A trustee is a firm or a person who holds and administers the assets or the properties for the benefit of a third party. A trustee is appointed for several different reasons which may include cases related to bankruptcy, charitable purposes, for a trust fund, or retirement or pension plans.
Trustees are often believed to act and make decisions in the best interest of the beneficiary to manage their assets. The author gives the right to the trustee to hold the titles to the asset or the property for the benefit of the trust beneficiary or for himself. The trust deed might be created to give legal protection to the property of the author and ensure that the assets are distributed properly. The trustees are responsible for the management of the title(s).
Chapter IV of the Indian Trust Act, 1882 (Section 31-45) discusses certain rights and powers of the trustees which can be enjoyed by them.
RIGHTS OF A TRUSTEE:
Right to title deed [S.31]- The trustee has the right to have possession over the instrument of trust and other documents which are related to the trust property. Although if the beneficiary demands copies of such documents, the trustee needs to provide it to them.
Right to reimbursement of expenses [S.32]- For the purpose of the execution, preservation, or benefit of the trust property or for the protection and support of the trust beneficiary, the trustee has the right to reimburse or pay himself all the expenses out of the trust property which has incurred to him while carrying out these purposes.
The trustee has the right to first charge upon the trust property for such expenses along with interest, provided that such expenses have incurred with the sanction of a principal Civil Court of original jurisdiction. In case the trust property fails to provide the trustee with such expenses, he has the right to recover the amount from the trust beneficiary personally on whose request such payments were made.
Right to recollect over- payment [S.32]- The trustee has the right to reimburse the trust property of the beneficiary’s interest in case if any over-payment is made mistakenly by the trustee to the beneficiary. The trust property on failing to provide for such excess payment, the trustee is entitled to recover the amount personally from the trust beneficiary.
Right to indemnity from gainer by breach of trust [S.33]- If a person has gained an advantage by committing a breach of trust then such person must indemnify the trustee with the amount which was received to him by committing the breach. In case if the beneficiary commits the breach, the trustee has the right to charge upon the trust property for such amount.
The provision further states that the trustee does not confer the rights to indemnify if he himself has committed the breach and is guilty of fraud.
Right to opinion from Court for trust property management [S.34]- The trustee has the right to seek opinion, advice, or direction on any matters related to the management or administration of the trust property by filing a petition to a principal Civil Court of original jurisdiction.
Right to settlement of Accounts [S.35]- The trustee is entitled to have accounts of his administration of the trust property examined and settled and also an acknowledgment in writing that no benefit is due to any beneficiary under the trust after the successful completion of his duties as a trustee.
POWERS OF A TRUSTEE:
General Authority of Trustee [S.36]- The trustee has the power to perform any acts which may seem reasonable and proper to him of the realization, protection, or benefit of the trust property and to provide protection and support to the trust beneficiary competent to the contract. However, these powers including the powers conferred by the act and the trust deed are subject to:
- any restrictions provided in the trust deed, and
- to the provisions of section 17 of this act.
In addition to these, the trustee cannot lease a trust property exceeding more than twenty-one years or without reserving the yearly rent that can be obtained provided he has taken proper permission from a principal Civil Court of original jurisdiction.
Power to sell [S.37]- Subject to prior charges or not, the provision confers the power to the trustee to sell any trust property together in lots by public auction or by private contracts and either at one time or several times unless otherwise provided by the trust deed.
Power to sell under special conditions [S.38]-
- Power to buy-in and re-sell- The trustee has the power to make any reasonable changes in any conditions of sale or contract for sale. He also has the power to buy-in the property or any part of it at any auction sale and re-sale it by making necessary changes in the contract as he deems fit, provided such changes does not bring any kind of loss on the part of the trust beneficiary.
- Time allowed to sell trust property- the trustee is conferred with the power to exercise reasonable discretion regarding the time for effecting the sale or purchase
Power to Convey [S.39]- The trustee is granted the power to convey or dispose of the property for the purpose of completion of any sale as he may deem fit to be.
Power to vary Investments [S.40]- The trustee is entitled to call in for any of the trust property which is invested in any security and invest that property in securities that are mention under Section 20 of the Act. He may also differ in any such investments anytime subject to the condition that no such change of investment shall be made without the consent of the person competent to contract and entitled to receive the income of the trust property for life or for any greater estate at that time.
Power to apply for minor’s trust property for their maintenance [S.41]- In case the trustee is holding trust property for a minor, he may pay to the guardians at his own discretion or with the permission of the Principal Civil Court of original jurisdiction apply for or towards the minor’s benefit such as:
- Maintainance, or
- Education or advancement in life, or
- Religious worship, or
- Marriage, or
Power to give receipts [S.42]- The provision confers the power to the trustee(s) to give a receipt, without committing any kind of fraud, to the person who is paying, transferring, or delivering any money, securities, or movable properties. After receiving such receipt, the person paying, transferring, or delivering shall be discharged from being accountable for any loss or misapplication.
Power to compound [S.43]- The provision confers the power to settle disputes to the trustee. The trustee or the sole trustee (in case of two trustees) is entitled to settle any dispute or matter related to the trust property in the manner they think fit to be unless otherwise provided by the trust deed. The trustee has the power to:
- Accept any security or composition for any debt or property claimed.
- Allow payment of debt anytime.
- Compromise, compound, abandon or even submit to the arbitration or settle any debt, account, claim related to the trust.
- Execute, give or enter into such agreements, instruments, or arrangements which they deem fit to, subject to the condition that such arrangements being done in good faith shall not bring any kind of loss.
Power to several trustees of whom one disclaims or dies [S.44]- In case there are several trustees and any one of them disclaims the trust or dies, the remaining trustees have the power to continue with the authority. However, if the trust deed requires a specific number or more of trustees then the authority cannot be exercised by the remaining trustees.
Suspension of trustee’s powers by decree [S.45]- The trustee is not entitled to exercise any of his powers if in case a decree has been passed by the Court for the execution of a trust unless conformity has been provided by such decree, or by the Court’s sanction, or a pending appeal against the decree in the Appellate Court.
The Indian Trust Act aims to protect the fiduciary relationship formed between the author, the trustee, and the beneficiary. These rights and powers conferred to the trustee ensures easy and smooth management of the trust property and also eases the maintenance which is to be provided to the trust beneficiary keeping in mind that such rights and powers are used in good faith.
Author: Deepa Rishi,
3rd Year, REVA UNIVERSITY, BANGALORE.