The office of the trustee is vacated on the death of the trustee. Sections 73 and 74 of the Indian Trust Act, 1882 (the “Trust Act") provides for the manner in which new trustees can be appointed.
As per Section 73 of the Trust Act, a new trustee can be appointed by
(a) the person who is nominated by the trust deed to appoint persons as trustee; or (b) if there be no such person nominated in the trust deed or if no such person is able and willing to act, then the new trustee can be appointed by (i) the author of the trust if he is alive and competent to contract, or (ii) the surviving or continuing trustees or trustee for the time being, or (iii) the legal representative of the last surviving and continuing trustee, or (with the consent of the court) the retiring trustees, if they all retire simultaneously, or (with the like consent of the court) the last retiring trustee, may appoint a new trustee. If a new trustee is not appointed by the persons mentioned above, then the beneficiary (or his next friend, in this case, since the beneficiaries are minors) may 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 Trust Act does not define “next friend" of a minor. However, the persons who can act as the “next friend" of the minor are set out in order XXXII Rule 4 of the Civil Procedure Code, 1908 and such “next friend" of the minor can file a petition before a principal civil court of original jurisdiction for the appointment of a trustee of the trust where the beneficiary is a minor and no other person as set out in Section 73 of the Trust Act is available to act as a trustee of the trust.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.