Ch. 54] TRUSTS?FORMS 163
However, where a trust is created by a will, it is exempt from stamp duty and
registration is optional under sec. 18 of the Registration Act.
Although the requirements as to writing and registration prescribed by sec.
5 of the Indian Trusts Act, 1882 do not apply to Hindu Religious or Charitable
Trusts, in view of the provisions contained in sec. 1 of the said Act, and the
transaction may not be a transfer of property within the meaning of section 5
of the Transfer of Property Act, still it would fall within the provisions of section
17(a) of the Indian Registration Act, since when the dedication takes the shape
of an instrument in writing, such as a deed of gift, or a deed of trust, it will have
to conform to the requirements of a deed of gifts or a deed of trust prescribed
by the Indian Registration Act and the Indian Stamp Act?Bhoopatinath v
Vasanta 62 Cal 1098: 40 CWN 120; see also, Justice Mukherjee?s Hindu Law
of Religious and Charitable Trusts, p. 102.
FORMS
1
Deed of trust conveying the property to trustee with power
of sale and pay of debts for repayment whereof the property
is offered as security with condition that in case of
timely repayment of the debts this instrument
shall be treated as null and void
Take notice by this instrument that we??????? [property owners]
and?????? [contractor], all of [Place]???? have this day entered into
the following contract:
………………..[property owners] desire that a……………… be erected on the
property owned by them, situated at???? [street address], ………………[city],
known as????..
Now, therefore, in consideration of the facts,………………[contractor,] has
covenanted and agreed with………………[property owners], that he or she will
make, erect, build and finish, in a good, substantial and workmanlike manner
within………….. days from the date of this contract, the……………… and improve-
ment on the above-described property, performing or causing to be performed
all the labour in the erection of it, and furnishing all the material of any kind
necessary to be used in the erection of it, and paying all expenses incident to
the labour and furnishing of material, the dwelling-house and improvements to
be built of good; substantial material and to be erected strictly according to the
plans and specifications this day agreed upon by the parties to this contract and
made a part of this contract.
??????.[Property owners], in consideration of the foregoing, agree to164 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
pay to???.. [contractor] the sum of Rs????., as follows: Rs???..,
bearing interest at the rate of?????.% per annum from?????. until
paid. Payable???., all past due principal and interest bearing interest from
maturity? until paid at the rate of………………% per annum and providing for
……………% attorney?s fees on the amount of principal and interest due on it if
placed in the hands of an attorney for collection, or if collected through the
probate court or other judicial proceedings, and to secure the payment of the
indebtedness and notes, a valid and subsisting lien is created by this instrument
for the benefit of??????[contractor], on the above described property and
all improvements, additions, fixtures and appurtenances now on the property
or subsequently to be placed there.
And?????. [property owners], to secure and enforce the payment of the
indebtedness and of the further consideration, uses, purposes and trusts set
forth here, have granted, bargained and sold, and by this instrument grant,
bargain, sell, convey and confirm, to????.. as trustee, and also to the
substitute trustee, as provided bellow, all of the above described property and
improvements.
To have and to hold the premises unto???? [trustee], and to his or her
successors and assigns forever, covenanting and agreeing to forever warrant
and defend the premises mentioned above, and every part of the premises, unto
the trustee named here, and to the substitute trustee, and to the assigns of any
trustee named here, against all persons who lawfully claim the same for and on
the following trusts, terms, conditions and covenants, namely: That………………
[property owners] are justfy indebted to……………… [contractor], as evidenced
by the above mentioned indebtedness and notes.
Now, if……………… [property owners] make prompt payment of the indebted-
ness, both principal and interest, as it becomes due and payable, then this
conveyance shall become null and void and of no further force and effect, and
shall be released by the holder of the indebtedness, such release to be at the
expense of……………… [property owners]. But if……………… [property owners]
make default in the punctual payment of the indebtedness, or any part of it,
principal or interest, as the same becomes due and payable, or fail to pay as
it becomes due and payable, all taxes and special assessments, either state,
central, municipal or otherwise, now chargeable to or assessed against or
hereafter chargeable to or assessed against the above described property, or
fail to keep at all times the improvements on the property insured against fire
and earthquake in favour of any holder of the indebtedness secured by this
instrument (who shall hold the policies of insurance) in the full insurable value
of the improvements in solvent and reputable insurance companies acceptable
to the holder of the indebtedness, or fail to keep the improvements in good
condition and repair or permit waste, or do or permit to be done any act or thing
that would tend to depreciate the value of the above described property, or fail
to pay, as the same shall become due and payable (all taxes that shall be
chargeable to or assessed against this mortgage note or notes secured by this
instrument, which tax payments on this mortgage note or notes secured by this
instrument, together with the interest payments, are not to exceed??.% perCh. 54] TRUSTS?FORMS 165
annum on the principal amount of the indebtedness secured by this instrument,
then, and in any such case, the whole amount of the unpaid indebtedness
secured by this instrument, at the option of????.. [contractor] or other holder
of this instrument, immediately mature and become payable, and it shall then,
or at any later time when the same or any part of it remains unpaid, be the duty
of………………[trustee], and of the trustee?s successor or substitute as provided
here on the request of………………[contractor] or other holder of the indebtedness
secured by this instrument or any part of it (which request is presumed by this
instrument) to enforce this trust; and after advertising the time, place and terms
of the sale of all the above conveyed and described property for at least 21 days
successively next before the day of the sale, by posting written or printed notices
of it at three public places in………………, one of which shall be at the court-house
door of the???????. Court, which notices may be posted by the trustee
acting or by any other person, to sell the same in accordance with such
advertisement, at public auction, in front of the door of the court-house of???
Court, in???, on the first Tuesday in any month between the hours of 10 o?clock
a.m. and 4 o?clock p.m. to the highest bidder for cash-selling all the property
above conveyed as an entirety or in parcels, as the trustee acting may elect-
and make due conveyance to the purchaser or purchasers, with general
warranty, binding……………… [property owners] and their heirs and assigns; and
out of the money arising from the sale, the trustee acting shall pay, first, all the
expenses of advertising, sale and conveyance, including a commission of five
percent to himself or herself and then to……………… [contractor], or any other
holder of the indebtedness, the full amount of principal, interest and attorneys?
fees due and unpaid on the indebtedness as set forth above, rendering the
balance of the purchase money, if any, to……………… [property owners], their
heirs or assigns; and the sale shall forever be a perpetual bar against……………
[property owners], their heirs and assigns, and……………… [contractor], or other
holder of the indebtedness, shall have the right to purchase at such sale, being
the highest bidder.
It is expressly understood and agreed that the recitals in the conveyance at
the sale to the purchaser shall be full evidence of the truth of the matters stated
in it, and all prerequisites to the sale shall be conclusively presumed to have been
performed and the sale and conveyance shall be conclusive against????..
[property owners], their heirs and assigns whether the prerequisites shall have
been performed or shall not have been performed.
It is further expressly stipulated and agreed that in case of the absence, death,
inability, refusal or failure of the trustee named here to act, a successor and
substitute may be named, constituted and appointed by????. [contractor],
or other holder of the indebtedness, or any part of it, without other formality than
an appointment and designation in writing, and this conveyance shall vest in him
or her, as trustee, the estate and title in all the premises, and he or she shall
thereupon hold, possess and execute all the title, rights, powers, and duties
conferred by this instrument on the trustee named here, and his or her
conveyance to the purchaser shall be equally valid and effective; and the right
to appoint a successor or substitute trustee shall exist as often and whenever
any trustee, original or substitute, cannot or will not act.166 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
It is expressly agreed and understood that to secure the payment of the
promissory note for the sum of Rs……., ………………. [contractor] retains and shall
have a valid existing mechanic?s, materialmen?s, labourer?s and contractor?s lien,
equities, securities and interest in and to the above described property and
the????.to be erected there, and the improvements now on and to be placed
on the land, and it is agreed and understood that the promissory note may be
assigned, and the assignee or purchaser shall have and be subrogated to all
the rights and equities of……………… [contractor], to have and to hold the same,
together with all the rights, and appurtenances to the same belonging or in
anywise incident or appertaining.
It is further agreed that failure to complete the improvements according to
this contract shall not defeat the indebtedness and lien, but in that case the
indebtedness and lien on the premises and improvements shall exist in favour
of……………… [contractor], his or her heirs and assigns for such contract price,
less such an amount as will be reasonably necessary to complete the
improvements according to this contract.
It is also further agreed and stipulated that?????[ property owners] shall
and will, at their own proper cost and expense, keep the property and premises
described here and on which a lien is created by this instrument, in good repair
and condition, and pay and discharge, as they are or may become payable, all
and every, all taxes due and to become due on that property and premises, and
shall keep the property fully insured in some good and responsible fire insurance
company, approved by……………… [contractor], or the assignee or holder of the
note, to whom the loss, if any, shall be payable, and by whom the policy or policies
shall be kept.
And in case of default made by?????. [property owners] in the
performance or any of the foregoing stipulations, the same may be performed
by?????. [contractor], the assignee or holder of the note, for and at the
expense of?????. [property owners], and any and all expenses incurred
and paid in so doing shall be payable by????? [property owners] to the
payee, with interest at the rate of 10 per cent per annum from the date when
the same was incurred or paid, and shall stand secured and payable by and under
this contract in like manner with the other indebtedness mentioned here.
It is further specially agreed and understood that the entering by parties of
the first part into possession of the improvements, or the acknowledgement by
them of completion of this contract as well as any other sufficient proof, shall
be conclusive evidence that all duties and obligations of??????. [contrac-
tor] have been fully and completely performed.
This contract is executed and delivered before any labour or material for the
erection and construction of the improvements has been furnished.
Executed this the?????? day of?????? [month]???????
[year].
[Signatures of property owners]
[Signature of contractor]Ch. 54] TRUSTS?FORMS 167
Before me, the undersigned authority, a notary public in and for [Place]…………,
on this day personally appeared????., known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that
he or she executed the same for the purposes and consideration expressed in
it.
Given under my hand and seal of office, this……………… day of……………
[month], ……………… [year].
………………., Notary Public
Before me, the undersigned authority, a notary public in and for [Place]
……………… on this day personally appeared……………… and………………, both
known to me to be the persons whose names are subscribed to the foregoing
instrument, and acknowledged to me that they each executed the same for the
purposes and consideration expressed there.
Given under my hand and seal of office, this?????. day of??????
[month]????.. [year].
??????, Notary Public
Before me the undersigned, a notary public in and for [Place]………………, on
this day personally appeared………………, known to me to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowl-
edged to me that he executed the same as the act of such corporation for the
purposes and consideration therein expressed and in the capacity therein
stated.
Given under my hand and seal of office, this the……………… day of………………
[month], ????..[year].
?????., Notary Public
Whereas, on the……………… day of……………… [month],……………… [year],
????.. [owner] made and entered into a construction contract with????.
[contractor] for the erection and construction of certain improvements on real
property belonging to owner, situated in?????? and described as follows:
[Description of Property]
And whereas, by the terms of the construction contract the owner promised
and agreed to pay to the contractor certain sums of money evidenced by a note
and to secure the payment of it to the contractor gave a mechanic?s, materialman?s,
labourer?s and contractor?s deed of trust lien on the above-described premises,
which liens were granted for the purpose of securing the contract price of the
inprovements to be erected on the premises described above, and any additions
to the premises caused by alterations or additions, and any portion of the
improvements actually erected;
And whereas, the contractor desires to fulfil the contract but to assign to the168 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
transferee named here all notes and evidences of debt which the contractor
holds or to which the contractor may become entitled during his or her
performance of the contract and all liens granted lo secure it;
Now, therefore, in consideration of Rs????, receipt of which is acknowl-
edged, I,………………., contractor, transfer and assign unto????. all indebt-
edness and evidences of indebtedness, owing or to accrue in my favour under
the liens and deed of trust mentioned above, including any note or notes taken
for additions to the contract price, and convey to?????. liens and deed of
trust and all right, title and interest owned by me in and to the premises described
above.
To have and to hold unto the????.., its successors, heirs and assigns
forever.
Executed this the????.. day of??????. [month],……………… [year].
[Acknowledgment]
2
Land Trust with transferable certificates of
beneficial interest
[Trust Agreement]
This indenture, made???????[Date], by and between??????,
parties of the FIRST PART, AND????. Trust Company, a corporation incor-
porated organized under the Companies Act, 1956 (hereinafter called the
Trustee), Party or the SECOND PART.
WITNESSETH:
That, WHEREAS, the parties of the FIRST PART have caused to be conveyed
to the party of the SECOND PART, as Trustee, the following described property,
namely:
The described property and all other property hereafter conveyed to or
acquired by the Trustee upon the Trust hereof being hereinafter for convenience
referred to as the ?Trust Property?.
AND WHEREAS the parties of the FIRST PART, for the purposes of investment,
did heretofore determine to acquire the beneficial interest in and to the income,
proceeds and avails of the Trust property in the proportions hereinafter specified
and set forth, not intending, however, to acquire any title to the said trust property,
either legal or equitable, but only an interest in the net income, proceeds and
avails which may come into the hands of the Trustee hereunder through leases,
sub-leases, assignments, sales or other dispositions or conversions of said
property, or part or parts thereof;
AND WHEREAS the parties of the FIRST PART did heretofore agree andCh. 54] TRUSTS?FORMS 169
determine that the title to all of the trust property hereinabove described should
be conveyed to the said????? Trust Company, as Trustee hereunder, to be
held by
the said company upon the Trusts and for the uses and purposes, and
subject to all the terms, covenants, conditions, provisions and stipulations
hereinafter in this indenture set forth;
NOW THEREFORE in consideration of the premises and of the sum of Rupee
One paid by each of the parties and the other it is agreed by and between the
parties hereto that Trust Company will hold title to the above described trust
property (and that it will hold the title to any and all other property hereafter
acquired by it as Trustee hereunder), in Trust for the uses and purposes and
subject to the terms, covenants, conditions, stipulations and provisions con-
tained in this agreement as follows, namely:
Article I
The name of this Trust shall be?????. Trust (not incorporated), and its
object shall be the acquisition, management, improvement and disposition of
said Trust property and such other property as may be acquired by the Trustee
from time to time under the terms of this agreement, and the division of the
income, proceeds, and avails of said Trust property among its shareholders.
Article II
The Trustees shall hold any real estate that may at any time from a part of
the Trust property in Trust to sell and convert the same into cash or other personal
property and in the meantime to manage, improve, protect and maintain the
same; and it shall have full power to lease, from time to time, in possession or
reversion, said Trust property or any part or parts thereof with the improvements
thereon or to be erected thereon, for any length of time even for terms extending
beyond the duration of the Trust, but not exceeding in the case of any single lease
the term of……………… years (and any such term may begin either in praesenti
or in futuro), and to contract to make leases, and to grant options to lease and
options to renew leases, and to contract respecting the manner of fixing the
amount of present or future rentals, and generally and without limitation or
restriction, except as aforesaid, to lease from time to time upon any terms, in
any manner and upon any conditions whatsoever, the whole or any part or parts
of the Trust property. And said Trustee shall have full power to grant options to
purchase, to contract to sell, and/or to sell the Trust property and any part or
parts thereof on any terms, to convey with or without consideration, and to
mortgage, pledge or otherwise encumber the same with the improvements
thereon or to be erected thereon to partition or to exchange the trust property
or any part or parts thereof, for other real or personal property encumbered or
unencumbered, and to re-partition or re-exchange such property, or any part
or parts thereof as often as desired; to sell, contract to sell, to lease, sub-lease,
assign, dispose of, convert and re-convert the same, and in general to deal with
such property, or any part or parts thereof, whenever and howsoever and as often
as desired, to grant easements or charges of any kind, to make contracts or
agreements for party walls or in relation thereto or for building or building170 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
restrictions or in relation thereto or otherwise; to release, convey, or assign any
right, title, or interest in or about the trust property, or any part or parts thereof,
to any use of any streets, alleys, parks, or public places for railroads, street
railroads, gas or electric light poles, lines, pipes, conduits or other equipment,
or other public or semi-public or private improvements or use, to erect, repair,
remodel and reconstruct buildings or other improvements upon the Trust
property, or any part or parts thereof, to
construct sidewalks and to grade, fill,
curb and pave streets and alleys; to lay and maintain sewer, water and gas pipes,
and other conduits or facilities, and do all other work and make all other
improvements in streets and alleys as said Trustee may desire, all by private
contract, and also to petition any properly constituted municipal corporation for
the construction of any sidewalk or for paving or otherwise improving any street
or for any other public or semi-public improvement or use. The Trustee shall also
have full right and power to grant any and all rights (and to lease, sub-lease, sell,
assign and otherwise dispose of any right, title, or interest) concerning or in
relation to sub sidewalk spaces or concerning or in relation to any part of the
streets and alleys adjacent to any of the trust property, and to deal with the Trust
property and every part thereof in all other ways and for such other consider-
ations as it would be lawful for any person owning the same to deal with the same,
whether similar to or different from the ways above specified, at any time. or times
hereafter; provided, however, that the Trustee shall not make any sale, mortgage,
lease, sub-lease, assignment, contract or other disposition of any of the property
at any time held by it under the provisions of this Trust, nor shall the Trustee make
any disbursements of any funds accruing under this Trust for any purpose
whatsoever, or perform any acts or duties under this Trust, except upon written
order signed by the executive committee hereinafter provided for, it being the
intention hereof that the affairs of this Trust shall be
directed in all things by such
committee, and that all orders of such committee shall confer full and complete
authority upon the Trustee hereunder to do and perform all the acts and to
execute all of the documents directed to be done, executed, and performed by
such orders.
In no case shall any party dealing with the Trustee in relation to such property
or to whom such property or any part thereof shall be conveyed, contracted to
be sold, leased, or mortgaged by said Trustee be obliged to see to the application
of any purchase money, rent, or money borrowed or advanced on said property
or be obliged to see that the provisions of this agreement or the terms of this
Trust have been complied with, or be obliged or privileged to inquire into the
necessity or expediency of any act of the Trustee, or to inquire into any limitation
or restriction of the power and authority of the Trustee.
Article Ill
The Trustee may (whenever directed thereunto in writing by said executive
committee) borrow, from time to time, money for the purposes of this Trust, and
execute, as Trustee, its principal and interest notes in such form as the Trustee
may determine to evidence such indebtedness, and execute as Trustee as
aforesaid, as security for the money so borrowed, its Trust deeds or mortgagesCh. 54] TRUSTS?FORMS 171
conveying such portions of the Trust property as may be designated by the
executive committee to secure notes executed by such person or persons or
corporations as may be designated by said committee; provided that any and
all such Trust
deeds, mortgages and notes may contain provisions exempting
and exonerating the Trustee from all personal obligations and liabilities whatso-
ever by reason of the execution thereof and shall contain provisions exempting
and exonerating the beneficiaries and Shareholders under this Trust from all
personal obligation and liability whatsoever by reason of the execution thereof,
and from any and all personal obligation or liability for the repayment of the
borrowed money evidenced and secured thereby.
Article IV
The Trustee may also (whenever directed thereunto in writing by said
executive committee) borrow money for the purposes of this Trust and issue
therefor certificates to be known as ?Trustee?s Certificates of Indebtedness, ?
specifying therein the particulars of such loan or loans, which certificates shall
become and be liens and charges upon the particular property, real, personal
and mixed, therein described, and upon the proceeds of sales and conversions
thereof (but subject to every sale, mortgage, contract, lease, subl-lease,
assignment, transfer or conveyance of any such property which the Trustee may
make under the authority of this Trust, the proceeds of any such sale, mortgage,
contract, lease, sub-lease, assignment, transfer or conveyance to become a part
of the trust property and as such to stand in lieu of the particular property affected
thereby). And such certificates, with the interest thereon outstanding at any time
shall be paid only out of the net proceeds and avails which may come into the
hands of the Trustee through the sale or other disposition or conversion of the
property in such certificates described or of some part or parts thereof before
any distribution of such proceeds and avails, or of any part or parts thereof, shall
be made or paid to the shareholders under this Trust agreement.
Such certificates, however, shall not be, nor shall they purport to be, either
personal obligations of the Trustee or of any beneficiary under this Trust
agreement, but shall be evidence of the right to payment as aforesaid, taking
precedence of all interests of shareholders in the property specifically described
in such certificates and in the net proceeds of the sale or other disposition or
conversion of such property. And it shall be provided in such certificates that upon
the surrender thereof and at the written request of said executive committee the
Trustee shall issue new certificates to the parties thereto entitled, substituting
for any of the property mentioned in the certificates so surrendered such other
property belonging to the Trust as may be designated in writing by said executive
committee.
???????. Trust Company, acting either individually or in its capacity
as Trustee hereunder, in its sole discretion may advance money on, or may
purchase, such certificates.
Article V
The Trustee shall prepare a book containing forms of share certificates, and172 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
shall deliver to each beneficiary hereunder a certificate or certificates showing
the number of shares in the Trust to which such beneficiary is entitled under the
provisions hereof, the number of shares issued on account of the above
described property comprising the original Trust property hereunder to be limited
at the date hereof to a total of……………… shares. Said certificate shall state
whether or not such shares shall have no par value, or a par value; and if a par
value, the par value of each share. Said certificates shall be substantially in the
following form:
………………Trust
(not incorporated)
Registration No……………….
Number……………… ………………Shares
This certifies that??????.. is the owner of??????. shares in
the??????? Trust out of a total authorized issue of?????? shares
in said Trust, each share being of (no par value) (a par value of Rs???), and
representing a proportionate interest in the net income, proceeds, and avails of
the property of said?????. Trust.
This certificate and the interest represented hereby are subject to all the
terms and conditions contained in the Trust agreement made by and between
……………… and……………… Trust Company, dated……… 200….. under the pro-
visions whereof this certificate is issued, to the same extent and in like manner
and with the same force and effect as if said Trust agreement were fully and at
length set forth herein; and the holder hereof, by receiving this certificate, assents
to and is bound by the provisions of said Trust agreement in the same manner
and with the same effect as if the holder had executed the same.
And it is expressly agreed that the holder hereof has no claim or interest, legal
or equitable, in the lands and other assets and property described and referred
to in said Trust instrument, but only an interest in the net income, proceeds, and
avails thereof as in said instrument provided.
This certificate is transferable only on the books of the Trustee by the holder
hereof in person or by attorney, upon the surrender of this certificate, properly
endorsed.
[Date and Signature of Trustee]
Said certificates may be transferred from time to time by the holder thereof,
or his personal representative, by assignment and surrender thereof. The
transfer shall be registered in a book kept for that purpose by the Trustee, and
a new certificate shall be issued in the place of the one so surrendered, and no
holder thereof or party interested therein shall be entitled to recognition as such
by the Trustee for any purpose, unless the same be so registered, but said
register shall be conclusive as to such ownership; and the Trustee is hereby
authorized to treat the person in whose name any such share may be registered
on the books of the Trustee as the owner thereof for all purposes.Ch. 54] TRUSTS?FORMS 173
Such shares constituting the beneficial interest hereunder, and in said
certificates are declared to be and shall be personal property notwithstanding
that real estate shall be held under the terms hereof and on the death of any
certificate holder, the interest of such holder shall descend in the same manner
as other personal property, and neither the beneficiaries herein named, nor the
holders of any of the certificates hereunder at any time, shall have any claim,
title, or interest, legal or equitable, to or in any of the Trust property at any time
held by the Trustee under this Trust, but only an interest in the net income, avails,
and proceeds thereof.
Article VI
The net income, avails and proceeds arising from any Trust property held
hereunder belong, at the institution of this Trust, to the following named persons,
in proportion to the number of shares held by them, respectively, as set opposite
their respective names in the following list, namely:
Name Number of Shares
……………………………………………… ………………………………………………
……………………………………………… ………………………………………………
……………………………………………… ………………………………………………
Additional shares shall be issued by the Trustee from time to time as and when
directed by the executive committee in consideration of the acquisition by the
Trust of additional property, upon ratification by the holders of not less than two-
thirds of the shares then issued and outstanding hereunder at an annual meeting
of the shareholders or at a special meeting of the shareholders called for that
purpose, in he manner provided in Article IX.
In the case of each such additional issue (unless the additional shares so
issued are divided among all the shareholders of shares at that time outstanding
hereunder in proportion to the number of such shares then held by them,
respectively, so that each shareholder after the issuance of such additional
shares shall hold the same proportion of all the shares then outstanding as he
had before such additional issue) the number of additional shares issued against
the additional property shall be such that the value of each additional share so
issued shall, in the judgment of the executive committee, be equal to the value
of each share outstanding hereunder immediately prior to such additional issue.
Whenever such additional shares are not to be distributed pro rata among the
shareholders but are to be offered for sale, the executive committee shall in every
instance give each shareholder written notice by mail to the address of each
shareholder so far as the same shall be known to the executive committee, and,
if not known to the executive committee, then addressed to such shareholder
at………………, ………………, at least?????. days prior to such proposed
sale, and permit each shareholder to purchase at the price, upon the terms, and
within the time fixed by the executive committee additional shares in proportion
to the number of shares then held by each shareholder. Shares not so purchased
by shareholders may thereafter be sold in such manner as the executive174 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
committee shall determine. It shall not be the duty of the Trustee, to see that the
requirements of this paragraph are complied with by the executive committee,
but it shall issue additional shares from time to time as directed by such
committee. After any such additional issue of shares, the certificates outstanding
shall be appropriately amended.
All dividends and distributions declared and made at any time during the
continuance of this Trust shall be made pro rata to the owners of the share
certificates issued hereunder as shown by the records kept by the Trustee, in
the proportions of the number of shares held by them, respectively, and an
assignee or transferee in interest hereunder shall not be entitled to share in any
of the moneys coming into the hands of the Trustee or the executive committee
until a certificate shall have been issued to such assignee or transferee in
accordance with the provisions hereof and his ownership of such certificate shall
have been duly registered upon the books of the Trustee.
Article VII
The Trustee may resign at any time by giving?????.days? written notice
of its intention so to do the said executive committee, said notice to be given
by mail to the address of each member of said committee so far as same shall
be known to the Trustee, and, if not known to the Trustee, then addressed to such
member or members at?????.., ??????; and such resignation shall
become effective upon the expiration of thirty days from the date of the mailing
of such notice.
In case of the resignation of said???????, Trust Company as Trustee
hereunder, a successor or successors in Trust shall thereupon be appointed by
an instrument in writing, signed and acknowledged by the said executive
committee and delivered to the Trustee herein, whereupon the?????.. Trust
Company, as Trustee, shall convey to such successor or successors in Trust,
by a deed without covenants, all of the Trust property then unconveyed or
otherwise undisposed of, which deed may recite that the same is made subject
to any contract or contracts for the sale of said Trust property, or any part or parts
thereof, or any lease or leases, or any encumbrance or encumbrances then
outstanding, and shall transfer to such successor or successors in Trust all other
assets then in its possession and held hereunder. Said successor or successors
shall thereupon be vested with all the rights, privileges, powers and duties of
the Trustee named herein as if this instrument had in the first place been executed
by and to such successor or successors as Trustee herein. And each succeeding
Trustee or Trustees, or any of them, may in like manner resign and another
Trustee or Trustees may in like manner be appointed in his, its or their place.
Article VIII
If said executive committee shall at any time desire to terminate the rights
of the Trustee or Trustees acting for the time being under this Trust, and appoint
a new Trustee or Trustees in its, his or their stead, said committee may do so
by a written instrument, addressed to such Trustee or Trustees acting for the time
being; and thereupon like conveyances as in the cases of resignations asCh. 54] TRUSTS?FORMS 175
Trustees as aforesaid shall be made by the Trustee or Trustees then acting to
the newly appointed Trustee or Trustees, and thereupon such new Trustee or
Trustees shall be vested with all the rights, privileges, powers and duties of the
Trustee herein named, as if this instrument had in the first place been executed
by and to such new Trustee or Trustees as Trustee herein. And in like manner
a new Trustee or Trustees may be appointed from time to time by an instrument
in writing, addressed to the Trustee or Trustees acting for the time being.
Article IX
An annual meeting of the shareholders of this Trust shall be held at the office
of the executive committee at No………………., (unless some other place is
designated by the executive committee), on the????.. day of??????
in each year, for the election of members of the executive committee. Special
meetings of the shareholders of this Trust may be called for the purposes
specified in this Trust agreement by the executive committee, whenever the
executive committee may deem it necessary. Such special meetings shall be
held at the office of the executive committee unless some other place is
designated by said committee.
Written notice of the time and place of the annual meeting, and of any special
meeting of the shareholders, shall be given by the executive committee to each
shareholder by mail at his address as shown upon the records of the Trustee,
at least????? days prior to such meeting. A notice of any special meeting
shall state the objects of the meeting and the business of the meeting shall be
confined to the objects stated.
At all meetings of shareholders, each shareholder shall be entitled to one vote
for each share held by him, which vote may be personally or by proxy authorized
in writing. Only shareholders of record on the books of the Trustee at the close
of business??????.days immediately preceding the date of any annual or
special meeting shall be entitled to vote at such meeting. Notice of the election
of all members of the executive committee shall be given to theTrustee
immediately following the annual meeting, it being the intention hereof that the
Trustee shall have full knowledge at all times of the personnel of said committee.
Until notified in writing of such election the Trustee is authorized to consider the
persons theretofore composing the said committee as members thereof, and
may act accordingly under any and all of the provisions of this agreement.
Article X
All the business of this Trust shall be managed and transacted, and all of the
powers and duties of the Trustee shall be directed and controlled by an executive
committee, to be composed of??????. persons, who are not required to
be shareholders of this Trust. All of the powers and duties of the executive
committee may be exercised by a majority thereof, with the same effect as if all
had joined therein. The members of the executive committee may make such
rules and regulations, as they may deem necessary or proper respecting the
time, place and conduct of the meetings of the said committee. The members
from time to time of the executive committee may be shareholders in the Trust,176 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
and may at all times, in their individual capacities, deal with the executive
committee or with the Trustee as fully and freely as if they were not members
of the executive committee.
For the time being and until their successors shall be duly elected or
appointed, ………………shall be and they are hereby appointed members of such
executive committee.
Any member of the executive committee now acting, or hereafter to be elected
or appointed, may resign at any time by giving????days? written notice of
his intention so to do to the remaining members of said committee and the
Trustee.
In case of a vacancy in the executive committee, resulting from death,
resignation, disqualification, or other cause, then the remaining members of the
committee shall have full power to appoint a successor, who shall hold office
until the next annual meeting of the shareholders; provided that in all cases of
such appointment to fill vacancy, notice shall be given to the Trustee of such
appointment. Until notice in writing of the death, resignation or disqualification,
under the provisions hereof, of a member of the time being of said executive
committee, the Trustee is authorized to consider such person as a member of
the executive committee, and may act accordingly under any or all of the
provisions of this agreement.
Article XI
The executive committee shall keep books, in which shall be entered a
description of all the property from time to time constituting the Trust estate
hereunder and an account of all receipts and disbursements, it being the
intention hereof that all business of said Trust shall be performed, and all rents,
issues, profits, proceeds and avails of the Trust property, received by said
committee, and that the Trustee except as herein otherwise specifically provided,
shall act only on the written order of said committee, provided, however, that no
conveyance of any property described in any ?certificates of indebtedness?
issued or executed by the Trustee under the provisions of Article IV shall be made
by the Trustee as long as such certificates shall be outstanding or remain
undischarged or unreleased.
The executive committee shall semiannually or oftener, as they may
determine, make division of the net proceeds arising from the Trust estate among
the shareholders under this Trust whenever there shall be in the hands of said
committee any moneys not required for other purposes under this Trust.
Article XlI
The executive committee shall have the right to levy such assessments, from
time to time, upon the holders of shares in this Trust in proportion to the number
of shares held by them respectively as the said committee may deem necessary
to pay all taxes (general, special, income and profits), interest, rents, liens,
insurance premiums, cost of repairs, alterations and improvements, and such
other costs and charges and legitimate expenses affecting the Trust propertyCh. 54] TRUSTS?FORMS 177
held under this agreement as may arise or accrue from time to time during the
administration of this Trust, and such assessments shall be paid by the
respective shareholders at the office of the executive committee in???,
within????..days after notice in writing by said committee of such assess-
ments and the amount or amounts thereof shall have been mailed to such
shareholders at their respective addresses as the same appear upon the books
of the Trustee, and the respective amounts of such assessments shall constitute
and be a personal indebtedness due to the Trustee for the use of the Trust created
by this instrument from said respective shareholders; and if not paid at the office
of said committee at the time specified in said notices, then, upon the written
order of said executive committee, the Trustee shall sell (but only at public sale
after having given notice in writing to the delinquent shareholder of the time and
place of such contemplated sale by delivering a copy thereof to such delinquent
shareholder in person not less than???..days prior to such sale or by mailing
a copy thereof to such delinquent shareholder at least????. days prior to
such sale by registered mail, addressed to such delinquent shareholder at such
shareholder?s last known address, as shown by the books of the Trustee, and
provided the Trustee shall also have published a notice of the time and place
of such sale once each week for three (3) successive weeks in some daily secular
newspaper to be selected by the Trustee and published in the city of?????..)
the interests of any such delinquent shareholder in such portion or all of the
shares in this Trust outstanding in the name of such shareholders on the books
of said Trustee as may be necessary to satisfy the amounts due on account of
such assessment or assessments and thereupon such portion or all of the
shares and the certificates therefor outstanding in the name of such delinquent
shareholder as may be sold by the Trustee to satisfy such assessment or
assessments shall immediately upon such sale or sales become null and void,
no matter in whose hands or possession such shares so sold may be at the time
of such sale or sales; and the Trustee shall issue to the purchaser or purchasers
at such sale or sales new certificates representing the amount of shares in this
Trust so purchased.
But it is distinctly understood and agreed that the Trustee shall not be
personally liable to anyone by reason of any such sale or sales or the issue of
any new certificates of shares of this Trust in pursuance of any such sale or sales,
and that no shareholder (present or future) in this Trust, or any person claiming
by, through, or under such shareholder shall at any time have or acquire any
right of action, either at law or in equity, against the Trustee, whereby the Trustee
shall be charged personally with any loss or damage arising from any act done
by the Trustee under the provisions of this Article XII. And the Trustee before
making any sale under the provisions of this article shall have the right to demand
from the executive committee such indemnity as in the judgment of the Trustee
will insure the Trustee against all loss, damage, expenses, attorney?s, solicitor?s,
stenographer?s and master?s fees that may arise or accrue by or by reason of
any and all acts done or performed by the Trustee under the provisions of this
article. And it is further agreed that the written orders of said executive committee,
or of a majority of such committee, shall be complete authority to the Trustee
G : CDD (Vol. 7) ? 12178 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
for all acts done or to be done by it under the provisions of this article, and shall
completely exonerate and discharge the Trustee of and from all personal liability
to any person or persons, corporation or corporations who may at any time be
shareholders of or interested in the Trust property under this Trust.
The Trustee or any of the committee may, however, in lieu of such sale of
the shares of a delinquent shareholder, advance the moneys as to which the
shareholder is thus delinquent, and the Trustee or the committee may reimburse
the one so making such advance for the amount thereof (plus interest
at????.. per cent per annum thereon) out of the first moneys or property
thereafter becoming distributable under this Trust agreement to such delinquent
shareholder, and in each case the person or persons making such advance shall
have a lien for the amount thereof (with interest as aforesaid) until repaid, on
the share of such delinquent shareholder in this Trust and any subsequent
income or proceeds from the Trust property distributable to such shares.
Article XIII
Any holder of shares in this Trust shall have the right and privilege, with the
consent of the executive committee, of purchasing at any time or times any
property of the Trust, real, personal, or mixed, for such price or prices payable
either in cash or for part cash and part credit, as in the judgment of said executive
committee may seem proper, and in the discretion of said executive committee
may pay for the same in whole or in part by the surrender by the Trustee of shares
in the Trust owned by such shareholder who thus avails himself or herself of this
privilege.
The executive committee may also at any time or times purchase for the Trust
any portion or portions of the shares in the Trust at any time outstanding
hereunder paying therefor in cash or property of the Trust at such prices for the
shares and property respectively, as the executive committee, in its own sole
discretion may fix. Any such shares so purchased may be held in the treasury
of the Trust and either cancelled or from time to time reissued and sold for cash
or exchanged for other property, real or personal, acquired for the Trust, all as
the executive committee may deem best.
For all of the purposes of this article and of every provision thereof, the value
of any property of the Trust or acquired for the Trust, and the value from time
to time of the shares in the Trust, and the application and construction of every
provision hereof, shall be determined by the executive committee, whose
judgment shall be final and conclusive and binding on the Trust hereby created
and all present and future holders of shares therein. In determining such
respective values, the executive committee shall have full and complete authority
in its own sole discretion to employ in any case either (a) the book value of the
property or shares of the Trust at the time in question as shown by its books
of account as of the last day of the month preceding the transfer thereof, or (b)
the actual value as may be determined by such executive committee.
Article XIV
The executive committee shall have the right and power, from time to time,Ch. 54] TRUSTS?FORMS 179
to cause the Trustee hereunder to make division or partition among the
shareholders of this Trust of such portions of the Trust property, either real or
personal or both, held by-
the Trustee under the provisions of this agreement and
not at the time subject to a certificate of indebtedness issued under the provisions
hereof, as in the judgment of the executive committee may seem to be for the
best interests of the shareholders of this Trust, and upon such terms and in such
form and manner and for such consideration, either nominal or
actual as to said
executive committee may seem advisable.
Article XV
The members of said executive committee, and each of them, acting for the
time being hereunder, shall have the right and power to act by attorney-in-fact,
provided the authority to act of such attorney is filed with the Trustee herein; and
in all cases where the actions of the Trustee are required hereunder, it shall be
sufficient authority for the Trustee to act, if the order of the executive committee
directing such action is signed by a majority of the members of such committee,
signing in person or by attorney-in-tact.
Any order or direction to the Trustee, or other instrument to be signed
hereunder by the executive committee or the shareholders in the Trust or both,
may be signed in counterpart copies, all such counterpart copies in each case
to be considered and taken as if all had signed on the same copy.
The executive committee acting hereunder shall have full power to employ
and have all attorneys, clerks and other assistants and advice that they shall
deem necessary, and may employ brokers and salesmen in their dealings with
any of the property held hereunder or that may come into the hands of the Trustee
under this Trust, and to pay for the services of all such employees, attorneys,
brokers, salesmen and assistants, such commission, brokerage and salaries,
out of the Trust funds as said committee shall deem reasonable and advisable.
And it is further agreed that each member of said executive committee, as
at any time constituted, shall use his judgment and discretion in all things, and
shall not be personally liable in any case whatever arising in or under the
business of this Trust, either for his acts therein or for his failure to act, unless
he himself shall have been guilty of gross negligence or of bad faith and no
member of said committee shall be held liable for the wrongful act, negligence,
or bad faith of any other member.
Article XVI
In case the Trustee shall make any advances of money hereunder on account
of this Trust, or shall be made a party to any litigation on account of holding title
to any real estate or personal property at any time held hereunder or in
connection with this Trust, or in case the Trustee shall be compelled sat any time
during the existence of this Trust, or after its termination, to pay any sums of
money on account of this Trust, whether on account of breach of contract, injury
to person or property, fines, taxes or penalties under any law or otherwise on
or because of this Trust or because of property held hereunder or any income
arising therefrom, the beneficiaries, hereunder do hereby jointly and severally180 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
agree as follows: (1) that they will forthwith on demand reimburse the Trustee,
with interest thereon at the rate of?????.. per cent per annum for all such
disbursements, advances or payments made by it, together with its expenses,
including reasonable attorney fees; (2) that the Trustee shall not be called upon
to convey or otherwise deal with the property at any time held hereunder, until
all disbursements, payments, advances, and expenses made or incurred by said
Trustee shall have been fully paid, together with????.. per cent interest
thereon as aforesaid; (3) that in case of non-payment for sixty days after demand,
the Trustee may sell sufficient property to pay the indebtedness. Nothing herein
contained shall be construed as requiring the Trustee to prosecute or defend
any legal proceeding involving this Trust or any interest thereunder, unless it shall
be furnished with funds sufficient therefor or be satisfactorily indemnified in
respect thereto.
If and when any Trustee acting hereunder, for the time being, ceases or is
about to cease so to act, it may submit its accounts to the executive committee
and upon approval thereof by the executive committee, such Trustee shall be
discharged from further liability hereunder.
And it is understood and agreed that no acts done by the Trustee under this
Trust or any instrument made by the Trustee or to the Trustee at any time under
any of the provisions of this Trust shall in any manner impose any personal
obligation or liability on the Trustee other than for its willful and wanton abuse
of its powers and discretion.
Article XVII
This agreement may be amended and modified from time to time by an
instrument in writing delivered to the Trustee, signed by a majority of the
executive committee, provided that any such amendment or modification shall
have been ratified by the holders of not less than two-thirds of the shares then
issued and outstanding hereunder at an annual meeting of the shareholders or
at a special meeting of the shareholders called for that purpose in the manner
provided in Article IX; and provided further, that the duties, powers and liabilities
of the Trustee shall not be materially or substantially changed by any such
amendment or modification without its consent thereto in writing.
Article XVIII
This Trust may be terminated at any time by an instrument in writing delivered
to the Trustee, signed by majority of the executive committee, provided that such
termination of this agreement shall have been ratified by the holders of not less
than two-thirds of the shares then issued and outstanding hereunder, at an
annual meeting of the
shareholders or at a special meeting of the shareholders
called for that purpose in the manner provided in Article IX; and provided further,
that this Trust shall terminate in any event at the end of?????. years from
and after the death of the last survivor of all of the original beneficiaries
hereunder. Immediately upon the termination of this Trust by lapse of time or
otherwise as hereinabove provided, all of the then undisposed of property held
by the Trustee hereunder may be partitioned among those then holding theCh. 54] TRUSTS?FORMS 181
shares issued and then outstanding hereunder in such manner as the holders
of not less than two-thirds of the shares then issued and outstanding may
determine, or in default of such determination, such property shall be sold by
the Trustee as a whole or in part, at a public or private sale or sales. The net
proceeds of such sale or sales, less the expenses thereof, shall be divided pro
rata among the shareholders of record as shown by the books of the Trustee
in proportion to the number of shares held by them, respectively, it being
understood that in all cases under this agreement the parties interested in the
income, proceeds, and avails of this Trust, and the extent of the interest of each
person therein, shall be determined by the records of this Trust or by documents
pertaining thereto in the hands of the Trustee; and the Trustee is hereby expressly
authorized in all cases to deal with such persons and interests accordingly.
Article XIX
It is understood and agreed by and between the parties hereto that the
executive committee at any time acting hereunder may, in its discretion,
purchase or accept from time to time, in behalf of this Trust, other property, real,
personal, or mixed and cause the same to be conveyed, transferred, or assigned
to the Trustee then acting hereunder, to be held upon the same Trusts and for
the same purposes as are expressed in and declared by this indenture.
Article XX
The……………. Trust Company shall receive for its services the sum of
Rs………………. for accepting the Trust ; Rs……………… per year after………..
[Date], so long as any property remains in this Trust; its regular schedule fees
for making deeds, and it shall receive reasonable compensation for any other,
or special services rendered by it or its attorneys, solicitors and agents
hereunder, or for taking and holding other property hereafter conveyed to it
hereunder.
………………Trust Company joins in the execution of this instrument for the
purpose of signifying its assent thereto and hereby agrees to accept title under
this Trust, and to act as Trustee hereunder and to make, execute and deliver from
time to time all proper conveyance and instruments hereunder according to the
provisions of this agreement.
IN WITNESS WHEREOF , the parties of the FIRST PART hereto have hereunto
set their hands and seals, and said party of the SECOND PART hereto has caused
its corporate seal to be hereunto affixed and these presents to be signed by its
vice-president and attested by its assistant secretary, on the day and year first
above written.
[Signatures and acknowledgements]182 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
3
Deed of Trust appointing Corporate trustee to manage,
invest and re-invest the trust property and distribute
income and principal to the named beneficiaries
Article I
Parties to this Trust Agreement
Grantor:………………………. of…………………, …………………
Trustee:……………………… Bank of…………………, a nationalised bank.
Article II
Beneficiaries of Trust
………………… born on…………………
………………… born on…………………
Article II
Purpose
Grantor transfers to Trustee all property listed in Schedule A attached to this
agreement for the uses and purposes specified in this agreement. Trustee shall
hold, manage, invest and reinvest the property transferred and distribute income
and principal to the designated beneficiaries according to the terms and
conditions of the trust or separate trusts established by this agreement.
Article IV
No Powers Reserved by Grantor
This trust is irrevocable and unamendable and all property transferred to this
Trust must be held and distributed according to its terms. Additional property may
be added to this trust at any time by any person, which property shall be held
by Trustee under the terms of this trust as the terms apply at the time of addition,
subject to future acceptance by Trustee.
Article V
Dispositive Provisions
(A) Trustee shall pay the net income to or for the benefit of [Name of
beneficiary]………………….
(B) If, in the opinion of Trustee…………………is in need of additional funds to
provide adequately for his or her health, education and support in reasonable
comfort, Trustee shall pay to or for the benefit of………………… such amounts from
the principal of the trust from time to time as it shall determine in its discretion
to be necessary or appropriate for such purposes.
(C) On the death of…………………, Trustee shall pay the then remainingCh. 54] TRUSTS?FORMS 183
principal and undistributed income to or among such person or persons or
to……… estate in such amounts or proportions and in such manner, including
outright or in trust, as??????? shall appoint in his or her Last Will if such
makes specific reference
to the exercise of this power.
(D) On the death of…………………, if or to the extent distribution is not made
pursuant to exercise of the power of appointment granted in the previous
paragraph, Trustee shall distribute the balance of principal and undistributed
income to the surviving issue of…………………, such issue to take by right of
representation.
(E) If, by the previous paragraph, any distribution is required to be made to
a minor, the interest so required to be distributed shall be indefeasibly vested
in the minor but Trustee may retain the amount payable until the minor attains
his or her majority or dies, whichever first occurs, and Trustee may pay so much
of the income and principal to or for the benefit of the minor as in Trustee?s sole
discretion is necessary to provide for his or her health, education and support
in reasonable comfort. Any income not distributed may be added to the principal
of such interest and invested as a part thereof. When the minor attains his or
her majority or dies, whichever first occurs, the then remaining principal and
undistributed income shall be paid to him or her, if living, or to his or her estate,
if deceased.
(F) If, or to the extent, the above provisions do not provide for distribution of
the trust estate, or any part thereof such interest shall be distributed free of trust
upon termination of all prior estates or interests to the intestate heirs of…………….
as then determined by the laws of the State of………………… as then in effect.
Article VI
Distribution Qualifications
(A) Trustee is not to recognize any transfer, mortgage, pledge, hypothecation,
assignment or order of a beneficiary, which anticipates the payment of any part
of the income or principal. The income and principal of the trust estate shall not
be subject to attachment, garnishment, creditors bill or execution to satisfy any
debt, obligation or tort of any beneficiary nor shall any part of the trust estate
pass to a trustee or receiver in any bankruptcy or insolvency proceeding initiated
by or against any beneficiary.
(B) Required distributions of income to a beneficiary shall be made in
convenient instalments which must be at least as frequent as quarterly.
In Trustee?s sole discretion, distributions of income or principal to any
beneficiary may be:
1. Paid directly to the beneficiary; or
2. Deposited in any bank to the credit of the beneficiary in an account
carried in the beneficiary?s name either alone or jointly with others; or
3. Expended for the benefit of the beneficiary; or
4. Paid to someone who has undertaken the responsibility, legally or
voluntarily, for the support and maintenance of the beneficiary.184 CONVEYANCING, DRAFTING & DEEDS [Ch. 54
After making any payment or distribution, Trustee shall be fully discharged
of liability with respect to and further accountability for such payment or
distribution.
(C) If the market value of the aggregate assets, in the principal account total
less than Rupees…………………, this t