ORDER : 1. Heard Sri.B.M.Mala Swamy, learned counsel for the revision petitioner and Sri.R.B.Sadasivappa, learned counsel for the respondent Nos.1 to 4. 2. Present revision petition is filed by the defendant Nos.1 to 3 in O.S.No.5319/2023, challenging the dismissal of the application filed by them under Order VII Rule 11(d) of Code of Civil Procedure (hereinafter ‘CPC’ for short) in O.S.No.5319/2023 dated 14.03.2024. 3. Facts in the nutshell for disposal of the present revision petition are as under: 3.1. A suit came to be filed by the plaintiffs who are respondent Nos.1 to 4 with the following relief in respect of following properties (hereinafter referred to suit properties): PRAYER “Therefore, under the circumstances, the plaintiffs above named pray that this Hon’ble Court be pleased to pass judgment and decree; 1. For partition and separate possession in the suit schedule properties to the plaintiffs and to the 4th defendant as per the ratio more fully mentioned in the registered "WILL CUM TRUST DECLARATION" deed dated 23/03/1985 executed by late Smt. Siddamma, i.e.. grandmother of the 1" plaintiff and the defendant and mother of late Dr. L Shivalingaiah. 2. Consequently declare that the alleged WILL, dated 11/07/2019 alleged to have been executed by late Dr. L. Shivalingaiah and two alleged Registered gift deeds dated 19/01/2019 said to have been executed by late Dr. L. Shivalingaiah as the said documents are bogus documents created fraudulently by the 1" defendant and hence, the same are hull and void and are not binding on the rights of the plaintiffs and the defendants 4 to 6 and consequently, the same are required to be declared as void documents and hence not binding on the rights of the plaintiffs. 3. Declare that unregistered deed of declaration dated 15/08/1993 is not binding on the plaintiffs as the plaintiffs 2 to 4 and wife of Dr. L. Shivalingaiah by name Sri. Thejovathi are not the signatories and the signature of the plaintiff No.1 Dr. L. Shivalingaiah exercising undue influence by suppressing the taken by “WILL CUM TRUST DECLARATION” deed executed by late Smt. Siddamma dated 23/03/1985. 4. Further declare that the 1 defendant is not the wife of late Dr. L. Shivalingaiah as claimed by the 1 st defendant in order to knock off the properties of late Dr. L Shivalingaiah and Smt. Siddamma and their family members. 5. 4. Further declare that the 1 defendant is not the wife of late Dr. L. Shivalingaiah as claimed by the 1 st defendant in order to knock off the properties of late Dr. L Shivalingaiah and Smt. Siddamma and their family members. 5. For permanent injunction restraining the defendants and their agents, servants or any person claiming under the defendants herein from interfering with the plaintiffs lawful and peaceful possession and enjoyment with respect to the house property situated at Upper Palace Orchard, Sadashivanagar, RMV Extension, Bengaluru, ie, Item No-8 of the schedule property 6. For permanent injunction restraining the defendants and their agents, servants or any person claiming under the defendants herein from alienating or otherwise encumbering the suit schedule properties in any manner. 7. And grant such other retails as this Hon'ble Court deems fit under the circumstances of the case excluding cost, in the interest of justice and equity.” SCHEDULE 'A' PROPERTY ITEM NO.1: The agricultural band measuring 18 guntas in Sy. No.29/1, 29/5, 29/6, 34/3, 34/4, 34/5 in total measuring an extent of 19,602 Square feets, situated in Audugudi Village, Kasaba Hobli, Bengaluru South Taluk, and bounded on: East by: Sy. No.29/2 West by: Sy. No.29/4 North by: Sy. No 34/1 South by: Sy. No.34/6 ITEM NO.2 Property bearing Site No.31, BBMP Ward No.70, Shanthinagar, measuring 9,153 sq ft. bearing BBMP PID No.70-89-31 situated at 'C' Cross Road, Adugodi village, Vinayaka Nagar, Bengaluru and bounded on the: East by: Road West by: Road North by: Private property: South by: ‘C' Cross road. ITEM NO.3 Property bearing Site No.32, BBMP Ward No.70, Shanthinagar, measuring 3226.20 sq. ft. bearing BBMP PID No.70-89-32 situated at 'C' Cross Road, Adugodi village, Vinayaka Nagar, Bengaluru and bounded on the: East by: Private property West by: Road North by: Private property South by: ‘C’ Cross Road ITEM NO.4: The agricultural land measuring 30 guntas in Sy. No.166/10b situated at Suganahalli Village, Kothathi Hobli, Mandya Taluk and bounded on: East by: Road West by: Sy. No. 100, belonging to Sri K. Puttabasave Gowda North by: Sy. No. 166, belonging to Sri.Devaragudda Anchigaiah South by: Halla, stream. ITEM NO.5 The agricultural land measuring 3 acres 30 guntas and 3 acres in total 6 acres 30 guntas in Sv. No.145, presently Sy. No.145/1A2 situated at BM Kaval Village (Obichudanahalli), Kengeri Hobli, Bengaluru South Taluk, and bounded on: East by: Sy. No.144 West by: Sy. No. 166, belonging to Sri.Devaragudda Anchigaiah South by: Halla, stream. ITEM NO.5 The agricultural land measuring 3 acres 30 guntas and 3 acres in total 6 acres 30 guntas in Sv. No.145, presently Sy. No.145/1A2 situated at BM Kaval Village (Obichudanahalli), Kengeri Hobli, Bengaluru South Taluk, and bounded on: East by: Sy. No.144 West by: Sy. No.159 North by: Sy. No. 161 South by: Road ITEM NO.6: The agricultural land measuring 1 acre 20 guntas in Sy. No.150 situated at BM Kaval Vilage (Obichudanahali), Kengeri Hobli, Bengaluru South Taluk, and bounded on: East by: Sy. No. 145 West by: Sy. No. 157 North by: Sy. No. 146 South by: Sy. No. 160 ITEM NO.7 The agricultural land measuring 18 guntas in Sy. No.166, situated at Suganahalli Village, Kothathi Hobli, Mandya Taluk, Mandya District and bounded on the: East by: Sy.No.166 belonging to Sri. Sothale Kariyya West by: Road North by: Sy.No.166 belonging to Sri.Siddamma Hombaiah South by: Stream and Kaalu daari (pathway). ITEM NO.8 The house property bearing site No.94/P, situated at 8 th Cross, 11 th main, RMV Extension, Palace Orchards, 1 st stage, Sadashivanagar, Bengaluru – 560 080, BBMP PID No.99-39-12/16, measuring East to West (57.5 + 56)/2 and North to South 80 ft. in all measuring 4,540 sq. ft., and bounded on: East by: 8 th cross road West by: Site bearing No.94/B and C North by: Site bearing No.94/O South by: Site bearing No.94/R SCHEDULE 'B' PROPERTY Movable properties belonging to late Smt. Siddamma Smt. Thejovathi and late Dr. L. Shivalingaiah, i.e., Gold, Silver ornaments (presently in the custody of the 1 st defendant) are as follows:- 1. One plain gold chain weighing - 10 Tolas (100 gms) 2. Six plain gold bangles weighing - 4 Tolas (40 gms) 3. Two gold bangles weighing - 3 Tolas (30 gms) 4. Two gold rings weighing - 1.5 Tolas (15 gms) 5. Two gold rings with stones - 1 Tolas (10 gms) Weighing 6. Silver articles weighing – 2kgs 3.2. Plaint averments would reveal that plaintiffs and defendant Nos.4 to 6 owned the scheduled properties. 3.3. Plaintiffs further contends that suit properties originally belonged to Siddamma who is the mother of late Dr.L.Shivalingaiah and the movable properties belonged to Siddamma and Thejovathi wife of late Dr.L.Shivalingaiah. 3.4. Siddamma died on 19.09.1990 leaving behind her son Dr.L.Shivalingaiah and daughter by name Jayalakshmi. 3.3. Plaintiffs further contends that suit properties originally belonged to Siddamma who is the mother of late Dr.L.Shivalingaiah and the movable properties belonged to Siddamma and Thejovathi wife of late Dr.L.Shivalingaiah. 3.4. Siddamma died on 19.09.1990 leaving behind her son Dr.L.Shivalingaiah and daughter by name Jayalakshmi. Thejovathi expired on 24.07.1994 leaving behind her husband - Dr.L.Shivalingaiah, plaintiff Nos.1 to 4 and defendant Nos.4 to 6 as her legal heirs. 3.5. It is the specific contention of the plaintiffs that Siddamma during her lifetime, executed registered Will titled as ‘Will cum Trust Declaration’ on 23.03.1985 bequeathing her properties as under and the trust was named as ‘Chandrakala Trust’: 1. Sri.L.Shivalingaiah (later became Dr.L.Shivalingaiah) 2. Smt.Thejovathi (wife of Dr.L.Shivalingaiah) 3. Dr.L.S.Ravi Prakash (1 st plaintiff) 4. Sri.L.S.Ramesh (4 th defendant) 5. Prospective wife of 1 st grandson Dr.L.S.Ravi Prakash (by name Smt.Sabena Prakash, i.e., 2 nd plaintiff) 6. Prospective wife of 2 nd grandson Sri.L.S.Ramesh (by name Smt.Bamini Narayana, i.e., 5 th defendant) 7. Prospective 1 st two children of 1 st grandson (Dr.Ravi Prakash) i.e., plaintiffs 3 and 4) 8. Prospective 1 st 2 children of 2 nd grandson (Sri.L.S.Ramesh) (i.e., defendant No.6) 3.6. It is further contention of the plaintiffs that plaintiff Nos.1 to 4 who are related to Dr.L.Shivalingaiah are the persons entitled to the properties mentioned in the Will cum Trust Declaration executed by Siddamma. 3.7. Plaintiffs maintained that they were not aware of the said Will cum Trust Declaration, till the death of Dr.L.Shivalingaiah, who died on 18.06.2022. Later on, having come to know about the Will executed by Siddamma and the suit in O.S.No.1599/2022 filed by defendant No.1 against plaintiff No.1 and filed the present suit with the aforesaid relief. 4. Defendants entered appearance and filed written statement and also an application under Order VII Rule 11 of CPC to reject the plaint. 5. In the affidavit, in support of the said application, it has been stated that plaintiffs have filed the suit for partition and separate possession and for declaration that with respect to a Will and registered Gift Deed executed by husband of the applicant who is defendant No.1. 6. 5. In the affidavit, in support of the said application, it has been stated that plaintiffs have filed the suit for partition and separate possession and for declaration that with respect to a Will and registered Gift Deed executed by husband of the applicant who is defendant No.1. 6. It is further contended in the affidavit that Will cum Trust Declaration is of the year 1985 and therefore, the averments made by the plaintiffs that as per the ratio in the Will cum Trust Declaration is incorrect in the absence of any declaration being sought for by the plaintiffs as per Sections 59 and 63 of the Indian Trust Act. 7. It is also contented by the defendants that Dr.L.Shivalingaiah said to have executed a Will in the year 2019 in respect of item No.8 of the suit property and therefore, plaint relief cannot be granted. 8. The application filed by the revision petitioners/defendants under Order VII Rule 11 of CPC was resisted by filing detailed written objections by contending that the registered Will dated 23.03.1985 executed by Siddamma is to be established before the Trial Court by placing necessary evidence on record and therefore, at the inception, looking into the plaint averments, the plaint cannot be rejected. 9. It is also contented by the plaintiffs that they are the legitimate owners of the suit properties as is admitted by defendant No.1 in paragraph No.8 of their affidavit that the properties left behind by Siddamma were vested with the members of the family by way of succession and therefore, there cannot be rejection of the plaint. 10. Learned Trial Judge having heard the arguments of both sides, dismissed the application filed by the defendant Nos.1 to 3 inter alia holding in paragraph Nos.12 to 17 as under: “12. By countering the arguments of the learned defence counsel, the learned counsel for plaintiffs has also invited the attention to the very same document on its internal page-4 wherein there is clear mention about the details of the beneficiaries and clause-3 includes the names of the beneficiaries including the present plaintiffs as well as deceased Shivalingaiah and his wife Tejovathi and it is recited therein that all these persons shall be the beneficiaries under the said Will eligible for the benefits of the said properties. Thus, by pointing out these recitals it has been urged that this document is a Will in its literal meaning and all the persons named above who are referred to in the said Will are none other than the legatees under the Will. Therefore at this juncture on the plain reading of the plaint averments as well as the recitals of this document, this court opines that these disputed aspects cannot be considered at this pre-trial stage since they are now shown to be mixed question of law and facts which require a detailed enquiry. Therefore, the learned counsel for the plaintiffs has argued that the applicant cannot seek for declaration regarding the execution of the trust and it is further argued that even under the Trust Act the suit has to be filed. Therefore the suit which is brought in the present form is perfectly maintainable. 13. It is further argued that as per page-48 of the plaint documents which contains the duration of the Trust in clause-14. This clause refers to the extension of the Trust by the end of December 2005 and it is recited that thereafter “at Will” or earlier provided the trustees are unanimously satisfied that interest of the beneficiaries require determination of the trust shall be distributed in accordance with law. Therefore considering these documents and the recitals found in the said documents it cannot be said that without holding enquiry and permitting the parties to lead their respective evidence, at this pre-trial stage the plaint cannot be rejected as claimed by the applicant. 14. One more material aspect which is to be noted here is that according to the plaintiffs though late Siddamma had executed the aforesaid Will-cum-trust declaration in the year 1985 with respect to the suit schedule properties, the same was not within the knowledge of the plaintiffs and even the Will which was executed in favour of late Shivalingaiah was not disclosed by him before the plaintiffs and they came to know about these Wills in the year 2022. Again this claim of the plaintiffs has to be considered only after evidence, because even though the said Will is of the year 1985 whereas the suit is filed in the year 2023 after lapse of more than 35 years, but considering the averments made in the plaint and the grounds urged by the plaintiffs, even this point of limitation as urged by the applicant has become a mixed question of law and facts which requires evidence. 15. It is further relevant to note that there is no specific dispute by the applicant with regard to the properties which are covered under the above said Will executed by Siddamma. Moreover as rightly pointed by the learned counsel for the plaintiffs, this Will cannot be blindly disbelieved or discarded at this pre- trial stage for the reason that it is a registered document which has come into existence at an undisputed point of time. Under such circumstances, the fact whether the plaintiffs are ultimately entitled to claim the suit reliefs based on the said Will or not, is a matter of evidence which cannot be decided at this pre-trial stage. Therefore, as rightly argued by the counsel for the plaintiffs, the grounds made out by the applicant/D.1 in the present IA for rejection of the plaint are not sufficient nor tenable in view of the fact that most of the disputed issues involved in the case which have emerged from the said subject Will-cum-trust declaration require a detailed enquiry. 16. However the learned counsel for the plaintiffs has sought to rely on a couple of decisions of the Hon'ble High Court as well as Apex Court reported in Kalika Devasthan Vishwasth Mandali, Belagavi & Anr. vs. Veerupakshi Balkrishnappa Kadlaskar & Anr. 2021 (4) KCCR 2940 , B. Sumithra Rao and others vs. Sneha and others, 2022 (2) KCCR 1811 and Urvashiben & Anr. vs. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372 . In the first decision referred to above in Kalika Devasthan’s case, it is held that while considering an IA u/o VII R.11 CPC, the plaint averments alone must be considered and not the written statement. 17. vs. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372 . In the first decision referred to above in Kalika Devasthan’s case, it is held that while considering an IA u/o VII R.11 CPC, the plaint averments alone must be considered and not the written statement. 17. In the second decision referred to above in Sumithra Rao’s case, once again the same position of law has been laid down that the suit involving the pure questions of facts required to be established by the plaintiffs cannot be considered in an application u/o VII R.11 CPC and in the third decision referred to above in Urvashiben’s case, the Hon’ble Supreme Court has held that the plaint averments alone are to be considered while deciding the IA of this nature. With due regards to the principles laid down in all these decisions, the same would aptly apply to the facts on hand, because most of the disputed issues which are involved in the case are now apparently shown to be requiring a detailed enquiry and trial. In other words, these issues are shown to be mixed question of law and facts and therefore unless the court records evidence from both sides at this stage it cannot be said that the plaint is liable to be rejected. However, all these disputed issues could be kept open for consideration and adjudication while deciding the case on merits. Therefore the grounds made out in the IA by the applicant for rejection of plaint cannot be sustained. Consequently this point needs to be answered against the applicant in the negative.” 11. Being aggrieved by the same, defendant Nos.1 to 3 are before this Court in this revision. 12. Learned counsel for the revision petitioners reiterating the grounds urged in the revision petition vehemently contented that clause 14 of the Trust deed though envisages the extinction of the trust upon happening of some contingencies, no such contingencies are pleaded by the plaintiffs and mere filing the suit for partition in such circumstances is impermissible in view of Section 63 of the Indian Trust Act. 13. He would also invite the attention of the Court to Section 59 of the Indian Trust Act and would contend that when the ownership of suit properties are that of the trust, a suit for partition is per se not maintainable and sought for admitting the revision petition for further consideration. 14. 13. He would also invite the attention of the Court to Section 59 of the Indian Trust Act and would contend that when the ownership of suit properties are that of the trust, a suit for partition is per se not maintainable and sought for admitting the revision petition for further consideration. 14. Per contra, learned counsel for the respondent Nos.1 to 4 supports the impugned order by contending that the contentions urged on behalf of the defendants needs to be considered by the Trial Court by holding a full- fledged trial and at the inception, plaint cannot be thrown out at the threshold by only accepting the contents in the affidavit, which are also vague in nature and thus sought for dismissal of the revision petition. 15. Having heard the arguments of both sides, this Court perused the material on record meticulously. 16. On such perusal of the material on record, it is just and necessary for this Court to cull out Section 59 and 63 of the Indian Trust Act which is reads as under: “ 59. Right to sue for execution of trust .—Where no trustees are appointed or all the trustees die, disclaim or are discharged, or where for any other reason the execution of a trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the trust, and the trust shall, so far as may be possible, be executed by the Court until the appointment of a trustee or new trustee. 63 . Following trust-property—into the hands of third persons;— Where trust-property comes into the hands of a third person inconsistently with the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust. Into that into which it has been converted.—Where the trustee has disposed of trust-property and the money or other property which he has received therefore can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust-property.” 17. Likewise, it is also necessary for this Court to cull out Clause 14 of the Will cum Trust Declaration executed by Siddamma styled as ‘Chandakala Trust’: “14. Likewise, it is also necessary for this Court to cull out Clause 14 of the Will cum Trust Declaration executed by Siddamma styled as ‘Chandakala Trust’: “14. EXTINCTION OF THE TRUST: The trust shall stand determined on 31 st Day of December, 2005 and thereafter ‘AT WILL’ or earlier provided the trustees are unanimously satisfied that the interest of the beneficiaries required the determination of the trust earlier than the aforesaid date. In determination of the trust, the assets of the rust shall be distributed in accordance with the balance standing in the respective account of the beneficiaries. The immovable properties shall on the extinction of the trust be owned by the beneficiaries as co- owners and tenants in common according to the ration of the beneficial interest of the beneficiaries. The movable assets shall also be distributed in accordance with the same standing to the credit in the accounts of the beneficiaries.” 18. On close reading of the contents of the Will cum Trust Declaration, copy of which is placed on record before this Court, would make it clear that there is a clause in the Will cum Trust Declaration whereby the properties left behind by Siddamma was to be enjoyed by several persons as is referred to supra. 19. Admittedly, Dr.L.Shivalingaiah also gets a share in the Chandrakala Trust. Thejovathi being the wife of Dr.L.Shivalingaiah, had a share in the trust properties so also Dr.L.S.Ravi Prakash, who is the son of Dr.L.Shivalingaiah and Dr.L.S.Ramesh, who are the plaintiff No.1 and defendant No.1. 20. The Will contemplates a share in the unborn persons. Therefore, such a bequeath, whether could be a valid bequeath or not, is a matter that needs to be considered during the trial. 21. Further, in view of Clause 14 of the Will cum Trust Declaration, what will be the nature of the properties if Clause 14 is adhered to and whether the properties would become freehold properties or not so as to be enjoyed by the legatees under the Will is again a question that needs to be decided during the trial. 22. Therefore, rejection of the application by the learned Trial Judge holding it that from the plaint averments, there is a cause of action to maintain the suit and therefore, dismissing the application is just and proper which requires no interference in this revision. 23. 22. Therefore, rejection of the application by the learned Trial Judge holding it that from the plaint averments, there is a cause of action to maintain the suit and therefore, dismissing the application is just and proper which requires no interference in this revision. 23. Expressing any opinion on the other contentions raised by either of the parties, at this stage, would definitely hamper the rights of the parties during the trial one way or the other. 24. Therefore, this Court is of the considered opinion that without holding the mini trial on the rival contentions of the parties, if the plaint averments alone is taken into consideration as per the settled principles of law while deciding the application under Order VII Rule 11 of CPC, this Court is satisfied that the grounds urged in the revision petition do not merit for further consideration. 25. Accordingly, following: ORDER i. Revision petition is dismissed. ii. No order as to cost. iii. It is made clear that this Court has not expressed any opinion on the merits of the matter and parties are at liberty to canvass their respective contentions before the Trial Court in accordance with law.