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Report No. 17

68. Section 62.-

We do not see any distinction for the purposes of the rule in the section between a person who purchases the trust property with notice of the trust from the trustee on the one hand and a person who has acquired it without consideration from such trustee. We therefore recommend that the section may be made applicable to the latter category of persons also, with such modifications as may be appropriate.

69. Section 53 prohibits a trustee from buying the beneficiary's interests without permission of the court, while clause (b) of section 62 provides that a beneficiary competent to contract may ratify the unauthorised sale by a trustee of trust property, provided the ratification is made with full knowledge of the facts of the case and without being under undue influence. The two relate to distinct matters. Section 53 has reference to the purchase by the trustee, and the court may grant permission only if the purchase is manifestly for the advantage of the beneficiary.

In the case of ratification, where the beneficiary is sui juris and is competent to contract, the question of advantage or disadvantage does not arise because it is open to him either to modify or refuse to ratify the same and the question of permission of the court or protecting the interest of the beneficiary does not arise. We have also made some drafting changes of a formal nature in the wording of section 62.

Trusts Act, 1882 Back

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