Case: Southern Roadways Ltd., Madurai, Byits Secretary Vs. S.M. Krishnan

received after Ann Duncans death ? Not by the respondent for himself, or on his own behalf, any more than during her lifetime. " Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney. Another English case of Williams v. Pott (LR 12 Eq Cas 149), arising out of the circumstances similar to the present case was more interesting. The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother. After the agents death his heir claimed the estate. The mother (the principal) had also by then died after purporting by her will to devise the disputed lands to the defendants upon certain trusts. The claim of the plaintiff was dismissed on the plea of adverse possession. Lord Romilly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying : "The property is mine; I claim the rents, and I shall apply the rents for my own purposes. " The agent had thus lost his title by reason of his own possession as agent of the principal." 17. We wish to add that it is not every agent who is in a fiduciary position vis-a-vis his principal. For example if A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply. Likewise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise. What we want to emphasise is, in all cases of general agency, the relation may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent. It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies. Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation. 18. The crux of the matter is that an agent holds the principals property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principals title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in Narayani Amma v. Bhaskaran Pillai (AIR 1969 Ker 214 : 1968 Ker LJ 738) observed : (AIR p. 217, para 6) "The agent has no possession of his own. What is called a caretakers possession is the possession of the principal." 19. So much is, we think, established law as regards agents right to property belonging to the principal. Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions : (i) Abdul Nabi Sahib v. Bajan Sahib (AIR 1944 Mad 221 : (1944) 1 MLJ 87) and (ii) Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940). In the former case of the Madras High Court, the suit was for a permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties and performance of the religious services. The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as done. He has also set up title by adverse possession. On these claims, Kunhi Raman, J., observed: "Since the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relied upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent." 20. If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law. We have already stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non-suit the principal on the possessory title as agent. 21. The second case in Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940) referred to us is the decision of the Orissa High Court. That case dealt with the general principle that the plaintiff who is not in possession of the suit premises is not entitled to relief of injunction. The plaintiff must ask for recovery of possession. But this principle has no application with regard to dispute between the principal and agent in respect of principals property. 22. In this case, the respondents possession of the suit premises was on behalf of the company and not on his own right. It is, therefore, unnecessary for the company to file a suit for recovery of possession. The respondent has no right to remain in possession of the suit premises after termination of his agency. He has also no right to interfere with the companys business. The case, therefore, deserves the grant of temporary injunction. The learned Single Judge of the High Court in our judgment, was justified in issuing the injunction. The Division Bench of the High Court was clearly in error in vacating it.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. We wish to add that it is not every agent who is in a fiduciary position vis-a-vis his principal. For example if A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply. Likewise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise. What we want to emphasise is, in all cases of general agency, the relation may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent. It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies. Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in theThe crux of the matter is that an agent holds the principals property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principals title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in Narayani Amma v. Bhaskaran Pillai (AIR 1969 Ker 214 : 1968 Ker LJ 738) observed : (AIR p. 217, paraagent has no possession of his own. What is called a caretakers possession is the possession of the principal.So much is, we think, established law as regards agents right to property belonging to the principal. Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions : (i) Abdul Nabi Sahib v. Bajan Sahib (AIR 1944 Mad 221 : (1944) 1 MLJ 87) and (ii) Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940). In the former case of the Madras High Court, the suit was for a permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties and performance of the religious services. The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as done. He has also set up title by adverse possession. On these claims, Kunhi Raman, J.,the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relied upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent.If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law. We have already stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non-suit the principal on the possessory title asThe second case in Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940) referred to us is the decision of the Orissa High Court. That case dealt with the general principle that the plaintiff who is not in possession of the suit premises is not entitled to relief of injunction. The plaintiff must ask for recovery of possession. But this principle has no application with regard to dispute between the principal and agent in respect of principalsIn this case, the respondents possession of the suit premises was on behalf of the company and not on his own right. It is, therefore, unnecessary for the company to file a suit for recovery of possession. The respondent has no right to remain in possession of the suit premises after termination of his agency. He has also no right to interfere with the companys business. The case, therefore, deserves the grant of temporary injunction. The learned Single Judge of the High Court in our judgment, was justified in issuing the injunction. The Division Bench of the High Court was clearly in error in vacating it