From notes by mam

2. Duties/Liabilities of a Trustee
The Indian Trusts Act, 1882 provides for certain duties/liabilities of a Trustee, we shall see each one of
them in brief detail.

Execution of Trust
The trustee is required to actually carry out the purpose of the trust as laid out in the Trust deed. The
trustee is also required to follow the directions of the Author of the Trust at the time of creation of the
trust.

However, the trustee is not required to follow such directions if they are impractical or illegal.

Acquaintance of Trust Property

The trustee is required to know about the details, whereabouts and current condition of the trust
property and also to take appropriate measures to secure the trust property.

Protection of Title of Trust Property

The trustee is required to defend all the claims against the title of the Trust property and to take
adequate measures to assert and protect the title of the property.

Not to set up Title adverse to the beneficiary

As the trustee is entrusted with the trust property to maintain it for the benefit of the beneficiaries, it is
expected and required of the trustee to not set up any title adverse to the beneficiary.

A good example explaining this point would be, suppose the trustee is entrusted with an immovable
property and is required to apply the rents and profits of such property for the benefit of the
beneficiaries. The trustee is also given the rights to sell such property.

It is expected of the trustee that the trustee would not sell such property to himself or anyone of his
relatives or friends or a person of like nature, as such an action on the Trustee’s part would be adverse
to the beneficiaries, and the trust factor upon which the foundation of the trust is built, would cease to
exist.

Take care of the Trust Property

The trustee is required to provide adequate safeguard and required to apply such prudence to the trust
property, as that of an ordinary man would apply to his own property.

However, the Act provides that the Trustee would not be responsible for any loss caused to the trust
property or the benefits arising thereof, if he had applied such prudence as would an ordinary man
would apply to his own property.

Convert perishable property

If the trust property is of such nature, that with time, it would keep on deteriorating and keep losing
value, the trustee is required to convert, i.e. sell and convert such property into cash proceeds and apply
such proceeds for the benefits of the beneficiaries. This duty is especially required of a trustee when the
trust is created for the benefit of several persons in succession.
Be impartial among the beneficiaries
When the trust is created for the benefit of several beneficiaries, the trustee is required to apply the
benefits received from the trust property equally among the beneficiaries, without being partial to
anyone or any group among the beneficiaries.

Protect the trust property from adverse beneficiary

When there are several beneficiaries of a trust, and one or more of such beneficiaries commit, or
threaten to commit an act, which would be adverse to the interest of other beneficiaries and the trust in
general, the trustee is required to take measures to stop such act of such beneficiary/beneficiaries.

To maintain and keep books and accounts

The trustee is required to keep a clear and accurate account of the trust property and at all times,
provide the same to the beneficiary upon the request of the beneficiary.

Investment of Trust money

The Act specifically provides that when the trust property consists of money, and such money is not
required to be immediately applied for the benefit of the beneficiaries, the trustee is required to invest
such money in such instruments as provided for in the Act. The Act provides for instruments such as
promissory notes and other securities of the Central Government; in stock or debentures of the Railways
or other government companies; in Units issued by the Unit Trust of India, etc.
Conclusion
It is said that the relation of Trust is like a glass. Once broken, it is never the same as before. By a prima
facie observation of the Indian Trust Act, it can be seen that apart from the legal aspects, the duties and
powers provided in the Act intend to preserve the delicate relation of trust, so that the trust may be
kept, and the intention with which the trust is formed may be fulfilled. Therefore, here we may conclude
with the duties and powers of a Trustee as provided for in the Indian Trust Act, 1882

5a
WHERE EQUITIES ARE EQUAL,LAW SHALL PREVAIL
INTRODUCTION:
This maxim means that “when the conflicting interests of two or more parties are supported by
equitable pleas of equal value, equity being unable to prefer one to the other would allow the
conflicting equities to cancel out and leave law to take its course”.
EXPLANATION:
Where one thing follows two claimants on the base of equal equity, equity shall follow the law and legal
right shall be preceded. Law provides relief to those who claims on the base of legal right.
According to this maxim if legal right is equal to equitable rights, legal right shall remain there. It means
the person bearing legal right shall precede however equity is under law.
ILLUSTRATION:
For instance, if A sells to C land, over which B has a right of way, C takes the land subject to B’s right,
although he was ignorant of the right at the time of purchase. But the rule is different as regards
equitable rights. It is well established rule that a purchase for valuable consideration without notice of
prior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in
equity as well as at law. In such a case equity follows the law, the purchaser’s conscience not being in
any was affected by the equity.
APPLICATION:
This maxim has certain applications such as:
1. Dispute in transfer of property: When both the contestants are equally entitled to obtain help from
courts of equity (because their equities are equal), the party who has law in his favor will succeed.
For example, A agrees with B to sell his property for Rs. 5,000/-. Therefore in breach of the above
agreement, A sells the property to C for B Rs. 6,000/- and making a document hands over the possession
of the property to C. As a result of the agreement B did not get any legal interest in the property. B has
only an equitable interest in his favor binding A conscience. C, on the contrary, as a result of his
agreement with A, gets the legal interest and has executed a document and obtained possession of the
property. B’s interest is an equitable with law in his favor. Naturally, therefore, in a conflict between B
and C, C has superior interest as compared to that of B. Thus equitable interest is not as strong as a legal
interest and so, according to the maxim the law shall prevail.
2. It may be noted that the doctrine of Election, Marshaling, and Set Off are based on the maxim
under discussion
3. In contradiction of legal and equitable right: This maxim is used where equitable and legal rights
conflict and precedence go to legal right. Equities must be equal by there should be conflict of legal and
equitable rights. It does not apply where priority of time in case of equity is determinant factor in relief.
4. Transfer of property cases:
S. 78 of Transfer of Property Act is based on this maxim. It enacts that “where though the fraud,
misrepresentation, or gross neglect of a prior mortgagee, another person has been induced to advance
money on the security of the mortgaged property, the prior mortgagee shall be postponed to the
subsequent mortgagee.
SEC 53 of Transfer of Property Act is also based upon this maxim.
It enacts that “every transfer of immovable property made with intent to defeat or delay the creditors of
the transferor shall be void-able at the option of any creditor so defeated or delayed.
EXCEPTION:
This maxim has two exceptions as follows:
1. Prior equitable and subsequent legal right: Where interest in legal property comes subsequently,
cannot attain precedence. Person, who acquires equitable right in the presence of legal right, he
procures breach of duty.
In case of negligence or fraud legal property extinct priority right if equitable property comes
subsequently.
Equal equities without legal right: Where there are equal equities but legal right lacks, this maxim shall
not apply.

5b
he Who Comes Into Equity Must Come With Clean Hands."
This maxim bars relief for anyone guilty of improper conduct in the matter at hand. It operates to
prevent any affirmative recovery for the person with "unclean hands," no matter how unfairly the
person's adversary has treated him or her. The maxim is the basis of the clean hands doctrine. Its
purpose is to protect the integrity of the court. It does not disapprove only of illegal acts but will deny
relief for bad conduct that, as a matter of public policy, ought to be discouraged. A court will ask
whether the bad conduct was intentional. This rule is not meant to punish carelessness or a mistake. It is
possible that the wrongful conduct is not an act but a failure to act. For example, someone who hires an
agent to represent him or her and then sits silently while the agent misleads another party in
negotiations is as much responsible for the false statements as if he himself or she herself had made
them.

The bad conduct that is condemned by the clean hands doctrine must be a part of the transaction that is
the subject of the lawsuit. It is not necessary that it actually have hurt the other party. For example,
equity will not relieve a plaintiff who was also trying to evade taxes or defraud creditors with a business
deal, even if that person was cheated by the other party in the transaction.

Equity will always decline relief in cases in which both parties have schemed to circumvent the law. In
one very old case, a robber filed a bill in equity to force his partner to account for a sum of money.
When the real nature of the claim was discovered, the bill was dismissed with costs, and the lawyers
were held in CONTEMPT of court for bringing such an action. This famous case has come to be called
The Highwayman (Everet v. Williams, Ex. 1725, 9 L.Q. Rev. 197), and judges have been saying ever since
that they will not sit to take an account between two robbers.

Read more: Maxim - "he Who Comes Into Equity Must Come With Clean Hands." - Conduct, Matter, Bad,
and Relief - JRank Articles https://law.jrank.org/pages/8487/Maxim--He-who-comes-into-equity-must-
come-with-clean-hands.html#ixzz7D3IThKfq

The person seeking relief must not himself guilty of illegal or immoral conduct with regard to the same
transaction which would dis entitle him to any assistance of the court. the court of equity will take into
consideration, the personal conduct of the plaintiff in the transaction in dispute and if he had not sought
the help of the court with clean hands, court will refuse to grant him relief.
MEANING:
Equity demands fairness not only from the defendant but also from the plaintiff. It is therefore said that
“he that hath committed an inequity, shall not have equity.” While applying this maxim the court
believed that the behavior of the plaintiff was not against conscience before he came to the court.

5 c http://www.patnalawcollege.ac.in/econtent/Equity%20and%20Trust%20Semester%20III%20by
%20Rahila%20Imam.pdf

The word “Cypres” is a Latin word which means, “as nearly as possible” or “approximation”. About the
charity, it means the application of that fund to the objects or a purpose which are not precisely those
the donors provided for but which are as nearly as possible fit for his intention. This term is primarily
applicable to trusts and in its technical sense means that if the wishes of the author of a trust cannot be
accomplished literally, they will be performed as nearly as possible in the way desired by the author.

There is a distinction between the English and the Muslim Law as regards the doctrine of Cypres. English
Law enforces it’s an appliance to objects as near as possible to the objectives specified by the donor, At
the same time, Muslim Law requires the income for the objects that have failed to be devoted to the
poor, as in all Muslim waqfs the poor are the ultimate beneficiaries, whether named or not in the legacy.

Table of Contents
Application of the Doctrine of Cypres
Meaning of Charitable Trust
Conditions for the Doctrine of Cypres
Application of Doctrine of Cypres in Muslim Law
Legal incidents of Waqf
Situations where the Doctrine becomes Inapplicable
The Wakf Validation Act, 1913
Conclusion
Application of the Doctrine of Cypres
The doctrine of Cypres pertains to a charitable trust and does not apply to any private trust. This
doctrine is acceptable in the following three situations:-

Where the general philanthropic purpose is committed but the author of the trust has not to express or
has failed to convey with the reasonable method by way of which it has to get it out by the court.
Where the author of the trust has made a gift to the particular charity or a trust but the gift is or
becomes inadequate for taking effect.
Where the charitable purpose expressed by the settler does not exhaust the property affected
Cypres means approximately next, or as maybe it comes into operation as a case of a religious or
charitable trust when the undertaking of charitable trust becomes inexpedient the court will commit its
cypres. The objective of such a trust must be Generous. It can be said that the Doctrine of Cypres is a
legal concept that gives the court the power to interpret the terms after will, gift, or charitable trust.

5 d http://www.patnalawcollege.ac.in/econtent/Equity%20and%20Trust%20Semester%20III%20by
%20Rahila%20Imam.pdf

A)DifferencebetweentheTrustandBailment:-
i)BailmentwasrecognisedatCommonLaw andtherightsandobligationsofa
baileearelegalwhereasatrustismerelyequitablehavingequitablerights.
ii)Onlypersonchattelscanbebailed,whileanypropertymaybeheldintrust.
iii)Abaileehasonlyaspecialpropertyinthebailment,thebailorkeepsgeneral
propertywithhimself,whileatrusteehasthefulllegalownershipsubjecttothe
obligationsattachedtothepropertyintrustwithhim.
IV)Onlyabailorcanenforcethedutiesofthebailee,butanobligationunderthetrust
canbeenforcedbyanyonewithoutnoticeofthetrust.
V)Abailoruseshisspecialrightsforhisownbenefitbutatrusteeisboundtouse
thepropertyonbehalfandforthebenefitoftheother.

DifferencebetweentheTrustandAgency:- i)Trustsaregovernedbytheequitybutagencybythecommonlaw
ii)Agencynormallyarisesbycontractbetweentheprincipalandagentwhereasmost
trustshasnosuchcontractualrelationshipbetweentrusteesandbeneficiaries.
iii)Propertyoftrustvestsinthetrusteebutpropertyofagencydoesnotvestsinthe agent.
iv)Atrusteecannotinvolvehisbeneficiariesinliabilitywhileanagentcanmakehis 9 principalliable.
v)Atrusteeisfreefrom thecontrolofbothauthorandbeneficiarybutanagentis
alwaysinthecontrolofhisprincipal.
vi)Atrusteecanpassalegaltitletoabonafidepurchaserwhileanagentcannot passthelegaltitletothesame.
vii)Atrusteederivessuchauthorityfrom theinstrumentoftrustswhileanagent
derivesauthorityfromaprincipal.