1. Introduction
A public charitable or religious institution can be formed either as a
Trust or as a Society or as a Company registered u/s 25 of the Companies
Act.
It generally takes the form of a trust when it is formed primarily by one or more persons.
To form a Society at least seven persons are required. Institutions
engaged in promotion of art, culture, commerce etc. are often registered
as non-profit companies.
These forms are enumerated as under:
1. Charitable Trust settled by a settler by a Trust Deed or under a Will.
2. Charitable or religious institution / association can be formed as a society.
3. Charitable institution can be formed by registering
as a company u/s. 25 of the Companies Act, 1956, as non profit company
(without addition to their name, the word “Limited” or “Private
Limited”).
2. Capacity to create a Trust
As a general rule, any person, who has power of disposition over a
property, has capacity to create a trust of such property. According to
section 7 of the Transfer of Property Act, 1882, a person who is
competent to contract and entitled to transfer the property or
authorized to dispose of transferable property not his own, either
wholly or in part and either absolutely or conditionally, has ‘power of
disposition of property’.
Thus, two basic things are required for being capable of forming a trust –
1. power of disposition over property; and
2. Competence to contract.
3. Who can form a Charitable or Religious Trust
As per section 7 of the Indian Trusts Act, a trust can be formed –
1. By every person competent to contract, and
2. By or on behalf of a minor, with the permission of a principal civil court of original jurisdiction.
But subject in each case to the law for the time being in force as to
the circumstances and extent in and to which the Author of the Trust
may dispose of the Trust property.
A person competent to contract is defined in section 11 of the Indian
Contract Act as a person who is of the age of majority according to the
law to which he is subject and who is of sound mind and is not
disqualified from contracting by any law to which he is subject. Thus,
generally speaking, any person competent to contract and competent to
deal with property can form a trust.
Besides individuals, a body of individuals or an artificial person
such as an association of persons, an institution, a limited company, a
Hindu undivided family through its karta, can also form a trust.
It may, however, be noted that the Indian Trusts Act does not apply to
public trusts which can be formed by any person under general law. Under
the Hindu Law, any Hindu can create a Hindu endowment and under the
Muslim law, any Muslim can create a public wakf. Public Trusts are
essentially of charitable or religious nature, and can be constituted by
any person.
4. Who can be a Trustee
Every person capable of holding property can become a trustee.
However, where the trust involves the exercise of discretion, he can
accept or act as a trustee only if he is competent to contract. No one
is bound to accept trusteeship. Any number of persons may be appointed
as trustees. However, no trust is defeated for want of a trustee. Where
there is no trustee in existence, an official trustee may be appointed
by the court and the trust can be administered. An executor of a Will
may become a trustee by his dealing with the assets under the provisions
of the Will. When an executor is functus officio to any of the assets
and yet retains them, he becomes a trustee in respect of those assets.
5. Who can be a Beneficiary
in a private trust the beneficiaries are one or more ascertainable
individuals. In a public trust the beneficiaries are a body of uncertain
or fluctuating individuals and may consist of a class of the public or
the whole public. Generally, a private trust is not a permanent one. But
a public trust is of a permanent nature. If properties are dedicated to
temples and mosques or gifts are made to religious or charitable
institutions they create a trust.
6 Subject matter of Trust
Any property capable of being transferred can be a subject matter of
a trust. Section 8 of the Indian Trust Act, however, provides that mere
beneficial interest under a subsisting trust cannot be made the subject
matter of another trust.
In the case of
J.K. Trust vs. CIT (1957) 32 ITR 535 (S.C.),
the Supreme Court had held that the word ” property” under the Trusts
Act is of the widest import and a business undertaking will undoubtedly
be a property so that a running business can be made a subject matter of
trust. This view has been followed in the case of in
CIT vs. P. Krishna Warriar (1964) 53 ITR 176 (SC).
Business may be a taboo for charitable institution from the point of
view of exemption for income tax purposes. From time to time, the law
has undergone a change as to what business is permitted and under what
circumstances. The present law permits only such business which is
incidental to attainment of the objects of the trust or the institution,
subject to the condition that separate account books are maintained for
such business as prescribed under sub-section 4A of section 11 of I.T.
Act.
7. Requisites of a Trust
1. The existence of the author/settler of the trust or someone at whose instance the trust comes into existence.
2. Clear intention of the author/settler to create a trust.
3. Purpose of the Trust.
4. The Trust property
5. Beneficiaries of the Trust.
6. There must be divesting of the ownership by the author / settler of the trust in favor of the beneficiary or the trustee.
Unless all these requisites are fulfilled a trust cannot be said to have come into existence.
8. Essentials of a valid Charitable or Religious Trust
There are four essential elements of a valid charitable or religious trust –
1. Charitable or Religious Object : The object or
purpose of the trust must be a valid religious or charitable purpose
according to law ;
2. Capacity to create Trust : The founder or settler
should be capable of creating a trust and dedicating his property to
that trust;
3. Certainty of Object and Dedication thereto: The
settler should indicate precisely the object of the trust and the
property in respect of which it is made. The property should be
dedicated to the trust and the owner must divest himself of the
ownership of that property.
4. Concurrence with the law: The trust or its objects
must not be opposed to the provisions of any law for the time being in
force.
9. Instrument of trust – i.e., 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:
1. A written trust deed is a prima facie evidence of existence of a trust ;
2. It facilitates devolution of trust property to the trust;
3. It clearly specifies the trust-objectives which enables one to ascertain whether the trust is charitable or otherwise;
4. It is essential for registration of conveyance of immovable property in name of the Trust;
5. It is essential for obtaining registration under the Income-tax Act and claiming exemption from tax;
6. It helps to control, regulate and manage the working and operations of the trust;
7. It lays down the procedure for appointment and removal of the trustee(s), his/their powers, rights and duties;
8. It prescribes the course of action to be followed under any eventuality including dissolution of the trust.
10. Types of Instrument of Trust
1. Trust deed, where a trust is declared intervolves; i.e., by settling property under Trust.
2. A will, where a trust is declared under a will;
3. 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.
4. A memorandum and articles of association where the association /institution is desired to be formed as a Company.
11. Registration of Charitable Trust
1. Registration of Public Trust (Sec. 18 of Bombay
Public Trust Act). It shall be the duty of the trustee of a public trust
to which this Act has been applied to make an application for the
registration of the public trust.
2.Such application shall be made to the Deputy or
Assistant Charity Commissioner of the region or sub-region within the
limits of which the trust has an office for the administration of the
trust or the trust property or substantial portion of the trust property
is situated, as the case may be.
3.Such application shall be in writing, shall be in such form and accompanied by such fee as may be prescribed.
4.The application shall be made within 3 months of creation of the Public Trust.
5.The application shall inter Alia contain the full detail as prescribed in the form of Schedule II – (under Rule-6).
6.Every application made under sub-section (1) shall be
signed and verified in the prescribed manner by the trustee or his
agent specially authorized by him in this behalf. It shall be
accompanied by a copy of an instrument of trust, if such instrument has
been executed and is in existence.6A.Where on receipt of such
application, it is noticed that the application is incomplete in respect
of any particulars, or does not disclose full particulars of the public
trust, the Deputy or Assistant Charity Commissioner may return the
application to the trustee, and direct the trustee to complete the
application in all respects or disclose therein the full particulars of
the trust, and resubmit it within the period specified in such
direction; and it shall be the duty of the trustee to comply with the
direction.
7.It shall also be the duty of the trustee of the
public trust to send memorandum in the prescribed form containing the
particulars, including the name and description of the public trust,
relating to the immovable property of such public trust, to the
Sub-Registrar of the sub-district appointed under the Indian
Registration Act, 1908, in which such immoveable property is situated
for the purpose of filing in Book No. I under section 89 of that Act.
1. Such memorandum shall be sent within three months
from the date of creation of the public trust and shall be signed and
verified in the prescribed manner by the trustee or his agent specially
authorized by him in this behalf.
2. When the Registering Officer is satisfied that
the provisions of the Act as applicable to the document presented for
registration have been complied with, he shall endorse thereon a
certificate containing the word “registered”, together with the number
and page of the book in which the document has been copied. Such
certificate shall be signed, sealed and dated by the Registering
Officer, and shall then be the conclusive evidence that the Trust has
been duly registered. A registered trust deed shall become operative
(retrospectively) from the date of its execution.
12. Procedure for registration
The following documents are required to be filed for registration of a Charitable Trust.
1. Covering Letter
2. Application Form in Form –Schedule II under rule 6 duly notarized
3. Court fee stamp of Rs. 2/- to be affixed on application form
4. Certified copy of the Trust Deed
5. Consent letter of Trustees. (Blank Form enclosed)
6. The office of the Charity Commissioner maintains a
register containing all details of the Trust; viz., Reg.No., name and
address of the Trust, names of all the Trustees (Past & Present),
mode of succession of Trusteeship objects of the Trust, particulars of
documents creating a Trust, description of movable and immovable
properties, particulars of encumbrances on trust property etc. This
register is known as
P.T.Register. A
certified copy of the P.T. Registrar in Schedule-I (vide Rule 5) can be
obtained by applying in simple application with Rs.10/- Court fee stamp
by paying prescribed fees for the same. It is advisable for all the
trusts to have a certified copy of P.T. Register entry......................know more at>>>>
Charitable Trust Registration procedure
