Vol. 12 · pages 341–345

320 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES IV. PUBLIC T RUSTS AND P RIVATE, RELIGIOUS OR CHARITABLE ENDOWMENTS. Trusts are either Public or Private Trusts. I. Public Trusts. —A trust is a Public Trust when it is constituted for the benefit either of the public at large or some considerable portion of it answering a particular description. A Public Trust is for an unascertained body of people though capable of ascertainment. II. Private Trust.—A Private Trust is a trust created only for the benefit of certain individuals who must be ascertained or ascertainable within a limited time. III. The Purposes of a Public Trust.—They fall under three heads:— (i) Public purposes. (ii) Charitable purposes. (iii) Religious purposes. (1) The phrase public purposes is used in two senses : (a) In its ordinary sense—it includes purposes. Such as mending or repairing of roads, a parish supplying water for the inhabitants of a parish, making or repairing of bridges over any stream or culvert that may be required in a parish. (2) The Phrase Charitable Purposes—includes almsgiving, building alms-houses, founding hospitals and the like. (3) The Phrase Religious Purpose—includes relating to religious teaching or worship—purchase or distribution of religious books, upkeep of Churches, Temples, etc. If a Trust is a Public Trust—The Trust Act does not apply. If a Trust is a Private Trust—Does the Trust Act apply ? The Act applies only if the Private Trust is a trust which is not a Charitable or Religious Trust. What is the Law that applies to a Public Trust or a Private Trust which is Charitable and Religious ? There are various enactments which apply. 1. Section 92, C. P. C. 2. The Religious Endowments Act, 1863.

321THE LAW OF TRUST 3. The Religious Society’s Act I of 1880. 4. The Official Trustee Act II of 1913. 5. The Charitable Endowments Act VI of 1890. 6. The Charitable and Religious Trusts Act XIV of 1920. Different kinds of Trusts 1. Trusts fall into different classes. The class into which a trust falls depends upon the point of view a trust is looked at— 2. A trust can be looked at from three points of view— (i) From the point of view of the mode in which a trust is created. (ii) From the point of view of the constitution of the trust. (iii) From the point of view of the nature of the duty imposed on the trustee. 3. From the point of view of the mode in which a trust is created trusts fall into two divisions (i) Express and (ii) Constructive. 4. From the point of the constitution of a trust, trusts fall into two divisions (i) completely constituted trusts and (ii) incompletely constituted trust. 5. From the point of view of the nature of the duty imposed on the trustee trusts fall into two divisions (i) Simple Trusts and (ii) Special Trusts. I. EXPRESS AND CONSTRUCTIVE TRUST 1. A trust can arise in two ways— (i) It is the result of a voluntary declaration made by an individual, (ii) It may be the result of a rule of law. 2. When a trust is the result of a voluntary declaration it is called an Express Trust or Declared Trust. When a trust is the result of a rule of law it is called a Constructive Trust. 3. The term Constructive Trust is used in another sense. In this sense it is used to signify a trust which is the result of a construction put upon the deed. A trust is a matter of intention. Intention may be declared in specific terms or it may be found by the Court to have been indicated by the party on a proper construction of the deed. In the latter case the trust is sometime called a Constructive Trust.

322 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 4. Two things have to be remembered in connection with a constructive trust used in this sense. (i) Such a Constructive Trust is some times contrasted with an Express Trust. This is quite wrong. Such a Constructive Trust is really an Express Trust and is not to be contrasted with it. A trust is none the less an Express Trust because the language used by the settlor is ambiguous or clumsy, if, on the true construction of that language the Court comes to the conclusion that a trust must have been intended. (ii) A trust which is constructive in the sense that the intention is deduced by constructing the document must not be confused with a Constructive Trust which is the result of the operation of the law. In the former there is an intention to create a trust and in that sense it is the result of the voluntary act of the party. In the latter there is no intention to create a trust. It is the creation of law and not of an act of the party. Constructive Trusts fall into two sub-divisions :— (i) Resulting Trusts. (ii) Non-Resulting Trusts. The difference between the two will be considered later when dealing with Constructive Trusts. They have one thing in common—they are both the result of the opperation of law and not the result of an act of party. II. COMPLETELY CONSTITUTED TRUSTS AND INCOMPLETELY CONSTITUTED TRUSTS. 1. A trust is said to be completely constituted when the trust property is vested in the Trustees for the benefit of the beneficiaries. When there is a mere declaration of a trust but the property is not vested in the Trustee the trust is incompletely constituted. 2. The question whether a trust is completely constituted or not is of the utmost importance where no valuable consideration is given for its creation. 3. If value is given it is immaterial whether the trust is perfect or not, for as equity looks on that as done which has been agreed to be done an imperfect conveyance for value will be treated a contract to convey and the Court will see that it is perfected. 4. If no value is given there is no equity and the Court will not grant any assistance to a person seeking to enforce.

323THE LAW OF TRUST 5. If there is a complete transfer of property although it is voluntary yet the legal conveyance being effectually made the trust will be enforced by the Court. 6. There are two ways in which a trust may be completely constituted: (i) The settlor may convey the property to the trustees. (ii) The settlor may declare himself to be a trustee of it. 7. Distinction between complete and incomplete trust — (i) A completely constituted trust is one in which the trust property has been finally and completely vested in the trustees. (ii) A trust is incompletely constituted when the trust property has not been finally and completely vested in the trustees. NOTE.—All trusts arising under wills are completely constituted, though may be either executed or executory— (iii) A sellor must take all due steps to do all that it is his duty to vest the property in the trustee, and the instrument of conveyance must also contain a declaration of trust, if the settlor’s intention is to escape defeat. 8. Consequences arising from this difference — (i) An incomplete trust will be enforced if it is for valuable consideration. It will not be enforced if it is voluntary, i.e., without valuable consideration. (ii) Valuable consideration in the law of trust, as in the law of contract, is some valuable thing assessable in terms of money, with the proviso that marriage, and also forbearance to sue is so considered. (iii) A distinction exists between valuable consideration and good consideration. The phrase good consideration is applied to natural love and affection. Such a consideration though good is not valuable. (iv) A good consideration does not make an incompletely constituted trust enforceable at the instance of a volunteer. It serves to rebut a resulting trust. (v) How far marriage is a consideration : (i) If the settlement is made before and in consideration of marriage, it is made for valuable consideration. So it is also, if made after marriage, but in fulfilment of an ante-nuptial agreement to settle. (ii) But if the settlement is made after marriage, and not in pursuance of an ante-nuptial agreement, it is voluntary.

324 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (VI) Who are within the marriage consideration : (i) The only persons within the marriage consideration are the actual parties, the husband and the wife, and the issue of that marriage. (ii) All other persons are volunteers and cannot enforce the provisions of a settlement as against the settlor so far as the transfer of property is still incomplete, e.g., an agreement to settle after—acquired property. 9. Does the Indian Trust Act recognize this distinction between complete trust and incomplete trust — Simple and Special Trusts 1. A Simple Trust is a trust in which a trustee is a mere passive custodian of the trust property, with no active duties to perform. 2. A Special Trust is a trust in which a trustee is appointed to carry out some scheme particularly pointed out by the settlor and is called upon to exert himself actively in the execution of the settlor’s intention. 3. A Simple Trust is spoken of as a passive trust and Special Trust is spoken of as an active trust. 4. Where a Simple Trust exists, the beneficiary, provided that he is sue juris and absolutely entitled, has a right to be put into actual possession of the property and he enjoys the further right of compelling the trustees to dispose of the legal estate in accordance with the beneficiary’s instruction. 5. Special Trusts are divided into—(i) Ministerial and (ii) Discretionary. 6. In both the trustees have positive duties to perform. 7. The point of distinction is that in a Ministerial Trust the duties are such that the trustee is not called upon to exercise prudence while in a discretionary trust a trustee is required to exercise prudence. zz