Wednesday, August 17, 2011

Trust Deed clauses

What is  Trust Deed ?
The instrument by which the trust is declared is called instrument of Trust, and is generally known as Trust Deed.
It is well settled that no formal document is necessary to create a Trust as held in Radha Soami Satsung vs. CIT- (1992) 193 ITR 321 (SC). But for many practical purposes a written instrument becomes necessary under following cases –
1.      When the trust is created by a will irrespective of whether the trust is public or private or it relates to movable or immovable property. This is because as per Indian Succession Act, a will has to be in writing 
2. When the trust is created in relation to an immovable property of the value of Rs.100 and upwards, in case of a private trust. In case of public trusts, a written trust deed is not mandatory, even in respect of immovable property, but is optional. 
3. Where the trust/association is being formed as a society or company, the instrument of trust; i.e., the memorandum of association, and Rules and Regulations has to be in writing. 
A written trust-deed is always desirable, even if not required statutorily, due to following benefits : 
d. a written trust deed is a prima facie evidence of existence of a trust ; 
e. it facilitates devolution of trust property to the trust; 
f. it clearly specifies the trust-objectives which enables one to ascertain whether the trust is charitable or otherwise; 
g. it is essential for registration of conveyance of immovable property in name of the Trust; 
h. it is essential for obtaining registration under the Income-tax Act and claiming exemption from tax; 
i. it helps to control, regulate and manage the working and operations of the trust; 
j. it lays down the procedure for appointment and removal of the trustee(s), his/their powers, rights and duties; and 
k. it prescribes the course of action to be followed under any eventuality including dissolution of the trust.
2. Types of Instrument of Trust
Trust deed, where a trust is declared intervivos; i.e., by settling property under Trust. 
1. A will, where a trust is declared under a will; 
2. A memorandum of association along with rules and regulations, when the association/institution is being formed as a society under the Societies Registration Act, 1860. 
3. A memorandum and articles of association where the association /institution is desired to be formed as a Company.

3. Trust Deed-Clauses
A person drafting the deed of a public charitable trust has to bear in mind several enactments, particularly the Indian Trusts Act, any local enactment relating to trusts, like the Bombay Public Trusts Act for the State of Maharashtra and the Income tax Act. Such a person has also to keep in mind the relevant judicial pronouncements dealing with the scope of "charitable purpose" and accordingly decide whether a particular purpose is charitable or not. An instrument of Trust 
or association/institution created or established should contain inter alia the following clauses: 
0. Nothing contained in this deed shall be deemed to authorise the trustees to do any act which may in any way be construed as statutory modifications thereof and all activities of the trust shall be carried out with a view to benefit the public at large, without any profit motive and in accordance with the provisions of the Income-tax Act, 1961 or any statutory modification thereof. 
1. The trust is hereby expressly declared to be a public charitable trust and all the provisions of this deed are to be construed accordingly. 
The Trust Deed, generally contains the following clauses : 
2. Preamble 
3. Trust name by which Trust shall be known 
4. Place were its office shall be situated 
5. Author or settlor of the trust 
6. Names of the Trustees 
7. Beneficiaries 
8. The property settled, for Trust – In case of immovable property, it should contain full description of the property sufficient to identify it 
9. An express intention to direct the trust property from the trustees 
10. The objects of the Trust 
11. Minimum and maximum number of Trustees 
12. The procedure for appointment, removal, replacement of trustees 
13. Trustees rights, duties and powers 
14. Administration of trust 
15. Provision for maintenance of accounts, auditing etc. 
16. Clause enabling, spending and utilization of the Trust funds or corpus. 
17. Bank Account operations 
18. Borrowing money on security for the purpose of the Trust 
19. Investment of the Trust funds and dealing with Trust properties 
20. Alienation of immovable property of the Trust 
21. Amalgamation clause 
22. Dissolution of Trust 
23. Irrevocable nature of the trust.

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