1

A person who is neither a trustee nor a beneficiary under a trust deed will have no locus standi to
correct private breaches of trust unless such breaches are unconstitutional or ultra vires

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. 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.

2
However, the courts will not remove a trustee because he has transgressed his line of duty provided
there is no
wilful default but merely a misunderstanding10. To justify removal of a trustee it must be shown that
the further
holding of office by him is incompatible with the interest of the trust 11. Though there is no specific
process for the
removal of a trustee the court is empowered to order the removal after allowing an amendment of the
plaint12
Nathubhai devidas vs vasubhaio javibhai
Khatoon Jajjat Bai v Syed Ali Ullah AIR 1949 All 310.
W H Brady v Ganesh Flour Mills (1981) Rajdhani LR 364.
2 Patel Varajilal Bhagwandas v Patel Jamnadas AIR 1956 Sau 51; Tirathdas Dharamdas v Parameshwari AIR
1943 Sind
223.
3 V Satyanarayana v T V Narayanamurthy AIR 1944 Mad 574 [LNIND 1944 MAD 130]: (1944) 2 Mad LJ 302 : 57
Mad
LW 489.
4 Tirathdas Dharamadas v Parameshwari AIR 1943 Sind 223.
5 Assardas Manghumal v Thakurbai AIR 1927 Sind 237.

Zamindar of kala hasthi v. pr Ganpati iyer positive conduct threshold

3
We have finally to deal with the third question, namely, whether sufficient grounds
have been established for the removal of the shebait. No useful purpose would be
served by an examination of decided cases to determine what constitutes a sufficient
reason for removing a trustee. The matter is peculiarly within what is called the sound
judicial discretion of the Court. The Court is guided by considerations of the welfare of
the beneficiaries and of the trust estate : and there must be a clear necessity for
interference to save trust property

1
Jatindra Nath Set v Jadhavpur University AIR 1960 Cal 120 [LNIND 1959 CAL 141].
2
Sundaresa Gurukkal v Kuttiam Subramania Mudali 61 IC 741 (a temple trustee in India can only be removed for
good
cause by the majority of the temple committee; a failure by a trustee to keep and to submit accounts are grounds
sufficient in law to justify his removal from the office of trustee).
10 Annaji Raghunath Gosavi v Narayan Sitaram ILR 21 Bom 556.
11 Tiruvengadath Ayyangar v Srinivasa Thathachariar ILR 22 Mad 361.
12 Ambalam Pakkiya Udayan v J M BartleILR 36 Mad 418 : 1912 Mad WN 152.
End of
3
4
A mere error of judgment does not in itself constitute a breach of trust 14 and where a trustee is
presumed
to have dealt honestly and properly with the trust estate he will not be removed 15 until the contrary is
shown16.
A trustee will be liable even though he has not benefited from the breach of trust 4. However, he will be
liable only
when he is guilty of wilful default or neglect, that is, for failure to deal with the property as prudently as
he would
deal with his own5. Breach of trust is both a civil and a criminal wrong, though there can be situations
where it may
not amount to a criminal wrong6. If a guardian uses the trust money in his business, he would be
bound to account
for the profits he had made out

The overriding question when a court is asked to remove a trustee is whether or not the
conduct of the trustee imperils the trust property or its proper administration. The
decisive consideration is the welfare of the beneficiaries and the proper administration of
the trust and the trust property. Mere friction or enmity between a trustee and the
beneficiaries will not in itself be adequate reason for removal of the trustee from office.

A trust is not a legal person. It is a legal institution in which the trustee, subject to public
supervision by the Master of the Supreme Court, holds or administers properties
separately from his or her own for the benefit of others or the furtherance of a charitable
or other purpose. It is an accumulation of assets and liabilities constituting a trust estate
separate from that of the trustees.

A trustee acts in a fiduciary position.

A court only has the power to vary a trust deed in circumstances where the founder of
the trust did not contemplate or foresee a situation which hampers the achievement of
the objects of the founder, or prejudices the interests of the beneficiaries or is in conflict
with the public interest. It is not otherwise competent for a court to exercise the statutory
power but there may be other ways of achieving a variation not discussed in this case.

The case in which these principles were re-emphasised is Gowar v Gowar. The facts are
not important. On the particular facts the court found that the applicants had not
discharged the onus of proving that trustees should be removed or that the trusts should
be terminated.

4
Wilkinson v Stafford (1789) 1 Ves 32 at 41 per Lord Thurlow LC; Garrett v Noble (1834) 6 Sim 504; Buxton v
Buxton
(1835) 1 My & Cr 80; Selby v Bowie (1863) 9 Jur NS 425 at 426 per Turner LJ; Stott v Milne (1884) 25 ChD 710
at
713-714, CA, per Lord Selborne LC; Re Hurst, Addison v Topp (1892) 67 Lt 96 at 100, CA, per Lindley LJ; Re
Beddoe,
Downes v Cottam [1893] 1 Ch 547 at 562, CA, per Bowen LJ; Re Chapman, Cocks v Chapman [1896] 2 Ch 763
at 778, CA, per Lopes LJ; Re Kensit [1908] WN 235.
15 As to the removal of trustees from office see [290.122]-[290.123].
16 Taylor v Millington (1858) 4 Jur NS 204 at 205 per Wood V-C.
In short, the starting position is the judgment in the case of Letterstedt v
Broers (1884) 9 App Cas 371 in which Lord Blackburn sitting in the South African
court summarized the position:

“…if satisfied that the continuance of the trustee would prevent the trusts being
properly executed, the trustee might be removed.  It must always be borne in mind
that trustees exist for the benefit of those to whom the creator of the trust has given
the trust estate”

“… friction or hostility between trustees and the immediate possessor of the trust
estate is not of itself a reason for the removal of the trustees.” 

“… If it appears clear that the continuance of the trustee would be detrimental to the
execution of the trusts, even if for no other reason than that of human infirmity would
prevent those beneficially interested, or those who act for them, from working in
harmony with the trustee, and if there is no reason to the contrary from the intentions
of the framer of the trust… it seems to their lordships that the court might think
proper to remove him.”

More recently, the decision of Newey J in Brudenell-Bruce v Moore & Cotton  [2014]
EWHC 3679 (Ch),offered updated guidance as to the approach that the courts will
take when asked to deal with contested applications seeking removal.

Whilst case law has evolved since 1884, the general principles remain good law; a
testament to Lord Blackburn.

In short, when the court is considering exercising its jurisdiction to remove a trustee,
it will be concerned with the extent to which the trust property is at risk, the ability of
the trustee to administer the trust, the needs of the beneficiaries and the extent to
which hostility between trustees causes the trust to be poorly administered.

5
Newey J’s approach suggests that the court will adopt a robust approach to applications for the
removal of trustees. In particular the courts will be wary of beneficiaries seeking to manufacture a
breakdown in relationships in order to secure the appointment of replacement trustees.
Accordingly, in the case of experienced professional trustees, given the significant expense