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Report No. 17

Chapter V

Of the Disabilities of Trustees

57. Section 46.-

This section seems to create some difficulty in the light of sections 70, 71 and 73. The intention of the legislature, no doubt, seems to be that renunciation under section 46 would operate as a discharge creating a vacancy as provided under section 70, though on a literal interpretation of section 70 a vacancy would not arise on mere renunciation. Section 73 does not provide for filling up a vacancy caused by reason of a valid renunciation. It may be assumed that renunciation is equal to a discharge.

Two of the grounds in section 46 (b) and (c) which justify renunciation are also grounds for discharge in section 71. If a renunciation is based on grounds (b) and (c) in section 46, no permission of the court is required. It would operate automatically to create a vacancy in the office. We think that this is a lacuna which has to be supplied. The proper solution would be to insert a provision in section 71 to cover cases of renunciation. This would necessitate the omission of section 71, clause (e), which would become redundant in view of section 46(b).

Trusts Act, 1882 Back

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