The death of a trustee does not cause a suit to abate if the rights of the suit survive against the surviving defendants alone, and an application for substitution of trustees can be made even after the expiry of the limitation period.

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. 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