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Legal Drafting

Legal Drafting

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Published by Ashok
A complete book on Corporate and Commercial Agreements - Drafting, Guidelines, forms and Precedents in India. The text is aimed at assisting lawyers, legal counsel and managers in drafting and structuring Commercial agreements. The forms and precedents used in this text are examples of drafting and should be used as a guide.
A complete book on Corporate and Commercial Agreements - Drafting, Guidelines, forms and Precedents in India. The text is aimed at assisting lawyers, legal counsel and managers in drafting and structuring Commercial agreements. The forms and precedents used in this text are examples of drafting and should be used as a guide.

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Published by: Ashok on Jan 04, 2009
Copyright:Attribution Non-commercial

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04/25/2015

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Although the courts are the ultimate control of the conduct and administration
of trusts, they provide, in many respects, a light hand of control. There are no
requirements for regular court approval of accounts or lodgement of documents

1.In re Marquess of Londonderry’s Settlement, 1964 Ch 594.

2.Sree S M Jew v. B K Vyas, AIR 1952 Cal 763.

3.Shanti Vijay and Co. v. Princess Fatima Fouzia, (1979) 4 SCC 602.

4.Shanmuga Mudali v. Arungiri Mudali, AIR 1932 Mad 658.

5.Nilamani Poricha v. Appanna Poricha, AIR 1936 Mad 14.

Trust

771

with the court nor any requirement for registration or validation of trust deeds with
the court nor a public inspection of trust documents, with the notable exception:
Under the Bombay Public Trusts Act, 1950 an act to regulate and to make
provision for the administration of public, religious and charitable trusts in the State
of Bombay (now Maharashtra). It includes provisions regarding the registration of
public trusts, budget, accounts and audit of public trusts etc. Another exception
is of trusts created by Wills. All Wills once admitted to probate after death are
available for public inspection. Even this can be avoided by the use of secret
trusts. The notification of the trust and its acceptance by the trustee precedes
death and on death the Will merely leaves an unqualified legacy to the trustee,
thus completing the constitution of the trust. The basis of the doctrine of secret
trust is that the trust operates outside the Will, and the Indian Succession Act,
1925 is not concerned with a secret trust at all. The Indian courts have lesser
power than the English courts to modify the trust or alter the directions of the
author of the trust or authorise specific dealing with the trust property. Under the
Act, the courts have been conferred the power to resolve disputes and to compel
due administration. These powers of the court are wide and include, inter alia, the
power to:

(a)prescribe where the trust money should be invested;1

(b)extend the time within which a trustee is directed to sell property under
the deed;2

(c) render opinion, advice or direction on any present questions regarding the
management or administration of the trust property, on application by a
trustee;3

(d) permit a trustee to lease trust property for a term exceeding 21 years
from the date of executing the lease;4

(e) permit the trustee of a minor to apply the whole or any part of the trust
property for or towards the minor’s maintenance, education,
advancement or expenses when the income from the trust property is
insufficient for the same;5

(f) control a discretionary power conferred on a trustee if the same is not
exercised reasonably and in good faith by the trustee;6

(g) permit a trustee to buy or become mortgagee or lessee of the trust
property or any part thereof for the advantage of the beneficiary;7

(h) execute a trust when there is no trustee, on the beneficiary’s application,
until the appointment of a trustee or new trustee;8

(i) discharge a trustee from his office on the application of a trustee;1

1.Section 20(f) of the Act.

2.Section 22 of the Act.

3.Section 34 of the Act.

4.Section 36 of the Act.

5.Section 41 of the Act.

6.Section 49 of the Act.

7.Section 53 of the Act.

8.Section 59 of the Act.

772

Corporate and Commercial Agreements

(j) appoint trustees, when no other way of appointment can be use;2

(k) consider and award damages for breach of trust;

(l) determine the true construction of the terms of the trust; and

(m) remove a trustee on the application of beneficiaries of a trust or any
other interested party.

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