Report No. 17
12. "Trustee de son tort".-
Suggestions have been received that there should be a provision defining the liability of a trustee de son tort on the lines of sections 303-304 of the Indian Succession Act, 1925.
Section 303 of the Indian Succession Act defines an executor de son tort and section 304 of the said Act defines the extent of his liability. A trustee who intermeddles with the trust estate would also stand more or less on the same footing as an executor de son tort and his liability also would extend to the extent of the assess which have come into his hands and which have not been rightfully applied.
In the definition of executor de son tort in section 303 it is stated that an executor de son tort can come into existence only when there is no rightful executor or administrator. This condition, we think, need not be engrafted in the proposed definition. In the first place, even with regard to executor de son tort this condition has been held inapplicable in cases governed by Hindu Law.1 Secondly, this condition is not included in the definitions of executor de son tort as given in Halsbury and Williams. In Halsbury's Laws of England the expression is defined thus:
"An executor de son tort is one who takes upon himself the office of an executor, or intermeddles with the goods of a deceased person, without having been appointed an executor by the testator's last valid Will or a codicil thereto, or without having obtained a grant of administration from a competent court; and the term is thus equally applicable in the case of an intestacy as in the case of testacy, for there is no such term known to the law as an administrator de son tort".2
In Williams on Executors and Administrators the expression has been thus defined:
"If one, who is neither executor nor administrator, intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, he thereby makes himself what is called in the law, an executor of his own wrong, or more usually, an executor de son tort".3
It would thus be seen that the propriety of retaining the condition as to there being no lawful executor under section 303 of the Indian Succession Act is open to question.
In the case of trust estate, there is no reason why the cestui que trust himself should not be enabled to sue the trustee de son tort without waiting for the rightful trustee to take action against him even if one is in existence.
In Lewin on Trusts,4 it is stated that "if a person by mistake or otherwise assumes the character of trustee, when it really does not belong to him, and so becomes a trustee de son tort, he may be called to account by the cestui quo trust, for the moneys he received under colour of the trust". The learned author does not introduce the condition of the absence of a rightful trustee in order to constitute the intermeddler a trustee de son tort. For these reasons we think that the condition that in the absence of a rightful trustee alone a person becomes a trustee de son tort by intermeddling with the trust estate need not be engrafted in the section.
Subject to the above observations, we have accepted the suggestion to insert a new section on the lines of section 304. We have, however, considered it unnecessary to have a provision defining the expression "trustee de son tort", and then providing for his liability. It would, in our opinion, suffice if the substance of the definition contained in section 303 is incorporated in the substantive section5 itself.
1. Narayanasami v. Esa Abbavi, 28 Mad 351 (353).
2. Halsbury's Laws of England, (3rd Edn.), Vol. 16, p. 120.
3. Williams on Executors and Administrator, (13th Edn.), Vol. 1, p. 27.
4. Lewin on Trusts, (15th Edn.), p. 178.
5. See section 30A (as proposed), in Appendix 1.
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