CHAPTER VII. Office how vacated. Discharge of trustee. Petition to be dis OF VACATING THE OFFICE OF TRUSTEE. 70. The office of a trustee is vacated by his death or by his discharge from his office. 71. A trustee may be discharged from his office only as follows: : (a) by the extinction of the trust; () by the completion of his duties under the trust; (c) by such means as may be prescribed by the instrument of trust 1; (d) by appointment under this Act of a new trustee in his place; (e) by consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract 2, or (f) by the Court to which a petition for his discharge is presented under this Act 3. 72. Notwithstanding the provisions of section 11, every charged trustee may apply by petition to a principal Civil Court of from trust. original jurisdiction to be discharged from his office; and if the Court finds that there is sufficient reason for such discharge, it may discharge him accordingly, and direct his costs to be paid out of the trust-property. But where there is no such reason, the Court shall not discharge him, unless a proper person can be found to take his place 3. Appointment of new 73. Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a 1 death, etc. continuous period of six months absent from British India, trustees on or leaves British India for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses 1 or becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit 2 or personally incapable 3 to act in the trust, or accepts an inconsistent trust, a new trustee may be appointed in his place by― (a) the person nominated for that purpose by the instrument of trust (if any), or (b) if there be no such person, or no such person able and willing to act, the author of the trust if he be alive and competent to contract 4, or the surviving or continuing trustees or trustee for the time being, or legal representative of the last surviving and continuing trustee, or (with the consent of the Court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee 5. Every such appointment shall be by writing under the hand of the person making it. On an appointment of a new trustee the number of trustees may be increased 6. 7 The Official Trustee may, with his consent and by the order of the Court, be appointed under this section, in any case in which only one trustee is to be appointed and such trustee is to be the sole trustee. The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee if willing to act in the execution of the power. 74. Whenever any such vacancy or disqualification occurs Appoint and it is found impracticable to appoint a new trustee under ment by section 73, the beneficiary may, without instituting a suit, 1 whether before or after having acted. Re Roche, 2 Dr. & W. 287 (bankruptcy). Re Bignold's Settlement Trusts, 7 Ch. App. 223. * See 5 Ben. 181, 184. 5 When the Court is administering the trust the donee of the power must obtain the Court's approval of the whether or not a contrary inten- 7 appointed under Act XVII of 1864. Court. Rule for selecting new trustees. Vesting of trustproperty in new trustees. Powers of new trustees. Survival of trust. apply by petition to a principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee or a new trustee accordingly. In appointing new trustees, the Court shall have regard (a) to the wishes of the author of the trust as expressed in or to be inferred from the instrument of trust1; (b) to the wishes of the person, if any, empowered to appoint new trustees2; (c) to the question whether the appointment will promote or impede the execution of the trust, and (d) where there are more beneficiaries than one, to the interests of all such beneficiaries 3. 75. 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 require1. Every new trustee so appointed, and every trustee appointed by a Court either before or after the passing of this Act, shall have the same powers, authorities and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the author of the trust. 76. On the death or discharge of one of several co-trustees, the trust survives and the trust-property passes to the others, unless the instrument of trust expressly declares otherwise. 1 If (e.g.) he has declared A not fit to be appointed a trustee the Court will not appoint A, Lewin, 850. 2 Middleton v. Reay, 7 Hare, 106. 3 In re Tempest, L. R., 1 Ch. Ap. 485, and see sec. 17, supra. The Act is silent as to severing a trusteeship. In England, under 45 & 46 Vic. c. 39, sec. 5, on an appointment of new trustees, a separate trustee or set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part. This is in accordance with a decision of Fry J. (In re Grange, 29 W. R. 502), which the Indian Courts would, no doubt, follow. + And no conveyance or assignment is necessary. Compare the English Conveyancing Act, 1881, sec. 34, which does not apply to land mortgaged to secure trust-money, or to shares etc. only transferable in books kept by a company. CHAPTER VIII. OF THE EXTINCTION OF TRUSTS. 77. A trust is extinguished— (a) when its purpose is completely fulfilled; or (6) when its purpose becomes unlawful; or (e) when the fulfilment of its purpose becomes impossible by destruction of the trust-property or otherwise; or (d) when the trust, being revocable, is expressly revoked1. Trust 78. A trust created by will may be revoked at the pleasure Revocation of the testator. A trust otherwise created can be revoked only (a) where all the beneficiaries are competent to contractby their consent 2; where the trust has been declared by a non-testamentary instrument or by word of mouth-in exercise of a power of revocation expressly reserved to the author of the trust 3; or (c) where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors at the pleasure of the author of the trust 3. Illustration. ▲ conveys property to B in trust to sell the same and pay out of the proceeds the claims of A's creditors. A reserves no power of revocation. If no communication has been made to the creditors, A may revoke the trust. But if the creditors are parties to the arrangement, the trust cannot be revoked without their consent. of trust. not to de 79. No trust can be revoked by the author of the trust so Revocation as to defeat or prejudice what the trustees may have duly feat what done in execution of the trust 7. Frith v. Cartland, 34 L. J., Ch. 301. 2 See 2 Bom. H. C. 139. 'So under the Shía law, N. W. P. 1870, p. 420. Johns v. James, 8 Ch. Div. 744. Here the trustees are mere man. datories, and the deed confers no right on the creditors who are neither • Wilding v. Richards, 1 Coll. 655, 659. Ryoroft v. Christie, 3 Beav. 238. trustees have duly done. Where such CHAPTER IX. OF CERTAIN OBLIGATIONS IN THE NATURE OF TRUSTS. 80. An obligation in the nature of a trust is created in the obligation following cases. created. Where it does not appear 81. Where the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that he intended to dispose of the beneficial interest therein, the transferee or legatee must hold such dispose of property for the benefit of the owner or his legal representative 1. that transferor in tended to beneficial interest. Transfer Illustrations. (a) A conveys land to B without consideration and declares no trust of any part. It cannot, consistently with the circumstances under which the transfer is made, be inferred that A intended to transfer the beneficial interest in the land. B holds the land for the benefit of A. (b) A conveys to B two fields, Y and Z, and declares a trust of Y, but says nothing about Z. It cannot, consistently with the circumstances under which the transfer is made, be inferred that A intended to transfer the beneficial interest in Z. B holds Z for the benefit of A3. (c) A transfers certain stock belonging to him into the joint names of himself and B. It cannot, consistently with the circumstances under which the transfer is made, be inferred that A intended to transfer the beneficial interest in the stock during his life. A and B hold the stock for the benefit of A during his life. (d) A makes a gift of certain land to his wife B. She takes the beneficial interest in the land free from any trust in favour of A, for it may be inferred from the circumstances that the gift was for B's benefit *. 82. Where property 5 is transferred to one person for a conto one for sideration paid or provided by another person, and it appears 1 Lewin, 143. 2 or for a merely nominal one. 593. Christ's Hospital v. Budgin, a Vern. 683, where a husband lent money on mortgage in the names of himself and his wife. So if A invests a sum in the names of the trustees of his marriage settlement, Re Curteis' Trust, L. R., 14 Eq. 217. 5 whether moveable or immoveable, Lewin, 163. |