Report No. 17
Of Vacating the Office of Trustee
84. Sections 70 to 74.-
These sections may be considered together. Section 70 speaks of a vacancy occurring in the office of a trustee either by death or by his discharge from his office. The discharge from office is either under section 71 or under section 72. There may be a need to appoint a trustee when the trustee appointed disclaims (section 59). In all these three cases, a trustee has to be appointed. Some other reasons for appointing a new trustee are enumerated in section 73, viz., where the existing trustee-
(a) is absent for a continuous period of six months from India; or
(b) is leaving India for the purpose of residing abroad; or
(c) is declared insolvent; or
(d) desires to be discharged from the trust; or
(e) refuses or becomes, in the opinion of a principal civil court of original jurisdiction, unfit or personally incapable to act or accepts an inconsistent trust.
Regarding the desire to be discharged from the trust, that has to be done on an application under section 72, read with clause (f) of section 71.
Section 71 should be amended to cover cases of renunciation.1 Further, the discharge under section 71(a) to (e) is automatic, while that under section 71(f) requires an order of the court. To make this clear, suitable verbal changes may be made.
The first principle of filling up a vacancy is to have regard to clauses (a) and (b) of section 73. If that is not possible, recourse must be had to court under section 74 which also lays down the qualifications or the considerations that should be taken into account in selecting a new trustee. A logical and intelligible arrangement of the provisions would be to provide, firstly, for the vacancy in the office of a trust by death or by discharge or by disclaimer; then to provide for other reasons for which a new trustee has to be appointed; and then to lay down the method of filling up the vacancy, first by following the rules in clauses (a) and (b) of section 73 and, if they cannot be applied, by having recourse to court under section 74, and, lastly, to provide for the considerations to be taken into account in selecting a new trustee. Necessary changes may be made to give effect to this arrangement. In this connection, reference may be made to section 47 of the Bombay Public Trusts Act also.
Section 73 should also cover the case of a trustee under disability, etc.2
1. See discussion under section 46.
2. See discussion above under section 10.