Section 73 of The Indian Trust Act, 1882
Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from 1[India], or leaves 1[India] for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit or personally incapable 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, 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. 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. 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.
Summary
- This section outlines the specific situations that create a vacancy and allow for the appointment of a new trustee under the Indian Trusts Act, 1882.
- A vacancy occurs if a trustee disclaims, dies, is absent from India for a continuous period of six months, leaves India to reside abroad, is declared insolvent, or desires to be discharged.
- Other triggers include a trustee refusing to act, becoming unfit or personally incapable to act in the trust, or accepting an inconsistent trust.
- The new appointment must be done in writing by the person nominated in the trust deed, or if there is no such person, by the author, surviving or continuing trustees, or legal representatives.
- During this replacement process, the total number of trustees may be increased.
Practical examples
FAQ
1. What events cause a trustee vacancy under Section 73 of the Indian Trusts Act, 1882?
Under Section 73 of the Indian Trusts Act, 1882, a vacancy occurs if a trustee disclaims, dies, remains continuously absent from India for six months, leaves India to live abroad, is declared insolvent, wants a discharge, refuses to act, becomes unfit or incapable, or accepts a conflicting trust.
2. Who has the power to appoint a new trustee under Section 73 of the Indian Trusts Act, 1882?
Under Section 73 of the Indian Trusts Act, 1882, the power to appoint belongs first to the person nominated for that purpose in the trust instrument, or if there is no such person, to the author of the trust, or the continuing trustees, or the legal representative of the last surviving trustee.
3. Does a new trustee appointment have to be in writing under Section 73 of the Indian Trusts Act, 1882?
Yes, under Section 73 of the Indian Trusts Act, 1882, every appointment of a new trustee must be made in writing under the hand of the person who is making the appointment.
4. Can the number of trustees be increased when appointing a new one under Section 73 of the Indian Trusts Act, 1882?
Yes, under Section 73 of the Indian Trusts Act, 1882, the number of trustees may be increased when a new trustee is appointed.
Test yourself
Q1.Under Section 73 of the Indian Trusts Act, 1882, how long must a trustee remain continuously absent from India to trigger a valid replacement?
Q2.Under Section 73 of the Indian Trusts Act, 1882, who is the primary person authorized to appoint a new trustee when a vacancy occurs?
Q3.Under Section 73 of the Indian Trusts Act, 1882, what formal requirement must be met for the appointment of a new trustee to be legally valid?
Q4.Under Section 73 of the Indian Trusts Act, 1882, what is the legal consequence if a person nominated as a trustee in a will dies before the testator?