Vacating Office and Discharge of Trustees (Sections 70 to 72)

Chapter VII of the Act (Sections 70 to 76) deals with changes in the trusteeship. Trusts often outlive their first trustees, and a trustee may need or wish to leave long before the trust ends. The Act therefore states precisely how a trustee's office comes to an end (Section 70), the only ways a living trustee can be discharged (Section 71), and the trustee's right to petition the court for discharge (Section 72). This note explains these rules; the appointment of replacements is covered in Topic 30.

1. How the Office Is Vacated (Section 70)

Section 70, Indian Trusts Act, 1882 (office how vacated)

The office of a trustee is vacated by his death or by his discharge from his office.

There are only two ways out of the office: death and discharge. The office does not lapse because the trustee stops acting, moves away, becomes ill or loses interest. Until he dies or is discharged, he remains a trustee with all the duties and liabilities of the office. This is the logical counterpart of Section 46, which bars renunciation after acceptance (Topic 23).

2. The Modes of Discharge (Section 71)

Section 71 (discharge of trustee)

The trustee may be discharged from his office only as follows: (a) by the extinction of the trust; (b) by the completion of his duties under the trust; (c) by such means as may be prescribed by the instrument of trust; (d) by appointment under this Act of a new trustee in his place; (e) by consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract; or (f) by the Court to which a petition for his discharge is presented under this Act.

(a) Extinction of the trust: when the trust itself ends under Section 77, for example because its purpose is completely fulfilled or it is revoked, the office ends with it (Topic 31).
(b) Completion of his duties: a trustee appointed for a limited task, such as selling property and distributing the proceeds, is discharged when the task is done, and may then seek settlement of accounts (Section 35).
(c) Means prescribed by the instrument: the deed may provide for retirement by notice, automatic retirement at a stated age, or removal by a named person.
(d) Appointment of a new trustee in his place: a valid appointment under Section 73 or 74 of a replacement discharges the outgoing trustee.
(e) Consent: agreement between the trustee and the beneficiary or, where there are several, all the beneficiaries, all being competent to contract.
(f) Order of the court: on the trustee's petition under Section 72.

The word "only" makes the list exhaustive. A trustee who simply writes to the beneficiaries announcing that he has resigned, without one of these routes, remains a trustee.

3. Petition for Discharge (Section 72)

Section 72 (petition to be discharged from trust)

Notwithstanding the provisions of section 11, every trustee may apply by petition to a principal Civil Court of original jurisdiction to be discharged from his office; and if the Court finds that there is sufficient reason for such discharge, it may discharge him accordingly, and direct his costs to be paid out of the trust property. But where there is no such reason, the Court shall not discharge him unless a proper person can be found to take his place.

Notwithstanding Section 11: the trustee's duty to execute the trust does not prevent him from seeking discharge.
Sufficient reason: where the trustee shows sufficient reason, such as ill health, old age, a conflict of interest, a move abroad, or the trust becoming burdensome beyond what he undertook, the court may discharge him and order his costs out of the trust property.
No sufficient reason: the court may still discharge him, but only if a proper person can be found to take his place. The trust is not to be left without a trustee merely because one wishes to leave.
Procedure: a petition, not a suit; interested beneficiaries should be given notice.

4. Removal of a Trustee

The Act does not contain a separate section headed "removal". Removal against the trustee's will is achieved through the provisions on appointment of new trustees and the beneficiary's remedies:

Section 73 allows a new trustee to be appointed in place of one who is absent from India for six months, leaves India to reside abroad, is declared insolvent, refuses to act, becomes unfit or personally incapable in the court's opinion, or accepts an inconsistent trust; the appointment discharges him under Section 71(d) (Topic 30).
Section 60 gives the beneficiary a right to proper trustees, and the court, in a suit, may remove a trustee whose continuance is detrimental to the trust (Topic 26).
The instrument may confer a power of removal on the author, a protector or the beneficiaries.

Courts do not remove trustees lightly, especially those chosen by the author. Mere friction with beneficiaries is not enough. Removal is ordered where the trustee's conduct shows he cannot be trusted to administer the trust properly, or his continuance endangers the property or the beneficiaries' interests.

⚠ Key point

The office of a trustee is vacated only by death or discharge (Section 70). A trustee may be discharged only (a) by extinction of the trust, (b) by completion of his duties, (c) by means prescribed by the instrument, (d) by appointment of a new trustee in his place, (e) by consent of himself and all competent beneficiaries, or (f) by the court on petition (Section 71). On petition, the court may discharge him for sufficient reason, with costs out of the trust property; without such reason, only if a proper replacement can be found (Section 72). Removal against his will operates through Sections 60, 73 and 74 and the instrument.

5. Related Topics and Provisions

No renunciation and no delegation (Topic 23): Section 46
Beneficiary's remedies (Topic 26): Section 60
Appointment of new trustees and vesting (Topic 30): Sections 73 to 76
Extinction and revocation (Topic 31): Section 77