Regarding a trust property, some of the co-trustees cannot maintain an action in a Court of law unless the instrument of trust so provides.

( 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 They pray for liberty to institute a fresh suit under the West Bengal Premises Tenancy Act, 1997 that has repealed the 1956 act as from February 1st, 2001.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. The s