J. K. BISWAS, J. ( 1 ) THIS application dated September 19th, 2003 has been filed by plaintifs 1,3,4 and 5 (hereinafter referred to as "the surviving plaintiffs') in civil Suit No. 199 of 2001. They pray for leave to withdraw the suit with liberty to institute a fresh one for similar reliefs. The suit was filed on April 17th, 2001 for the following reliefs :"a) Khas possession of the demised premises fully set out in the Schedule "b" hereto; b) Decree for Rs. 1,57,107/- as pleaded in Paragraph-10 hereinabove; c) Decree for Rs,27,09,968/- as pleaded in Paragraph-14 hereinabove; d) Mesne profits @ Rs. 2,000/- per diem after the date of expiry of lease until the date of delivery of khas possession of the demised premises; e) A decree for Rs. 15 lakhs as stated in Paragraph-18 above; alternatively, an enquiry into the damages suffered by the plaintiffs and a decree for such sum as may be found to be due upon such enquiry; f) Interim interest and interest on judgment @ 24% per annum; g) Receiver; h) Injunction; i) Attachment before judgment; j) Costs; k) Further and other reliefs. " ( 2 ) DURING pendency of the suit, on May 1st, 2002 plaintiff 2 (Beji minno Bulsara) died. The five plaintiffs filed the suit as trustees of the trusts called and known as "the Calcutta Zoroastrian Community's Religious and Charity Fund, and the Olpadvala Memorial Trust. " It was filed for eviction of the sole defendant from the suit premises, i. e. from 52; chowringhee Road, Kolkata-700 071 and for recovery of khas possession. This eviction was sought on the ground of expiry of the period of lease granted for 21 years with effect from February 1st, 1980. The lease was granted by a registered deed dated April 17th, 1984. The surviving plaintiffs pray for leave to withdraw the suit on the ground that the lease executed on April 17th, 1984 fixing the tenure of tenancy till January 31st, 2001 being a lease for less than 20 years, according to the legal opinion, the tenancy was governed by the West Bengal Premises Tenancy Act, 1956, and hence it could not be instituted treating the defendant as a lessee not governed by this Act. They pray for liberty to institute a fresh suit under the West Bengal Premises Tenancy Act, 1997 that has repealed the 1956 act as from February 1st, 2001. They have stated that in place and stead of deceased plaintiff 2, one Mr. Russi Jeejeebhoy has been elected as the trustee, and he has affirmed an affidavit signifying his consent to the withdrawal of the suit. ( 3 ) THE application is, however, opposed by the defendant. The case of the defendant, as stated in its opposition dated October 30th, 2003, is this. It is not a statutory tenant; it is a lawful tenant and continues to remain in occupation of the suit premises as such. As the surviving plaintiffs have not prayed for leave to withdraw the suit with liberty to institute a fresh suit for similar reliefs, they are not entitled to file a fresh suit for eviction of the defendant. Without substituting Mr. Russi Jeejeebhoy in place and stead of deceased plaintiff 2, the surviving plaintiffs cannot proceed with the suit to file application for leave to withdraw the suit with liberty to file a fresh suit. By a reply dated November 4th, 2003 the contentions raised by the defendant have been disputed by the surviving plaintiffs. ( 4 ) MR. Roy, appearing for the surviving plaintiffs who have filed this application, has submitted that the leave as prayed for can be granted by this Court under Order XXIII Rule 3 of the Code of Civil Procedure. Regarding death of plaintiff 2 he has submitted that the surviving plaintiffs, as the existing trustees, are entitled to apply for withdrawal of the suit, and in any case, the trustee who has been elected in place and stead of deceased plaintiff 2 has affirmed an affidavit signifying his consent to the withdrawal of the suit. His contention is that the surviving plaintiffs want to withdraw the suit, because it suffers from a formal defect. His contention is that the surviving plaintiffs want to withdraw the suit, because it suffers from a formal defect. The service of a notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, he has argued, was a condition precedent to the filing of the suit, as, the lease having a tenure of less than 20 years, the tenancy was governed by the provisions of this Act; but under a wrong impression that the defendant was not a monthly tenant governed by the 1956 Act, without serving such notice the plaintiffs instituted the eviction suit. His submission is that this defect is a formal defect, and in any case, the grounds stated are sufficient grounds for permitting the withdrawal with the liberty; and hence leave to withdraw the suit is required to be granted with liberty to file a fresh suit. ( 5 ) IN support of his contentions Mr. Roy has relied on the decisions given in the cases of:- (1) Bai Mahakore and Ors. v. Bhikhabhai Sankalchand shah and Anr, AIR 1935 Bombay 28; (2) Sambanda Naicker and Ors. v. Ranganayaki Ammal and Anr. , AIR 1957 Madras 207 (DB); (3) Sheo Kumar dwivedi and Ors. v. Thakurji Maharaj Brijman and Anr. , AIR 1959 Allahabad 463 (DB); (4) Smt. Shima Sundari Lekri v. Paltu Hemram and Ors. , AIR 1982 calcutta 5; (5) Geeta Bose and Anr. v Machine Toots of India Ltd. , AIR 1991 calcutta 116 (DB); and (6) Umesh Chandra Saxena and Ors. v. Administrator general, U. P. , Allahabad and Ors. , AIR 1999 Allahabad 109 (DB ). ( 6 ) APPEARING for the defendant Mr. Chatterjee has submitted that the application is not maintainable, as the newly elected trustee has not been substituted in the suit in place and stead of deceased plaintiff 2. He has contended that a trust being not a juristic person an action regarding a trust property can be instituted and proceeded with only when all the trustees join together in the action and not otherwise. His next contention is that no lawful ground has been made out for permitting withdrawal of the suit with liberty to file a fresh one. His next contention is that no lawful ground has been made out for permitting withdrawal of the suit with liberty to file a fresh one. It is his contention that the failure to comply with the requirement of giving a notice under Section 13 (6) of the West Bengal premises Tenancy Act, 1956 cannot be said to be a formal defect in the institution of the suit, and a suit can be permitted to be withdrawn with liberty to file a fresh one, only when it suffers from a formal defect, or any defect which, though need not be ejusdem generis with "formal defects," is analogous with the formal defects. ( 7 ) IN support of his contentions Mr. Chatterjee has relied on the decisions given in the cases of:- (1) Ramesh Chandra Majumdar and Ors. v. Dud Mehar Bibi, 40 CWN 1019; (2) Ramrao Bhagwantrao Inamdar and anr. v. Babu Appanna Samage and Ors. , AIR 1940 Bombay 121 (FB); (3) government of the Province of Bombay v. Pestonji Ardeshir Wadia and Ors. , air 1949 Privy Council 143; (4) Binani Properties Private Ltd. v. M. V. Administrator General, U. P. , Allahabad and Ors. , AIR 1999 Allahabad 109 (DB ). ( 8 ) APPEARING for the defendant Mr. Chatterjee has submitted that the application is not maintainable, as the newly elected trustee has not been substituted in the suit in place and stead of deceased plaintiff 2. He has contended that a trust being not a juristic person an action regarding a trust property can be instituted and proceeded with only when all the trustees join together in the action and not otherwise. His next contention is that no lawful ground has been made out for permitting withdrawal of the suit with liberty to file a fresh one. It is his contention that the failure to comply with the requirement of giving a notice under Section 13 (6) of the West Bengal premises Tenancy Act, 1956 cannot be said to be a formal defect in the institution of the suit, and a suit can be permitted to be withdrawn with liberty to file a fresh one, only when it suffers from a formal defect, or any defect which, though need not be ejusdem generis with "formal defects," is analogous with the formal defects. ( 9 ) IN support of his contentions Mr. ( 9 ) IN support of his contentions Mr. Chatterjee has relied on the decisions given in the cases of:- (1) Ramesh Chandra Majumdar and Ors. v. Dud Mehar Bibi, 40 CWN 1019; (2) Ramrao Bhagwantrao Inamdar and Anr. v. Babu Appanna Samage and Ors. , AIR 1940 Bombay 121 (FB); (3) government of the Province of Bombay v. Pestonji Ardeshir Wadia and Ors. , air 1949 Privy Council 143; (4) Binani Properties Private Ltd. v. M. Gulamali abdul Hossain and Co. and Ors. , AIR 1967 Calcutta 390; (5) Prabhat Chandra saikia v. Rajani Bala Devi and Ors. , AIR 1972 Gauhati 85; (6) B. Banerjee v. Smt. Anita Pan, AIR 1975 SC 1146 ; (7) Duli Chand v. M/s. Mahabir Pershad trilok Chand Charitable Trust, Delhi, AIR 1984 Delhi 145 (DB); and (8) mrs. V. Aviet v. Malik Zafar Ahmed and Anr. , 1987 (2) CHN 436 (DB ). ( 10 ) THE matter thus has given rise to two questions :- (1) whether the application is maintainable at the instance of the surviving plaintiffs without substitution of the successor-in-office of deceased plaintiff 2, as the action relates to a trust property; (2) whether on the grounds stated in the application the surviving plaintiffs can be permitted to withdraw the suit with liberty to file a fresh suit for the same or similar reliefs. ( 11 ) ADMITTEDLY, the suit was filed by all the trustees of the suit property. During pendency of the suit plaintiff 2 died. One Mr. Russi Jeejeebhoy, it is claimed, was appointed in place and stead of the deceased trustee. This newly appointed trustee has, however, not been substituted in the suit in place and stead of deceased plaintiff 2. This application has been filed by the surviving plaintiffs, and with the application they have annexed an affidavit stated to be affirmed by the newly appointed trustee signifying his consent to the prayer for withdrawal of the suit with liberty to file a fresh suit for the same reliefs. On these admitted facts Mr. Chatterjee, while opposing this application, has contended that it is not maintainable without substitution of the succesor-in-office of deceased plaintiff 2. On these admitted facts Mr. Chatterjee, while opposing this application, has contended that it is not maintainable without substitution of the succesor-in-office of deceased plaintiff 2. His contention is that the surviving plaintiffs are not entitled to proceed with the suit for any purpose, except for taking steps to substitute the successor-in-office in place and stead of deceased plaintiff 2, because under the law unless all the trustees join together, some of the trustees cannot maintain a suit subject-matter whereof is some trust property. In support of this proposition he has placed reliance on the decisions in the cases of :- (1) Ramesh Chandra Majumdar and Ors. , (2) Pestonji Ardeshir, and (3) Dull chand (supra ). ( 12 ) I am of the view that the decision in the case of Ramesh Chandra majumdar and Ors. does not apply to the present case. In that case the question was whether there was an abatement of the suit for not bringing on record some of the legal representatives of the deceased defendant, and the consequences of permitting withdrawal of the suit with liberty to file a fresh suit in such situation. The two other cases in my view supports mr. Chatterjee's contention that regarding a trust property some of the co-trustees cannot maintain an action in a Court of law. ( 13 ) WE know that a trust is not a legal entity. As provided in Section 3 of the Indian Trusts Act, 1882, a "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. It is also provided there that the person who accepts the confidence is called the "trustee. " It is specifically provided in Section 13 of the Act that a trustee is bound to maintain and defend all the suits regarding the trust property. Section 47 of the Act prohibits delegation of his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation. Section 47 of the Act prohibits delegation of his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation. Provisions in Section 48 of the Act specifically provide that when there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust, otherwise provides. ( 14 ) IN the instant case there is nothing to show that the instrument of trust provides that some of the co-trustees would be empowered and entitled to maintain an action in Courts of law regarding any of the properties of the trust. Rather it is apparent that all the five co-trustees are required to join together for such an action; and presumably for this reason the suit was instituted by all the five co-trustees together. It is therefore clear that regarding the instant trust some of the co-trustees thereof could not have filed the instant suit. Hence there can be no doubt that on the death of plaintiff 2 the right to sue does no longer survive to the surviving plaintiffs who have taken out the present application. The right to sue would have survived to the surviving plaintiffs, if they could have instituted the suit without the deceased plaintiff 2; they, however, could not do so. In the circumstances, so long as the surviving plaintiffs do not take steps for bringing the successor-in-office of deceased plaintiff 2 on the records of the suit, in my opinion, they are not entitled", to proceed with the suit for any purpose, except for the purpose of taking steps for substitution or other purposes in terms of provisions contained in Order XXII of the Code of Civil Procedure. The production of the affidavit stated to be affirmed by the successor-in-office of deceased plaintiff 2 does not bring him automatically on the records of the case in terms of provisions of Order xxii. Provisions in Rule 3 of Order XXII requires the surviving plaintiffs to make an application. This Court cannot proceed with the suit so long as the legal representative of deceased plaintiff 2 is not made a party in it. Provisions in Rule 3 of Order XXII requires the surviving plaintiffs to make an application. This Court cannot proceed with the suit so long as the legal representative of deceased plaintiff 2 is not made a party in it. In my view, neither the requirement of making the application can be dispensed with, nor production of an affidavit stated to be affirmed by the legal representative of deceased plaintiff 2 by the surviving plaintiffs as an annexure to this application filed by them under Order XXIII can be considered an application within the meaning of Order XXII Rule 3 of the code of Civil Procedure. Such a circuitous way is not recognized by the law, and if such a way is permitted it is bound to cause serious erosion into the defendant's recognized legal rights. Hence I accept the contention of mr. Chatterjee that the present application by the surviving plaintiffs is not maintainable in law. ( 15 ) SINCE I have held against the surviving plaintiffs of the question of maintainability of this application filed by them under Order XXIII rule 1 (3) of the Code of Civil Procedure, I am of the view that the other question. which is regarding the merit of this application, should not be decided in this application. Hence I am not entering into the question of merit of this application. The question is left open to be decided as and when it becomes necessary. ( 16 ) FOR the foregoing reasons I reject this application holding that it is not maintainable at the instance of the surviving plaintiffs. The costs of this application shall, however, be the costs in the suit. Urgent xerox certified copy of this judgment may be supplied to the parties, if applied for.