissa Hindu
Religious Endowments Act, 1951
Appointment of Interim Trustee - Section 7 of Orissa Hindu Religious
Endowments Act, 1970
Appointment of Non-Mandatory Trustee - Section 27 and 41 of
Orissa Hindu Religious Endowments Act, 1970
Hereditary Trustees - Determination - Section 3(vi) of Orissa Hindu
Religious Endowments Act, 1952
Excessive Delegation - Section 79 of Rajasthan Public Trusts Act, 1959
Registration - Section 7 and 8 of M.P. Public Trusts Act, 1951
Rajasthan Public Trusts Act (42 of 1959), section 73 - Bar to
Civil Courts Jurisdiction
Rajasthan Public Trusts Act (42 of 1959), section 77. Exemption from
provisions of Act.
Rajasthan Public Trusts Act (42 of 1959), section 52 - Temple
Rajasthan Public Trusts Act (42 of 1959), sections 52, 53 and 76
Rajasthan Public Trusts Rules (1962)
Rajasthan Public Trusts Act (42 of 1959), section 52 Constitution of
Management of Committee of Devasthan.
Maintainability of Suit - Section 22 of Rajasthan Public Trusts Act, 1959
Appointment of Headship - Section 26 of Tamil Nadu Religious and
Charitable Endowments Act, 1959
Deed of Settlement - Section 77 of Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1927
Religious Institution - Section 63 of Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1951
Religious Institution or private temple - Section 6(2) of Tamil Nadu
Hindu Religious and Charitable Endowments Act, 1959
Power of Commissioner - Section 60 of Tamil Nadu Hindu Religious
and Charitable Endowments Act, 1959
Maintainability of Suit regarding trusts - Sections 5 and 108 of
Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959

18
18
19
20
20
20
20
21
21
26
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Contents
Religious Endowment - Section 6(17) of Tamil Nadu Hindu Charitable
and Endowments Act, 1959
Tamil Nadu Hindu Religious and Charitable Endowments Act
(22 of 1959), Section 107, Freedom to Manage Religious Affairs Denominational Temple
Private Trust or Public Charity - Section 6(17) of Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959
Right of Priest to Offerings - Section 45 of Tamil Nadu Hindu
Religious Charitable Endowments Act, 1959
Temple whether Public or Private - Section 63 of Tamil Nadu
Hindu Religious and Charitable Endowments Act 1959
Hereditary Trustee - Section 6 of Tamil Nadu Religious and
Charitable Institutions Act, 1959
Minimum Strength Required for Functioning of Board - Section 73 of
Travancore-Cochin Hindu Religious Institutions Act, 1950
18. Trusts under UK Laws
Trusts: Pension Scheme
"Resulting Trust: Surrender of Lease"
Constructive Trust
Land Trust
Constructive Trust: Bribe
Common Intention of Trustees
Property Shared by Co-habitates
"Division of Property"
Purchase of Property in Joint Name
Creation of Trust by Prisoner's Property
Trust of Land
Perpetuity Point
Power of Advancement
Right to Property
Duty of Trustee
"Provision of Reverter"
"Joint Ownership"
"Right of pre-emption"
Co-owners: Approach by Court
Trust for Sale
Interest of Charge
Beneficial Interest in Matrimonial Home
Discretionary Powers of Trustees
Trustees are Arbiters of Beneficiary
Trust under Will
Power to Advancement of Benefit
Trust: Agent and Principal
Intension to Create a Trust
Trust: Prisoner's Private Cash Account

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48
49
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52
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54
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55
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The Indian Trusts Act, 1882

Implied Trust
Obligations Asserted by Trusts
Substitution of Trust
Trust: Electricity Supply Pension Scheme
Trust of land: Joint Interest
Creation of Trust: Prisoner's Property
Severance from the Beneficial Joint Tenancy
Status of Companies as Trustees
Power of Appointment of Trustee
Appointment of New Trustee
Constructive Trust: Conveyance into Joint Names
Property in Joint Names
"Settlement" and "Trust": Meaning of
Sole Ownership in the Dwelling House
Constructive Trustee: Liable to Account as Constructive Trustee
"Beneficial Ownership"
Trust - Pension Scheme
Sham Trust
Sham Trust: Diversion from Asset
Quistclose Trust
Constructive Trust: Fraudulent Claim
Reverter is Useful Encouragement to Charitably Minded Persons
Reverter is an Event not a Process
Purpose of the Trust
Adoption of New Trust Purpose
Resulting Trusts
Resulting Trust Solution
Beneficial Ownership
Secret Trust
Constructive Trustee and Constructive Trust
Express Power to Appoint a New Trustee
"Status of Companies as Trustee"

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66
66
66
66
67
68
68
68
68
68
70
70
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70
71
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71
72
72
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75
75
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76
76

CHAPTER I
PRELIMINARY
1. Short title, commencement
Local extent
Savings
1. Interpretation of the Act
2. Interpretation - Two Views
3. Applicability of the Act
4. Scope and Object
5. "Mutual Relations of the Members of an Undivided Family as Determined
by any Customary or Personal Law"

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Contents
Manager of Joint Hindu Family
Hindu Widow
Karanavan of Malabar Tarward
6. Private & Public Trusts - Distinction
7. "Public or Private, Religious or Charitable Endowments"
Meaning of "Charitable" Purpose
8. Trust of Charitable or Religious Nature - Hindu Law
9. Public and Charitable Trusts - Proof
10. Public and Charitable Trusts - English Law Applicable
11. Hindu and Mohammedan Religious Endowments
12. Doctrine of Cypres
13. Application of Cypres Doctrine to Charities
14. Failure of Purpose - Doctrine of Cypres
15. "Trusts to Distribute Prize Taken in War Among the Captors"
16. Constitution of Committee of Management of Public Trust - Discretion of
Government - Rajasthan Public Trusts Act, 1959
17. Devasthan Commissioner is Statutory Authority - Rajasthan Public
Trusts Act, 1959
18. Estoppel - Section 52 of Rajasthan Public Trusts Act, 1959
19. Res Judicata - Section 52 of Rajasthan Public Trusts Act, 1959
20. Jurisdiction of Civil Court against the Order of Commissioner under
section 6(3) of H.P. Hindu Public Religious Institutions and Charitable
Endowments Act, 1984
21. Finding of Commissioner regarding Temple Property - H.P. Hindu
Public Religious Institutions and Charitable Endowments Act, 1984
22. Revolution of Gift
23. Right of Trustee
24. Transfer of Duties of Trustees
25. Objection to Notice
26. Cause of Action
27. Use of Trust Fund
2. Repeal of Enactments
1. General
2. List of Amending Acts and Adaptation Orders

3. Interpretation-clause."trust"
"author of the trust"; "trustee"; "beneficiary"; "trust property";
"beneficial interest"; "instrument of trust"
"breach of trust"
"registered", expressions defined in Act 9 of 1872
1.
2.
3.
4.
5.

Origin of Trust in England

Nature of Trust
Trust for Whom
Conception of Trust - Hindu and Mohammedan Law
Conception of Trust - English and Mohammedan Law - Distinction

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xvi

The Indian Trusts Act, 1882

6. Legal and Equitable Estates not Recognised in India
7. Definitions of Trust
Coke's Definition
Justice Story's Definition
Lord Lindley's Definition
8. Ingredients
9. Constitution of Trust - Communication to Trustee - Test of Completeness
10. Validity of Trust
11. Credit entries - If Sufficient to Create Trust
12. Trust Deed and Evidence Act, 1872, section 75
13. Classification of Trusts
Simple and Special
Ministerial and Discretionary
Lawful and Unlawful
Trust Declared by Act of Parties and by Operation of Law
Express and Implied Trust
Constructive Trust
Resulting Trust
Executed and Executory Trust
Example of Executory Trust
Public or Private Trust
Debenture Trust
Security Deposit
Funds Deposited in Court by the Plaintiff
14. Religions and Charitable Purpose - Evidence - Necessity
15. Adding Trust to the List of Public Trusts
16. Bombay Public Trusts Act, 1950, sections 2(13) and (19)
17. Res Judicata - Canadian Position
18. Public and Private Trusts - Points of Similarity
19. Trust Distinguished from Certain Other Legal Relations
Trust and Contract
Trust and Agency
Trustee and Agent
Gift Without Consideration but Acted Upon
Gift: Love and Affection
Trust and Bailment
Trust and Power
Trust and Gift
Benami Transaction and Cestui que Trust
Trust and Settlement
Trust and Management of Property
Trust and Will
Trust and Executor
Obligations in Nature of Trust and Trust - Distinction

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Contents
20. Principles Governing Construction of Trust Deed
21. Courts Jurisdiction to Seek Disclosure of Trust Documents
22. Rectification of Trust Instruments - Three Tests/ Principles to be
Applied in Jersey
23. Exclusive Jurisdiction Clause in Trust Deed - Position in Jersey
24. Power of Charity Commissioner regarding Election of Trust Bombay Public Trusts Act (29 of 1950)
25. Right to Obtain Copies of and Inspect Trust Deed under Company Law
Effect of Changes Made by Companies (Amendment) Act, 1988
Debenture Trust Deed
Liability of Trustees for Debenture-Holders
Corresponding Provisions
When Business is not part of Security-effect of Recitals
"Debenture" - Meaning of
26. "Trustee"
27. Trustee as Cestui Que Trust
28. Promoter of a Company - Qunsi'-Trustee
29. Trustees - Chargeability under Wealth Tax Act, 1957
30. "Beneficiary"
31. Beneficial Ownership
32. Beneficial Interest - Transferability
33. Trust Property
34. Trust Properties in More than One State
35. Doctrine of Lex Situs
36. Trusts and Limitation Act, 1963
37. Sections 3, 55, 56 - Execution of Decree
38. Sections 3 and 95 of Trusts Act and section 185 of Companies Act, 1913
39. Suits Relating to Trusts and Trust Property-Limitation Period
40. Breach of Trust
41. Kerala Debt Relief Act, section 2(3)(c) - Liability lor Breach of Trust
42. Notice
Actual Notice
Constructive Notice
43. "Wilful Abstention from Inquiry"
44. Gross Negligence
45. Notice of Deed is Notice of its Contents
46. Notice to Agent is Notice to Principal
47. Notice to Trustees
48. Whether Registration is Notice
49. Whether Possession is Notice
50. Notice to Agent
51. Trustee de son tort
52. Trusts and Income-tax Act
53. The Doctrine of Promissory Estoppel and the Public Interest

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x v iii

The Indian Trusts Act, 1882

54. Jurisdiction to Try Civil Suit - Section 79 Bombay Public Trust Act, 1950
55. Insolvency of Trust
56. Beneficiary

137
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138

CHAPTER 11
OF THE CREATION OF TRUSTS
4. Lawful purpose
1. Principle of the section
2. Lawful Purpose
3. "Forbidden by Law"
4. Clause (a): Trusts Forbidden by Law
5. "Defeating the Provisions of Law"
6. Clause (b): Trust Created Defeating Provisions of Law
7. "Fraudulent"
8. Clause (c): Fraudulent Trust
Trust for Benefit of Creditors - Fraudulent
9. "Injury to Person or Property of Another"
10. Public Policy - Meaning
11. Public Policy - 2 Schools
12. Public Policy - Unruly Horse
13. Public Policy- Not Static
14. Clause (e): Trusts which are Immoral or Opposed to Public Policy
Trusts for Illegitimate Children
Trusts in Consideration of Immoral Relations
Trusts Offending Against Morality and Religion
Trusts in Restraint of Marriage
15. Trusts Offending Against the Law of Perpetuities
Restraint on Alienation
Insurance for Life
Trusts which are Unreasonable
Trust for Superstitious Purposes
16. Effect of Creating a Trust for Illegal Purpose
Rules in English Law
17. Trusts Partly Lawful and Partly Unlawful
18. Trust for Discharging Debt of Settlor-lawful
19. Surety Bond - Consideration Lawful - Trust Valid
20. Explanation
5, Trust of immovable property
Trust of movable property
1. Scope and Applicability
2. Trust of Immovable Property - Registration Necessary
3. Challenge to Registration of Trust by Revision - Maintainability Bombay Public Trust Act
4. De-registration of Trust

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Contents
5.
6.
7.
8.

xix

Importance of Place of Registration

157
Prescriptive Right
157
Registration of Trust without Hearing TenantValidity
157
Section 92 CPC and Rajasthan Public Trust Act, 1959 - Unregistered Trust Maintainability of Suit
157
9. Composition Deed
158
10. Compromise Decree
158
11. Transmutation of Possession
159
12. Instrument Creating Trust - Construction
159
13. Trust of Movable Property
159
14. Declaration of Trust - Divesting of Ownership
159
15. Trust under Mohammedan Law
160
16. Principle Underlying the Proviso
160
17. Agreements Contrary to Principles of Mohammedan Law
161
18. Section 10 of Limitation Act, 1908, and section 5 Trusts Act
162
19. Section 60, CPC, 1908, and section 5, Trusts Act, 1882
163
20. Agreement Contrary to Christian law
163
6. Creation of trust
163
1. Scope
165
2. Section 229, Companies Act, 1913 and section 6, Trusts Act, 1882
166
3. "Thereby"- Meaning of
166
4. Instrument of Trust - Almost Tripartite Transaction
167
5. Without Declaration - Whether Trust can be Implied?
167
6. Requisites - Three Certainties of Trust
167
7. Certainty of Words
168
Purpose to be Ascertained by Facts and Circumstances
169
Errors - True Significance of Instrument
169
Precatory Words to be Avoided
169
Death of Beneficiary - Effect
169
8. Certainty of Subject-matter
170
9. Certainty Objects
171
Certainty as to Beneficiary and Their Interest
171
Vague Direction of Testator
172
Ascertainment of Object and Subject of Trust
173
Donation Certificate - By Company in Liquidation
173
Deity
173
Discretionary Trust
174
Trust for Charitable Purpose
174
Memorandum of Compromise and Power-of-Attorney
175
Staff of Bank
175
10. Uncertainty - English Law
175
11. Trusts Void for Uncertainty as to Property and to Beneficiaries Distinction
176
12. Intention to Create a Trust
176

The Indian Trusts Act, 1882

13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.

Sham Transactions
Intention of Grantor Will Prevail
Necessity for Clear Intention
Necessity of Communication to the Beneficiary
"Transfers the Trust-property to the Trustee"
Different from English Law
Certain of Trust Deed - True Test
Supplementary Deed - Effect
Sham and Fictitious Deed
Usufructuary Mortgage and Sale Deed - No Trust Created
Instrument Creating Trust - Construction
Construction of Instrument of Trust - Purpose
Construction of Deed - Recitals Subordinate to Operative Part
Secret Trust
Intention - Oral Evidence
Oral Trust
Oral Evidence as to Secret Trusts in Wills
Trust Created by Will
Transfer of Property - Meaning
No Transfer of Ownership - No Trust Created
Trust - Transfer of Immovable Property to Oneself
Trustee is Owner of Trust Property
Express Trust
Implied Trust
Illusory Trust
Declaration of Trust
Evidence of Declaration to be Clear and Distinct
Credit Entries - Whether Declaration
Creation of Wakf - Mohammedan Law
Validity of Wakf
Section 3 of Mussalman Wakf Validity Act, 1913
Trust in Favour of Society
Death of Beneficiaries - Clause in Trust Deed - Appointment of Trustee
Concerned Deity Identifiable - No Ambiguity
Money in Dharmarda JQiata
Creation of Trust for Charity - Non-Performance of Charity - Effect
Gift by Disciples to Guru
Omission to Appoint a Trustee - Effect
Award Setting Terms of Trust - Not Bad
Sections 6 and 34 - Obligation in Nature of Trust
Sections 3 and 130 of Transfer of Property Act, 1882 and sections 5 and 6
of this Act
'
Specified Purpose - Limitation and Trust Act
Revocation of Trust and Validity

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Contents
54. Subsequent Conduct
55. Compromise Decree
56. Validity of Trust
57. Constitution of Trust - Communication of Trustee - Test of Completeness
58. Trustee and Cestui Que Trust - Same Person
59. Constitution of Tiust- Communication to Trustee
7. Who may create trusts
1. "Competent to Contract"
2. Capacity to Contract
3. Law: Section 11, Contract Act
4. Minor's Contracts
5. Majority Act
6. Mohammedan Personal Law
7. Burden of Proof
8. Minor's Fraud: Conversion of Contractual Obligation to Torts - Validity
9. False Representation by Minor - Equitable Remedy - Refund of
Consideration
10. Infant of the Age of Discretion - Remedy under Specific Relief Act
11. Minor's Liability to Refund Consideration
12. No Misrepresentation or Fraud by Minor - Effect
13. Suit by and Against Minors - Doctrine of Restitution
14. Age of Majority
15. Person of Sound Mind
16. Who May Create Trust
The Crown
Corporate Bodies
Infants
Alien
Lunatics
Convict
17. Trust of Hindu Joint Family Property
18. Sub-section (b): Trusts by Minor
19. "Principal Civil Court of Original Jurisdiction"
20. Object of Construing Instrument Creating Trust
21. Validity of Trust - Determination
8. Subject of Trust
1. Scope
2. "Trust"
3. "Beneficiary"
4. "Beneficial Interest"
5. "Beneficial Interest under a Subsisting Trust"
6. "Property Transferable to the Beneficiary"
7. Property Inalienable by Statute
8. Property Inalienable by Reason of Public Policy

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xxii

The Indian Trusts Act, 1882

9. Trust of Movable Property Situated Abroad
10. Chose-in-action
11. Property When Capable of Being Held on Trust

9. Who may be beneficiary

Disclaimer by beneficiary
1. Scope
2. "May"
3. "Beneficiary"
4. Meaning of Beneficiaries, in section 11, Bihar Agricultural Income-tax
Act, 1938
5. Who may be Beneficiary
The Crown
Unborn Child
Unborn Child - Australian Position
Corporation
Alien
Settlor and His Wife
Creditors - Weather Beneficiaries
6. Doctrine of Acceleration of Subsequent Interests

10. Who may be trustee

No one bound to accept trust
Acceptance of trust
Disclaimer of trust
1. Who may be Trustee
The Crown
Alien
Corporation
Married Women
Infant
Convict
Illegitimacy
Insolvent
Beneficiary as trustee
Executor
Donor
2. Acceptance of Trust
3. Acceptance of Part of Trusts
4. Mode of Acceptance
5. Acceptance by Acquiescence
6. Trust Complete - Possession to Trustee
7, Trust Accepted - No Defence Against Trust Available
8. Non-acceptance of Trusteeship - Death - Effect
9. Disclaimer

211
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215

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Contents

xxiii

10. Disclaimer Distinguished from Release

11. Modes of Disclaimer
Disclaimer by Deed
Other Forms of Disclaimer
12. Time for Disclaimer
13. Delay in Disclaimer
14. Proof of Disclaimer
15. Effect of Disclaimer
16. Costs of Disclaimer
17. Jurisdiction of Court

221
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222
222
222
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222
223

CHAPTER 111
OF THE DUTIES AND LIABILITIES OF TRUSTEES
11. Trustee to execute trust
1. Principle of the Section
Jurisdiction of Court in Emergency
Jurisdiction to be Exercised with Great Caution
Ceremony of Testator's Grand-daughter and Litigation Expenses of
Widow
Sale of Property
2. Land Acquisition Act, 1894 and Trusts Act, 1882 - Acquisition of Trust
Property - No Conflict in Provisions
3. English Law
4. Exceptions
5. "Where the Beneficiary is Incompetent to Contract"
6. Modification by Beneficiaries to Trust
7. Modification of Duties of Trustees - Power of Beneficiaries
8. Administration of Trust by Co-trustees
9. Duty to Obey the Directions of the Settlor
10. Appointment of trustee - Gender Bias
11. Appointment of Committee of Trust
12. Trustee to inform himself of state of trust property
1. Scope
2. Duty of Trustee
3. New Trustees
4. "Transfer of Trust Property to Himself"
5. To get in Trust-moneys
6. Delay in Getting in Trust Property
7. Retention of Trust Money by Co-trustee
8. Resignation by One of the Co-trustees - Effect
9. Discretion of Trustee not Absolute
10. Trustees are not Insurers
11. "Insufficient or Hazardous Security"

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xxiv

The Indian Trusts Act, 1882

13. Trustee to protect title to trust property

1. Scope
2. Duty to Protect and Preserve Trust-property
3. Successive Renewal of Lease - A.P. Charitable and Hindu Religious
Institutions and Endowments Act, 1966 and Madras Hindu Religious
and Charitable Endowments Act, 1951
4. Mismanagement of Trust-property
5. Trustee must bring Actions, etc.
6. Suit by De Facto Trustee
7. Suit by Trustee
8. Suit by Trustee Against Banker for Trust Money
9. Suit Between Co-trustees
10. Registration
11. Duty to Repair Trust Property
12. Validity of Lease of Temple Property for Repair - Religious Endowments
Act (20 of 1863)
13. Letting and Cultivation
14. Protection of Timber
15. Custody of Title Deeds
16. Trustee may Place Trust Money in a Bank as an Interim Investment
17. Trustees must Obtain Possession of Property
18. Bombay Public Trusts Act, 1950, section 50(ii)
19. A.P. Charitable and Hindu Religious Institutions and Endowments Act
(30 of 1987) - Possession of Lessee not Adverse
20. Trustee not Liable for bonafide Action
14. Trustee not to set up title adverse to beneficiary
1. Duty of Trustee not to set-up Adverse Title or;Ks tertii
2. What a Trustee should not do
3. "Aid any Title"
4. Trustee cannot Challenge Trust
15. Care required from trustee
1. Scope
2. Degree of Care Required of a Trustee
3. Theft by Other - Liability of Trustee
4. Trustee Acting Foolishly
5. Sale of Trust Property - Decree Obtained by Fraud - Effect
6. Loss Occasioned by Agent of Trustee
7. Trustees Exemption Clause
8. Wilful Neglect or Default Causing Loss to Beneficiary - Liability of
Trustee
'
9. Negligence of Co-trustee
10. Policy of Insurance
11. Care as to Custody of Title-Deed
12. Care in Investment of Funds

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Contents
13. Trustee to Keep Control over Trust Fund
14. Resignation by one of the Co-trustees - Effect
15. Trustee Lending Funds of Temple to his Relative - Act not Protected
under section 15
16. Trustee not to Invest his Own Money
17. Validity of Lease of Temple Property for Repair - Religious Endowments
Act (20 of 1863)
16. Conversion of perishable property
1. Rule in Howe v. Lord Dartmouth
2. Limits to Application of the Rule
3. Onus
4. "Unless an Intention to the Contrary may be Inferred"
5. When Trustees may Convert Perishable Property
6. Property of a Wasting Nature
7. Future or Revisionary Interest
17. Trustee to be impartial
1. Scope
2. Choice of Investments
3. "Where the Trustee has a Discretionary Power"
4. Discretionary Power of Trustee - Interference by Court
18. Trustee to prevent waste
1. Scope
2. Duty to Protect and Preserve Trust-property
3. Jurisdiction of Court to Interfere under the Section
4. Trust in Succession - Suit for Injunction to Prevent Waste
5. No Injunction in Cases of Permissive Waste
19. Accounts and information
1. Threefold Duty of Trustee
2. Duty to Deliver Accounts
3. Trustee to Keep Clear and Distinct Accounts
4. Trustee Must not Mix Private Property with Trust Property
5. Ex-trustee's Liability for Rendition of Accounts
6. No Obligation Towards Strangers
7. Gift to Family Deity - Whether Right to Accounting Exists
8. Who may Demand Information
9. Expenses for Information
10. Suit for Accounts Against Trustees
11. Acquiescence by Beneficiary - Effect
12. Measure of Liability
13. Back Accounts - Court's Power
14. Cost of Litigation in Suit for Accounts
Costs When Awarded to Beneficiaries
Costs When Awarded to Trustees

xxv
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258
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259

XXVI

The Indian Trusts Act, 1882

20. Investment of trust-money

1. Scope
2. Applicability
3. Section 20 and section 15 of Trusts Act
4. Section 35, Bombay Public Trusts Act and section 20, Trusts Act
5. Income-tax Act, 1961, section 80-1 and Income of Trust
6. "Trust-money"
7. "Debenture"
8. Investments - Trustee's Duties
9. Degree of Care
10. Power of Investment Contained in Trust Instrument
11. Investments - Trustees Discretion
12. Trustee's Discretion - Interference by Court
13. Investment on Personal Security
14. Lending Money on Second Mortgages
15. Purchase of House
16. Clause (e)
17. Clause (f)
20A. Power to purchase redeemable stock at a premium
1. General
2. "Securities"
21. Mortgage of land pledged to Government under Act 26 of 1871
Deposit in Government Savings Bank
1. Scope
2. "Securities"
3. "Immovable Property"
4. "Mortgage"
22. Sale by trustee directed to sell within specified time
1. Scope
2. Discretion of Trustees to Extend Time for Sale
3. "Sale"
4. Trustee
5. Civil Court of Original Jurisdiction
23. Liability for breach of trust
1. Scope
2. Section 23 not Controlled by section 15
3. Nature of a Breach of Trust
4. Active Breach of Trust
5. Passive Breach of Trust
6. Fraud
7. Distinction between Fraud and Misrepresentation
8. Actual and constructive fraud
9. Fraud must Deceive and Cause Damage

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2
63
2
64
26
4
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65
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Contents
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.

Fraud by Silence
Duty to Speak
Filing of Fraudulent Case - Consequences
Instances of Fraud
Misrepresentation
Misrepresentation and Fraud
Misrepresentation of Fact and Opinion
Misrepresentation on a Point of Law
Breach of Trust - When to be Pleaded
Trustee to Act like a Prudent Man
Actions of Trustee Fettered by Somebody Else - Effect
Trustee Acted under Competent Legal Advice - No Defence
Suit for Breach of Trust against Banker
Breach of Trust - Person Who is Neither Trustee Nor Beneficiary
Breach of Trust - Common Account to be Taken
Breach of Trust by Father, Trustee-for-life - Suit
Breach of Trust - Removal of Trustees
Breach of Trust - Liability of Expenses Incurred by Trustees
Breach of Trust - Between Beneficiary and Trustee - Enforcing Trust
Obligations against Transferee
Breach of Trust - by Solicitor Firm - Position in New Zealand
Liability for Breach of Trust
Nature of Trust Immaterial
Civil and Criminal Proceedings, Both can go Hand in Hand
Breach of Trust - Earlier Services of Trustee
Breach of Trust - Sui t - All Parties must be Before Court
When Trustee Liable for more than he Received
Liability of Estate of Deceased Trustee
Liability of Retired Trustee
Measure of Liability
Breach of Trust - Effect of Remuneration, Investment, etc.
Limitations on Liability of Trustees
Fraud of Beneficiary
Concurrence of Beneficiary
Acquiescence in the Breach
Onus of Acquiescence of Beneficiary
Breach of Trust - Discretion of Court
Wilful Default
Beneficiary has a Right to Indemnity
Beneficiary cannot Repudiate bonafide Acts of Trustee
Liability to Payment of Interest
General Laches
Award of Interest

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XXV111

The Indian Trusts Act, 1882

General Liabilities of 4% Interest per Annum

Assignment of Share in Partnership
Award of Interest as Damages
49. Rule of Damdupat - Applicability
50. Section 73 Contract Act, section 1 Interest Act, 1978 (14 of 1978) and
section 23, Trusts Act, 1882 (2 of 1882)
51. Interest under Interest Act, 1978 (14 of 1978) and section 23, Trusts
Act, 1882 (2 of 1882) and section 80, the Negotiable Instrument
Act, 1881 (26 of 1881)
52. Sections 229 and 230 of Companies Act, 1913 and section 23 of Trusts Act
and section 48 of Provincial Insolvency Act, 1920
53. Manager of Joint Hindu Family - Receipt of Interest - Effect
54. Clause (b): Unreasonable Delay in Paying Money to the Beneficiary
55. Clause (e)
56. Investment - Absence of Independent Valuation
57. Clause (f): Applicability
58. Illustration (e)
59. Illustration (f) - Pride v. Fooks
60. Sections 23, 94 and 95 of Trusts Act
61. Charitable Trust - Administration by High Covirt
24. N o set-off allowed to trustee
Scope
25. Non-liability for predecessor's default
Scope
26. Non-liability for co-trustee's default
Joining in receipt for conformity
1. Trustees to Act like an Ordinary Prudent Man
2. Non-liability in case of Co-trustee's Default
3- Exceptions to the rule
4. Gross Negligence of one Trustee - Liability of Co-trustee
5. Breach by some Trustees - Whole Body of Trustees need not be Sued
6. "In the Absence of an Express Declaration to the Contrary in the
Instrument of Trust"
7. Clause (b): "When a Trustee Allows his Co-trustee to Receive Trust
Property"
8. Clause (c): "Where the Trustee becomes Aware of a Breach of Trust
Committed or Intended by His Co-trustee"
9. Trustee not Liable for Joining in Receipt for Conformity
10. Joint Receipt of Money - Liability of Trustee(s)
11. Money in hand for Longer Period - Liability of Trustee
12. Money Spent in Act of Convenience
27. Several liability of co-trustee
Contribution as between co-trustees
1. Scope

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Contents
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

xxix

Several Liability of Co-trustees

Bankruptcy of Trustee
Surety's Right in Bankruptcy of the Principal
Contribution as between Co-trustees
Suit for Contribution
Liability of Representatives of the Deceased Trustee
Contribution as to Costs of Suit
Impounding Fund in Court
Contribution when not Allowed
Exceptions to the Rule of Contribution - English Law
Where a Solicitor-trustee has Instigated the Breach
Where a Trustee has Benefited by the Breach
Where a Trustee is also a Beneficiary
12. Trustees and Beneficiaries
13. Lessee
14. Persons Acquiring Interest by user and Occupation
15. Mortgagee
16. Reversioners
28. Non-liability of trustee paying without notice of transfer by
beneficiary
Scope
29. Liability of trustee where beneficiary's interest is forfeited to
Government
Scope
30. Indemnity of trustees
1. Scope
2. Burden of Proof

307
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308
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309
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310
310
310
310
311
311
312
312
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312

313
313
314
314
314

CHAPTER IV
OF THE RIGHTS AND POWERS OF TRUSTEES
31. Right to title-deed
1. Object
2. Right to Possess Instruments
3. Trustees and Executors
4. Shebait
5. Married Women
6. Tenants Ln Tail or for Life
7. Guardians of Minors
8. Court of Wards
9. Committees of Lunatics and Idiots
10. Receiver
32. Right to re-imbursement of expenses
Right to be recouped for erroneous over-payment
1. Scope

315
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318
319
319
319
319
320
321

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The Indian Trusts Act, 1882

KX

2.
3.
4.
5.
6.

Trustee's Three Rights to Reimbursement of Expenses

Trustee Wrongfully Appointed
"Properly Incurred"
Reimbursement/Indemnity of Trustee as to Legal Advice
What Expenses Allowed
Monies Spent in bonafide Litigation
Costs in Respect of Appointment
Costs Incurred Prior to Appointment
Travelling Expenses
Payments Made in the Shape of Public Subscription
Money Spent in Preservation of Trust Property
Indemnity
Extraordinary Expenses
7. Expenses of Carrying on Business
8. Rights of Creditor of Trustee
9. Subrogation - Meaning
10. Creditor's Right of Subrogation - Its Nature
11. Creditor's Relief of Subrogation when Available
12. Change of Trustees - Effect on Creditor's Right
13. Trustee Personally Liable
14. Temple Committee - Liability of Trustee - Festival Expenditure - Effect
15. What Expenses Disallowed
16. Trustee Borrowing Money - Effect on Creditors Right
17. Interest on Costs
18. Set off of Debts Due by Trustee
19. Trustee of Two Estates
20. Trust Estate Fails - Recovery of Expenses
21. Expenses Constitute a Lien on Property
22. Trustee's Lien Entitled to Priority
23. Lien, how Enforced
24. Lien does not Extend to Trustee's Agent
25. Overpayment to the Beneficiary
26. Where Trustee is also a Beneficiary
27. Necessary Parties in Proceedings for Indemnity
28. Sections 14, 32 of Trusts Act
33. Right to indemnity from gainer by breach of trust
1. Scope
2. Indemnity - Meaning
3. Sections 13 and 33 of Trusts Act
4. Beneficiary Gaining Advantage from Breach of Trust
5. Effect of Beneficiary's Complicity
6. Impounding Beneficiary's Interest
7. Fraud

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Conte?its

xxxi

34. Right to apply to Court for opinion in management of trust property 332
1. Scope
2. Section 34, Trusts Act and section 92, Civil Procedure Code
3. This section and sections 41 and 63(b) of Tamil Nadu Hindu Religious
and Charitable Endowments Act, 1959
4. Section 34, Trusts Act and section 7, Charitable and Religious Trusts Act
5. Sections 34 and 48 of Trusts Act
6. Jurisdiction of Civil Court - Serious allegations of Fraud/Forgery Mysore Religious & Charitable Institutions Act (7 of 1927)
7. "Opinion, Advice or Direction"
8. "Any Trustee may Apply"
9. Application under the section - Nature of
10. "Court" under section 34 of Trusts Act
11. Exercise of Jurisdiction by the Court - Two Conditions
12. Powers of Court under section 34
13. Power of Court only to be Exercised for Private Trusts
14. Application to Sell Trust Property by Trustee - Procedure
15. Power of Court to Authorise Sale
16. Power of Court - Permission to Deviate from Trust Deed
17. Power of Court - Arrangements to Reduce Tax Burden
18. Powers of Court - Section 34, Trusts Act; section 43, Trustees and
Mortgagees Act; section 10, Official Trustees Act and Chancery
Court in England
19. Estoppel and Notice
20. Court may Authorise Trustee to Raise Money for Purposes of Trust
21. Madras Hindu Religious and Charitable Endowments Act, 1951
(as Applicable to Malabar Region of Kerala), sections 20, 23 and 30
Unanimity or Majority
22. Extraordinary Jurisdiction of Court
23. Ignorance of Court's Guidance - Effect
24. Appeal
25. Letters Patent (Calcutta)
26. Dissolution of Trust
27. Exemption of Trust Property from Wealth Tax
28. Management of Trust
29. Necessary Parties
30. Grant of Government Land
31. Public Charitable Trust
35. Right to settlement of accounts
1. Cestui QueTrust Entitled to Relief -Principles
2. Action for Settlement of Accounts
3. Parties to such Action
4. Right is Confined to the Actual Fund
5. Suit for General Accounts after Long Lapse of Time
6. Settlement of Account Narrowly Watched by Courts

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xxxii

The Indian Trusts Act, 1882

36. General authority of trustee

1. Scope
2. Powers of Trustees under the Section
3. Vesting of Legal Estate in Trustee - Dealing by Beneficiary or Trustee Permissibility
4. Onus of Proof of Necessity
5. Management of Trust Property by a Co-Trustee
6. Trust and Grant of Pension
7. Pension, Gratuity and Provident Fund
8. Sections 34 and 36, Trusts Act
9. Lease of Temple Property - Presumption and Onus
37. Power to sell in lots and either by public auction or private contract
1. Powers of Trustee under the Section
2. Proper Advertisement Necessary in case of Public Auctions
3. Right of Trustee to Sell Trust Property
4. Sale by Private Contract
5. Delegation of Power of Sale
6. Sections 34 and 37 of Trusts Act; section 7 of Charitable and Religious
Trusts Act and sections 7 and 10 of Official Trustees Act
7. Sections 2 and 7, Charitable and Religious Trusts Act (14 of 1920) Court and its Jurisdiction
8. Special Appeal from an Interim Order of a Single Judge - Maintainability
under Allahabad High Court Rules - Appeal against the Order of
District Judge - Maintainability
9. Revocation of Permission for Sale of Land - Sections 36(2) and 41E of
Bombay Public Trusts Act (29 of 1950)
38. Power to sell under special conditions power to buy-in and re-sell
Time allowed for selling trust property
1. Scope
2. Power to Postpone Sale
3. Inadequate Price - Trustee Liable
4. Fiduciary Position - Onus
5. Conditions of Sale
6. Depreciatory Conditions
7. Time for Sale
8. Discretion as to Sale
9. Sale of Trust Property by Public Auction
39. Power to convey
1. Scope
2. Joint Sales by Trustees
40. Power to vary investments
1. Scope
2. Onus of Proof
3. Variation
4. Consent in Writing

353
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361

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Contents
41. Power to apply property of minors, etc., for their maintenance, etc.
1. Scope
2. Guardian
3. Discretion of Trustees
4. Minor having Contingent Interest
5. Administrator of an Estate
42. Power to give receipts
1. Scope
2. Acceptance of Rent after Default
3. Question of Title
4. "Any Trustees or Trustee"
5. Religious or Charitable Trusts
43. Power to compound, etc.
1. Scope
2. Applicability of the section to Religious Trusts
3. Power to Compound Debts
4. Good Faith is the Test
5. Unanimous Consent
6. Onus on Beneficiary to Prove mala fide
7. Compromise Relating to an Office of Public Trust
8. Compromise at the Expense of Trust Estate
9. "Acting Together"
10. Sole Acting Trustee
11. Power of Sole Trustee
12. Sections 43 and 48 of Trusts Act
13. Approval of Trustees Decision to Compromise Litigation - Position
in Bermuda
44. Power to several trustees of whom one disclaims or dies
1. Scope
2. Vacancy of Trustees - Effect
3. Modes of Disclaimer
4. Sections 44 and 76 of the Trusts Act
45. Suspension of trustee's powers by decree
1. Scope
2. Hereditary Trustees
CHAPTER V
OF THE DISABILITIES OF TRUSTEES
46. Trustee cannot renounce after acceptance
1. Scope
2. Termination/Resignation by the Trustee - Continuing Liability Australian Position
47. Trustee cannot delegate
1. Scope

xxxiii
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370
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371
371
372
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372
372
372
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374
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382

xxxiv

The Indian Trusts Ad, 1882

I. Proper Delegation - Two Essential Conditions
3. Principles Underlying sections 47 and 48, against Rules of Delegation

4. Co-trustee
5. Sections 46 and 47 of Trusts Act - Rules against Renunciation of the
Trust and Delegation of Functions by Trustee
6. Trustees must Exercise Prudence in Selection and Supervision of Agents
7. Where Delegation is a Matter of Necessity
8. Fiduciary Duties not Capable of Delegation
9. Position of Trustees - Same as of Co-owners
10. Where Trustee has to Exercise Judicial Discretion
11. Arrangements among Trustees for Management of Trust
12. Delegation and Appointment of Proxy or Attorney
13. Delegation and Appointment of Managing Trustee
14. Delegation and Assignment
15. Violation of section 47 - Effect
48. Co-trustees cannot act singly
1. Scope
2. Co-trustees - Joint or Several Authority
3. All Trustees to Act Collectively "Except where the Instrument of
Trust Otherwise Provides"
4. Position of Trustees - Same as Co-owners
5. Sections 34 and 48 of Trusts Act
6. Appointment of Managing or Executive Trustee - Validity
7. Splitting of Rent
8. Managing Trustee - Powers
9. Lease by Trustees through Attorney
10. Jewellery Sold by some Trustees
II. Case of Public Trust Different
12. Failure to Consult Co-trustees - Question of bona fides
13. Refusal of Co-trustee
14. Joint Responsibility of Trustees
15. Death of Co-trustee-Effect
16. Trust Property Should be under Control of all Trustees
17. Necessity for Concurrence of all Trustees
18. Execution of Mortgage by Some of the Trustees - Validity
19. Acknowledgment of Debt by one Trustees - Validity
20. Receipts for Money
21. Borrowing
22. Suit by Co-trustee against Non-trustees - Maintainability
23. Defending the Suit by Trustees
24. Suit by Trustees against Co-trustees
25. Suit by Managing Trustees
26. Non-joinder of all Trustees - Suit not Maintainable
27. Reference to Arbitration

383
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385

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386
387
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388
388
389
389
389
389
389
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393
394
395
397
397
397
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3"
400
400
400
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400
400
401
401
402
402
402

Contents

49.

50.

51.

52.

53.

xxxv

28. Forma Panperis

402
29. Suit by Trustees - All Trustees must Ordinarily Join Together and
Sue - Exception to this Principle
402
30. Religious Endowment - Suit by one Trustee against Another Co-trustee When
403
31. Proof of Bankruptcy
403
32. Suit against Legal Representatives of Managing Trustee
403
33. Execution Petition on behalf of Trust
404
Control of discretionary power
404
1. Scope
404
2. Principle Applicable to Public Trusts
404
3. Rule Laid under sections 49, 51, 52 of the Trusts Act
404
4. Discretion and Duty Distinguished
405
5. Interference by Court
405
Trustee may not charge for services
406
1. Scope
406
2. General Rule
407
3. Exception
407
4. Solicitor-trustee
407
5. Right to Re-imbursement for Expenses
408
6. Constructive Trustee
408
Trustee may not use trust property for his own profit
408
1. Scope
408
2. Rule Applies to all Persons in Fiduciary Position - Purchase of Debts
409
3. Rule Laid Down under sections 49, 51,52 of Trusts Act
409
4. Section 46, Partnership Act and sections 51,66 of Trusts Act
409
5. Disability of Trustee and its Removal
410
6. Trust Money Handed over to a Person - Effect
410
7. Contract of Sale - Misapplication by Trustee of Money already Paid
410
8. Donor Donating Property to Create Trust
410
Trustee for sale or his agent may not buy
411
1. Scope
411
2. Security Deposit - Nature - Debt or Trust
412
3. Purchase of Trust Property by Trustee
412
4. Trustee Purchasing Property as Agent of Third Party
413
5. Non-merging of Position of Buyer and Seller - Effect
413
6. Purchase by Trustee from Himself and from his Cestui Que Trust
413
7. Purchase by near Relative of Trustee
414
Trustee may not buy beneficiary's interest without permission
414
Trustee for purchase
414
1. Applicability
414
2. Purchase of a Beneficiary's Interest
415
3. Departure from English Law
415

XXXvi

The Indian Trusts Act, 1882

4.
5.
6.
7.

Rule Extends to all Persons in Fiduciary Position

Breach of Trust
Sale by Trustee to his Wife
Person who has Recently Ceased to be a Trustee, Buying
Trust Property - Validity
54. Co-trustees may not lend to one of themselves
1. Scope
2. Indian Contract Act, sections 155,156 and 157

415
416
416
416
417
417

417

CHAPTER VI
OF THE RIGHTS AND LIABILITIES OF THE BENEFICIARY
55. Right to rents and profits
1. Rights of Beneficiary
2. Nature of Beneficiary's Interest
3. Appeal
4. Sections 3, 55 and 56 of Trusts Act - Execution of Decree
56. Right to specific execution
Right to transfer of possession
1. Right to Sue for Enforcement of Trust
2. Right to Compel Sale
3. Delay in Executing Terms of the Trust
4. Opinion of Majority of Beneficiaries
5. Sections 3,55 & 56 - Execution of Decree
6. Representatives of Testator may Institute Suit
7. Stranger to a Contract - Right to Sue
8. Trustee may be Restrained from Violating His Duty
9. Right to Transfer of Possession
10. Withholding of Property by Trustee - Permissibility
11. Beneficiary Impleaded as Responded - Appeal can not Execute Decree
12. Beneficiary with Limited Interest
13. Trust Created in Favour of Creditor Alone - Notice Given - They can
Claim to be Beneficiaries
14. Who can Apply for Execution of Trust
15. Restraint on Anticipation
16. Principle Underlying the Doctrine
17. Persons Incompetent to Alienate
18. Competency to Alienate under Hindu Law
19. Competency to Alienate under Mohammedan Law
20. Competency Executors or Administrators
21. Competency of Minors - under sections 28 and 29 of the Guardian
and Wards Act, 1890
22. Competency of Official Assignees and Receivers
23. Competency of Charitable Institution, Shebait or Mutmvalli
24. Lunatic or Idiot - See the Indian Lunacy Act IV of 1912

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421
422
423
423
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424
424
424
425
425
425
426
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427
427
429
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430
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Contents
25. Vatandar's Interest
26. The Murshidabad Act
27. Madras Impartible Estates Act
28. Narva Holding
29. Investment of the Compensation Money
30. Purchase of Other Lands
31. "Land" includes Buildings
32. Modification of Duties of Trustees
57. Right to inspect and take copies of instrument of trust accounts, etc.
1. Right Extends to Opinions of Counsel
2. Suit by Beneficiary for Accounts - Practice and Procedure
3. Knrta not Strictly Liable to Accounts
4. Trustees, Shebaits, Executors and Administrators, etc.
5. Charitable Properties
6. Owner with Limited Interest
7. Karta of a Mitakshara Joint Family
58. Right to transfer beneficial interest
1. Rule
2. Scope
3. "Subject to the Law for the Time Being in Force"
4. Notice of Assignment to Trustees
5. Reasons for Notice
6. Rule in Dearie v. Hall
7. Essentials of such Notice - English Law
8. Assignee Takes Subject to Equities
9. Section 6 Married Women's Property Act and section 58, section 78(a)
of Trusts Act
10. Section 4, Income-tax Act, 1922 and section 58, Trusts Act, 1882
11. Beneficial Interest
59. Right to sue for execution of trust
1. Scope
2. Trust shall not Fail for Want of Trustee
3. Court
4. Applicability
5. "Where for any Other Reason the Execution of a Trust Becomes
Impracticable"
6. Alienation by Trustee - Right of Beneficiary to Bring Suit for Possession
7. Position of Stake Holder in Chit Transaction - Same as Trustee
60. Right to proper trustees
1. Two Valuable Rights
2. Trustee's Death in the Life-time the Testator
3. Trustee's Death after Having Acted as Trustee
4. Principles Applicable in Appointing New Trustees

xxxvii
431
431
431
431
431
432
432
433
434
435
435
435
436
436
436
436
437
437
438
438
438
439
439
439
439
440
440
441
441
442
442
442
442
442
443
443
443
445
445
445
445

XXXVU1

5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.

The Indian Trusts Act, 1882

Suit for Appointment of New Trustees - Grounds for Removal
Inherent Jurisdiction of Court
Reference to Arbitration by Court
Appeal
Appointment of Additional Trustees
"Proper Persons"
Alien
Person Domiciled Abroad
Person in Insolvent Circumstances
Rescission of Mortgage on Mortgagee's Failure to Perform His Part
Illegality under Insolvency Act
Cestui Que Trust
"Unless the Personal Law of the Beneficiary Allows Otherwise"

61. Right to compel to any act of duty

1. Scope
2. Even Partial Owner may Obtain Injunction
3. Court cannot Act in a Summary Manner under this section
4. ContractGovernment as Beneficiary
62. Wrongful purchase by trustee
1. Principle underlying section 62
2. Scope
3. "Wrongful Purchase"
4. Ratification by Beneficiary
5. "Such Other Expenses (If Any) as he has Properly Incurred in the
Preservation at the Property"
6. Judgment-debtor has No Two Rights
63. Following trust property into the hands of third persons
Into that into which it has been converted
1. Basis of the Rule
2. Scope
3. Doctrine of Pragmatism and Trust
4. Claim by Official Liquidator
5. Section Not Exhaustive
6. Alienation by Trustee - Remedy Available to Beneficiary
7. Mixing Trust-Money with Other is Proper - If Drawings from Mixed
Fund Proper
8. Trust Amount Mixed Up with Other Assets of Trustee - Later Trustee
Becomes Insolvent and Official Trustee Appointed - Effect
9. Vesting of Property in Trustee - Essential
10. Doctrine of Tracing - Its Nature and Limits
11. Right to Follow Trust Property into the Hands of Third Parties
12. The Principle Applies to All Persons in a Fiduciary Capacity
13. Where Alienee is a Volunteer
14. Something Existing in Specie

446
447
447
447
447
448
448
448
448
449
449
450
450
450
450

451
452
452
452
453
453

454
454
455
455
457
457
458

459
462
462
462
463
463
464
464
464
465
465
466
466

Contents

64.

65.

66.

67.

68.

xxxix

15. Trust-money Invested in Trustee's BusinessEffect of Trustee's

Insolvency
467
16. "Or the Hands of His Legal Representative or Legatee"
468
17. Trust Act - Settlement of Account cannot be Followed
468
18. Subsequent Purchaser Having Notice Merely of Trust Instrument - Effect 468
19. Illustrations to the section
468
20. Property of Dissolved Trade Union with its President
469
Saving of rights of certain transferees
469
1. Scope
470
2. Applicability
472
3. Section 64 Exception to section 63
473
4. Person in Fiduciary Relationship - Effect of sections 64 and 96 of
Trusts Act
473
5. Money Passing in Circulation
473
6. Property
473
7. Clause (a): "Transferee in Good Faith for Consideration"
474
8. Transfer of Property Act, 1882 (4 of 1882)
474
9. English Law
475
10. "Conveyance"
475
11. Money, Currency Notes or Negotiable Instruments
475
Acquisition by trustee of trust property wrongfully converted
475
1. Scope
476
2. Defaulting Mortgagee Purchasing Property from Stranger - Effect
476
Right in case of blended property
476
1. Scope
477
2. English Law
479
3. Section 46, Partnership Act, and sections 51, 66 of Trusts Act
479
4. Presumption Against Breach of Trust
479
5. Blending by Banker
480
6. Mixing Trust Money with Other is Proper - If Drawings from Mixed
Fund Proper
480
7. Trust Amount Mixed-Up with Other Assets of Trustee - Later Trustee
Becomes Insolvent and Official Trustee Appointed - Effect
481
8. Trustee Mixing-Up Trust Property with His Own - Beneficiary Entitled
to that Property
481
9. Insolvency of Trustee
481
10. Burden of Proof
482
Wrongful employment by partner-trustee of trust property for
partnership purposes
482
Scope
483
Liability of beneficiary joining in breach of trust
1. Scope
484
2. Impounding Beneficiary's Interest
484
3. Principle
485

1 IK inuiun i rusis rai, iu".

xl

4. Both Original and Derivative Interest can be Impounded

5. Position of Married Woman - English Law Different
6. "All Who Claim under Him"
69.

Rights and liabilities of beneficiary's transferee

485
485
485
485

CHAPTER VII
OF VACATING THE OFFICE OF TRUSTEE
70.

Office how vacated

1.
2.
3.
4.

71.

Discharge of trustee
1.
2.
3.
4.
5.
6.
7.
8.
9.

72.

Discharge of trustee
Clause (c)
Clause (d)
Clause (e)
Clause (f): Removal by Court
Duties of Executor and Trustee - Difference
Insolvency - No ipso facto Discharge
Till Accounts Rendered - No Discharge
Misconduct of Trustee - No ipso facto Removal

Petition to be discharged from trust

1.
2.
3.
4.
5.

73.

Scope
"Discharge"
"Insolvency"
Power of Revocation of Trust

Proceedings for Discharge

"Sufficient Reason"
Cases
Costs
Effect of Discharge

Appointment of new trustees on death, etc.

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

Appointment of Trustees
When Appointment of Trustee is Made
Appointment of Trustee how and by Whom
Power given by Instrument of Trust
Donee's Powers - Its Delegation and Exercise
Cases
Special Power in Specified Events
Improper Appointment
Construction
Under Statutory Power
Appointment of Trustee - Resident out of India
Consent of new Trustee
Appointment in Writing
Power to Change the Number of Trustees
Sections 73 and 74 - Relationship

486
486
487
487
487
487
488
489
489
489
489
490
490
490
491
491
491
491
492
492
492
493
496
496
496
497
497
497
498
498
498
499
499
499
499
499
500

Contents
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.

xli

"Unfit"
500
"Unfit or Personally Incapable"
500
"Surviving or Continuing Trustee"
500
"Legal Representative"
500
Removal of Trustees
501
Court's Primary Consideration
501
Grounds for Removal
501
Setting up an Adverse Title
502
Denial of Trust
502
Hostility between Trustees
502
Omission to keep Accounts
502
Breach of Trust
503
Who may sue for Removal
504
Reference to Arbitration by Court
504
Procedure in Suits
504
Parties
504
Pleadings
504
Costs
504
Appeal
505
Trusts and the Court Fees Act, 1870 - Scope - Court Fees - Schedule II
505
Properties Dedicated to Religion
505
Test for Court-fee
505
Ad valorem Court-fee
506
Suits under section 92 of the Code of Civil Procedure
506
Suit under section 92, CPC - Prohibition
507
Section 92, CPC - Death of One of the Applicants
509
Section 92, CPC and Section 69, Partnership Act - Prohibition
510
Interest
512
Defect as to Number of Applicants
513
Suits under the Religious Endowments Act
513
Removal of Several Trustees
513
Claim for Specific Performance of a Contract for Executing a Deed of Trust 513
Suit of Appointment of Mutawalli
513
Madras Hindu Religious Endowments Act
514
Writ for Consideration of the Application of the LR of the Deceased Temple
Priest - Madras Hindu Religious Endowments Act
514
Suit for Declaration by Worshippers of Temple
514
Mitakshara Law and Trust Property
515
Property held in Trust
515
Res Judicata
516

74. Appointment by Court

Rule for selecting new trustees
1. Scope
2. Applicability

517
517
518
518

xlii

The Indian Trusts Act, 1882

3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.

Section 73 and section 74 - Relationship

Appointment by Court - When Made
Procedure
Mode of Appointment of Trustee - Bombay Public Trust Act
Parties and Notice
"Principle Civil Court of Original Jurisdiction"
Unfitness - Both Physical and by Misconduct
Costs
Appointment of Trustee as to a part of Trust
Separate set of Trustees
Appointment of Receiver by Court - Permissibility
Principles
Who may be Appointed
Public Charity, Court may Appoint Persons Excluded by Settlor
Beneficiary
Order of Court - Conclusive
Appeal

75. Vesting of trust property in new trustees

Powers of new trustee
1. Scope
2. English Law
3. "Legal Representative"

76. Survival of trust

1. Scope
2. Cases
3. Trust when Reverts to Original Founder
CHAPTER VIII
OF THE EXTINCTION OF TRUSTS
77. Trust how extinguished
1. Scope
2. Discharge of Trustees
3. Clause (a): "When its Purpose is Completely Fulfilled"
4. Clause (b): "When its Purpose becomes Unlawful"
5. Clause (c): "When the Fulfilment of the Trust becomes Impossible"
6. Cyprus Doctrine
7. "Otherwise"
8. Extinguishment of Trust - Provision in Trust Deed
9. Clause (d): Revocation of Trust
10. Principles of Natural Justice
11. Suit for Declaration
78. Revocation of trust
1. Scope
2. Unusual Provisions

519
519
519
520
520
520
520
520
520
520
521
521
521
521
521
522
522
522
522
522
523
523
523
523
524
525

526
526
527
527
527
527
528
528
528
528
528
529
529
530
530

Contents
3. Province of Court
4. Equitable Exception
5. Wills and Trusts, Estoppel against an Executor, Administrator,
Legatee, or Trustee
6. Estoppel against the Owner where Property has been Treated as Wakf
7. Estoppel in Pre-emption Cases
8. Clause (a): Revocation with the Consent of Beneficiaries
9. Clause (b): "Power of Revocation Expressly Reserved"
10. Clause (c): Trust in Favour of Creditors
11. Principle Underlying
12. Clause (c) and English Law
13. Indirect Benefit to Assessee
14. "For such Purpose" - Interpretation
15. Policy Holders - Right against Insurance Company
79. Revocation not to defeat what trustees have duly done
Revocation not Retrospective

80.

81.
82.
83.

CHAPTER IX
OF CERTAIN OBLIGATIONS IN THE NATURE OF TRUSTS
Where obligation in nature of trust is created
1. Scope
2. Constructive Trust
3. Constructive Trust and Resulting Trust
4. Fiduciary Relationship/Constructive Trust
5. Fiduciary Duty - State of Mind of the Person Assisting in Breach of
Duty and Fraud
6. Remedial Constructive Trust and Institutional Constructive Trust
7. Bailee
8. Partner
9. De Facto Trustee
Where it does not appear that transferor intended to dispose of
beneficial interest
Transfer to one for consideration paid by another
Trust incapable of execution or executed without exhausting
trust property
1- Scope
2. Resulting Trust
3. Trusts Incapable of Execution
4. Doctrine of Cypres
5. "Where the Trust is Completely Executed without Exhausting the Trust
Property"
6. Section 10(2), Income Tax Act, 1922 and section 83, Trusts Act
7. This section is not Applicable to Employees Provident Fund

xliii
530
531
531
533
534
535
535
536
536
537
537
537
537
537
537

538
538
538
539
539
539
539
540
540
540
540
540
541
541
543
544
544
545
545
S46

The Indian Trusts Act, 1882

84. Transfer for illegal purpose

547

1. Scope
2. Public Policy
3. Exception to Pari Delicto Doctrine
4. Void Sale
5. Assumption
6. "Where the Illegal Purpose is not Carried into Execution"
7. Partial Execution of Illegal Purpose
8. "Where the Transferor is not as Guilty as the Transferee"
9. "Defeat the Provisions of Any Law"
10. Possession of a Fraudulent Transferee
11. Assistance of Court
12. Repealed Act
85. Bequest for illegal purpose
Bequest of which revocation is prevented by coercion
1. Scope
2. "And the Revocation of the Bequest is Prevented by Coercion"
3. English Doctrine of Duress - Applicability
4. Coercion as a Ground of Invalidating a Contract
5. Instances of Coercion
6. "An Act Forbidden by the Penal Code"
7. Pleading and Proof
8. "Prejudice" - Meaning of
86. Transfer pursuant to rescindable contract
1. Scope
2. "Where Property is Transferred in Pursuance of a Contract
which is Liable to Rescission"
3. "Fraud"
4. "Mistake"
5. Trusts and Societies
87. Debtor becoming creditor's representative
Interest
88. Advantage gained by fiduciary
1. Basis of the Rule in the section
2. Scope
3. Applicability

547

4.
5.
6.
7.
8.
9.
10.

Doctrine of Unjust Enrichment and section 88, Trusts Act

Fiduciary Relationship and Doctrine of Unjust Enrichment
Trustee or Executor
Partner
Surviving Partner
Retiring Partner
Partners and Agents - Section 88 and section 90

548

548
549
549
549
550
550
551
551
551
551
552
552
552
553
553
554
554
556
556
557
557
557
557
558
558
558
559
559
559
561
564
569
570
571
571
571
572
572
573

Contents
11. Partnership not Entitled to Benefit - Effect
12. Liability of Partner for Accounts
13. Renewal of Lease by Partner
14. Purchase Made by Partner
15. Continuing Partner
16. Agent
17. Attorney
18. Directors of Company
19. Managing Director of a Company
20. Promotors of a Company
21. Legal Adviser
22. Mortgagee
23. Vendor
24. Tenants in Common
25. Other Fiduciary Persons
26. "Other Persons Bound in a Fiduciary Character"
27. Assumption
28. Constructive Trust which are not Resulting Trust
29. Sections 88 and 90 - Not exhaustive
30. Government Granting Pattah to Widow
31. Creditor-debtor Relationship - Section 88 not Applicable
32. Uncle and Niece - Fiduciary Relationship
33. Bank Holding Amount in Fiduciary Capacity
34. Illustration (c)
35. Illustration (f) - Construction
36. Section 37 Partnership Act and section 88 Trust Act
37. Plots Earmarked by Company for Public Building
38. Interest of Other Persons
39. Transactions
40. Advantage Gained by Fiduciary
89. Advantage gained by exercise of undue influence
1. Principle
2. Scope
3. Where Undue Influence is Proved as a Fact
4. Illustrative Cases
5. What Amounts to Undue Influence
6. Undue Influence and Fraud
7. Actual and Presumed Undue Influence
8. Undue Influence: English Principles Inapplicable
9. Law as to Undue Influence
10. Fiduciary Relationship
11. Instances
12. Plea of Undue Influence Against Third Party

xlv
573
573
573
573
573
573
574
574
575
576
576
576
577
577
577
578
580
580
581
581
581
582
582
582
582
583
583
584
584
584
584
585
585
586
586
587
587
588
589
589
589
590
590

xlvi

The Indian Trusts Act, 1882

13. Undue Influence by Third Person

14. Limitation
15. Limitations on Presumption
16. Gift - Undue Influence
17. Particular Instances of Undue Influence: Disqualified Proprietors
18. Proof of Undue Influence
19. "Hold the Advantage"
90. Advantage gained by qualified owner
1. Principle
2. Scope
3. English and Indian Law
4. Sections 88 and 90 - Not exhaustive
5. Acquisition of Property after Dismissal of Suit
6. "Person Interested"
7. "Properly Incurred"
8. Applicability of section 4(f) of Trusts Act to Chapter 9 of Trusts Act
9. Section not Inconsistent with section 63 of the Transfer of Property Act
10. Transfer of Property Act, 1882 (4 of 1882)
11. Section 4, Orissa Land Reforms Act and this section
12. Section 4(f) and section 19 of T.N. Agricultural Relief Act and this section
13. Advantage Gained by Qualified Owner
14. Co-owner
15. Test of Liability of Co-owner
16. De facto Manager of Joint Hindu Family - Fiduciary Relationship - Effect
17. Default in Payment of Rent by Co-owner
18. Suit for Partition by Co-sharer
19. Minor
20. Contracts on Behalf of Minors
21. Partner
22. Mortgagee
23. Lessee
24. Purchase by Mortgagee-Accepted Position of Law
25. Benefit of Provision Must be Pleaded
26. Debenture-holders
27. Receiver
28. Vindhya Pradesh Gram Panchayat Ordinance (24 of 1949) and this section
29. Joint Family
30. Statutory

591
591
591
593
595
595
596
596
598
598
604
604
605
605
605
605
606
606
607
607
608
608
611
611
612
612
612
613
613
614
622
623
623
624
624
624
625
627

91. Property acquired with notice of existing contract

1. Scope
2. Acquire
3. Vendee and Vendor
4. Mortgagee

627
627
630
631
631

Conlerils
5. Debtor and Creditor
6. Lessee or Tenant in Possession
7. This section and section 26F of Bengal Tenancy Act
8. Auction Purchaser
9. When Vendor Becomes a Trespasser
10. Section 54 Transfer of Property Act and this section
11. Section 3, Specific Relief Act and section 91, Trusts Act
12. Section 40(2), T.P. Act, section 27(6) of Specific Relief Act and this section
13. This Act does not affect section 22 of Limitation Act
14. This section and section 53A, T.P. Act
15. When section 52, T.P. Act and this section are not Applicable
16. Lack of Mutuality - Exception
92. Purchase by person contracting to buy property to be held on trust
1. Scope
2. "Accordingly"
3. Trustee and Co-trustee
4. Legal Status of Promotee of a Company
93. Advantage secretly gained by one of several compounding creditors
Scope
94. Constructive trusts in cases not expressly provided for
95. Obligor's duties, liabilities and disabilities
1. Scope
2. Express and not Constructive Trustee under Companies Act
3. Stamp Duty
4. Proviso to the section
5. Section 23(a) and (f) and this section
6. Mortgagee Possessing Property in Fiduciary Capacity - Effect
7. Sections 3 and 95, Trusts Act and section 185 of Companies Act
96. Saving of rights of bonafide purchasers
1. Scope
2. Section 96 and section 59A of T.P. Act
3. Person in Fiduciary Relationship - Effect of sections 64 and 96 of the Act
4. Constructive Trustee
5. "Any Law for the Time Being in Force"
THE SCHEDULE.STATUTE

xlvii
631
632
632
632
632
633
633
633
634
634
635
635
635
635
636
636
637
637
637
638
638
638
639
639
640
640
640
640
640
641
641
641
641
642
642

SUITS AGAINST TRUSTEES ETC. AND

LIMITATION ACT
1. General
2. Object of Statute of Limitation
3. Suits against Trustees and their Representatives - Section 10 Limitation Act, 1963
4. Corresponding section of Act No. 9 of 1908

644
644
644
645

xlviii

The Indian Trusts Act, 1882

5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.

Changes in the section of Limitation Act

Scope and Applicability
Meaning of "Assign"
Section 3, Trust Act, and section 10, Limitation Act
"Vested in Trust for any Specific Purpose"
'Once a Trust, always a Trust'
When is Suit never Barred - Section 10, Limitation Act
Trustee - Section 3 of Trusts Act and section 2(n) of Limitation Act
Executors and Administrators
Alleged Trustee must be Owner of Property
"Not being Assigns for Valuable Consideration"
Trust must be Express
Vesting
Trust Property or Accounts - Suit must be to Follow
Benamidar
Person Entitled to Benefit of section 10, Limitation Act
Trustee de son tort, de facto Trustee and Constructive Trustee Distinction
Limitation for Suit for Recovery of Trust Property Claimed by
Adverse Possession
Adverse Possession by Trustee
Limitation Act - Recovery of Possession - Declaratory Relief
Section 63 of Trusts Act and section 10 of Limitation Act
Trust property - Article 134, Limitation Act, 1963
Cause of Action
Cases under Article 134 of Act, 1908 (Now Article 92 read with
Article 61 of Act of 1963)
A case under Articles 144 and 134B, Limitation Act, 1908 Articles 65 and 96 of Limitation Act, 1963
Starting Point of Period of LimitationArticle 61(a), Limitation Act, 1963
Part VIII of Schedule of Limitation Act, 1963-Arts. 92 to 96 Article 92
Costs when awarded to beneficiaries
Costs when awarded to trustees
Limitation Period against Recipients of Trust Property, in England

645
645
648
649
649
651
652
652
655
656
656
656
658
658
659
659
659
660
660
661
661
661
662
662
662
663
664
675
676
676

INTERPRETATION OF LAW ON "TRUSTS"

677

PROVISIONS FOR INTERPRETATION OF TRUST

In Corpus Juris Secundutn
1. General
2. Necessity of construction
3. Application of general rules of construction

685
685
685

Contents
4.
5.
6.
7.
8.
9.

Favouring validity and effectiveness

Favouring beneficiaries or others
Favouring present trusts and vested interests
Whole instrument or provision: surplusage
Meaning of words
Repugnancies

xlix
685
685
685
685
685
685

MODEL TRUST DEEDS AND FORMS

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.

27.
28.
29.

Declaration of Trust
Deed for Transferring a House upon Trust
Trust Deed for a Hospital
Deed of Settlement with Appointment of Trustees
Disclaimer by a Trustee
A short form of disclaimer of trust to be endorsed on the Trust-deed
Appointment of new trustees
Composition and arrangement with creditorsGuidelines
Deed of composition by debtor and sureties to pay a composition of
50 p. in a rupee to a trustee on behalf of the creditors
Deed of assignment by debtor for benefit of his creditors
Inspectorsip deed for the purpose of working the debtors business for
the benefit of creditors
Charitable and religious endowmentsContents of a trust deed
Trust deed for establishing and running a School
Endowment for scholarship to be awarded to deserving persons for
Industrial and Technical Education Abroad
Endowment for establishing a Hindu Temple
Trust deed establishing an institute (non-sectarian) for recreation and
social intercourse for the male inhabitants of the city of
Voluntary conveyance of land to trustees as a site for a hospital under
the control of the trustees
Endowment for establishing a daily newspaper in Hindi
Voluntary conveyance of property to trustees of charity
Disclaimer
Separation deed between husband and wifeGuidelines and
specimen forms
SettlementsContents and nature of
Vesting deed on the settlement of land
Trust instrument on the settlement of land
Settlement on marriage of property belonging to both spouses
Marriage settlement whereby the father of the husband enters into
a covenant to pay an annuity to the wife during his life-time with
protective trust
Post-nuptial settlement by husband on himself, his wife and children
Settlement of property by father on his minor children
Wakfs-Different classes of

687
690
690
692
692
693
693
694
694
696
697
698
699
700
702
703
705
706
707
708
709
710
712
712
713

715
715
716
717

The Indian Trusts Act, 1882

30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.

Family settlement by way of Wakf (Wakfs-Alal-Aulad)

Wakf for public purposes
Short Form of Will
Will in favour of wife and children
A Comprehensive form of Will
Codicil
CodicilAnother form
Release by a Residuary Legatee to Executor
Release given by beneficiaries to the Executors and Trustees under a Will
Gift of Land or House
General Power-of-Attorney

717
718
719
720
720
723
723
724
724
725
725

LAW COMMISSION OF INDIA

Sixteenth Report on the Official Trustees Act, 1913
Seventeenth Report on the Trusts Act, 1882

726
734

APPENDICES
Appendix I. The Indian Trustees Act, 1866
Appendix II. Trustees and Mortgagees Powers Act, 1866
Appendix III The Charitable and Religious Trusts Act, 1920
Appendix IV. The Religious Endowments Act, 1863
Appendix V. The Charitable Endowments Act, 1890
Appendix VI. The Official Trustees Act, 1913
Appendix VII. The Mussalman Wakf Act, 1923
Appendix VIII. The Mussalman Wakf Validating Act, 1913
Appendix IX. The Mussalman Wakf Validating Act, 1930
Appendix X. The Wakf Act, 1995
Appendix XL The Public Wakfs (Extension of Limitation) Act, 1959
Appendix XII. The Benami Transactions (Prohibition) Act, 1988
Appendix XIII. The Benami Transactions (Prohibition of the Right to Recover
Property) Ordinance, 1988
Appendix XIV. The Powers-of-Attomey Act, 1882
Appendix XV. The Limitation Act, 1963

766
779
789
793
799
804
816
831
833
834
880
882

Subject Index

915

885
886
888