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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
0. 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.

MODEL TRUST DEED OF A PUBLIC CHARITABLE TRUST

THIS DEED OF TRUST executed on this _______________________ day of __________________ year 20____, _______________________ BETWEEN __________________________________________ (Party of the first part) hereinafter called " SETTLOR OF THE TRUST" ________________________________________________________
________________________________________ AND _____________________________________ .

1. SHRI.                             S/O. SHRI                              , of ____________ &

2. SHRI.                             S/O. SHRI.                             , of ____________ &

3. SMT.                             W/O SHRI.                              , of ____________

(Hereinafter called " The Trustees" which expression shall unless repugnant to the context or meaning thereof be deemed to include the survivors or survivor of them and the trustees or trustee for the time being of these presents and their heirs, executors and administrators of the last surviving trustee, their or his assignees) of the other part;

WHEREAS the party hereto of the first part is possessed of the sum of Rs. ___________/- (Rs. __________ Only) as his absolute property and he is desirous of creating a Religious/ Charitable/Educational Trust for the benefit of the humanity at large.

AND WHEREAS each of the parties hereto of the "Other Part" has individually and jointly has agreed to act as Trustees of the Trust, proposed by the party of the first part.

AND WHEREAS nothing contained in this deed shall be deemed to authorize the trustees to do any act which may in any way be construed 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.

AND WHEREAS the trust is hereby expressly declared to be a public charitable trust and all the provisions of this deed are to be constituted accordingly.

NOW THIS INDENTURE WITNESSTH AS FOLLOWS :

1.      SETTLEMENT
The party of the first part, the settlor, does hereby settle the sum of Rs._______ /- (Rs. __________ only) in Trust, with the name and for the objects hereinafter stated, by delivering the said amount in cash which the party of the other part, the Tustees, have accepted the receipt of which they do hereby acknowledge, to hold the same in and to the Trustees with the powers and obligations as provided hereinafter.
 

2.      NAME
The name of the Trust shall be "____________________________".
 

3.      PLACE
The principal office of the Trust shall be situated at ______________________ or such other place as the Trustees may from time to time decide. The Trust may also carry on its work at any other place or places, as decided by the Trustees.
 

4.      OBJECTS

a.      Educational – to run, maintain or assist any educational or other institution for coaching, guidance, conselling or vocational training or to grant individual scholarships for poor, deserving and needy students for elementary and higher education.

b.      Medical – to run, maintain or assist any medical institution, nursing home or clinics or to grant assistance to needy and indigent persons for meeting the cost of medical treatment.

c.      Relief of the poor – to give financial or other assistance in kind by way of distribution of books, notebooks, cloths, uniforms, or meals for the poor and indigent and to the persons suffer due to natural calamities.

d.      Other objects of general public utility –

                                                         i.            to acquire property for the sole use for public good by making it available for public purposes as for example, housing a library clinic, crèche and/or as a community ball to be available for public use as training classes, seminars, discourses and other public functions for benefit of the community in general.

                                                       ii.            to undertake any other activity incidental to the above activities but which are not inconsistent with the above objects.

PROVIDED the Trust may assist/donate the other TRUST to carry out the various objects mentioned in the objects clause in such manner and to the extent the Trustees may decide upon from time to time.
 

5.      FUNDS
The Trustees may accept donations, grants, subscriptions, aids or contributions from any person, Government, Local authorities or any other charitable institutions, in cash or in kind including immovable property without any incumbrance, but the Trustees shall not accept any receipt with any condition or terms inconsistent with the objects of the Trusts. While applying such receipts to the objects, the Trustees shall respect the directions, if any, by the granter. Any receipt with specific direction to treat the same as part of the corpus of the Trust or separate fund shall be funded accordingly.
 

6.      INVESTMENTS

                                 i.            All monies, which shall not immediately required for current needs shall be invested by the Trustees in eligible securities and investments, or in banks. Such investments shall be in the name of Trust or Trustees.

                               ii.            That the trustees shall invest the trust fund, carry on any business with the trust fund and/or enter into partnership on behalf of the trust, as they may deem fit.

                              iii.            That the trustees shall manage the trust fund and investments thereof as a prudent man would do the same. They shall recover all outstandings and meet all recurring and other expenses incurred in the upkeep or management thereof.

                             iv.            That the trustees shall receive and hold the income of the trust on behalf and for the benefit of the beneficiaries under the trust.
 

7.      POWER OF TRUSTEES
That the trustees shall have the following powers :

                                 .            to manage all the assets and/or properties of the trust including the conduct of business;

                                 i.            to appoint employees and to settle the terms of their service, remuneration and termination;

                               ii.            to look into the management of the trust;

                              iii.            to invest the funds of the trust, in bank or in the purchase of company shares or securities or other movable and movable and immovable properties;

                             iv.            to sell, alter, vary, transpose or otherwise dispose or alienate the trust properties or any investment representing the same for consideration and to reinvest the same;

                              v.            to pledge or mortgage the trust properties for raising loans;

                             vi.            to open the bank accounts in the name and on behalf of the trust and to operate the same;

                           vii.            To enter into a partnership on behalf of the trust with any other party or parties;

                          viii.            To pay all charges, impositions and other outgoings payable in respect of the trust properties and also to pay all cost of the incidental to the administration and management of the trust properties;

                             ix.            To file suit on behalf of the trust and to refer to arbitration all actions proceedings and disputes touching the trust properties and to compromise and compound the suits filed;

                              x.            To accept any gift, donation or contribution in cash or in kind from anyone for the objects of the trust;

                             xi.            To seek legal opinion of lawyers and/or Chartered Accountants as and when required;

                           xii.            To nominate their representatives for any of the aforesaid purposes.
 

8.      The number of the trustees shall not be less than two but not more than five.
 

9.      In case of any difference between the trustees, the opinion of the minority shall
prevail.
 

10. Every trustee will be at liberty to nominate or appoint attorneys or agents and to delegate all or any of the duties and powers vested in him to such attorney or agent, and to remove such attorney or agent and reappoint other or others in his place.
 

11. No trustee shall be responsible or liable for any loss or any act of omission or commission by his constituted attorney or agent or employees or other trustees unless occasioned by his wilful neglect or default.
 

12. Any of the trustees may retire on giving one month’s notice in writing to the other trustee(s).
 

13. If any trustee dies or retires or becomes incapable or unfit to act, the continuing or surviving trustee or trustees shall appoint a successor in the place of such trustee.
 

14. If at any time the number of the trustees is less than two, the existing trustee shall appoint one or more trustees.
 

15. Upon the appointment of a new trustee the trust properties shall vest in the new trustee jointly with the continuing or surviving trustees, with the duties and power of the trustees set out hereinabove in this deed.
 

16. If the trust is determined by efflux of time, the corpus of the trust shall be divided amongst the beneficiaries in the shares as fixed by the trusees.
 

17. BANKING ACCOUNT
All income, subscription and pecuniary donations for the general purposes of the Trust and the income, investments and all other moneys from time to time forming part of the general revenue of the Trust shall on the same being received be paid into a banking account with any scheduled bank for the purpose of the Trust. The bank accounts shall be operated by the Managing Trustee along with any one of the remaining Trustees.
 

18. ACCOUNTS AND AUDIT

                                 .            The Trustee shall keep proper books of account of all the assets, liabilities and income and expenditure of the Trust and shall prepare an Income and Expenditure Account and Balance Sheet for every year as on the last day of March.

                                 i.            The accounts of every year shall be audited by a Chartered Accountant or a firm of Chartered Accountants who shall be appointed for that purpose by the Trustees and the audited accounts shall be placed at a meeting of the Trustees, which shall be held before the end of the succeeding year.
 

19. IRREVOCABLE
This Trust is irrevocable.
 

20. AMALGAMATION
The trustees may amalgamate the trust with another Charitable Trust or Institution having similar objects with prior permission of the Charity Commissioner/Court/any other law as may be applicable for the time being.
 

21. WINDING UP
In the event of dissolution or winding up of the Trust the assets remaining as on the date of dissolution shall under no circumstances be distributed amongst the Trustees but the same shall be transferred to some other similar Trust/Organisation whose objects are similar to those of this Trust with the permission of the Charity Commissioner / Court / any other law as may be applicable for the time being.

The Trustees shall be indemnified against all losses and liabilities incurred by them in the execution of the Trust and shall have a lien over the funds and properties of the Trust for such indemnity.

IN WITNESS WHEREOF, The Parties hereunto have signed and delivered the presents on the day and year first hereinabove written.

                                                                                          SETTLOR

WITNESS :                                                                       1. TRUSTEE ____________

1.                                                                                   2. TRUSTEE ____________

2.                                                                                   3. TRUSTEE ____________

 

 

 

 


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