The Beneficiary's Remedies against the Trustee (Sections 59 to 62)

Rights are only as good as the remedies that enforce them. Sections 59 to 62 give the beneficiary four remedies against the trustee: a suit to have the trust executed by the court when trustees are lacking or the trust cannot otherwise be carried out; a right to proper trustees; a right to compel the trustee to perform his duty and restrain a threatened breach; and a right to recover property the trustee has wrongfully bought. Together with the duty to make good loss under Section 23, these remedies make the beneficiary's interest enforceable in practice.

1. Suit for Execution of the Trust (Section 59)

Section 59, Indian Trusts Act, 1882 (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.

A trust does not fail for want of a trustee. Where there is no one to carry it out, because no trustee was ever appointed, all have died, disclaimed or been discharged, or execution by the trustee has become impracticable for any other reason, the beneficiary may sue, and the court itself executes the trust until a trustee is appointed. Such a suit is commonly called an administration suit. Once a decree is passed, the trustee's powers are suspended except as the decree allows (Section 45; Topic 22).

Where the only problem is a vacancy, the simpler route is often a petition for appointment of a new trustee under Section 74 (Topic 30). A full suit under Section 59 is appropriate where the administration itself needs the court's supervision, for example because accounts must be taken or the trust's terms construed.

2. Right to Proper Trustees (Section 60)

Section 60 (right to proper trustees)

The beneficiary has a right (subject to the provisions of the instrument of trust) that the trust property shall be properly protected and held and administered by proper persons and by a proper number of such persons.

Section 60 gives the beneficiary a right that the trust be in proper hands. Two elements are involved:

Proper persons: a trustee who becomes insolvent, is convicted of dishonesty, goes to live abroad, becomes incapable, or has shown himself unfit by misconduct is not a proper person. The illustrations to the section show that in such cases a beneficiary may seek the appointment of new trustees and, in an urgent case, a receiver to protect the property meanwhile.
Proper number: where the instrument contemplates several trustees, or the size of the trust requires more than one, the beneficiary may insist that the number be maintained.

The right is enforced through removal and replacement. The Act's machinery for appointing new trustees (Sections 73 and 74) operates where a trustee is unfit or incapable, and the court will also remove a trustee whose continuance is detrimental to the trust even if he is not guilty of any specific breach.

3. Right to Compel Performance and Restrain Breach (Section 61)

Section 61 (right to compel to any act of duty)

The beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such, and restrained from committing any contemplated or probable breach of trust.

Section 61 provides specific remedies, which are often more valuable than compensation after the event:

Remedy	Examples
Mandatory order to perform a duty	To render accounts (Section 19), to collect a debt (Section 12), to sue to protect title (Section 13), to invest idle money (Section 20), to pay income to the beneficiary (Section 55)
Injunction against a contemplated or probable breach	To restrain an unauthorised sale, a sale at an undervalue, an unauthorised investment, or the use of trust money in the trustee's own business

The words "contemplated or probable" allow the beneficiary to act before the breach occurs. He need not wait for the property to be sold or the money lost. The court applies the ordinary principles governing injunctions under the Specific Relief Act, 1963 and the Code of Civil Procedure, including a prima facie case, the balance of convenience and irreparable harm.

4. Wrongful Purchase by the Trustee (Section 62)

Section 62 (wrongful purchase by trustee)

Where a trustee has wrongfully bought trust property, the beneficiary has a right to have the property declared subject to the trust or retransferred by the trustee, if it remains in his hands unsold, or, if it has been bought from him by any person with notice of the trust, by such person.

Section 62 is the remedy for breach of the self-dealing rules in Sections 52 and 53 (Topic 24). Where a trustee has wrongfully bought trust property, the beneficiary may:

have the property declared subject to the trust, or have it retransferred, if it is still in the trustee's hands; or
recover it from a subsequent purchaser who bought with notice of the trust.

The remedy is restitutionary: the beneficiary recovers the property, but must ordinarily account for the price the trustee paid and for proper expenses the trustee incurred on it, so that he is not unjustly enriched. A purchaser in good faith for value without notice is protected (Section 64; Topic 27). The beneficiary must act within a reasonable time after learning of the purchase; long delay with knowledge may amount to acquiescence (Section 23).

5. The Remedies Together

Problem	Remedy	Provision
No trustee, or trust cannot be carried out	Suit for execution by the court	Section 59
Unfit, incapable or too few trustees	Removal, new appointment, receiver	Sections 60, 73, 74
Trustee not doing his duty, or about to breach	Mandatory order or injunction	Section 61
Trustee has bought trust property	Declaration or retransfer	Section 62
Loss has been caused	Compensation with interest in listed cases	Section 23
Property has passed to third parties	Following and tracing	Sections 63 to 66

In a suit against an express trustee to follow trust property in his hands, Section 10 of the Limitation Act, 1963 provides that no period of limitation applies (Topic 39). Where the breach is dishonest, criminal proceedings for criminal breach of trust may also lie (Topic 38).

⚠ Key point

Where there is no trustee, all have died, disclaimed or been discharged, or execution by the trustee is impracticable, the beneficiary may sue and the court executes the trust until a trustee is appointed (Section 59). The beneficiary has a right to proper persons in a proper number as trustees, enforced by removal, replacement and a receiver (Section 60). He may have the trustee compelled to perform any act of duty and restrained from a contemplated or probable breach (Section 61). Where the trustee has wrongfully bought trust property, he may have it declared subject to the trust or retransferred, by the trustee or a purchaser with notice (Section 62).

6. Related Topics and Provisions

Breach of trust and liability (Topic 17): Section 23
Fiduciary disabilities (Topic 24): Sections 52 and 53
Following and tracing trust property (Topic 27): Sections 63 to 67
Appointment of new trustees (Topic 30): Sections 73 and 74