31. 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.
32. Right to reimbursement of expenses.—Every trustee may reimburse himself, or pay
or discharge out of the trust-property, all expenses properly incurred in or about the execution
of the trust, or the realisation, preservation or benefit of the trust-property, or the protection
or support of the beneficiary.
If he pays 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 on ly by
prohibiting and disposition of the trust-property without previous payment of such expenses and
interest.
1. The words “to Government” successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
2. Subs. by the A.O. 1937, for “the Government”.
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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.
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 fail, the trustee is entitled to recover from the beneficiary personally the
amount of such over-payment.
33. 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 a
beneficiary the trustee has a charge on his interest for such amount.
Nothing in this section shall be deemed to entitle a trustee to be indemnified who has, in committing
the breach of trust, been guilty of fraud.
34. Right to apply to Court for opinion in management of trust-property.—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.
A copy of such petition shall be served upon, and the hearing thereof may be attended by,
such of the persons interested in the application as the Court thinks fit.
The trustee stating in good faith the facts in such petition and acting upon the opinion, advice
or direction given by the Court shall be deemed, so far as regards his own responsibility, to have
discharged his duty as such trustee in the subject-matter of the application.
The costs of every application under this section shall be in the discretion of the Court to which it is
made.
35. Right to settlement of accounts.—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 acknowledgment in writing to
that effect.
36. General authority of trustee.—In addition to the powers expressly conferred by this
Act and by the instrument of trust, and subject to the restrictions, if any, contained in such
instrument, and to the provisions of section 17, a trustee may do all acts which are reasonable
and proper for the realisation, protection or benefit of the trust-property, and for the protection
or support of a beneficiary who is not competent to contract.
1* * * * *
Except with the permission of a principal Civil Court of original jurisdiction, no trustee shall
lease trust-property for a term exceeding twenty-one years from the date of executing the lease,
nor without reserving the best yearly rent that can be reasonably obtained.
37. Power to sell in lots, and either by public auction or private contract.—Where the
trustee is empowered to sell any trust-property, he may sell the same subject to prior charges or
not, and either together or in lots, by public auction or private contract, and either at one time or
at several times, unless the instrument of trust otherwise directs.
38. Power to sell under special conditions. Power to buy-in and re-sell.—The trustee
making any such sale may insert such reasonable stipulations either as to title or evidence of title,
or otherwise, in any conditions of sale or contract for sale, as he thinks fit; and may also bu y-in
the property or any part thereof at any sale by auction, and rescind or vary any contract for sale,
1. Second paragraph rep. by Act 12 of 1891, s. 2 and I Schedule.
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and re-sell the property so bought in, or as to which the contract is so rescinded, without being
responsible to the beneficiary for any loss occasioned thereby.
Time allowed for selling trust-property.—Where a trustee is directed to sell trust-property or to
invest trust-money in the purchase of property, he may exercise a reasonable discretion as to the time of
effecting the sale or purchase.
Illustrations
(a) A bequeaths property to B, directing him to sell it with all convenient speed and pay the proceeds to C. This does not
render an immediate sale imperative.
(b) A bequeaths property to B, directing him to sell it at such time and in such manner as he shall think fit and
invest the proceeds for the benefit of C. This does not authorise B, as between him and C, to postpone the sale to an
indefinite period.
39. Power to convey.—For the purpose of completing any such sale, the trustee shall have power to
convey or otherwise dispose of the property sold in such manner as may be necessary.
40. Power to vary investments.—A trustee may, at his discretion, call in any trust-property
invested in any security and invest the same on any of the securitie s mentioned or referred to in
section 20, and from time to time vary any such investments for others of the same nature:
Provided that, where there is a person competent to contract and entitled at the time to
receive the income of the trust-property for his life, or for any greater estate, no such change of
investment shall be made without his consent in writing.
41. Power to apply property of minors, etc., for their maintenance, etc.—Where any
property is held by a trustee in trust for a minor, such trustee may, at his discretion, pay to the
guardians (if any) of such minor, or otherwise apply for or towards his maintenance or education
or advancement in life, or the reasonable expenses of his religious worship, marriage or funeral,
the whole or any part of the income to which he may be entitled in respect of such property; and such
trustee shall accumulate all the residue of such income by way of compound interest, by investing the
same and the resulting income thereof from time to time in any of the securities mentioned or referred to
in section 20, for the benefit of the person who shall ultimately become entitled to the property from
which such accumulations have arisen:
Provided that such trustee may, at any time, if he thinks fit, apply the whole or any part of such
accumulations as if the same were part of the income arising in the then current year.
Where the income of the trust-property is insufficient for the minor’s maintenance or education or
advancement in life, or the reasonable expenses of his religious worship, marriage or funeral, the trustee
may, with the permission of a principal Civil Court of original jurisdiction, but not otherwise, apply the
whole or any part of such property for or towards such maintenance, education, advancement or expenses.
Nothing in this section shall be deemed to affect the provisions of any local law for the time being in
force relating to the persons and property of minors.
42. Power to give receipts.—Any trustees or trustee may give a receipt in writing for any
money, securities or other moveable property payable, transferable or deliverable to them or him
by reason, or in the exercise, of any trust or power; and, in the absence of fraud, such receipt shall
discharge the person paying, transferring or delivering the same therefrom, and from seeing to the
application thereof, or being accountable for any loss or misapplication thereof.
43. Power to compound, etc.—Two or more trustees acting together may, if and as they think fit—
(a) accept any composition or any security for any debt or for any property claimed;
(b) allow any time for payment of any debt;
(c) compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account,
claim or thing whatever relating to the trust; and
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(d) for any of those purposes, enter into, give, execute and do such agreements, instruments
of composition or arrangement, releases and other things as to them seem expedient, without
being responsible for any loss occasioned by any act or thing so done by them in good faith.
The powers conferred by this section on two or more trustees acting together may be
exercised by a sole acting trustee when by the instrument of trust, if any, a sole trustee is
authorized to execute the trusts and powers thereof.
This section applies only if and as far as a contrary intention is not expressed in the
instrument of trust, if any, and shall have effect subject to the terms of that instrument and to the
provisions therein contained.
This section applies only to trusts created after this Act comes into force.
44. Power to several trustees of whom one disclaims or dies.—When an authority to deal
with the trust-property is given to several trustees and one of them disclaims or dies, the authority
may be exercised by the continuing trustees, unless from the terms of the instrument of trust it is
apparent that the authority is to be exercised by a number in excess of the number of the remaining
trustees.
45. Suspension of trustee’s powers by decree.—Where a decree has been made in a suit
for the execution of a trust, the trustee must not exercise any of his powers except in conformity with such
decree, or with the sanction of the Court by which the decree has been made, or, where an appeal against
the decree is pending, of the Appellate Court.