THE LAW OF TRUST 337
The Principal Civil Court of original jurisdiction is according to the Civil Procedure Code the District Court.
- This competency of the Author of the Trust to make a trust is limited in two ways—
(i) The property which is to be the subject-matter of the trust must be transferable.
(ii) He can transfer it only to the extent permitted by Law for the time being in force. A trust is not valid if the author had no power to dispose of property.
What property is transferable and what is not is defined in section 6 of the T. P. Act.
The authority to dispose of property and the extent of such power depends upon law.
Illus.
(i) A Hindu father cannot dispose of the ancestral property and therefore, he cannot create a trust thereof.
(ii) A Hindu widow cannot dispose of the estate inherited by her from her husband. She having only a life-estate in it—therefore, she cannot dispose of it by way of Trust.
(iii) A Mohammedan cannot dispose of more than 1/3 of his property after the payment of debts and funeral expenses— therefore, cannot dispose of more than 1/3 by way of a Trust.
§ Capacity to be a Trustee—
Sec. 10.
Every person capable of holding property is competent to be a trustee.
Who is capable of holding property ?
Every living person is capable of holding and taking property. Therefore, every living person whether a minor or a lunatic is capable of being a trustee.
There is a difference between capacity to contract and capacity to hold and take property. Every living person does not have the capacity to contract; but every living person has the capacity to hold and take property.
This distinction is necessary to make and important to bear in mind because a person may not have capacity to contract yet he may be competent to be a trustee provided he has capacity to hold