1. The 3rd and 4th defendants contend that the land in question was not dedicated to the public. But the written statement of the defendants (Exh. C) and the other evidence on record completely establish the contrary.
2. The lower court is wrong in holding that the court could remove any of the existing trustees in a suit under Section 539, Civil Procedure Code - see Rangasawmi Naiken v. Vardappa Naiken I.L.R. (1891) M. 462. The direction in the decree dismissing the 3rd and 4th defendants must be set aside. As the office descends by hereditary succession, the trustee cannot be appointed from amongst the members of the family by selection. The defendants Nos. 1 to 4 are all entitled to be trustees. Having regard to the conduct of the members of the family in the past, some being guilty of breach of trust and others of gross carelessness, we concur with the lower court in holding that it is desirable to associate a respectable resident of the village in the management of the trust. The 3rd plaintiff is therefore appointed a co-trustee with the defendants. The scheme framed by the lower court requires modifications in this and some other respects as indicated below:
Clause B(4). - Substitute 'the trustee' for the committee now appointed.
B(5). - Substitute 'the Revenue Inspector of the Firka and the Tahsildar of the taluk' for the officer referred to.
B(6). - Substitute 'the vacancy caused by the death, removal or retirement of the 3rd plaintiff should be filled up by the District Court, or in case there be a Sub-Court having jurisdiction, by the Subordinate Court on application being made by the parties or any person interested in the charity.'
B(7). - The distribution should be amongst the public aid the villagers.
B(8). - Should be struck out. C and D should be struck out A revised scheme will be drawn up as directed above and embodied in our decree.
3. The parties and any one interested in the charity will have leave to apply to the District Court or Subordinate Court for further directions. The 3rd and 4th defendants must pay the plaintiffs' costs in Appeal No. 93. There will be no costs in Appeal No. 94.