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13. I dismiss the suit with costs of the first, second, third, fourth and fifth defendants on the plaintiff. Let there be a declaration that the shares, if any, of the fourth and fifth defendants, in the property are not affected by Ex. A. Chandavarkae, J.

1. After I had delivered judgment as above, Mr. Inverarity, the learned Counsel of the plaintiff, desired that I should hear arguments on the question whether the mortgages in favour of the first defendant created by the trust deed, Ex. A, were void under Section 53 of the Indian Trusts Act and affected to that extent the validity of the deed so as to entitle the plaintiff to an interest in the property beyond the receipt of Rs. 80 a month for maintenance. That question had not been raised at all during the hearing; but a few days after the hearing had concluded and while the suit stood over for judgment, Mr. Inverarity saw me in my chambers and mentioned that he had forgotten to argue the question under Section 53 of the Indian Trusts Act. He then simply drew my attention to the section without any argument and waived his right to be present when M. Strangman might, if so minded, reply on it. Accordingly I sent for Mr. Strangman, who said that he had not considered the question at all and intimated that, if he had anything to submit, he would argue the question later on. I waited for some days after that but Mr. Strangman not having appeared to argue, I formed my own opinion on the question and embodied it briefly in the judgment delivered as above. I have heard a very short argument from both counsel since and the conclusion I have arrived at on the question raised by Mr. Inverarity is as follows.

2. According to Ex. A, the first defendant is entitled to interest on Rs. 4,333 at 6 per cent per annum out of the income of the property, the said sum of Rs. 4,333 having been, as recited in the document, paid by him to the mortgagee of the property. Further, interest at 6 per cent per annum is charged on the income of the undivided share of Ashidbai in the said property in respect of the debt of Rs. 1,700 which was due at the date of Ex. A from the plaintiff Ashidbai to the first defendant. The interest on either is made payable to the first defendant during the life-time of Ashidbai. After her death and on the younger of the two minor sons of the first defendant attaining the age of 18 years the trustees are to sell the property and out of the proceeds pay off the mortgage and to pay to the first defendant the two sums, Rs. 4,333 and Rs. 1,700 and all interest due thereon, and divide the balance among the two minor sons of the defendant as beneficiaries. Section 53 of the Indian Trusts Act has no application here. That section, in my opinion, strikes at transactions entered into by a trustee for his own profit after he has accepted the trust and while he is performing the duties of the office. But it does not render void a mortgage in favour of a person created before he becomes trustee of the property by the deed of trust itself as a condition of the trust imposed by the settlor. The word "trustee" is defined in Section 3 of the Indian Trusts Act as one who accepts the confidence; and no confidence is accepted until the deed creating the trust has been executed and the relationship of trustee and cestui que trust created thereby. The section embodies a well-known rule of the Courts of Equity in England, which is that '' a person in a fiduciary position is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict." (See per Lord Herschell in Bray v. Ford [1896] A.C. 44). understand the qualification "unless otherwise provided" to (Sic) nless otherwise provided by the instrument of trust." That (Sic) fication is embodied in Section 36 of the Indian Trusts Act, according to which "in addition to the powers expressly conferred by this Act and by the instrument of trust and subject to the restrictions (if any) contained in such instrument, and to the provisions of Section 17, a trustee may do all acts which are reasonable and proper for the realisation, protection or benefit of the trust property." See also Section 11 of the Act, according to which "a trustee is bound to fulfil the purpose of the trust and obey the directions of the author of the trust given at the time of its creation."

4. Upon the whole, I am unable to hold that the trust deed, Ex. A, is void wholly or partially because of the provisions as to the mortgagees in favour of one of the trustees, viz. the first defendant. It is true that those provisions in the trust deed place the first defendant in a position where his duty as trustee is likely to conflict with his interest as a mortgagee. It is his duty to act for the benefit of the trust. If in the discharge of that duty he acts otherwise, that may be a ground for his removal from the office of trustee. But the provisions in his favour would remain all the same valid and binding on the settlors and the beneficiaries, as they were the result of a contract entered into before the first defendant was clothed with his fiduciary character as trustee in relation to the trust estate; and such a contract is not within the purview of Section 53 of the Trusts Act,