ORDER In the present suit an application has been taken by Sm. Jagadamba Bai on 23rd June 1977; inter alia, for recording the death of Beharilal Khandelwal and substitution of the names of the present trustees Sm. Kishori Kanti Khandelwal and Ashok Kumar Khandelwal in the place and stead of Beharilal Keandelwal and for other reliefs for carrying out the amendments and recording the said order, etc. In the petition the said Jagadamba Bai has stated that the deceased Beharilal Khandelwal along with the petitioner was the trustee of Lachmandas Beharilal Trust created under Deed of Trust dated 17th March 1944 and as such the trustees filed a suit for decree for Rs. 70,000/-, injunction, costs and other reliefs. In the said suit the defendant entered appearance and also filed written statement through P.D. Himatsingka & Co. The defendant also filed a cross suit in the year 1958 being Suit No. 288 of 1958 (Biswanath Jhunjhunwala v. Sm. Jagadamba Bai & Anr.). Both the aforesaid suits arose in respect of an agreement in writing dated 10th September 1955 for sale and purchase of Nos. 12 and 12/1, Raja Santosh Road, Calcutta. 2. Beharilal Khandelwal died on 15th June 1974 and by a resolution dated 22na August 1974 Sm. Kishori Kanti Khandelwal, widow of Beharilal Khandelwal and his son Ashok Kumar Khandelwal were appointed joint trustees along with Sm. Jagadamba Bai for the purpose of carrying out the objects of the Trust. The petitioner also annexed a copy of the resolution referred to above. The petitioner in paragraph 7 of the petition has stated that the suit has not abated and interest and/or the cost of account of the suit devolved on the new trustees Sm. Kishori Kanti Khandelwal and Ashok Kumar Khandelwal and the right to continue the suit against the defendant survived on the remaining trustees. Mr. Ranjan Datta; appearing on behalf of the petitioners, submitted that this application is only a mere formality and as a matter of course an order should be made in terms of the prayer as contained in the Masters Summons. 3. Biswanath Jhunjhunwala, the defendant above-named, affirmed an affidavit on 6th July 1977 and opposed an order being passed in the present petition. 3. Biswanath Jhunjhunwala, the defendant above-named, affirmed an affidavit on 6th July 1977 and opposed an order being passed in the present petition. In the said affidavit in paragraph 5 the defendant has stated that as Beharilal Khandelwal died on 15th June 1974 and the trustees were appointed as fat back as on 28th June 1974 and as no steps whatsoever have been taken by the petitioner for recording the death till the present petition has been made the suit has abated and the right to continue the suit did not survive on the surviving trustees. 4. Mr. Bhaskar Sen, appearing on behalf of Biswanath Jhunjhunwala strongly relied on the points taken in the affidavit filed by his client and also objected to an order being made on the application on the ground that this application is not maintainable as this application has been only taken out by Jagadamba Bai and other two new trustees have not joined the present petition. He further submitted that there was no distinction between an ordinary individual making an. application for substitution and/or for setting aside the abatement and a trustee making a similar application. His submission is that in any event Art. 121 would apply. As such the present application is hopelessly belated and is barred by the law of limitation. 5. Section 48 of the Trusts Act, 1882 provides-"When there are more trustees than one all must join in the execution of the Trust except where the instrument of Trust otherwise provides". In my opinion, the execution of Trust would mean taking all steps that were necessary for carrying out of the objects and purpose for which the Trust was brought into existence. In the case of co-trustees the office is a joint one and the duties of the office must be done in their joint capacity. The main purport of this section is to see that the trustees cannot delegate their duties and they must personally all perform those duties. The general principle of law is that the office of a trustee irrespective of a number of trustees is a joint one and therefore must execute their duties jointly. Hence, no suit in regard to Trust properties would be maintainable by one or some of the trustees only if the remaining trustees are not before the court either as plaintiffs or as defendants. 6. Hence, no suit in regard to Trust properties would be maintainable by one or some of the trustees only if the remaining trustees are not before the court either as plaintiffs or as defendants. 6. The above principle would not make the present application not maintainable because the whole purpose of the present application is to bring before the Court the other two remaining trustees. 7. In view of the provisions of S. 48 it is not open to one of the trustees only to maintain the suit. The defect of the suit being not maintainable by one trustee is not of such a nature that it would render the plaint a nullity or would take away the jurisdiction of the court. The defect would be of a formal nature and would be a mere irregularity and that defect could be allowed to be removed at any stage of the proceedings. Such view was taken in the case of S.K. Daniels v. G.W. Friendly Trust reported in AIR 1959 All. at page 579. 8. In a case reported in AIR 1975 SC page 371 between Charan Singh & anr. v. Darshan Singh & ors., Supreme Court has held that where the suit is filed in a representative capacity death of one of the plaintiffs during the pendency of the appeal, the appeal does not abate. In AIR 1921 PC at page 123 in the case of Raja Anand Rao v. Ramdas Dadu Rao, a distinction was drawn between a suit which was prosecuted by an individual for his own interests and persons suing as representatives of the general public. 9. Order 22 of the Civil Procedure Code provides the rules for recording the death and/or substitution of the parties. Order 22 Rule 1 provides-"The death of a plaintiff or defendant shall not cause a suit to abate if the rights of suit survive". Order 21 Rule 2 provides that where there are more plaintiffs or defendants than one, and anyone of them dies and where the rights of a suit survive against the surviving defendants alone, the court shall cause an entry to that effect to be, made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. Order 22 Rule 10 provides in other cases of assignments, creation or devolution of interest during the pendency of a suit, the suit may by leave of the court be continued by or against the person to or upon whom such interest has come or devolved. 10. Order 22 does not apply to representative suits. Suits brought in a representative character can be continued under Order 22 Rule 20(10) by the successor in office. Where a trustee dies or retires or is removed and another is elected it is a case of devolution. In this respect the relevant cases are reported in AIR 1928 Cal. page 651 and also in AIR 1926 page 540. The right to apply in such a case is pending law and accrues from day to day and is therefore not barred by the law of limitation. In this respect, reference can be made to cases reported in 57 CWN page 710 and also AIR 1952 Pat. 323 and 30 Cal. page 609. In case reported in 36 CWN at page 816 (Sri Sri Keshab Rai Jeu Thakur & Raja Jyoti Prasad Sinsh Deo) a Division Bench judgment of this High Court presided over by Mitter J. and Bartley J. it was held that Order 22 Rule 10 of the Civil Procedure Code applies to a case of substitution of a person who had sued or held been sued against in a representative capacity. In the case reported in 27 CWN at page 710 which was referred in my order, Chatterjee J. and Pearson J. held that where the heirs are substituted on the ground of devolution of interest such interest would be governed by Order 22 Rule 10. It further held that three months limitation does not apply to a case of devolution pending the suit. It further held that application under Order 22 Rule 10 can be made in the Appellate Court even over the devolution of interest when the case was pending before the Trial Court. 11. Applying the above principles in the present case it would appear that the present suit has been brought by both the parties in representative character and in their capacities. As such the right of the deceased trustee had devolved on the two trustees who are being made parties to the suit by this application. 11. Applying the above principles in the present case it would appear that the present suit has been brought by both the parties in representative character and in their capacities. As such the right of the deceased trustee had devolved on the two trustees who are being made parties to the suit by this application. As this right which is accruing from day to day and Art. 120 of the Limitation Act has no application, I am of the opinion that although the application is belated, in the facts and circumstances of the case there is no time bar for making such application. As such I pass an order in terms of prayers (a), (d), (e), (f), (g) and (h). Application allowed.