1994 (8) TMI 314

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....ding on a lease. In execution a court auction for recovery of the arrears of rent, the suit-property was purchased by the petitioner in his name. The expenses incurred for the litigation till obtaining the sale certificate were all credited to the account of respondent-plaintiff. For laying coconut grove the expenses incurred were credited to the account of the respondent. Thus the consideration for the purchase as well as the improvements of the property were met with the funds of the respondent for whom the petitioner was acting as an agent and Power-of-Attorney. He, thereby, obviously had acted in a fiduciary capacity as agent of the respondent. The sale- certificate though ostensibly stands in his name but obviously he obtained it while....

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....herefore, prohibits a suit by beneficial owner or one claiming through him. Sub-section (2) mitigates against the rigour and embargo and creates an exception which provides that "nothing in this Section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that "it is liable to satisfy a claim of such third person against the real owner." Therefore, if a real owner purchases the property but the name of a third person was fraudulently and without consent of the real pu....

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....in the fiduciary capacity for the beneficial interest he had in the property as a trustee. The petitioner has acted as an agent as a cestui que trust, is a trustee and he held the property in trust for the respondent in his fiduciary capacity as an agent or trustee and he has a duty and responsibility to make over the unauthorised prohibits or benefits he derived while acting as an agent or a trustee and properly account for the same to the principal. 4. Therefore, the High Court is clearly right in its holding that the petitioner is an agent and trustee acted in the fiduciary capacity on behalf of the respondent-plaintiff as General Power-of-Attorney. He held the property in cestui que trust for and on behalf of the respondent though he....