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Creation of trust and its requisites under the law of trust in 
Pakistan 
TRUST ACT, 1882 
Advocate Sehrish Saba Raja, LL.M Human Rights Law 
11/3/2014
Definition of trust: 
Black’s Law Dictionary defines the term trust as: 
“The right, enforceable solely in equity, to the beneficial enjoyment of property to which another 
person holds the legal title; a property interest held by one person (the trustee) at the request of 
another (the settlor) for the benefit of a third party (the beneficiary).”1 
Law of trust in Pakistan: 
On 13th January 1882, by enactment of Act No. 2 of 1882, an Act was promulgated to define and amend the law 
relating to Private Trusts and Trustees. The Act was called as Trust Act, 1882, which came into force on the first 
day of March 1882. 
The Act extends to the whole of Pakistan. but the preamble of the same clarifies that nothing contained in 
the Act would affect the rules of Muslim law as to waqf, or the mutual relations of the members of an undivided 
family as determined by any customary or personal law, or applies to public or private religious or charitable 
endowments, or to trusts to distribute prizes taken in war among the captors. The Act is to effect prospectively. 
Trust act, 1882 
Interpretation clause: 
Section 3 of the Trust act 1882, defines in its interpretation clause the definitions of trust, author of trust, trustee, 
beneficiary, trust property, beneficial interest, instrument of trust and breach of trust along with few other 
terminologies. Some of the definitions are reiterated below. 
1 BRYAN A. GARNER, EDITOR IN CHIEF, BLACK’S LAW DICTIONARY (USA: WEST PUBLISHING CO. 9th Edition)
creation of 
trust 
instrument 
of trust 
1. Trust: 
A “trust” is an obligation annexed to the ownership of property, and rising out of a confidence reposed in and 
accepted by the owner, or declared and accepted by him, for the benefit of anothe r, or of another and the owner. 
2. Author of the trust : 
The person who reposes or declares the confidence is called the “author of the trust” . 
3. Trustee: 
The person who accepts the confidence is called the “trustee” of the trust. 
4. Beneficiary: 
The person whose benefit the confidence is accepted is called the “beneficiary” of the trust. 
5. Trust property/ money: 
The subject-matter of the trust is called “trust-property” or “trust-money”. 
6. Beneficial interest/ interest: 
The “beneficial interest” or “interest” of the beneficiary is his right against the trustee as owner of the trust-property. 
7. Instrument of the trust: 
The instrument, if any, by which the trust is declared is called the “instrument of the trust”. 
8. Breach of trust: 
trust 
property / 
trust money 
• creator of the 
trust 
author of 
trust 
•administrator of the 
trustee trust property 
•for whose benefit 
benificiary trust is created
A breach of any duty imposed on a trustee, as such, by any law for the time being in force, is called a “breach 
of trust”. 
personal obligations in 
respect of trust 
property, works for 
benificiery's interest •BENEFICIARY 
• TRUSTEE 
•(LEGAL OWNER, 
CONDITIONAL 
RIGHT) 
Object of the trust 
• AUTHOR OF 
THE TRUST 
•(ABSOLUTE 
OWNER) 
transfers his legal 
title 
•(EQUITABLE 
TITLE) 
for whose benifit 
trust is created 
The Trust Act 1882 clearly defines the objects for which the trust can be created. Section 4 of the Trust Act 
elaborates the purposes for which the trust can be created along with the legal restraints which bars the creation of a 
trust. According to section 4 trust act: 
1. Lawful purpose: 
A trust can only be created for any lawful purpose. 
2. When the purpose is considered to be unlawful 
The purpose of a trust would be considered as unlawful under the following situations: 
(a) When it is forbidden by law, 
(b) When it is of such a nature that, if permitted, it would defeat the provisions of any law, 
(c) When it is fraudulent, 
(d) When it involves or implies injury to the person or property of another, 
(e) When the Court regards it as immoral or opposed to public policy.
3. Status of unlawful trust 
Every trust of which the purpose is unlawful is void. 
4. If trust is created for more than one purposes 
Where a trust is created for two purposes, of which one is lawful and the other unlawful and the two purposes 
cannot be separated, the whole trust is void. 
Prerequisites of Creation of trust 
Section 6 provides the prerequisites to be fulfilled for the creation of a trust. According to section 6 a trust is created 
when the author of the trust indicates with reasonable certainty by any words or acts 
a) An intention on his part to create thereby a trust, 
b) The purpose of the trust, 
c) The beneficiary, 
d) The trust-property, 
e) Transfers the trust-property to the trustee except where the trust is declared by will or the author of the trust is 
himself to be the trustee 
declaration of trust 
(intention of the 
author of the trust) 
purpose of the trust 
(mus t be lawful) 
benificiary (someone 
for whose benifit 
trus t i s created) 
trans fer of the trust 
property to the 
trus tee 
trus t property 
(should be in 
exi stence) 
Rights and liabilities of the author of the trust
Requisites of author of the trust 
A following are the persons competent to create a trust. 
a. A trust may be created by every person competent to contract 
b. By any person authorized/ permitted by a principal Civil Court of original jurisdiction, by or on behalf of a 
minor. 
Responsibility towards the subject matter 
Section 8 of the Trust Act, indicates the responsibility of the author towards the subject matter of the trust. 
According to which the Subject-matter of a trust must be property transferable to the beneficiary. It must not be 
merely beneficial interest under a subsisting trust. 
Rights and liabilities of the trustee 
Capacity of the trustee 
Section 10 of the Trust Act, defines the capacity of the trustee, according the which, every person capable of holding 
property may be a trustee but where the trust involves the exercise of discretion, he cannot execute it unless he is 
competent to contract. No one is bound to accept a trust. 
As mentioned in article 3 of the Act the trustee is a person who accepts the confidence reposed by the author of the 
trust. Similarly article 10 defines that no one is bound to accept a trust. The intended trustee may instead of 
accepting the trust, disclaim it within a reasonable period and his disclaimer will prevent the trust-property from 
vesting in him. 
In case of acceptance of the trust by the trustee he may accept the trust by any words or acts indicating with 
reasonable certainty his acceptance. 
Responsibilities of the trustee
a. Section 11 states the foremost duty of the trustee is the accomplishment of the purpose of the trust, and 
obedience to the directions of the author of the trust given at the time of its creation. The trustee is not 
bound to obey any direction when doing of the same is impracticable, illegal or manifestly injurious to the 
beneficiaries. 
b. Section 12 states that a trustee is bound to acquaint himself of, with the nature and circumstances of 
the trust-property, transfer of the trust-property to himself and (subject to the provisions of the 
instrument of trust) to get in trust-moneys invested or insufficient or hazardous security. 
c. It is the responsibility of the trustee to protect title to trust-property. He is bound to maintain and defend 
all such suits, and (subject to the provisions of the instrument of trust) to t ake such other steps as, regards 
being had to the nature and amount or value to the trust-property, may be reasonably requisite for the 
preservation of the trust-property and the assertion or protection of the title thereto. 
d. Trustee is under duty to not to set up title adverse to beneficiary - The trustee must not for himself of 
another set up or aid any title to the trust-property adverse to the interest of the beneficiary. 
e. A trustee is bound to deal with the trust-property as carefully as a man of ordinary prudence would 
deal with such property if it were his own; and, in the absence of a contract to the contrary, a trustee so 
dealing is not responsible for the loss, destruction or deterioration of the trust -property. 
f. Where the trust is created for the benefit of several persons in succession and the trust-property is of a 
wasting nature or a future or reversionary interest, the trustee is bound unless an intention to the contrary 
may be inferred from the instrument of trust, to convert the property into property of a permanent and 
immediately profitable character. 
g. Where there are more beneficiaries than one, the trustee is bound to be impartial, and must not execute 
the trust for the advantage of one at the expense of another. 
h. Where the trust is created for the benefit to several persons in succession and one of them is in possession 
of the trust-property, if he commits, or threatens to commit, any act, which is destructive, or permanently 
injurious thereto, the trustee is bound to take measures to prevent such act. 
i. A trustee is bound to keep clear and accurate accounts of the trust-property and to furnish the 
beneficiary with full and accurate information as to the amount and state of the trust -property, as and 
when requested by him. 
j. Where the trust-property consists of money and cannot be applied immediately or at an early date to the 
purposes of the trust, the trustee is bound to invest the money only on the securities mentioned in the 
Act, and not anywhere else.
Liabilities of the trustee: 
accomplishment of purpose 
of trust according to 
instrument of trust 
to acquaint himself of the 
nature and circumstances of 
trust property 
to protect title of the trust 
property 
not to setup title 
adverse to the interest 
of the benificiary 
to deal with the trust 
property carefully 
to convert property 
into permanemt and 
immediate profitable 
character 
to be 
impartial 
a. Section 22 of Trust Act declares that if instrument of trust directed the trustee to sale out the property 
within certain specified time and he extends such time, the burden of proving that the beneficiary is not 
prejudiced by this extension lies upon the trustee, unless the extension has been authorized by a principal 
Civil Court of original jurisdiction. 
b. Section 23 mentions where the trustee commits a breach of trust, he is liable to make good the loss which 
the trust-property or the beneficiary has thereby sustained, unless the beneficiary, has by fraud induced the 
trustee to commit the breach, or the beneficiary, being competent to contract, has himself, without coercion 
or undue influence having been brought to bear on him, concurred in the breach, or subsequently 
acquiesced therein, with full knowledge of facts of the case and of his rights as against the trustee. In case
of making this loss good the trustee would not be liable to pay interest generally but the underhand are the 
cases in which he would be liable to pay. 
i. Where he has actually received interest; 
ii. Where the breach consists in unreasonable delay in paying trust -money to the beneficiary; 
iii. Where the trustee ought to have received interest, but has not done so; 
iv. Where he may be fairly presumed to have received interest. 
He is liable, in case (a), to account for the interest actually received, and, incases (b), (c) and (d), to 
account for simple interest at the rate of six per cent per annum, unless the Court othe rwise directs. 
v. Where the breach consists in failure to invest trust-money and to accumulate the interest or dividends 
thereon, he is liable to account for compound interest (with half-yearly rests) at the same rate; 
vi. Where the breach consists in the employment of trust-property or the proceeds thereof in trade or 
business, he is liable to account, at the option of the beneficiary, either for compound interest (with 
half-yearly rests) at the same rate, or for the net profits made by such employment. 
Situations where trustee would be exempted from liability 
a. Section 25 of Trust Act provides Non-liability for predecessor's default - Where a trustee 
succeeds another, he is not, as such, liable for the acts or defaults of his predecessor. 
b. Section 26 situates the non-liability for co-trustee's default - Subject to the provisions of 
Section 13, and 15, one trustee is not, as such, liable for a breach of trust committed by his 
co-trustee except for the reasons mentioned in the section. 
c. A co-trustee who joins in signing a receipt for trust-property and proves that he has not 
received the same is not answerable, by reason of such signature only, for loss or 
misapplication of the property by his co-trustee is also exempted from liability. 
d. Section 28 defines that when any beneficiary's interest becomes vested in another person, 
and the trustee, not having notice of the vesting, pays or delivers trust -property to the person 
who would have been entitled thereto in the absence of such vesting, the trustee is not liable 
for the property so paid or delivered. 
Rights of the trustee
a. Section 31 of the Act states that trustee has a Right to title-deed- A trustee is entitled to have in his 
possession the instrument of trust and all the documents of title (if any) relating solely to the trust-property. 
b. Trustee also has a Right to reimbursement of expenses as mentioned in Article 32 of the Act – 
according to it every trustee may reimburse himself, or pay or discharge out of the trust -property, all 
expenses property incurred in or about the execution of the trust, or the realization, preservation or 
benefit of the trust-property, or the protection or support of the beneficiary. 
c. If the trustee has paid such expenses out of his own pocket, he has a first charge upon the trust-property 
for such expenses and interest thereon; but such charge (unless the expenses have been 
incurred with the sanction of a principal Civil Court of original jurisdiction) shall be enforced only by 
prohibiting any disposition of the trust-property without previous payment of such expenses and 
interest. 
d. If the trust-property fail, the trustee is entitled to recover from the beneficiary personally on whose 
behalf he acted, and at whose request, expressed or implied, he made the payment, the amount of such 
expenses. 
e. Trustee also reserves the Right to be recouped for erroneous over-payment - Where a trustee has 
by mistake made an over-payment to the beneficiary; he may reimburse the trust-property out of the 
beneficiary's interest. If such interest fails, the trustee is entitled to recover from the beneficiary 
personally the amount of such over-payment. 
f. Section 33 of the Act provides trustee a Right to indemnity from gainer by breach of trust - A 
person other than a trustee who has gained an advantage from a breach of trust must indemnify the 
trustee to the extent of the amount actually received by such person under the breach; and where he is 
beneficiary the trustee has a charge on his interest for such amount. 
g. Trustee has a Right to apply to Court for opinion in management of trust-property under section 
34 of the Act - Any trustee may, without instituting a suit, apply by petition to a principal Civil Court 
of original jurisdiction for its opinion, advice or direction on any present questions respecting the 
management or administration of the trust-property other than questions of detail, difficulty or 
importance, not proper in the opinion of the Court for summary disposal. 
h. Section 35 of the Act gives Right to settlement of accounts to the trustee according to which when 
the duties of a trustee, as such, are completed, he is entitled to have the accounts of his administration 
of the trust-property examined and settled; and, where nothing is due to the beneficiary under the trust, 
to an acknowledgement in writing to that effect.
i. Trust Act also recognizes some General authority of trustee under section 36 of the Act. According 
to which in addition to the powers expressly conferred by this Act and by the instrument of trust, a 
trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the 
trust-property, and for the protection or support of a beneficiary who is not competent to contract. 
Disabilities of the trustee 
There also exist some disabilities of the trustee. Some of which are mentioned below. 
a. According to section 46 of the Act, Trustees cannot renounce after acceptance - A trustee 
who has accepted the trust cannot afterwards renounce it . There are two exceptions to the 
rule. First is trustee can renounce with the permission of a principal Civil Court of original 
jurisdiction. Secondly, he can renounce with the consent of the beneficiary if he is competent 
to contract and finally by virtue of a special power in the instrument of trust , trustee can 
renounce. 
b. Section 47 of the Act states that a Trustee cannot delegate - A trustee cannot delegate his 
office or any of his duties either to a co-trustee or to a stranger, unless 
i. the instrument of trust so provides, 
ii. the delegation is in the regular course of business, 
section 
31 of 
act 
•right to have instument of trust and all the documents of title 
section 
32 of 
act 
•right to reimbursment of expences and to be recouped for eronous 
overpayments 
section 
33 of 
act 
•Right to indemnity from gainer by breach of trust 
section 
34 of 
act 
•Right to apply to Court for opinion in management of trust-property 
section 
35 of 
act 
•Right to settlement of accounts 
section 
36 of 
act 
•All acts which are reasonable and proper for the realization, protection or 
benefit of the trust-property,
iii. the delegation is necessary, 
iv. the beneficiary, being competent to contract, consents to the delegation. 
It is important to mention here that the appointment of an attorney or proxy to do an act merely 
ministerial and involving no independent discretion is not a delegation within the meaning of this 
section. 
c. Section 48 of the act states that Co-trustees cannot act singly - When there are more 
trustees than one, all must join in the execution of the trust, except where the instrument of 
trust otherwise provides. 
d. According to section 50 of the Act, Trustee may not charge for services - In the absence of 
express directions to the contrary contained in the instrument of trust or of a contract to the 
contrary entered into with the beneficiary or the Court at the time of accepting the trust, a 
trustee has no right to remuneration for his trouble, skill and loss of time in executing the 
trust. 
e. Trust Act provides under section 51 that Trustee may not use trust-property for his own 
profit - A trustee may not use or deal with the trust-property for his own profit or for any 
other purpose unconnected with the trust. 
f. Section 52 of the Act states that Trustee for sale or his agent may not buy the trust 
property- No trust whose duty it is to sell trust-property, and no agent employed by such 
trustee for the purpose of the sale, may, directly or indirectly, buy the same or any interest 
therein, on his own account or as agent for a third person. 
g. As per section 53 of the enactment Trustee may not buy beneficiary's interest without 
permission - No trustee, and no person who has recently ceased to be a trustee, may, without 
the permission of a principal Civil Court of original jurisdiction, buy or become mortgagee or 
lessee of the trust-property or any party thereof; and such permission shall not be given 
unless the proposed purchase, mortgage or lease is manifestly for the advantage of the 
beneficiary. 
h. Section 54 of the Act states that Co-trustee may not lend to one of themselves - A trustee 
or co-trustee whose duty it is to invest trust-money on mortgage or personal security must not 
invest it on a mortgage by, or on the personal security of him or one of his co-trustees. 
Rights and liabilities of the beneficiary
Rights of the beneficiary: 
There are several rights of the beneficiary mentioned in the act some of which are expressed here. 
a. Beneficiary has Rights to rents and profits under section 55 of the Act - The beneficiary has, subject 
to the provisions of the instrument of trust, a right to the rents and profits of the trust -property. 
b. Beneficiary has a Right to specific execution under section 56 of the Act - The beneficiary is entitled 
to have the intention of the author of the trust specifically executed to the extent of the beneficiary’s 
interest. 
c. Beneficiary has a Right to transfer of possession where there is only one beneficiary and he is 
competent to contract, or where there are several beneficiaries and they are competent to contract and 
all of one mind, he or they may require the trustee to transfer the trust -property to him or them, or to 
such person as he or they may direct. 
d. Beneficiary has a Right to inspect and take copies of instrument of trust accounts, etc. as 
mentioned in section 57 of the Act- The beneficiary has a right, as against the trustee and all persons 
claiming under him with notice of the trust, to inspect and take copies of the instrument of trust, the 
documents of title relating solely to the trust-property, the accounts of the trust-property an the 
vouchers (if any) by which they are supported, and the cases submitted and opinions taken by the 
trustee for his guidance in the discharge of his duty. 
e. Section 58 of the Act provides a Right to transfer beneficial interest - The beneficiary, if competent 
to contract, may transfer his interest, but subject to the law for the time being in force as to the 
circumstances and extent in and to which he may dispose of such interest. 
f. Section 59 of the Act states that beneficiary has a Right to sue for execution of trust - Where no 
trustees are appointed or all the trustees die, disclaim, or are discharged, or where for any other reason 
the execution of a trust by the trustee is or becomes impracticable, the beneficiary may institute a suit 
for the execution of the trust, and the trust shall, so far as may be possible, be executed by the Court 
until the appointment of a trustee or new trustee.
Liabilities of the beneficiary: 
Following are the liabilities of beneficiary. 
Section 68 of the Trust Act provides Liability of beneficiary joining in breach of trust - according to it where one 
of several beneficiaries – 
a. Joins in committing breach of trust, or 
b. Knowingly obtains any advantage therefrom, without the consent of the other beneficiaries, or 
c. Becomes aware of a breach of trust committed or intended to be committed, and either actually 
conceals it, or does not within a reasonable time take proper steps to protect the interes ts of the other 
beneficiaries, or 
d. Has deceived the trustee and thereby induced him to commit a breach of trust, 
the other beneficiaries are entitled to have all his beneficial interest impounded as against him and all who 
claim under him (otherwise than as transferees for consideration without notice of the breach) until the loss 
caused by the breach has been compensated. 
Termination of office of the trust 
Section 70 of the Act, states that the Office of the trust is terminated either by the death or by discharge from the 
office of the trustee. 
Discharge of trustee – 
TERMINATION OF 
OFFICE OF THE 
TRUST 
ON THE 
DISCHARGE OF 
THE TRUSTEE 
FROM HIS OFFICE 
ON THE DEATH OF 
THE TRUSTEE
According to the section 71 of the Trust Act, The trustee may be discharged from his office only as follows:- 
a. By the extinction of the trust; 
b. By the completion of his duties under the trust; THE TRUST ACT 1882 
c. By such means as may be prescribed by the instrument of trust; 
d. By appointment under this Act of a new trustee in his place; 
e. By consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the 
beneficiaries being competent to contract; or 
f. By the Court to which a petition for his discharge is presented under this Act. 
Procedure for discharge: 
Section 72 of the Act provides the procedure for the trustee to discharge from his office. According to which every 
trustee may apply by petition to a principal Civil Court of original jurisdiction to be discharged from his office; and, 
if the Court finds that there is sufficient reason for such discharge, it may discharge him accordingly, and direct his 
costs to be paid out of the trust-property. But where there is no such reason, the Court shall not discharge him, 
unless a proper person can be found to take his place. 
Appointment of new trustee 
Appointment of new trustees on death, etc. 
Section 73 of the Act provides that whenever any person appointed a trustee disclaims, of any trustee, either original 
or substituted, dies, or is for a continuous period of six months absent from Pakistan, or leaves Pakistan for the 
purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or 
becomes, in the opinion of a principal civil court of original jurisdiction, unfit or personally incapable to act in the 
trust, or accepts an inconsistent trust, a new trustee may be appointed in his place by - 
a. The person nominated for that purpose by the instrument or trust (if any), or 
b. If there be no such person, or no such person able and willing to act, the author of the trust if he be 
alive and competent to contract, or the surviving or continuing trustee or trustee for the time being, or 
legal representative of the last surviving and continuing trustee, or (with the consent of the Court) the 
retiring trustee, if they all retire simultaneously, or (with the like consent) the last retiring trustee .
Appointment by Court – 
As section 74 states whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a 
new trustee under section 73, the beneficiary may, without instituting a suit, apply by petition to a principal Civil 
Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee 
or a new trustee accordingly. 
THE EXTINCTION OF TRUSTS 
Section 77 of the Act defines the situations in which a trust is extinguished. According to which following are the 
cases when a trust extinguishes. 
a. When its purpose is completely fulfilled; or 
b. When its purpose becomes unlawful; or 
c. When the fulfillment of its purpose becomes impossible by destruction of the trust -property or 
otherwise; or 
d. When the trust, being revocable, is expressly revoked. 
Revocation of trust 
Section 78 of the Act defines how a trust may be revoked. 
a. A trust created by will, may be revoked at the pleasure of the testator. 
b. A trust otherwise created can be revoked only – 
i. Where all the beneficiaries are competent to contract- by their consents; 
ii. Where the trust has been declared by non-testamentary instrument or by word of mouth- in 
exercise of a power of revocation expressly reserved to the author of the trust; or 
iii. Where the trust is for the payment of the debts of the author of the trust, and has not been 
communicated to the creditors at the pleasure of the author of the trust.

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Trust act 1882, an eleborative article

  • 1. Creation of trust and its requisites under the law of trust in Pakistan TRUST ACT, 1882 Advocate Sehrish Saba Raja, LL.M Human Rights Law 11/3/2014
  • 2. Definition of trust: Black’s Law Dictionary defines the term trust as: “The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary).”1 Law of trust in Pakistan: On 13th January 1882, by enactment of Act No. 2 of 1882, an Act was promulgated to define and amend the law relating to Private Trusts and Trustees. The Act was called as Trust Act, 1882, which came into force on the first day of March 1882. The Act extends to the whole of Pakistan. but the preamble of the same clarifies that nothing contained in the Act would affect the rules of Muslim law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors. The Act is to effect prospectively. Trust act, 1882 Interpretation clause: Section 3 of the Trust act 1882, defines in its interpretation clause the definitions of trust, author of trust, trustee, beneficiary, trust property, beneficial interest, instrument of trust and breach of trust along with few other terminologies. Some of the definitions are reiterated below. 1 BRYAN A. GARNER, EDITOR IN CHIEF, BLACK’S LAW DICTIONARY (USA: WEST PUBLISHING CO. 9th Edition)
  • 3. creation of trust instrument of trust 1. Trust: A “trust” is an obligation annexed to the ownership of property, and rising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of anothe r, or of another and the owner. 2. Author of the trust : The person who reposes or declares the confidence is called the “author of the trust” . 3. Trustee: The person who accepts the confidence is called the “trustee” of the trust. 4. Beneficiary: The person whose benefit the confidence is accepted is called the “beneficiary” of the trust. 5. Trust property/ money: The subject-matter of the trust is called “trust-property” or “trust-money”. 6. Beneficial interest/ interest: The “beneficial interest” or “interest” of the beneficiary is his right against the trustee as owner of the trust-property. 7. Instrument of the trust: The instrument, if any, by which the trust is declared is called the “instrument of the trust”. 8. Breach of trust: trust property / trust money • creator of the trust author of trust •administrator of the trustee trust property •for whose benefit benificiary trust is created
  • 4. A breach of any duty imposed on a trustee, as such, by any law for the time being in force, is called a “breach of trust”. personal obligations in respect of trust property, works for benificiery's interest •BENEFICIARY • TRUSTEE •(LEGAL OWNER, CONDITIONAL RIGHT) Object of the trust • AUTHOR OF THE TRUST •(ABSOLUTE OWNER) transfers his legal title •(EQUITABLE TITLE) for whose benifit trust is created The Trust Act 1882 clearly defines the objects for which the trust can be created. Section 4 of the Trust Act elaborates the purposes for which the trust can be created along with the legal restraints which bars the creation of a trust. According to section 4 trust act: 1. Lawful purpose: A trust can only be created for any lawful purpose. 2. When the purpose is considered to be unlawful The purpose of a trust would be considered as unlawful under the following situations: (a) When it is forbidden by law, (b) When it is of such a nature that, if permitted, it would defeat the provisions of any law, (c) When it is fraudulent, (d) When it involves or implies injury to the person or property of another, (e) When the Court regards it as immoral or opposed to public policy.
  • 5. 3. Status of unlawful trust Every trust of which the purpose is unlawful is void. 4. If trust is created for more than one purposes Where a trust is created for two purposes, of which one is lawful and the other unlawful and the two purposes cannot be separated, the whole trust is void. Prerequisites of Creation of trust Section 6 provides the prerequisites to be fulfilled for the creation of a trust. According to section 6 a trust is created when the author of the trust indicates with reasonable certainty by any words or acts a) An intention on his part to create thereby a trust, b) The purpose of the trust, c) The beneficiary, d) The trust-property, e) Transfers the trust-property to the trustee except where the trust is declared by will or the author of the trust is himself to be the trustee declaration of trust (intention of the author of the trust) purpose of the trust (mus t be lawful) benificiary (someone for whose benifit trus t i s created) trans fer of the trust property to the trus tee trus t property (should be in exi stence) Rights and liabilities of the author of the trust
  • 6. Requisites of author of the trust A following are the persons competent to create a trust. a. A trust may be created by every person competent to contract b. By any person authorized/ permitted by a principal Civil Court of original jurisdiction, by or on behalf of a minor. Responsibility towards the subject matter Section 8 of the Trust Act, indicates the responsibility of the author towards the subject matter of the trust. According to which the Subject-matter of a trust must be property transferable to the beneficiary. It must not be merely beneficial interest under a subsisting trust. Rights and liabilities of the trustee Capacity of the trustee Section 10 of the Trust Act, defines the capacity of the trustee, according the which, every person capable of holding property may be a trustee but where the trust involves the exercise of discretion, he cannot execute it unless he is competent to contract. No one is bound to accept a trust. As mentioned in article 3 of the Act the trustee is a person who accepts the confidence reposed by the author of the trust. Similarly article 10 defines that no one is bound to accept a trust. The intended trustee may instead of accepting the trust, disclaim it within a reasonable period and his disclaimer will prevent the trust-property from vesting in him. In case of acceptance of the trust by the trustee he may accept the trust by any words or acts indicating with reasonable certainty his acceptance. Responsibilities of the trustee
  • 7. a. Section 11 states the foremost duty of the trustee is the accomplishment of the purpose of the trust, and obedience to the directions of the author of the trust given at the time of its creation. The trustee is not bound to obey any direction when doing of the same is impracticable, illegal or manifestly injurious to the beneficiaries. b. Section 12 states that a trustee is bound to acquaint himself of, with the nature and circumstances of the trust-property, transfer of the trust-property to himself and (subject to the provisions of the instrument of trust) to get in trust-moneys invested or insufficient or hazardous security. c. It is the responsibility of the trustee to protect title to trust-property. He is bound to maintain and defend all such suits, and (subject to the provisions of the instrument of trust) to t ake such other steps as, regards being had to the nature and amount or value to the trust-property, may be reasonably requisite for the preservation of the trust-property and the assertion or protection of the title thereto. d. Trustee is under duty to not to set up title adverse to beneficiary - The trustee must not for himself of another set up or aid any title to the trust-property adverse to the interest of the beneficiary. e. A trustee is bound to deal with the trust-property as carefully as a man of ordinary prudence would deal with such property if it were his own; and, in the absence of a contract to the contrary, a trustee so dealing is not responsible for the loss, destruction or deterioration of the trust -property. f. Where the trust is created for the benefit of several persons in succession and the trust-property is of a wasting nature or a future or reversionary interest, the trustee is bound unless an intention to the contrary may be inferred from the instrument of trust, to convert the property into property of a permanent and immediately profitable character. g. Where there are more beneficiaries than one, the trustee is bound to be impartial, and must not execute the trust for the advantage of one at the expense of another. h. Where the trust is created for the benefit to several persons in succession and one of them is in possession of the trust-property, if he commits, or threatens to commit, any act, which is destructive, or permanently injurious thereto, the trustee is bound to take measures to prevent such act. i. A trustee is bound to keep clear and accurate accounts of the trust-property and to furnish the beneficiary with full and accurate information as to the amount and state of the trust -property, as and when requested by him. j. Where the trust-property consists of money and cannot be applied immediately or at an early date to the purposes of the trust, the trustee is bound to invest the money only on the securities mentioned in the Act, and not anywhere else.
  • 8. Liabilities of the trustee: accomplishment of purpose of trust according to instrument of trust to acquaint himself of the nature and circumstances of trust property to protect title of the trust property not to setup title adverse to the interest of the benificiary to deal with the trust property carefully to convert property into permanemt and immediate profitable character to be impartial a. Section 22 of Trust Act declares that if instrument of trust directed the trustee to sale out the property within certain specified time and he extends such time, the burden of proving that the beneficiary is not prejudiced by this extension lies upon the trustee, unless the extension has been authorized by a principal Civil Court of original jurisdiction. b. Section 23 mentions where the trustee commits a breach of trust, he is liable to make good the loss which the trust-property or the beneficiary has thereby sustained, unless the beneficiary, has by fraud induced the trustee to commit the breach, or the beneficiary, being competent to contract, has himself, without coercion or undue influence having been brought to bear on him, concurred in the breach, or subsequently acquiesced therein, with full knowledge of facts of the case and of his rights as against the trustee. In case
  • 9. of making this loss good the trustee would not be liable to pay interest generally but the underhand are the cases in which he would be liable to pay. i. Where he has actually received interest; ii. Where the breach consists in unreasonable delay in paying trust -money to the beneficiary; iii. Where the trustee ought to have received interest, but has not done so; iv. Where he may be fairly presumed to have received interest. He is liable, in case (a), to account for the interest actually received, and, incases (b), (c) and (d), to account for simple interest at the rate of six per cent per annum, unless the Court othe rwise directs. v. Where the breach consists in failure to invest trust-money and to accumulate the interest or dividends thereon, he is liable to account for compound interest (with half-yearly rests) at the same rate; vi. Where the breach consists in the employment of trust-property or the proceeds thereof in trade or business, he is liable to account, at the option of the beneficiary, either for compound interest (with half-yearly rests) at the same rate, or for the net profits made by such employment. Situations where trustee would be exempted from liability a. Section 25 of Trust Act provides Non-liability for predecessor's default - Where a trustee succeeds another, he is not, as such, liable for the acts or defaults of his predecessor. b. Section 26 situates the non-liability for co-trustee's default - Subject to the provisions of Section 13, and 15, one trustee is not, as such, liable for a breach of trust committed by his co-trustee except for the reasons mentioned in the section. c. A co-trustee who joins in signing a receipt for trust-property and proves that he has not received the same is not answerable, by reason of such signature only, for loss or misapplication of the property by his co-trustee is also exempted from liability. d. Section 28 defines that when any beneficiary's interest becomes vested in another person, and the trustee, not having notice of the vesting, pays or delivers trust -property to the person who would have been entitled thereto in the absence of such vesting, the trustee is not liable for the property so paid or delivered. Rights of the trustee
  • 10. a. Section 31 of the Act states that trustee has a Right to title-deed- A trustee is entitled to have in his possession the instrument of trust and all the documents of title (if any) relating solely to the trust-property. b. Trustee also has a Right to reimbursement of expenses as mentioned in Article 32 of the Act – according to it every trustee may reimburse himself, or pay or discharge out of the trust -property, all expenses property incurred in or about the execution of the trust, or the realization, preservation or benefit of the trust-property, or the protection or support of the beneficiary. c. If the trustee has paid such expenses out of his own pocket, he has a first charge upon the trust-property for such expenses and interest thereon; but such charge (unless the expenses have been incurred with the sanction of a principal Civil Court of original jurisdiction) shall be enforced only by prohibiting any disposition of the trust-property without previous payment of such expenses and interest. d. If the trust-property fail, the trustee is entitled to recover from the beneficiary personally on whose behalf he acted, and at whose request, expressed or implied, he made the payment, the amount of such expenses. e. Trustee also reserves the Right to be recouped for erroneous over-payment - Where a trustee has by mistake made an over-payment to the beneficiary; he may reimburse the trust-property out of the beneficiary's interest. If such interest fails, the trustee is entitled to recover from the beneficiary personally the amount of such over-payment. f. Section 33 of the Act provides trustee a Right to indemnity from gainer by breach of trust - A person other than a trustee who has gained an advantage from a breach of trust must indemnify the trustee to the extent of the amount actually received by such person under the breach; and where he is beneficiary the trustee has a charge on his interest for such amount. g. Trustee has a Right to apply to Court for opinion in management of trust-property under section 34 of the Act - Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal. h. Section 35 of the Act gives Right to settlement of accounts to the trustee according to which when the duties of a trustee, as such, are completed, he is entitled to have the accounts of his administration of the trust-property examined and settled; and, where nothing is due to the beneficiary under the trust, to an acknowledgement in writing to that effect.
  • 11. i. Trust Act also recognizes some General authority of trustee under section 36 of the Act. According to which in addition to the powers expressly conferred by this Act and by the instrument of trust, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust-property, and for the protection or support of a beneficiary who is not competent to contract. Disabilities of the trustee There also exist some disabilities of the trustee. Some of which are mentioned below. a. According to section 46 of the Act, Trustees cannot renounce after acceptance - A trustee who has accepted the trust cannot afterwards renounce it . There are two exceptions to the rule. First is trustee can renounce with the permission of a principal Civil Court of original jurisdiction. Secondly, he can renounce with the consent of the beneficiary if he is competent to contract and finally by virtue of a special power in the instrument of trust , trustee can renounce. b. Section 47 of the Act states that a Trustee cannot delegate - A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless i. the instrument of trust so provides, ii. the delegation is in the regular course of business, section 31 of act •right to have instument of trust and all the documents of title section 32 of act •right to reimbursment of expences and to be recouped for eronous overpayments section 33 of act •Right to indemnity from gainer by breach of trust section 34 of act •Right to apply to Court for opinion in management of trust-property section 35 of act •Right to settlement of accounts section 36 of act •All acts which are reasonable and proper for the realization, protection or benefit of the trust-property,
  • 12. iii. the delegation is necessary, iv. the beneficiary, being competent to contract, consents to the delegation. It is important to mention here that the appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section. c. Section 48 of the act states that Co-trustees cannot act singly - When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides. d. According to section 50 of the Act, Trustee may not charge for services - In the absence of express directions to the contrary contained in the instrument of trust or of a contract to the contrary entered into with the beneficiary or the Court at the time of accepting the trust, a trustee has no right to remuneration for his trouble, skill and loss of time in executing the trust. e. Trust Act provides under section 51 that Trustee may not use trust-property for his own profit - A trustee may not use or deal with the trust-property for his own profit or for any other purpose unconnected with the trust. f. Section 52 of the Act states that Trustee for sale or his agent may not buy the trust property- No trust whose duty it is to sell trust-property, and no agent employed by such trustee for the purpose of the sale, may, directly or indirectly, buy the same or any interest therein, on his own account or as agent for a third person. g. As per section 53 of the enactment Trustee may not buy beneficiary's interest without permission - No trustee, and no person who has recently ceased to be a trustee, may, without the permission of a principal Civil Court of original jurisdiction, buy or become mortgagee or lessee of the trust-property or any party thereof; and such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary. h. Section 54 of the Act states that Co-trustee may not lend to one of themselves - A trustee or co-trustee whose duty it is to invest trust-money on mortgage or personal security must not invest it on a mortgage by, or on the personal security of him or one of his co-trustees. Rights and liabilities of the beneficiary
  • 13. Rights of the beneficiary: There are several rights of the beneficiary mentioned in the act some of which are expressed here. a. Beneficiary has Rights to rents and profits under section 55 of the Act - The beneficiary has, subject to the provisions of the instrument of trust, a right to the rents and profits of the trust -property. b. Beneficiary has a Right to specific execution under section 56 of the Act - The beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary’s interest. c. Beneficiary has a Right to transfer of possession where there is only one beneficiary and he is competent to contract, or where there are several beneficiaries and they are competent to contract and all of one mind, he or they may require the trustee to transfer the trust -property to him or them, or to such person as he or they may direct. d. Beneficiary has a Right to inspect and take copies of instrument of trust accounts, etc. as mentioned in section 57 of the Act- The beneficiary has a right, as against the trustee and all persons claiming under him with notice of the trust, to inspect and take copies of the instrument of trust, the documents of title relating solely to the trust-property, the accounts of the trust-property an the vouchers (if any) by which they are supported, and the cases submitted and opinions taken by the trustee for his guidance in the discharge of his duty. e. Section 58 of the Act provides a Right to transfer beneficial interest - The beneficiary, if competent to contract, may transfer his interest, but subject to the law for the time being in force as to the circumstances and extent in and to which he may dispose of such interest. f. Section 59 of the Act states that beneficiary has a Right to sue for execution of trust - Where no trustees are appointed or all the trustees die, disclaim, or are discharged, or where for any other reason the execution of a trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the trust, and the trust shall, so far as may be possible, be executed by the Court until the appointment of a trustee or new trustee.
  • 14. Liabilities of the beneficiary: Following are the liabilities of beneficiary. Section 68 of the Trust Act provides Liability of beneficiary joining in breach of trust - according to it where one of several beneficiaries – a. Joins in committing breach of trust, or b. Knowingly obtains any advantage therefrom, without the consent of the other beneficiaries, or c. Becomes aware of a breach of trust committed or intended to be committed, and either actually conceals it, or does not within a reasonable time take proper steps to protect the interes ts of the other beneficiaries, or d. Has deceived the trustee and thereby induced him to commit a breach of trust, the other beneficiaries are entitled to have all his beneficial interest impounded as against him and all who claim under him (otherwise than as transferees for consideration without notice of the breach) until the loss caused by the breach has been compensated. Termination of office of the trust Section 70 of the Act, states that the Office of the trust is terminated either by the death or by discharge from the office of the trustee. Discharge of trustee – TERMINATION OF OFFICE OF THE TRUST ON THE DISCHARGE OF THE TRUSTEE FROM HIS OFFICE ON THE DEATH OF THE TRUSTEE
  • 15. According to the section 71 of the Trust Act, The trustee may be discharged from his office only as follows:- a. By the extinction of the trust; b. By the completion of his duties under the trust; THE TRUST ACT 1882 c. By such means as may be prescribed by the instrument of trust; d. By appointment under this Act of a new trustee in his place; e. By consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract; or f. By the Court to which a petition for his discharge is presented under this Act. Procedure for discharge: Section 72 of the Act provides the procedure for the trustee to discharge from his office. According to which every trustee may apply by petition to a principal Civil Court of original jurisdiction to be discharged from his office; and, if the Court finds that there is sufficient reason for such discharge, it may discharge him accordingly, and direct his costs to be paid out of the trust-property. But where there is no such reason, the Court shall not discharge him, unless a proper person can be found to take his place. Appointment of new trustee Appointment of new trustees on death, etc. Section 73 of the Act provides that whenever any person appointed a trustee disclaims, of any trustee, either original or substituted, dies, or is for a continuous period of six months absent from Pakistan, or leaves Pakistan for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal civil court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts an inconsistent trust, a new trustee may be appointed in his place by - a. The person nominated for that purpose by the instrument or trust (if any), or b. If there be no such person, or no such person able and willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustee or trustee for the time being, or legal representative of the last surviving and continuing trustee, or (with the consent of the Court) the retiring trustee, if they all retire simultaneously, or (with the like consent) the last retiring trustee .
  • 16. Appointment by Court – As section 74 states whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a new trustee under section 73, the beneficiary may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee or a new trustee accordingly. THE EXTINCTION OF TRUSTS Section 77 of the Act defines the situations in which a trust is extinguished. According to which following are the cases when a trust extinguishes. a. When its purpose is completely fulfilled; or b. When its purpose becomes unlawful; or c. When the fulfillment of its purpose becomes impossible by destruction of the trust -property or otherwise; or d. When the trust, being revocable, is expressly revoked. Revocation of trust Section 78 of the Act defines how a trust may be revoked. a. A trust created by will, may be revoked at the pleasure of the testator. b. A trust otherwise created can be revoked only – i. Where all the beneficiaries are competent to contract- by their consents; ii. Where the trust has been declared by non-testamentary instrument or by word of mouth- in exercise of a power of revocation expressly reserved to the author of the trust; or iii. Where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors at the pleasure of the author of the trust.