Section 76 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 76 is one sentence with a large effect: when one of several co-trustees dies or is discharged, the trust survives and the trust property passes to the others, unless the instrument of trust expressly says otherwise. The Act deals with private trusts; public, charitable and religious trusts are governed by other laws (see private vs public trust). If you are drafting a trust deed with several trustees and want to settle what happens when one leaves, our legal consultation team can help.
On the death or discharge of one of several co-trustees, the trust survives and the trust property passes to the others, unless the instrument of trust expressly declares otherwise. The trust does not end and does not stall because one of the trustees has gone. The rule is a default: the deed may displace it, but only if it "expressly" says so.
The text of section 76
Section 76 reads: "On the death or discharge of one of several co-trustees, the trust survives and the trust-property passes to the others, unless the instrument of trust expressly declares otherwise."
It does three things.
| Words | Effect |
|---|---|
| "On the death or discharge of one of several co-trustees" | The rule applies where there were several trustees and one goes |
| "the trust survives" | The trust continues; it is not extinguished by this event |
| "the trust-property passes to the others" | The remaining trustees hold the property, without any new transfer needed on the face of the section |
| "unless the instrument of trust expressly declares otherwise" | The deed can change the rule, but only by an express declaration |
"Death or discharge" ties the section to sections 70 and 71, which say a trustee's office is vacated by his death or his discharge and list the ways a trustee may be discharged; see sections 70-71. Section 76 answers the question those sections leave open: what happens to the trust and its property when one of several trustees leaves.
The section applies only where there are "several co-trustees". Where the sole trustee dies, section 76 does not itself solve the problem. That is a vacancy for a new trustee under section 73 or section 74; see section 73 and sections 74-75.
Why the rule is useful
A trust usually runs for years, and trustees do not live or serve for ever. Without a rule like section 76, every change in the body of trustees could raise a doubt: has the trust failed, and who owns the property now? The section answers both questions at once. The trust continues, and the property is in the hands of the trustees who remain. That keeps bank accounts, rent collection and the beneficiaries' payments going while a replacement is found.
The section also fits with the way the Act treats trustees as a group. Where there are several trustees they must act together, as section 48 explains in sections 48-49. After one leaves, the continuing trustees are the ones who act, and they act with the property now vested in them.
| Event | Effect under section 76 |
|---|---|
| One of three trustees dies | Trust survives; property passes to the other two |
| One of three trustees is discharged | Trust survives; property passes to the other two |
| Deed says expressly that the trust ends on a trustee's death | The deed prevails |
| The only trustee dies | Section 76 does not apply; a new trustee is needed |
What the section does not say
- It does not say that the remaining trustees must appoint a replacement. Whether and how a replacement is needed depends on the deed and on the other sections.
- It does not say how many trustees must remain. Section 60, Explanation II, says that where the administration involves receiving and holding money, the number of trustees should be two at least; that is a separate rule for the beneficiary's right to proper trustees.
- It does not say what the surviving trustees must do about the dead trustee's personal representatives. The text is silent on this point.
- It does not set out any form of document for the passing of the property.
The Act's illustrations
In the scanned copy consulted, no illustrations are printed under section 76, so none are restated here.
A modern example of our own
The Naidu Education Trust in Hyderabad has three trustees: Lakshmi, Venkat and Raju. It owns a school building and a fixed deposit.
- Raju dies. Section 76 says the trust survives and the trust property passes to Lakshmi and Venkat. The school and the deposit are not left without owners, and the trust's purpose goes on.
- Later Venkat is discharged under one of the routes in section 71, for example with the consent of the beneficiaries. The trust again survives, and the property passes to Lakshmi.
- That leaves Lakshmi as sole trustee. Section 76 has done its job, but the beneficiaries may want to appoint a second trustee, and section 60's Explanation II suggests that two is the minimum where money is received and held.
- If the deed had said, expressly, that on the death of any trustee the trust is to end, or that the property is to pass to a named person, section 76 would give way.
What the instrument of trust can change
This section is a default rule. It applies "unless the instrument of trust expressly declares otherwise". So a settlor can write a different arrangement into the deed, for example that on the death of a named trustee the trust property is to pass to a named successor, or that the trust ends. The word "expressly" matters: the deed must say it plainly; silence or a vague hint is not enough on the text. A deed should therefore spell out the intended result. Our draft private trust deed template (listed under Read next) shows the usual structure.
Practical points
- Settlors: decide in advance whether a trust should continue after one trustee leaves. If you want anything other than the default, say it expressly in the deed.
- Surviving trustees: update bank accounts, property records and registrations after a death or discharge, and keep a note of the date.
- Do not let the number of trustees drop to one without thinking about the next appointment, particularly if the trust handles money.
- Keep a signed handover record of what each departing trustee held.
Need help with co-trustees and succession?
If a co-trustee has died or been discharged, or you are drafting a deed with several trustees and want the rules on succession to be clear, our legal consultation team can review the deed and explain how section 76 applies.
Key takeaways
- Section 76: on the death or discharge of one of several co-trustees, the trust survives.
- The trust property passes to the others.
- The deed may declare otherwise, but must do so expressly.
- The section deals with one of several trustees leaving; a sole trustee's vacancy is dealt with under sections 73 and 74.
- No illustrations are printed under this section in the scanned text.
Read next
- Section 77: how a trust is extinguished
- Sections 74-75: appointment by Court and vesting of trust property in new trustees
- Sections 48-49: co-trustees must act jointly and control of discretionary power
- Private trust deed: comprehensive draft template
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.