vustudents
08-18-2012, 02:02 AM
1. Introduction:
The court can appoint a trustee under the trusts act. in appointing new which is not court acts upon and exercise its discretion which is not arbitrary, but based upon general rules. the newly appointed trustee shall have the same powers, authorities and discretion in regard to trust administration as the originally nominated trustee and he will act accordingly.
2. Relevant Provisions:
Sec. 73, 74, 75 Trusts act 1882.
3. Appointment of new trustee:
Who can appoint
New trustee in place of initial or first trustee or other trustee can be mad.
(i) By the person nominated for that purpose by the instrument of trust or.
(ii) By the author of the trust if he alive and competent to contract or.
(iii)By the surviving of continuing trustees or trustee or.
(iv) By the legal representative of the last surviving and continuing trustee, or.
(v) With the consent of the court by retiring trustees, if they all retire simultaneously or.
(vi) With the consent of the court, by the last retiring trustee.
4. Circumstances which render the appointment of trustee necessary:
Following are those circumstances which render the appointment of the trustee necessary.
(i) Death:
If a trustee dies, new trustee will be appointed.
(ii) Trustee disclaims:
If trustee appointed disclaim new trustee will be appointed.
(iii) Absence of a trustee:
If a trustee more than six months is absent form the country.
(iv) Out of the country:
If trustee out of the country for staying abroad.
(v) Insolvency:
If a trustee is declared insolvent by competent court.
(vi) Incapable to perform:
If a trustee refuses or becomes unfit or incapable to act.
(vii) Acceptance of inconsistent trust:
If a trustee accepts inconsistent trust, new trustee shall be appointed.
5. Appointment of the trustee by the court:
Court is empowered to appointe a new trustee under sec. 74 of trusts act.
(i) Conditions
(i) Vacancy occurs or
(ii) Disqualification of the trustee occurs or
(iii) It is impracticable to appoint the trustee u/s 73.
(iv) Application should be filed by the beneficiary.
(v) Application should be filed in the principal civil court of original jurisdiction.
6. Scope:
In the trusts act 1882, the court has only power under sec. 73 and 74 to appoint a trustee. no any section in the trusts act empowers to the court for appointment of the trustee. so power of the court in this regards is limited.
7. Rules of appointment:
In appointing new trustee the court shall have regard to
(a) The wishes of the author of trust as expressed in the instrument.
(b) The wishes of the person. if any, empowered to appoint a new trustee.
(c) The question whether the appointment will promote or impede the execution of trust and,
(d) To the interests of all the beneficiaries where there are more than one.
Case law
1993 MLD 1666
It was held that a trust having been created for the benefit a non-Muslim community, respondent was the only member of that community, who has come forward to be appointed as a trustee and her application was not opposed by any other member of said community. Appellant being a Muslim had no locus standi to call in question appointed of respondent as a a trustee in execution proceeding. appointment of respondent as a trustee was not violative of any of the provisions contained in sec. 74 of trusts act.
8. Consequences of appointment:
When the new trustee is appointed under sec 73 or 74, all the trust property shall vested in new trustee and shall enjoy same powers. authorities and discretion and shall act, as if he had been originally nominated a trustee by the author of the trust.
9. Conclusion:
To conclude I can say that, the court has limited power under trusts act appoint a trustee in case of any disqualification of trustee or impracticability to appoint a new trustee. the beneficiary may apply to the court for the appointment of new trustee. in appointing new trustee, the court follow certain rules and the trusts act 1882.
The court can appoint a trustee under the trusts act. in appointing new which is not court acts upon and exercise its discretion which is not arbitrary, but based upon general rules. the newly appointed trustee shall have the same powers, authorities and discretion in regard to trust administration as the originally nominated trustee and he will act accordingly.
2. Relevant Provisions:
Sec. 73, 74, 75 Trusts act 1882.
3. Appointment of new trustee:
Who can appoint
New trustee in place of initial or first trustee or other trustee can be mad.
(i) By the person nominated for that purpose by the instrument of trust or.
(ii) By the author of the trust if he alive and competent to contract or.
(iii)By the surviving of continuing trustees or trustee or.
(iv) By the legal representative of the last surviving and continuing trustee, or.
(v) With the consent of the court by retiring trustees, if they all retire simultaneously or.
(vi) With the consent of the court, by the last retiring trustee.
4. Circumstances which render the appointment of trustee necessary:
Following are those circumstances which render the appointment of the trustee necessary.
(i) Death:
If a trustee dies, new trustee will be appointed.
(ii) Trustee disclaims:
If trustee appointed disclaim new trustee will be appointed.
(iii) Absence of a trustee:
If a trustee more than six months is absent form the country.
(iv) Out of the country:
If trustee out of the country for staying abroad.
(v) Insolvency:
If a trustee is declared insolvent by competent court.
(vi) Incapable to perform:
If a trustee refuses or becomes unfit or incapable to act.
(vii) Acceptance of inconsistent trust:
If a trustee accepts inconsistent trust, new trustee shall be appointed.
5. Appointment of the trustee by the court:
Court is empowered to appointe a new trustee under sec. 74 of trusts act.
(i) Conditions
(i) Vacancy occurs or
(ii) Disqualification of the trustee occurs or
(iii) It is impracticable to appoint the trustee u/s 73.
(iv) Application should be filed by the beneficiary.
(v) Application should be filed in the principal civil court of original jurisdiction.
6. Scope:
In the trusts act 1882, the court has only power under sec. 73 and 74 to appoint a trustee. no any section in the trusts act empowers to the court for appointment of the trustee. so power of the court in this regards is limited.
7. Rules of appointment:
In appointing new trustee the court shall have regard to
(a) The wishes of the author of trust as expressed in the instrument.
(b) The wishes of the person. if any, empowered to appoint a new trustee.
(c) The question whether the appointment will promote or impede the execution of trust and,
(d) To the interests of all the beneficiaries where there are more than one.
Case law
1993 MLD 1666
It was held that a trust having been created for the benefit a non-Muslim community, respondent was the only member of that community, who has come forward to be appointed as a trustee and her application was not opposed by any other member of said community. Appellant being a Muslim had no locus standi to call in question appointed of respondent as a a trustee in execution proceeding. appointment of respondent as a trustee was not violative of any of the provisions contained in sec. 74 of trusts act.
8. Consequences of appointment:
When the new trustee is appointed under sec 73 or 74, all the trust property shall vested in new trustee and shall enjoy same powers. authorities and discretion and shall act, as if he had been originally nominated a trustee by the author of the trust.
9. Conclusion:
To conclude I can say that, the court has limited power under trusts act appoint a trustee in case of any disqualification of trustee or impracticability to appoint a new trustee. the beneficiary may apply to the court for the appointment of new trustee. in appointing new trustee, the court follow certain rules and the trusts act 1882.