Section 73 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 73 lists the occasions on which a new trustee may be appointed, such as a disclaimer, death, six months' continuous absence from India, insolvency or a Court finding that a trustee is unfit, and says who may make the appointment. The appointment must be in writing under the hand of the person making it. The Act deals with private trusts; public, charitable and religious trusts are governed by other laws (see private vs public trust). If a trustee has died or left and you need to appoint a replacement, our agreement drafting team can prepare the deed of appointment.
A new trustee may be appointed in place of one who disclaims, dies, is absent from India for a continuous six months, leaves India to live abroad, is declared insolvent, wants to be discharged, refuses or becomes in the Court's opinion unfit or personally incapable, or accepts an inconsistent trust. The appointment is made first by the person named in the instrument of trust; failing him, by the author of the trust if alive and competent to contract, or the surviving or continuing trustees, or the last survivor's legal representative, or (with the Court's consent) the retiring trustees. It must be in writing under the hand of the person making it, and the number of trustees may be increased.
When a new trustee may be appointed
Section 73 opens: "Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from India, or leaves India for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts an inconsistent trust, a new trustee may be appointed in his place".
The scan prints "India" with footnote marks ("1911ndial", "2011ndial"); the footnotes say the word was substituted for "the Provinces" in 1950, so "India" is the sense. The "six months" is printed in words and is readable.
| Occasion | What the Act says |
|---|---|
| Disclaimer | A person appointed a trustee disclaims |
| Death | A trustee, original or substituted, dies |
| Absence | Absent from India for a continuous period of six months |
| Leaving to reside abroad | Leaves India for the purpose of residing abroad |
| Insolvency | Is declared an insolvent |
| Wish to leave | Desires to be discharged from the trust |
| Refusal | Refuses |
| Unfitness | Becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit or personally incapable to act |
| Inconsistent trust | Accepts an inconsistent trust |
The Court's opinion applies to the unfitness or personal incapacity ground, as the wording shows. The section does not say that a Court order is needed for the other occasions, and the text does not spell out who decides whether a trustee has "refused". The Act does not define "inconsistent trust".
Who may appoint
The new trustee may be appointed by:
(a) "the person nominated for that purpose by the instrument of trust (if any)", or
(b) "if there be no such person, or no such person able and willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustees or trustee for the time being, or legal representative of the last surviving and continuing trustee, or (with the consent of the Court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee."
So there is an order. First, the person named in the deed. If none, or none able and willing to act, the author of the trust (if alive and competent), or the surviving or continuing trustees, or the legal representative of the last surviving trustee. Retiring trustees may appoint only with the Court's consent. If it is impracticable to appoint under section 73, section 74 allows an application to the Court; see sections 74-75.
Other rules in section 73
- "Every such appointment shall be by writing under the hand of the person making it." An oral appointment does not meet the section.
- "On an appointment of a new trustee the number of trustees may be increased." A sole trustee's place may be filled by two, for example.
- "The Official Trustee may, with his consent and by the order of the Court, be appointed under this section, in any case in which only one trustee is to be appointed and such trustee is to be the sole trustee."
- The occasions that speak of a trustee who "dies" include "the case of a person nominated trustee in a will but dying before the testator". The provisions on a "continuing trustee" include "a refusing or retiring trustee if willing to act in the execution of the power".
The Act's illustrations
In the scanned copy consulted, no illustrations are printed under section 73, so none are restated here.
A modern example of our own
Gopal Iyer's family trust in Bengaluru has two trustees, his sisters Radha and Sudha. The deed names Gopal's lawyer, Mr Anand, as the person who may appoint trustees. Radha dies.
- The occasion under section 73 is the death of a trustee.
- Mr Anand, as the person nominated by the deed, has the first right to appoint. He signs a written appointment of Ashok as the new trustee and, if he wishes, a further trustee as well, because the number may be increased.
- If the deed had named no one, the surviving trustee Sudha, and Gopal if alive and competent to contract, could appoint, under part (b).
- If Sudha wished to retire at the same time as Radha's replacement, any appointment by retiring trustees would need the Court's consent.
What the instrument of trust can change
The first right to appoint belongs to "the person nominated for that purpose by the instrument of trust (if any)". So the deed can name the person with power to appoint, and the text gives that person priority over the others. The section does not set out a limit on who may be nominated. A deed can therefore name a protector, a lawyer or a family member. For the practical steps and a draft, see appointment of new trustee.
Practical points
- Settlors: name a person with power to appoint new trustees in the deed.
- Trustees: act promptly when a vacancy arises; a trust with no trustee may have to go to Court.
- Make the appointment in writing and signed by the person making it; keep it with the deed.
- A written appointment helps title: section 75 deals with vesting trust property in the new trustee, see sections 74-75.
Need help appointing a new trustee?
If a trustee has died, left or become unable to act, the deed will show who may appoint a replacement. Our agreement drafting team can draft the written appointment and, where needed, supplementary clauses to the deed.
Key takeaways
- Section 73 allows a new trustee on a disclaimer, death, six months' continuous absence from India, leaving to live abroad, insolvency, wish to be discharged, refusal, unfitness or incapacity in the Court's opinion, or acceptance of an inconsistent trust.
- The person named in the instrument of trust has first right to appoint; failing him the author, surviving or continuing trustees, or others as listed.
- The appointment must be in writing under the hand of the person making it.
- The number of trustees may be increased.
- No illustrations are printed under this section in the scanned text.
Read next
- Sections 74-75: appointment by Court and vesting of trust property in new trustees
- Section 72: petition to be discharged from trust
- Appointment of new trustee: resolution and deed
- Trustee removal: grounds and process under the Trusts Act
Disclaimer: Based on the text of the Indian Trusts Act, 1882 as consulted on 1 October 2026 from a scanned copy; the Act applies to private trusts, and public, charitable and religious trusts are governed by other laws. This article is general information, not legal advice; check the official text and take advice before acting.