Report No. 17
Sections 73, 73A and 74.- For sections 73 and 74 of the principal Act, the following sections shall be substituted, namely:-
"73. Appointment of new trustee.-(1) Whenever any trustee, either original or substituted,-
(a) disclaims or dies; or
[Cf. existing section 73, opening part]
(b) is for a continuous period of six months absent from India, or leaves India for the purpose of residing abroad; or
(c) is declared an insolvent; or
(d) desires to be discharged from the trust; or
(e) refuses to act as a trustee; or
(f) becomes, in the opinion of the district court, unfit or physically incapable to act in the trust or accepts a position which is inconsistent with the trust;
then, a new trustee may be appointed in his place.
Explanation.-The provisions of this sub-section relating to a trustee who is dead include the case of a person nominated trustee in a Will but dying before the testator.
(2) Where a person incompetent to contract by reason of minority or other disability is appointed to be a trustee, the District Court shall appoint another person to act as a trustee in his place until the disability ceases and he accepts the trust.
[Cf. section 47 (1) (g), Bombay Public Trusts Act, 1950]
73A. Person competent to fill up vacancy.-(1) The appointment of a new trustee under section 73 may be made 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.-
(i) the author of the trust, if he be alive and competent to contract; or
(ii) the surviving or continuing trustees or trustee for the time being; or
(iii) the legal representative of the last surviving and continuing trustee; or
(iv) (with the consent of the district court), the retiring trustees, if they all retire simultaneously, or, with the like consent, the last retiring trustee.
[Cf. existing section 73, 1st para, clauses (a) and (b)]
(2) Every such appointment shall be made by writing under the hand of the person making it.
[Cf. existing section 73, 2nd, 3rd and 4th para]
(3) On an appointment of a new trustee the number of trustees may be increased.
(4) 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.
Explanation.-The provisions of this section relating to a continuing trustee include the case of a refusing or retiring trustee if willing to act in the execution of the power.