Updated: Wednesday June 26, 2013/AlArbia'a
Sha'ban 18, 1434/Budhavara
Asadha 05, 1935, at 04:22:11 PM
The Official Trustees Act, 1913
(Act II of 1913)
C O N T E
N T S
Section Heading
Part I
Preliminary
1. Short title, extent and commencement
2. Interpretation clause
3. [Omitted].
Part II
The Office of Official Trustee
4. Official Trustees
5. Appointment and Powers of Deputy Official Trustee
6. Official Trustee to be corporation sole, to have perpetual
succession and official seal, and to sue and be sued in his corporate name
Part III
Rights, Powers, Duties and
Liabilities of Official Trustee
7. General Powers and duties of Official Trustee
8. Official Trustee may with consent be appointed trustee of
settlement by grantor
9. Appointment of official Trustee as trustee by will
10. Power of High Court to appoint Official Trustee to be trustee
of property
11. Power of private trustees to appoint Official Trustee to be
trustee of property
12. Executor or administrator may pay to Official Trustee legacy,
share, etc., of infant or lunatic
13. Official Trustee not to be required to give bond or security
14. Entry of Official Trustee not to constitute notice of a trust
15. Liability of Government
16. Notice of suit not required in certain cases
Part IV
Fees
17. Fees
18. Disposal of fees
Part V
Audit
19. Auditors to be appointed to examine Official Trustee’s
accounts, etc., and to report to Government
20. Auditor’s power to summon witnesses and
to call for documents
21. Costs of audit, etc., how paid
22. Right of beneficiary to inspection and copies of
accounts
Part VI
Miscellaneous
23. Transfer to Government of accumulations in the hands of
Official Trustee
24. Mode of proceeding by claimant to recover money so
transferred
25. Power of High Court to make orders in respect of property
vested in Official Trustee
26. Who may apply for order under Act
27. Order of Court to have effect of a decree
28. General powers of administration
29. Transfer of trust property by Official Trustee to original
trustee or any other trustee.
30. Rules
31. [Repealed.]
32. Saving of Provisions of Registration Act, 1908
32A. [Omitted.]
33. [Repealed.]
The Schedule
[Repealed]
[1][1]The Official Trustees Act, 1913
(Act II of 1913)
[27 February 1913]
An Act to consolidate and amend the Law
constituting the office of Official Trustee.
Whereas
it is expedient to consolidate and amend the Law constituting the office of the
Official Trustee;
It is hereby enacted as follows:---
Part I
Preliminary
1. Short title, extent and commencement.– (1) This Act may be
called the Official Trustees Act, 1913.
[2][2][(2) It
extends to whole of the
[3][3][(3) It shall come into force at once.]
2. Interpretation clause.– In this Act, unless
there is anything repugnant in the subject or context,–
[4][4][(1) “Government”
means Government of the
[5][5][* * *
* * * * * * * * * *]
[6][6][* * *
* * * * * * * * * *]
(4) “prescribed”
means prescribed by rules under this Act:
[7][7][* * *
* * * * * * * * * *]
3. [8][8][* * * * * * * * * * * * *]
Part II
The Office of Official
Trustee
[9][9][4. Official Trustees.– [10][10][(1) The Government shall
appoint an Official Trustee for the Province.]
(2) No
person shall be appointed to the office of Official Trustee who is not an
advocate practicing in a High Court or a person already in the service of the
state.]
5. Appointment and powers of Deputy
Official Trustee.–
The Government may appoint a Deputy or Deputies to assist the Official Trustee;
and any Deputy so appointed shall, subject to the control of the Government and
the general or special orders of the Official Trustee, be competent to
discharge any of the duties and exercise any of the powers of the Official
Trustee, and, when discharging such duties or exercising such powers, shall
have the same privileges and be subject to the same liabilities as the Official
Trustee.
6. Official Trustee to be corporation
sole, to have perpetual succession and official seal, and to sue and be sued in
his corporate name.–
The Official Trustee shall be a corporation sole by the name of the Official
Trustee of the [11][11][Punjab] and, as such Official Trustee,
shall have perpetual succession and an official seal, and may sue and be sued
in his corporate name.
Part III
Rights, Powers, Duties
and Liabilities of Official Trustee
7. General powers and duties of Official
Trustee.–
(1) Subject to, and in accordance with, the provisions of this Act and the
rules made thereunder, the Official Trustee may, if he thinks fit,–
(a) act
as an ordinary trustee;
(b) be
appointed trustee by a Court of competent jurisdiction.
(2) Save
as hereinafter expressly provided, the Official Trustee shall have the same
powers, duties and liabilities and be entitled to the same rights and
privileges and be subject to the same control and orders of the Court as any
other trustee acting in the same capacity.
(3) The
Official Trustee may decline, either absolutely or except on such conditions as
he may impose, to accept any trust.
(4) The
Official Trustee shall not accept any trust under any composition or scheme of
arrangement for the benefit of creditors, nor of any estate known or believed
by him to be insolvent.
(5) The
Official Trustee shall not, save as provided by any rules made under this Act,
accept any trust for a religious purpose or any trust which involves the
management or carrying on of any business.
(6) The
Official Trustee shall not administer the estate of a deceased person, unless
he is expressly appointed sole executor of, and sole trustee under, the will of
such person.
(7) The Official Trustee shall always be
sole trustee, and it shall not be lawful to appoint the Official Trustee to be
trustee along with any other person.
8. Official Trustee may with consent be appointed trustee
of settlement by grantor.– (1) Any person intending to create a
trust other than a trust which the Official Trustee is prohibited from
accepting under the provisions of this Act may by the instrument creating the
trust and with the consent of the Official Trustee, appoint him by that name or
any other sufficient description to be the trustee of the property subject to
such trust:
Provided that the consent of the
Official Trustee shall be recited in the said instrument and that such
instrument shall be duly executed by the Official Trustee.
(2) Upon
such appointment the property subject to the trust shall vest in such Official
Trustee, and shall be held by him upon the trusts declared in such
instrument.
9. Appointment of Official Trustee as
trustee by will.–
When the Official Trustee has by that name or any other sufficient description
been appointed trustee under any will, the executor of the will of [12][12][the testator] or the administrator of
his estate shall, after obtaining probate or letters of administration, notify
in the prescribed manner the contents of such will to such Official Trustee;
and, if such Official Trustee consents to accept the trust, then upon the
execution by such executor or administrator of an instrument in writing
transferring the property subject to the trust to the Official Trustee, such
property shall vest in such Official Trustee, and shall be held by him upon the
trusts expressed in the said will:
Provided that the consent of the
Official Trustee shall be recited in the said instrument and that such
instrument shall be duly executed by the Official Trustee.
10. Power of High Court to appoint Official
Trustee to be trustee of property.– (1) If any property is subject to a trust other
than a trust which the Official Trustee is prohibited from accepting under the
provisions of this Act, and there is no trustee within the local limits of the
ordinary or extraordinary original civil jurisdiction of the High Court willing
or capable to act in the trust, the High Court may on application make an order
for the appointment of the Official Trustee by that name with his consent to be
the trustee of such property.
(2) Upon
such order such property shall vest in the Official Trustee and shall be held
by him upon the same trusts as the same was held previously to such order, and
the previous trustee or trustees (if any) shall be exempt from the liability as
trustees of such property save in respect of acts done before the date of such
order.
(3) Nothing
in this section shall be deemed to affect the provisions of [13][13][* * *] the Trusts Act, 1882 (II of
1882).
11. Power of
private trustees to appoint Official Trustee to be trustee of property.–
(1) If any property is subject to a trust other than a trust which the Official
Trustee is prohibited from accepting under the provisions of this Act, and all
the trustees or the surviving or continuing trustee or trustees and all persons
beneficially interested in the trust are desirous that the Official Trustee
shall be appointed in the room of such trustee or trustees, it shall be lawful
for such trustee or trustees, by an instrument in writing to appoint the
Official Trustee by that name or any other sufficient description with his
consent to be the trustee of such property:
Provided that the consent of the
Official Trustee shall be recited in the said instrument and that such
instrument shall be duly executed by him.
(2) Upon
such appointment such property shall vest in the Official Trustee and shall be
held by him upon the same trusts as the same was held previously to such
appointment, and the previous trustee or trustees shall be exempt from all
liability as trustees of such property save in respect of acts done before the
date of such appointment.
12. Executor
or administrator may pay to Official Trustee legacy, share, etc., of infant or
lunatic.– (1) If any infant or lunatic is entitled to any gift,
legacy or share of the assets of a deceased person, it shall be lawful for the
person by whom such gift is made, or executor or administrator by whom such
legacy or share is payable or transferable or any trustee of such gift, legacy
or share, to transfer the same by an instrument in writing to the Official
Trustee by that name or any other sufficient description with his consent:
Provided that the consent of the
Official Trustee shall be recited in the said instrument and that such instrument
shall be duly executed by the Official Trustee.
(2) Any money or property transferred to the
Official Trustee under this section shall vest in him and shall be subject to
the same provisions as are contained in this Act as to other property vested in
such Official Trustee.
13. Official Trustee not to be required to
give bond or security.– (1) No Official Trustee shall be required by any Court to
enter into any bond or security on his appointment in any capacity under this
Act.
(2) No
Official Trustee or deputy official trustee shall be required to verify
otherwise than by his signature any petition presented by him under the
provisions of this Act, and if the facts stated in any such petition are not
within the official trustee’s personal knowledge, the petition may be verified
and subscribed by any person competent to make the verification.
14. Entry of Official Trustee not to
constitute notice of a trust.– The entry of the Official Trustee by that name
in the books of a company shall not constitute notice of a trust; and a company
shall not be entitled to object to enter the name of the Official Trustee on
its register by reason only that the Official Trustee is a corporation; and, in
dealing with property, the fact that the person dealt with is the Official
Trustee shall not of itself constitute notice of a trust.
15. Liability
of Government.– (1) The Revenues of the Government [14][14][*
* *] shall
be liable to make good all sums required to discharge any liability which the
Official Trustee, if he were a private trustee, would be personally liable to
discharge, except when the liability is one to which neither the Official
Trustee nor any of his officers has in any way contributed or which neither he
nor any of his officers could by the exercise of reasonable diligence have
averted, and in either of those cases the Official Trustee shall not, nor shall
the Revenues [15][15][of the Government] [16][16][* * *] be subject to any liability.
(2) Nothing
in sub-section (1) shall be deemed to render the Revenues [17][17][of the Government] [18][18][* * *] or any Official Trustee appointed
under this Act liable for anything done by or under the authority of any
Official Trustee before the commencement of this Act.
16. Notice of
suit not required in certain cases.– Nothing in section 80 of
the Code of Civil Procedure, 1908 (V of 1908), shall apply to any suit against
the Official Trustee in which no relief is claimed against him personally.
Part IV
Fees
17. Fees.– (1) There shall be charged in respect of
the duties of the Official Trustee such fees, whether by way of percentage or
otherwise, as the Government may prescribe:
Provided that in the case of a trust
accepted by the Official trustee before the commencement of this Act the fees
prescribed under this section shall not exceed the fees leviable in respect of
such trust under the Official Trustees Act,[19][19] 1864 (XVII of 1864), as subsequently
amended.
(2) The
fees under this section may be at different rates for different properties or
classes of properties or for different duties, and shall, so far as may be, be
arranged so as to produce an amount sufficient to discharge the salaries and
all other expenses incidental to the working of this Act (including such sum as
Government may determine to be required to insure the Revenues of the
Government [20][20][*
* *] against loss under this Act).
18. Disposal of fees.– (1) All expenses which
might be retained or paid out of the trust fund, if the Official Trustee were a
private trustee, shall be so retained or paid, and any fees leviable under this
Act shall be retained or paid in like manner as and in addition to such
expenses.
(2) The
Official Trustee shall transfer and pay to such authority and in such manner
and at such times as the Government may prescribe, all fees received by him
under this Act, and the same shall be carried to the account and credit of the
Government [21][21][***].
Part V
Audit
19. Auditors
to be appointed to examine Official Trustee’s accounts, etc., and to report to
Government.– (1) The accounts of the Official Trustee shall be
audited at least once annually and at any other time if the Government so
direct by the prescribed person and in the prescribed manner.
(2) The
auditor shall examine such accounts, and shall forward to Government a
statement thereof in the prescribed form, together with a report thereon and a
certificate signed by him showing–
(a) whether the
accounts contain a full and true account of everything which ought to be
contained therein, and
(b) whether the
books, which by any rules made under this Act are directed to be kept by the
Official Trustee, have been duly and regularly kept, and
(c) whether the
trust funds and securities have been duly kept and invested and deposited in
the manner prescribed by this Act or any rules made thereunder; or (as the case
may be) that such accounts are deficient, or that the Official Trustee has
failed to comply with this Act or the rules made thereunder, in such respects
as may be specified in such certificate.
20. Auditor’s power to summon witnesses and
to call for documents.– (1) Every auditor shall have the powers of a Civil Court
under the Code of Civil Procedure, 1908 (V of 1908),---
(a) to summon any person
whose presence he may think necessary to attend him from time to time, and
(b) to examine any
person, on oath to be by him administered, and
(c) to issue a commission
for the examination on interrogatories or otherwise of any person, and
(d) to summon any person
to produce any document or thing, the production of which appears to be
necessary for the purposes of such audit or examination.
(2) Any
person who, when summoned, refuses, or without reasonable cause neglects to
attend or to produce any document or thing or attends and refuses to be sworn,
or to be examined shall be deemed to have committed an offence within the
meaning of, and punishable under section 188 of the Pakistan Penal Code, 1860
(XLV of 1860), and the auditor shall report every case of such refusal or
neglect to Government.
21. Costs of audit, etc., how paid.– The cost of and
incidental to every such audit and examination shall be determined in
accordance with rules made by the Government and shall be defrayed in the
prescribed manner.
22. Right of
beneficiary to inspection and copies of accounts.–
Every beneficiary under a trust which is being administered by the Official
Trustee shall, subject to such conditions and restrictions as may be
prescribed, be entitled, at all reasonable times, to inspect the accounts of
such trust, and the report and certificate of the auditor and, on payment of
the prescribed fee, to be furnished with copies thereof or extracts therefrom,
and nothing in the Trusts Act, 1882 (II of 1882), shall affect the provisions
of this section.
Part VI
Miscellaneous
23. Transfer to Government of accumulations
in the hands of Official Trustee.– When any moneys payable to a beneficiary under
a trust have been in the hands of any Official Trustee for a period of twelve
years or upwards whether before or after the commencement of this Act in
consequence of the Official Trustee having been unable to trace the person
entitled to receive the same, such money shall be transferred in the prescribed
manner to the account and credit of the Government [22][22][***]:
Provided that no such moneys shall
be so transferred if any suit or proceeding is pending in respect thereof in
any Court.
24. Mode of proceeding by claimant to recover
money so transferred.– (1) If any claim is made to any moneys so transferred and
such claim is established to the satisfaction of the prescribed authority, the
Government [23][23][***] shall pay to the claimant the
amount in respect of which the claim is established.
(2) If
such claim is not established to the satisfaction of the prescribed authority,
the claimant may, without prejudice to his right to take any other proceedings
for the recovery of such moneys, apply by petition to the High Court against
the [24][24][Government] and, after taking such
evidence as it thinks fit, such Court shall make such order on the petition in
regard to the payment of such moneys as it thinks fit, and such order shall be
binding on all parties to the proceedings:
[25][25][* * * * *]
(3) The
Court may further direct by whom all or any part of the costs of such
proceedings shall be paid.
25. Power of High Court to make orders in
respect of property vested in Official Trustee.– The High Court may make
such orders as it thinks fit respecting any trust property vested in the
Official Trustee, or the interest or produce thereof.
26. Who may apply for order under Act.– Any order under this
Act may be made, on the application of any person beneficially interested in
any trust property or of any trustee thereof.
27. Order of Court to have effect of a
decree.–
Any order made by a High Court under this Act shall have the same effect as a
decree.
28. General powers of administration.– The Official Trustee
may, in addition to and not in derogation of any other powers of expenditure
lawfully exercisable by him, incur expenditure,---
(a) on
such acts as may be necessary for the proper care and management of any
property belonging to any trust administered by him; and
(b) with the sanction of
the High Court on such religious, charitable and other objects and on such
improvements as may be reasonable and proper in the case of such
property.
29. Transfer of trust property by Official
Trustee to original trustee or any other trustee.– (1) Nothing in this Act
shall be deemed to prevent the transfer by the Official Trustee of any property
vested in him to,---
(a) the
original trustee (if any); or
(b) any
other lawfully appointed trustee; or
(c) any
other person if the Court so directs.
(2) Upon such transfer such property shall
vest in such trustee, and shall be held by him upon the same trusts as those
upon which it was held prior to such transfer, and the Official Trustee shall
be exempt from all liability as trustee of such property except in respect of
acts done before such transfer:
Provided that, in the case of any
transfer under this section, the Official Trustee shall be entitled to retain
out of the property any fees leviable in accordance with the provisions of this
Act.
30. Rules.– (1) The Government shall make rules for
carrying into effect the objects of this Act and for regulating the proceedings
of the Official Trustee in the discharge of his duties.
(2) In
particular and without prejudice to the generality of the foregoing power, such
rules may provide for–
(a) the accounts to
be kept by the Official Trustee and the audit and inspection thereof;
(b) the safe
custody, and deposit of the funds and securities which come into the hands of
the Official Trustee;
(c) the remittance
of sums of money in the hands of the Official Trustee in cases in which such
remittances are required;
(d) the
statements, schedules and other documents to be submitted by the Official
Trustee to Government or to any other authority and the publication of such
statements, schedules or other documents;
(e) the realization
of the cost of preparing any such statements, schedules or other documents;
[26][26][* * * * *]
(f) subject
to the provisions of this Act, the fees to be paid thereunder and the
collection and accounting for any fees so fixed;
(g) the manner in
which and the person by whom the costs of and incidental to any audit under the
provisions of this Act are to be determined and defrayed;
(h) the manner in
which summonses issued under the provisions of section 20 are to be served and
the payment of the expenses of any persons summoned or examined under the
provisions of this Act and of any expenditure incidental to such examination;
(i) the acceptance
by the Official Trustee of trusts for religious purposes and trusts which
involve the management or carrying on of business; and
(j) any matter in
this Act directed to be prescribed.
(3) Rules made under the provisions of this
section shall be published in the Official Gazette, and shall thereupon have
effect as if enacted in this Act.
31. [27][27][* * * * * * * * * * * * *]
32. Saving of provisions of Registration Act,
1908.–
Nothing contained in this Act shall be deemed to affect the provisions of the
Registration Act, 1908 (XVI of 1908).
32A. [28][28][* * * * * * * * * * * * *]
33. [29][29][* * * * * * * * * * * * *]
The Schedule
[30][30][Enactments Repealed]
[1][1]For Statement of Objects and Reasons, see Gazette of India, 1912, Pt.V, p. 202; for Report of Select Committee, see ibid., 1913, Pt. V, p. 19; and for proceedings in Council, see ibid., 1912, Pt.VI, p. 699 and ibid., 1913, Pt. VI, pp. 15 and 28.
This Act was extended to the Leased Areas of Baluchistan, see G. G. O. 3 of 1950; and applied in the Federated Areas of Baluchistan, see Gzette of India, 1937, Pt. I, p. 1499.
This Act was originally in the Federal ambit, however, the subject on which this law was enacted, devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adapted, with amendments, for the province of the Punjab by the Official Trustee (Amendment) Act 2012 (VII of 2012).
[2][2]Substituted by the Official Trustees (Amendment) Act 2012 (VII of 2012).
[3][3]Ibid.
[4][4]Ibid.
[5][5]Omitted by the Federal Laws (Revision and Declaration) Ordinance 1981 (XXVII of 1981).
[6][6]Clauses (3), (5), (6) and (7) defining “official Gazette”, “Presidency of Bengal”, “Presidency of Bombay”, “Presidency of Madras”, “Presidency” and “Revenues of the Government” were repealed by Adaptation Order, 1937.
[7][7]Ibid.
[8][8]Section 3. “Extent of jurisdiction of High Court”.– omitted by the Official Trustees (Amendment) Act 2012 (VII of 2012).
[9][9]Substituted by the Federal Laws (Revision and Declaration) Ordinance 1981 (XXVII of 1981).
[10][10]Substituted by the Official Trustees (Amendment) Act 2012 (VII of 2012).
[11][11]Substituted ibid, for the words “Province for which he is appointed”.
[12][12]Substituted by the Repealing and Amending Act, 1919 (XVIII of 1919), s. 2 and Sch. I, for “such testator”.
[13][13]The words “the Trustees and Mortgages’ Powers Act, 1866, or” omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981), s.3 and Sch., II.
[14][14]The words “of
[15][15]The words “of the Govt. or” were inserted ibid.
[16][16]The words “or of the G. of I.” repealed by Adaptation Order, 1937.
[17][17]The words “of the Govt. or” were inserted by the Official Trustees and Administrator General’s Acts Amendment Act, 1922 (XXI of 1922), s.3.
[18][18]The words “or of the G. of I.” repealed by Adaptation Order, 1937.
[19][19]Repealed by the Official Trustees Act, 1913 (II of 1913).
[20][20]The words “of
[21][21]Ibid.
[22][22]The words “of
[23][23]Ibid.
[24][24]Substituted by Adaptation Order, 1937, for “Secretary
of State for
[25][25]Proviso which was inserted by Adaptation Order, 1937, omitted by Adaptation Order, 1949, Sch.
[26][26]Cl. (ee), which was inserted by the Repealing and Amending Act, 1914 (X of 1914), was repealed by the Destruction of Records Act, 1917 (V of 1917), s. 6 and Sch.
[27][27]Section 31. “Division of Presidency into Provinces.” repealed by the Adaptation Order, 1937.
[28][28]Section 32A. “Saving.” omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981), S. 3 and Second Schedule.
[29][29]Section 33. “Repeals.” repealed by the Repealing Act, 1927 (XII of 1927), S. 2 and Sch.
[30][30]Repealed by the Repealing
Act, 1927 (XII of 1927), S. 2 and Sch.
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