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Article Published in the Express Magazine Dated
March 10, 2002
General Attorney : Rajiv K. Luthra
I am a co-trustee of a trust property created
by my father. Of late, I have developed estranged
relations with my other brothers and sisters who
are the other co-trustees with me. I have heard
that they are proposing to sell off the trust
property and that they have fabricated a power of
attorney from me giving my consent to it. Can they
do that?
M. Mahesh, Ghaziabad
According to the provisions of Section 48 of the
Trust Act, 1882 ("Act"), it is axiomatic that
where there are more trustees than one, all must
join in the execution of the trust, except where
the instrument of trust otherwise provides. Thus,
if the trust deed does not specifically provide
otherwise, all acts, which the trustees intend to
take for executing the trust, must be taken by all
of them acting together.
As regards the issue of fabrication, reliance
maybe placed on Section 47 of the Act which
indicates that a trustee cannot properly delegate
his office or any of his duties to a co-trustee or
a stranger, unless (a) the instrument of trust so
provides, or (b) the delegation is in the regular
course of business, or (c) the delegation is
necessary, or (d) the beneficiary, being competent
to contract consents to the delegation. From the
available facts it appears that delegation is not
necessary. If the trustees cannot delegate their
duties, it follows even otherwise that they must
all personally perform those duties, and not
appoint one of themselves to manage the business
of the trust. The reason behind is that the
settlor has trusted all his trustees, and it
behoves each and every one of them to exercise his
individual judgment and discretion on every
matter, and not blindly to leave any questions to
his co-trustees or co-trustee.
You may further be informed that by virtue of
Section 49 of the Act, even though the Board of
Trustees enjoy discretionary powers, when such
discretionary powers are not exercised reasonably
and in good faith, such powers may be controlled
by a court. Thus, where absolute discretion has
been given to trustees to sell the trust property,
the court can see that they do not exercise it
improperly or unreasonably.
At the time of my marriage in 1995 my parents
gifted me some jewellery. We have now decided to
build a new house and since the said jewellery is
out of fashion, I have agreed that my husband may
sell the jewellery, except one very valuable piece
which is from my grandmother and which I would
like to keep. My husband says, in the interest to
build a house for the family he is entitled to
sell all the jewellery and I am legally bound to
give my jewellery for the sake of the family.
Kindly give me your expert opinion.
Sangeeta Wadhwa, Chandigarh
In modern Hindu law, the term “stridhan” denotes
property acquired or owned by a woman and over
which she has absolute control. It includes gifts
made by the woman’s parents, like your jewellery
given at the time of your wedding. A Hindu married
woman is the absolute owner of her stridhan
property and can deal with it in any manner she
likes without any reference to her husband.
Ordinarily, the husband has no right or interest
in such property with the sole exception that in
times of extreme distress, as in famine, illness
or the like, the husband can utilise it. But he is
morally bound to restore it or its value when he
is able to do so. Building a house for the family
may not be said to be a case of extreme distress.
The Hon'ble Supreme Court has held, that the
stridhan property of a married woman does not
become the joint property of the spouses. The
husband does not acquire joint interest in the
property. Thus, how you deal with your stridhan
will be entirely your discretion.
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