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24. Aggrieved by that, the appellants-defendants 1 to 7, 9 to 14, 16 and 17 have filed RFA.No.596/2008. The State Bank of Mysore which is not a party to the proceedings has filed RFA.No.1308/2008.

25. The learned counsel for the appellants contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the Trust continues even after the death of the Trustee. The suit should have been filed in the name of the trust. The suit is not maintainable. The lease-deed is executed by the Trustee. There is no identifiable property which has vested in any one of the plaintiffs. Khatha of the properties stands in the name of the first defendant. The application under Section 10 of CPC has been rejected. The lease is by the Trust and the plaintiffs are not the lessors. There is no relationship of landlord and tenants between the plaintiffs and the defendants. O.S.No.1641/2000 has been filed by the defendants for declaration, specific performance and injunction. Ex.D5 is the letter written by the father of the plaintiffs requesting for loan of `.50,000/-. Ex.D6 is the letter addressed to the plaintiffs father stating that the partners have resolved to pay additional deposit of `.35,000/- subject to the condition that the plaintiffs father is agreeable for extension of lease by ten years. The cheques have been encashed. Therefore, the lease stands extended by 10 years. Further he submitted that O.S.No.1641/2000 and O.S.No.1848/2000 should have been tried together. There is a procedural impropriety which is a mistake by the Court. He also submitted that the wills have not been produced and therefore, adverse inference has to be drawn. Further he submitted that Ex.D6 is wrongly considered. Inviting my attention to Section 51 of the T.P. Act, the learned counsel for the appellant submitted that no relief is granted for excess of construction put up.

(5) Whether the impugned judgment and decree calls for interference?

POINT No.1:

66. The suit in O.S.No.1848/2000 has been filed by the plaintiffs for recovery of possession, mesne profits and interest on mesne profits. It is contended by the defendants that the suit was not maintainable. The suit should have been filed in the name of the Trust. The Trust continues even after the death of the Trustee.

67. The appellants/defendants have not raised any plea in the written statement regarding the Trust or the suit should have been filed in the name of the Trust. In the absence of specific plea, the defendants cannot contend in the appeal that the suit should have been filed in the name of the Trust. In the written statement, in paras 5 and 6, it is stated that the plaintiffs and their father being owners, approached the 1st defendant and there were negotiations between the plaintiffs and the first defendant. The suit schedule property has been settled in favour of the plaintiffs by their mother through Ex.P4 -settlement deed. The plaintiffs' father has been appointed as the trustee. The settlement deed provides that as and when the plaintiffs 2 to 4 attain the age of 18 years the trustee shall make over a fourth of the properties belonging to the Trust along with the balance of the profits or income at the credit of the plaintiffs 2 to 4. With regard to the first plaintiff the settlement deed provides that she shall be entitled for life interest in the remaining 1/4th share. The trustee shall hold 1/4th share of the first plaintiff for the duration of her life and on her death 1/4th share along with accumulated profit shall be made over equally to the plaintiffs 2 to 4. The Trustee can appoint one or more persons to act as Trustee jointly with him or he can nominate one or more persons to act in his place as Trustee on his death. The Trustee has not nominated any person as provided in the settlement deed. The father of the plaintiffs is no more. No person has been nominated to act in the place of the Trustee. Therefore, the Guardian/Manager has been appointed by the court in Misc.No.10099/97 under sections 50 and 52 of the Mental Health Act, 1987 to look after the first plaintiff and manage her movable and immovable properties. The first plaintiff is represented by her guardian Sri.John Ravi Thumboochetty appointed under the Mental Health Act. The plaintiffs have attained majority. The plaintiffs 2 to 4 are entitled for 1/4th share each in the suit schedule property on attaining 18 years of age as per the terms of the settlement deed. The trustee has not nominated any person to act in his place for the first plaintiff. Guardian/Manager has been appointed by the court under the Mental Health Act. He represents the first plaintiff in the suit. The property is still joint. It is not made over to the plaintiffs 2 to 4 in terms of the settlement deed. On attaining majority, the plaintiffs 2 to 4 have become co- owners. As co-owners, they can maintain the suit. The suit is filed by the plaintiffs as co-owners. In paras 5 and 6 of the written statement, it is stated that the plaintiffs and their father being owners approached the first defendant and there were negotiations between the plaintiffs and the first defendant. There is no plea in the written statement that the suit should have been filed in the name of the Trust. O.S.No.1641/2000 has been filed by the defendants for declaration, specific performance and permanent injunction against the plaintiffs. The contention of the defendants that the suit should have been filed in the name of the Trust cannot be accepted. The plaintiffs 2 to 4 being co-owners and the 1st plaintiff having life interest can maintain the suit.

70. The lease-deed is executed by the father of the plaintiffs as Trustee and one of the plaintiffs. The plaintiffs 2 to 4 have become co-owners on attaining majority. The plaintiffs have issued legal notice dated 20.12.1999 as per exhibit P3 calling upon the defendants to vacate and hand over vacant possession of the suit schedule property. The defendants have replied the legal notice as per Ex.D12 asking the plaintiffs to co-operate in the execution of the formal document extending lease by another ten years. The suit has been filed by the defendants in O.S.No.1641/2000 for declaration, specific performance and injunction against the plaintiffs. Therefore, it cannot be said that there is no relationship of landlord and tenants between the plaintiffs and the defendants. Point No.1 answered accordingly. The suit is maintainable. The plaintiffs being co-owners can maintain the suit.