Amendment in public trust deed

This query is : Resolved 

Querist : Anonymous (Querist)
06 April 2020

I have been given mandate to amend a revocable public trust deed .

It is being done during lifetime of settlor.
The amended deed will be registered,
It was advised to rename the amendatory trust deed to Indenture.
I seek your advise on the following.
1.Whether legally a revocable public trust deed can be amended and under which section.
2. The title of the amended trust deed should be indenture or any other nomenclature.
3.Registration process of amended Trust deed.

06 April 2020

Dear Sir,
Any deed including Trust deed can be amended by way passing a Resolution followed by Registering or incorporating the amendments.

Rajendra K Goyal (Expert)
06 April 2020

You may go through the bylaws of the trust to get the procedure.

Agree with the expert Kishan Dutt Retired Judge.

kavksatyanarayana (Expert)
06 April 2020

Usually, in Trust deeds, there will be a clause regarding the amendments such to modify, alter, change of articles, etc. so if there is a clause to amend, then you can amend it by passing a resolution with the majority as laid down in the trust deed. There is no indenture form to amend, but if you change any clause you should specify it in the subject and such amendment shall be recorded in the minute of the Trust.

Raj Kumar Makkad (Expert)
06 April 2020

An irrevocable trust has a grantor, a trustee, and a beneficiary or beneficiaries. Once the grantor places an asset in an irrevocable trust, it is a gift to the trust and the grantor cannot revoke it. The grantor can dictate the terms, rules, and uses of the trust assets with the consent of the trustee and the beneficiary.. The amendment can onl be effected with the consent of the grantor of the trust.

P. Venu (Expert)
07 April 2020

Facts, as posted, lack clarity. What do you mean by "I have been given mandate............."? Who has given the mandate? What is the mandate?

Rajendra K Goyal (Expert)
07 April 2020

How are you concerned?

Please reply the questions from expert P.Venu.

Raj Kumar Makkad (Expert)
07 April 2020

There is no hurdle to change the bye-laws of the recovable trust deed as per its inherent provisions.

Dr J C Vashista (Expert)
08 April 2020

Who has given and what is the crux of mandate ?
Presumably you (or Registrar) did not search / check "name" of the subject Public Trust at the time of registration, which was revealed subsequently, is it so ?
Since the deed is stated to be revocable, the beneficiary has to be contacted, communicated qua mandate (if any) for getting a fresh Trust Deed registered.

Rajendra K Goyal (Expert)
09 April 2020

Revocable deed can be revoked :
Section 78 in The Indian Trusts Act, 1882
78. Revocation of trust.—A trust created by will may be revoked at the pleasure of the testator. A trust otherwise created can be revoked only—

(a) where all the beneficiaries are competent to contract—by their consent;

(b) where the trust has been declared by a non-testamentary instrument or by word of mouth—in exercise of a power of revocation expressly reserved to the author, of the trust; or

(c) where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors—at the pleasure of the author of the trust.

Illustration A conveys property to B in trust to sell the same and pay out of the proceeds the claims of A’s creditors. A reserves no power of revocation. If no communication has been made to the creditors, A may revoke the trust. But if the creditors, are parties to the arrangement, the trust cannot be revoked without their consent.

In the absence of a power of revocation being reserved in the deed of revocation, the new trustee declared in the deed of revocation cannot be revoked by virtue of the power of revocation, contained in the original deed of settlement; Central Bank Executor & Trustee Co. Ltd. v. Hormusji N. Madraswalla, AIR 1969 Bom 101.

T. Kalaiselvan, Advocate (Expert)
10 April 2020

A revocable trust tantamount to being a revocable transfer
under the Indian tax provisions if it contains any provision for
the re-transfer directly or indirectly of the whole or any part of
the income or assets to the transferor or it in any way gives the
transferor a right to re-assume power directly or indirectly over
the whole or any part of the income or assets. Thus, where a
settlement is made in a manner that the settlor is entitled to recover
his contributions over a specified period and is entitled to the
income from their contributions, the settlement of the trust will be
disregarded for the purposes of tax, and the income thereof taxed as
though it had directly arisen to the contributors.

T. Kalaiselvan, Advocate (Expert)
10 April 2020

The reservation by the settlor of certain rights and powers,
and the fact that the trustee may himself have rights as a beneficiary,
are not necessarily inconsistent with the existence of a trust.
It applies only to trusts created voluntarily and evidences
in writing.
Trusts created by judicial decisions are not included.

T. Kalaiselvan, Advocate (Expert)
10 April 2020

A trust deed is a formal document outlining the parties involved in a trust and the instructions for distributing trust property to beneficiaries. ... Only a revocable trust can be amended once created. Amendments can be made only during the trust grantor's lifetime, however.

T. Kalaiselvan, Advocate (Expert)
10 April 2020

Only a trust grantor or trustee of a revocable trust can amend an original trust deed. Beneficiaries of a trust grantor, on the other hand, do not possess the power to amend or revoke any trust document. It benefits a trust grantor to notify all parties involved in the trust that an amendment to the original trust deed has been documented. Doing so prevents questions about the validity of the amendment later.

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