D. P. HIREMATH, J. ( 1 ) APPELLANTS herein were plaintiffs in the original suit for a decree for redemption of the suit properties which are five in number. It is stated that these properties are in a prominent locality at Mysore city in sayyaji Rao road, being contiguous forming different parts of one building. They were subject matter of mortgage from time to time by the plaintiffs or their mother right from 1921. The mortgagees were virupakshaiah, tayub sait, abdul karim, mohammed ghouse and boraiah till the year 1934. For the purpose of this appeal the court is now concerned with the mortgage of the year 1934, dated 17-1-1934 for Rs. 20,000/- with terms and conditions adumbrated therein. There was however a subsequent mortgage in favour of cheluvaraya setty, the deceased father of respondents. When the mortgage in favour of the prior mortgagees was subsisting the mortgagees committed default in payment of municipal taxes and the Mysore municipality filed O. S. No. 716/1932-33 for recovery of Rs. 145/- being taxes for the period from 1929-30 to 1931-32 and obtained a decree on 29-5-1933. This was in respect of door No. 223. Another suit O. S. No. 717/1932-33 was filed for recovery of Rs. 116-04 annas being the arrears of tax for the years 1929-30 to 1931-32 in respect of door No. 222. A decree came to be passed the same day i. e. , on 29-5-1933. When these decrees were subsisting and even before execution was taken up the present mortgage in question came into existence. Rest of the facts are stated in considerable detail by the trial court and in some detail by the first appellate court with regard to the prior mortgages and it is unnecessary to refer to them in this appeal. However, the terms of the mortgage deed ex. p-1 now under consideration arc necessary to be scrutinised. ( 2 ) THE deed makes reference to the mortgages in favour of virupakshaiah and tej karim sait and also O. S. No. 6/1929-30 in the court of district judge with regard to alienation of the suit properties by the mother of the mortgagors during their minority. The mortgage in favour of karim sait was made over to virupakshaiah and even in that behalf there was a litigation between them. The deed makes reference to the contention of virupakshaiah in that suit. The mortgage in favour of karim sait was made over to virupakshaiah and even in that behalf there was a litigation between them. The deed makes reference to the contention of virupakshaiah in that suit. The alienation by the mother of the plaintiff referred to in ex. p-1 appears to be the mortgage in favour of virupakshaiah and karim sait. ( 3 ) THE next important term is that the prior mortgagees i. e. , virupakshaiah and kareem sait had failed to pay the municipal taxes and for that reason the municipality was filing suits for recovery of taxes. The first floor was in possession of boraiah by virtue of a mortgage in his favour for Rs. 3,000/ -. As this boraiah was not effecting repairs, the mortgagors were likely to suffer loss and therefore they undertook to deposit the mortgage money due to him and obtain actual possession after redeeming the mortgage and the mortgagee had agreed to help them in this behalf, perhaps by paying the money required to deposit. The purpose of the mortgage could best be brought on record by re-producing the very recital in this behalf which states: they undertook to repay Rs. 3,000/- to boraiah and get an endorsement over the mortgage deed from him. Having received the remaining amount after depositing the money due to virupakshaiah and kareem sait in court they undertook to pass a receipt in that behalf. The mortgage money thus according to them was completely paid and the terms also related to repairs to be effected cither minor or major by the mortgagee or the mortgagors, as the case may be. Thus under this mortgage the municipal door Nos. 222, 223, 224, 232 and 592 were mortgaged. Rs. 1,000/- were received in cash by the mortgagors on the same day and they undertook to receive the remaining Rs. 2,000/- after possession of the ground floor was obtained. It also appears that at the time of mortgage what exactly was the amount to be paid to the mortgagors was not determined after deducting what all the amounts were to be paid towards the discharge of the prior mortgagees, for that reason they further undertook to receive the remaining money after the actual possession of the remaining properties was obtained. ( 4 ) IT is not disputed that in execution of the tax decrees door Nos. ( 4 ) IT is not disputed that in execution of the tax decrees door Nos. 222 and 223 came to be sold by the court and in execution sale it was the 2nd defendant dasarathram setty son of cheluvaraya setty who purchased them on 15-1-1935 for total consideration of Rs. 261-04 annas. The remaining 3 properties were again mortgaged on 23-8-1935 to the same 2nd defendant for Rs. 4,000/ -. It appears, initially even the two properties viz. , Door Nos. 222 and 223 were written in the mortgage deed, but later scored out. Thus the mortgage of 23-8-1935 was admittedly confined only to 3 properties. ( 5 ) ONE segu venkalaramana setty obtained a money decree in O. S. No. 627/1932-33 against the plaintiffs and in execution of that decree, 2/3rd share of plaintiffs-1 and 2 was purchased by the 2nd defendant whereas 3rd plaintiff sold away his 1/3rd share in all the three remaining properties i. e. , door Nos. 224,232 and 592. The possession of these three properties was obtained from the legal representatives of the mortgagee boraiah earlier on payment of his mortgage money of Rs. 3,000/ -. These are the brief facts necessary for the disposal of the present appeal. ( 6 ) THE plaintiffs filed the original suit for [he following reliefs; (a) decree for redemption of the mortgages on payment by the plaintiffs to the defendants Rs. 19,666-66 or such other sums, that the court may determine as the price of redemption. (b) for delivery of possession by defendants-1 and 2 to the plaintiffs of the schedule mortgaged properties bearing Nos. 222 and 223 in entirety and for delivery of possession to plaintiffs-1 and 2 of their 2/3rd share in the properties bearing Nos. 224, 232 and 592 on partition. (c) for recovery of notice charges of Rs. 100/- from defendants-1 and 2, costs of the suit, and (d) mesne profits from the date of deposit of mortgage money in pursuance of the decrees. The trial court dismissed the suit. The first appellate court also agreed with the findings of the trial court, dismissed the appeal preferred by the plaintiffs. Cross- objections filed by the 2nd respondent were also dismissed. ( 7 ) THE present appeal is now confined only to door Nos. 222 and 223. The trial court dismissed the suit. The first appellate court also agreed with the findings of the trial court, dismissed the appeal preferred by the plaintiffs. Cross- objections filed by the 2nd respondent were also dismissed. ( 7 ) THE present appeal is now confined only to door Nos. 222 and 223. In the original suit the main contention has been inter alia that chcluvaraya setty misused his position as mortgagee to gain an unfair advantage for himself by seeking to knock off the mortgaged properties and that loo for a song and deprive the mortgagors. It was his duty to satisfy the "kandayam" decrees as a mortgagee as he had considerable portion of the mortgage consideration in his hands. By this he could have averted the sale of mortgaged properties in execution of such decrees, especially when the mortgage dated 17-1-1934 was effected for the specific purpose of preventing the valuable mortgaged properties from being sold away for non-payment of house tax. He could not take advantage of his own wrong or default in not satisfying the said decrees and preventing the mortgaged properties from being sold away. The said cheluvaraya setty and his undivided sons are only the trustees and must be deemed to hold the mortgaged properties as such trustees for the benefit of the mortgagors by virtue of the principles laid down in Section 90 of the trusts act. The mortgage of 17-1-1934 stands revived and the plaintiffs have a right to redeem the properties. Both the courts below found on this particular issue that it was no part of the obligation of the mortgagees to satisfy the tax decrees obtained for the tax due for the period prior to mortgage in their favour. There is no question of Section 90 of the trusts act coming into operation and consequently disallowed this plea of the appellants by dismissing the suit. This is with regard to two properties bearing numbers 222 and 223. ( 8 ) AS for the other three door numbers, the facts arc different in as much as 2/3 rdshare was sold in execution of money decree of scgu venkatarama setty and the remaining 1/3rd share was sold to defendants. These sales were to satisfy the money decree of a stranger and when the properties were brought for sale, 2nd defendant was competent to purchase 2/3rd share of plaintiffs-1 and 2. These sales were to satisfy the money decree of a stranger and when the properties were brought for sale, 2nd defendant was competent to purchase 2/3rd share of plaintiffs-1 and 2. In that view of the matter, presently the dispute is with regard to purchase of door Nos. 222 and 223 in execution of the tax decrees by the 2nd defendant. The substantial question of law set down for determination in this appeal is "whether on facts and circumstances of the case, there was any contractual or statutory liability on mortgagee cheluvaraya setty to discharge the debts under the two decrees by the Mysore municipality"? ( 9 ) AS already mentioned, the municipal taxes under reference had fallen in arrears for the period prior to mortgagee coming into possession of the mortgaged property by virtue of the mortgage deed of 17-1-1934. It is also noteworthy that under the terms of the said mortgage, the mortgage debt of virupakshaiah and kareem sait had to be discharged. Thus even before these two mortgages were redeemed, the properties were brought for sale to recover tax dues and in execution sale 2nd defendant purchased the properties on 15-1-1935. Section 76-c of the Transfer Of Property Act is thus:"76. (a ). . . . . . . (b ). . . . . . . (c) he must, in the absence of a contract to the contrary, out of the income of the property, pay the government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession, and any arrears of rent in default of payment of which the property may be summarily sold. "it thus follows that it is the statutory duty of the mortgagee to pay the government revenue out of the income of the mortgaged property and all other charges of public nature which even covers the municipal taxes. The commencing words "during the continuance of the mortgage" are most material in this contest. Similarly, the words in sub-section (c) of Section 76 "accruing due in respect thereof during such possession" are also most material. The commencing words "during the continuance of the mortgage" are most material in this contest. Similarly, the words in sub-section (c) of Section 76 "accruing due in respect thereof during such possession" are also most material. Section 90 of the Indian trusts Act, 1882 says: "where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage. " Illustration fc) to Section 90 reads thus:" (c) a mortgages land to b, who enters into possession. B allows the government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly said to b. subject to repayment of the amount due on the mortgage and of his expenses properly incurred as mortgagee, b holds the land for the benefit of a. "illustration (c) thus applies to a case where the mortgagee in possession- wilfully allows the government revenue to fall into arrears with an ulterior motive of the land being put up for sale and he himself purchasing the land when such sale is held. Both the learned counsel have advanced arguments with reference to the obligation of the mortgagee under these two material Provisions of law. When admittedly the municipal taxes had fallen due for the period during which the mortgagee was not in possession of the mortgaged properties, whether the mortgagee had a duty and obligation to pay the decretal money and prevent the properties from being sold in execution of the decrees is the material point involved in this appeal. ( 10 ) FOR the purpose of understanding the liability, it is necessary to again refer to the terms of the mortgage deed of 17-1-1934. ( 10 ) FOR the purpose of understanding the liability, it is necessary to again refer to the terms of the mortgage deed of 17-1-1934. Even a casual reading of it only gives an indication that the mortgagors made a passing reference to the conduct of the prior mortgagees in allowing the municipal taxes to fall in arrears and nothing more. The decrees were already passed when this mortgage came into existence. The mortgagors were careful enough to state in the mortgage deed amounts due to the prior mortgagees and their liability to discharge the same perhaps with the money that the mortgagees paid to them under this mortgage and recover the properties in order to put the mortgagee in possession of the first floor or the ground floor, as the case may be. The mortgagors undertook to deposit in court having taken part of the mortgage money from the mortgagee to obtain possession of the house in question and this deposit was to be made in the court of the district judge. They also received Rs. 1,000/- in cash. Inspitc of that very significantly no mention was made in this mortgage deed about the exact decretal amount on the municipal taxes due and about the liability of the mortgagee to discharge the same. In other words, there was no contract between the mortgagors and the mortgagee that the mortgagee should pay the arrears of municipal tax of Rs. 261-04 annas that was the subject-matter of the decrees. On the very face of it, no doubt the amount was very paltry and anyone could expect such a small sum being made available to discharge the decrees. It was even open to the mortgagors themselves to pay the same when they received Rs. 1,000/- in cash from the mortgagee. For the reasons best known to them, they did not do it. Therefore, ultimately whether the law imposes an obligation on the mortgagee to discharge such earlier tax dues becomes the point for consideration. ( 11 ) A decision of the Nagpur high court in the case of jhalliram battolal v doulatsingh ballo singh. , Air 1951 Nagpur 254 refers to taccavi dues and jays down that taccavi' dues arc a charge of" a public nature within the meaning of Section 76 (c ). ( 11 ) A decision of the Nagpur high court in the case of jhalliram battolal v doulatsingh ballo singh. , Air 1951 Nagpur 254 refers to taccavi dues and jays down that taccavi' dues arc a charge of" a public nature within the meaning of Section 76 (c ). The high court held that the liability of the mortgagee to pay the charge of a public nature like taccavi is on the mortgagee conditioned by two circumstances, viz. , That it should have been possible for him to pay those charges out of the income and secondly that the liability to pay should have arisen after he entered into possession as a mortgagee. If these conditions are fulfilled, then the mortgagee in possession will not be allowed to hold for himself the advantage gained by the default in paying the government demand which he was at law bound to pay. ( 12 ) THE Calcutta high court in case of kshetra nath adhikari and others v durgapada mandal and others, 1952 ic 902 held that defendants-1 and 2 in that case were responsible for the execution of the decree for the arrears of rent even though they were for a period prior to the execution of kobala, and that, therefore the plaintiffs were entitled to recover those plots also. Relying on this decision, the learned counsel for the appellant contended that the mortgagees had a statutory duty to pay off the earlier tax arrears which they had not paid. This decision came to be considered by this court in the case of h. Subba Rao v h. d. payappa and others, 1963 Mys. L. J. supplement 1 rendered by his lordship, the chief justice. The following observations are relevant:"municipal taxes are charges of a public nature within Section 76 (c) of t. p. act. The liability of the mortgagee under Section 76 (c) being, so far as public charges arc concerned, to pay only such charges as accrue due during the subsistence of the mortgage, he commits no wrong in failing to pay the arrears which have accrued in respect of an earlier period and he cannot be said to take advantage of his own wrong in purchasing the mortgaged property in a sale held for the recovery of such arrears. In order that the mortgagee or other qualified owner should become actionable for any advantage gained by him to the derogation of the rights of the other persons interested in the property, it must be shown that he has availed himself of his position as mortgagee or qualified owner. It cannot be said that a mortgagee avails himself of his position if he purchases the property in a sale brought about for default of arrears which he is not under a duly to pay. In such a case his position is no different from that of a stranger who purchases the property under such a sale. "his lordship Justice nittoor sreenivasa rao, further observed thus:"a mortgagee does not become a trustee for the mortgagor in respect of all matters merely on account of the relationship of mortgagor and mortgagee. Before the principles of Section 90 of the trusts act can be invoked it must be shown that the advantage gained by the mortgagee is referable to some act or omission which as mortgagee he was under a duty to refrain from. "it is for this reason that the decision of the Calcutta high court (supra) was not followed by this court. ( 13 ) EVEN the Supreme Court in the case of mrutunjay pani and another v narmada bala sasmal and another, AIR 1961 SC 1353 to which both the learned counsel made reference held:"the following three conditions shall be satisfied before Section 90 of the trusts act can be applied to a case: (1) the mortgagee shall avail himself of his position as mortgagee; (2) he shall gain an advantage; and (3) the gaining should be in derogation of the right of the other persons interested in the property. The Section, read with illustration (c), clearly lays down that where an obligation is cast on the morlgagee and in breach of the said obligation he purchases the property for himself, he stands in a fiduciary relationship in respect of the property so purchased for the benefit of the owner of the property. This is only another illustration of the well settled principle that a trustee ought not to be permitted to make a profit out of the trust. This is only another illustration of the well settled principle that a trustee ought not to be permitted to make a profit out of the trust. "while only one condition is fulfilled in the case on hand, that the 2nd defendant has cerlainly gained an advantage by the purchase of 2 properties, the two other conditions to attract Provisions of Section 90 of the trusts act are conspicuously absent in as much as either in law or under contract, there was no obligation for him to pay the arrears of municipal taxes. In a later decision in the case of jayasingh dnyanu mhoprekar and another v krishna babaji patil and another, AIR 1985 SC 1646 , the Supreme Court reiterated the same proposition. It referred to illustrations (b) and (c) to Section 90 of the Indian trusts act and pointed out in para 9 of the judgment thus:"an analysis of Section 90 of the Indian trusls Act, 1882 shows that if a mortgagee by availing himself of his position as a morlgagee gains an advantage which would be in derogation of the right of a mortgagor, he has to hold the advanlage so derived by him for the benefit or the mortgagor. " ( 14 ) THE learned counsel for the appellants has urged that sufficient money was left in the hands of the mortgagee and he was possessing some funds which were part of the mortgage money when these properties were brought for sale and it was his duty to save the properties from being sold in execution and therefore if he has purchased the same in execution sale he holds the properties to the advantage of the mortgagors. In view of the settled position of law, it is difficult to accept with this contention of the appellants' counsel. It is not a question of mortgagee being in possession of funds which is even part of the mortgage money, but question is one of the obligation on the part of the mortgagee to pay the taxes that had fallen due prior to the mortgagee coming in possession of the mortgaged property. "his liability as a mortgagee" could arise only if he comes in possession of the mortgaged properly by virtue of the mortgage under Section 76 (c ). "his liability as a mortgagee" could arise only if he comes in possession of the mortgaged properly by virtue of the mortgage under Section 76 (c ). It is apparently clear from the facts of the instant case that the courts below found that the arrears of tax did not fall due on account of the default or wrongful act committed by the mortgagee to gain an unfair advantage of his possession as mortgagee. Therefore, the courts below were right in finding that the plaintiffs cannot seek possession of the properties in question by redemption as the mortgage no longer subsists. ( 15 ) AT this stage, i. a. I for amendment of the plaint is taken up for consideration and the prayer sought by amendment of the plaint is that cheluvaraya setty having taken possession of door no'. 223 on 30-1-1935 from one virupakshaiah ought to have paid the municipal taxes. He allowed door No. 223 to be brought to sale for arrears of tax and 2nd defendant herein purchased the same in court auction. Plaintiffs submit that respondents are estopped from denying the plaintiffs' title by principles of constructive trust as adumberated under Section 90 of the Indian trusts act. This amendment does not in any way advance the case of the appellants and the allegation already in the plaint covers this aspect of the matter. I do not find any ground to allow this application. Hence the same is rejected. ( 16 ) FOR the reasons aforesaid, I do not find any merit in this appeal, the same is liable to be dismissed and it is dismissed. In the circumstances, the parlies shall bear their respective costs in this appeal. --- *** --- .