Judgment :- 1. This is an appeal filed by the legal representatives of the judgment-debtor from an order in execution. The deceased judgment-debtor was the karyasthan of a Kovilagam & in that capacity he had to account for moneys collected by him to the Kovilagam. The Kovilagam filed O. S.176/1952 for recovery of the amount, and a decree was passed against the deceased judgment-debtor. The decree-holder filed an application for execution of the decree, and it was stated in an affidavit filed by him along with the application that the amount due under the decree would not.come. within the definition of 'debt' in Act XXXI of 195.8 as the liability of the deceased judgment debtor arose on account of the misappropriation by him of the amounts collected while he was the karyasthan of the Kovilagam. The appellants contended.that they were entitled to the benefit of Act XXXI of 195.8, as according to them, the liability was not a liability arising out a breach of trust. 2. The execution court held that the execution petition was not maintainable as the appellants were entitled to have the benefit of Act XXXI of 1958. There was an appeal from this order and the lower appellate court set aside the order of the execution court and has remanded the case for a fresh decision. 3. The parties are agreed that the decree was obtained against the deceased defendant on the basis of his liability to account as agent of the Kovilagam. It was contended for the appellants that even if the deceased judgment-debtor was the karyasthan of the Kovilagam and liable in that capacity to account to the Kovilagam, the liability was not one arising out of a breach of trust. In this connection reliance was placed on the ruling reported in Ratnamma v. Govindan (1960 K. L. T. 406) where a Division Bench of this court has held that a liability arising out of a breach of contract would not become one in breach of trust merely because confidence was reposed by one person in another. The facts of that case were more or less similar to the present one. There also the question related to the liability of an agent to account for the amounts collected by him on behalf of the principal, & it was held that that liability was not one arising out of a breach of trust. The facts of that case were more or less similar to the present one. There also the question related to the liability of an agent to account for the amounts collected by him on behalf of the principal, & it was held that that liability was not one arising out of a breach of trust. It cannot be stated as a matter of general proposition that an agent is under no circumstances a trustee for the principal. An agent is not generally speaking a trustee in the sense in which that expression is used in the Trusts Act. But there may be circumstances which make him a trustee, but in the absence of those circumstances it cannot be said that he is a trustee although he may be a fiduciary with certain obligations of a trustee. Lord Eldon said in Gholmon-deley v. Clinton (1821) 4 Bli. 1,96): "....there is a vast difference between things to which we give the same denomination, I mean trusts. You have a trust expressed; you have a trust implied; you have relations formed between individuals in the matters in which they deal with each other, in which you can hardly say that one of them is a trustee and the other a cestui que trust; and yet you cannot deny, that to some intents and some purposes one is a cestui gue trust and the other a trustee." Every person occupying a fiduciary character cannot be characterised as a trustee merely because he has some duties or obligations which appertain to the office of a trustee. An agent is in a fiduciary position, but this does not mean that he should not mix up with his money the sums he holds on account of the principal. That is because all the trust principles do not apply to him. The statement that a person occupies a fiduciary position means only that in some respects his position is trustee-like. Some minds are apt to imagine that when there is a fiduciary relationship of whatever type, the relationship is governed by all the principles of trust. Because there is some kind of fiduciary relationship, it does not follow that the rights and obligations of the parties are the same in all respects as those involved in a trust relationship. Some minds are apt to imagine that when there is a fiduciary relationship of whatever type, the relationship is governed by all the principles of trust. Because there is some kind of fiduciary relationship, it does not follow that the rights and obligations of the parties are the same in all respects as those involved in a trust relationship. In order that all the trust principles may be applied to a case, the nature of the fiduciary relationship must be such as to warrant the inference that it has got the fundamental character of trustee and cestui que trust relationship. It may be stated generally that an agent is a trustee when he has control of the property, which in the view of a court of equity is the property of the principal. When an agent handles or holds such property on behalf of his principal provided that he does not hold it as debtor, he is a trustee for the principal. Of course there can be no trust if the relationship between the parties is one of debtor and creditor, as in equity restitution stops where repayment begins. If the nature of the relationship falls into the class where the agent is to handle and hold the property on behalf of his principal and is not a mere debtor of the principal, the agent must keep the property separate from his own, and he is debarred from trading with it for his own profit, and he has practically all the obligations of a trustee. In contrast with this is the fiduciary situation which arises whenever the plaintiff entrusts to the defendant, a job. to be performed. Any person will find himself in such a situation if he has under taken or is under an obligation to act on another's behalf or for another's benefit or is deemed in equity to have done so. In this class of cases a fiduciary, has in the eyes of equity, a trust in the sense of employment, commission or charge. It is not necessary that any property of the principal should be involved. To this class generally belongs the relationship between the crown and its servants (see Reading v. Attorney General 1951 A. C. 507), the employer and employee, the principal and agent. It is not necessary that any property of the principal should be involved. To this class generally belongs the relationship between the crown and its servants (see Reading v. Attorney General 1951 A. C. 507), the employer and employee, the principal and agent. The attitude of the court towards a fiduciary in this category is essentially to see that he acts consistently with his undertaking. So far as agents are concerned they will always come in this category, but sometimes they would also come in the first-mentioned category. 4. Where an agent handles property for his principal it is often a difficult question to determine whether the relationship at a certain time is to be classed as a fiduciary relationship resembling in all respects the relationship of trustee and cestui qite trust. That will depend upon the terms of the agreement between the parties and the basis on which the property is intended to be held. If it is intended to be held throughout on the principal's behalf and ultimately to be yielded up either in its original form or in an altered form or with the increments it has produced to the principal, then the beneficial relationship is continuous, and it is a relationship governed by strict trust principles. "In contrast the intention may be that the agent shall have and use the property as his own; his obligation is not to pay or restore the property or money originally received, but hand over the equivalent of the property or pay a similar sum, with or without interest. The property either never has been or at some point of time ceases to be beneficially the principal's. In ascertaining the intention of the parties, the court will have regard to the wording of the contract, the conduct of the parties (especially the question whether the agent has kept the money separate from his own), mercantile usage, and any other evidence which may help to show the nature of the obligation assumed by the agent." (See 1962 Cambridge Law Journal 80). In other words, an agent who handles or holds the property on behalf of his beneficiary provided that he does not hold it as debtor, is a trustee and the liability arising out of the breach of the obligations involved in that relationship would be a breach of trust. In other words, an agent who handles or holds the property on behalf of his beneficiary provided that he does not hold it as debtor, is a trustee and the liability arising out of the breach of the obligations involved in that relationship would be a breach of trust. As an illustration, if a person were to send a oar to a dealer for sale he is, like any other agent, in a fiduciary position towards the person sending the oar for sale. He would therefore be precluded from taking any bribe from the purchaser. He would also be precluded from buying the oar for himself secretly. Before the car is sold he is a fiduciary with all the obligations of a trustee as the beneficial property in the oar is still with the principal. But from the time of the sale, however, he ceases to be a trustee in the sense that he has to hold the proceeds of the sale as a trustee, keeping them separate from his own money. The only obligation thereafter would be to pay the amount of the sale price to the principal. As the obligation is only to make good a similar amount or any other equivalent property there will be a fiduciary relationship only. There will be no trust of property but only a debt. 5. Quite apart from the question whether an agent is a trustee or not, an agent who receives 'secret profits' or any other advantage in the course of his employment by virtue of his position as agent must account for the same to the principal. S.88 of the Trusts Act makes it clear that where an agent by availing himself of his fiduciary character gets an advantage, he must account for the same to the principal, and that the obligation is in the nature of a trust. S.88 of the Trusts Act makes it clear that where an agent by availing himself of his fiduciary character gets an advantage, he must account for the same to the principal, and that the obligation is in the nature of a trust. S.88 is in the following terms: "Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained." It is not necessary to consider the question whether in respect of the advantage so obtained the agent is a trustee for the principal. That the obligation to hand over the secret profits is not in the nature of a trust is clear from Lister & Go. v. Stubbs (45 Ch. D. 1). It was held in that case that where the agent gets a sum of money or property from a third person by way of commission, rebate or reward, overcharge or bribery, he can only be compelled to account for them to the principal but that he cannot be made liable as a trustee. The facts of that case were: "The plaintiffs, a manufacturing company, employed the defendant, who was their foreman, to buy for them certain materials which they used in their business, and the defendant, under a corrupt bargain, took from one of the firms of whom he so bought large sums by way of commission, a portion whereof he invested. The plaintiffs brought an action against the defendant to recover the moneys so paid to him, claiming to be entitled to follow such moneys into the investments thereof; and they moved for an injunction to restrain the defendant from dealing with the investments or for an order directing him to bring the moneys and the investments into Court: Held .... that the relation between the defendant and the plaintiffs was that of debtor and creditor, and not that of trustee and cestui que trust, and that the plaintiffs were not entitled to the order." (See the Head Note). that the relation between the defendant and the plaintiffs was that of debtor and creditor, and not that of trustee and cestui que trust, and that the plaintiffs were not entitled to the order." (See the Head Note). Lindley L. J., in the course of the judgment said: "It is an obligation to pay and account to Messrs. Lister and Co., with or without interest, as the case may be. I say nothing at all about that. But the relation between them is that of debtor and creditor; it is not that of trustee and cestui que trust. We are asked to hold that it is which would involve consequences which; I confess, startle me." According to the Division Bench decision of this Court mentioned above the obligation of the agent to account for the secret profit being a liability arising out of an obligation in the nature of a trust under S.88 of the Trusts Act, it would be a liability arising out of a breach of trust. Whether the liability arising out of a constructive trust can be considered to have been within the contemplation of the legislature when it used the expression 'any liability arising from a breach of trust' is a matter on which I am not called upon to express any opinion. Probably there is justification for the view that the obligation in the nature of a trust is only a machinery invented by courts for doing justice between the parties by preventing unjust enrichment in cases where there is no actual trust. (See Austin W. Scott, 'Cases on Trusts', 2nd Edn., 337; Pound, 'The Progress of Law', 33 Harward Law Review 420,421; and Winfield,'Restitution', 54 Law Quarterly Review 29 at 41). 6. This being the principle which should govern the decision of this case, was the lower court right in remanding the case? The lower court has stated in its order: "It is definitely alleged in the affidavit filed along with the execution application that the amount decreed was for the amount taken by the defendant from the Kovilakam'kizhi'. Both the appellant and the respondents are at one regarding the meaning of the expression 'kizhi' namely the amount which belongs to the Kovilakam remaining in the hands of the defendant. In the counter filed by the respondents they have denied the nature of the liability in para 2 of their counter. Both the appellant and the respondents are at one regarding the meaning of the expression 'kizhi' namely the amount which belongs to the Kovilakam remaining in the hands of the defendant. In the counter filed by the respondents they have denied the nature of the liability in para 2 of their counter. It was further stated in para 2 of the counter that the liability in question has no connection with any'kizhi' amount." Now if it is correct that the amount which remained in the hands of the deceased judgment-debtor belonged in specie to the Kovilagam then the deceased judgment-debtor was certainly a trustee for that amount to the Kovilagam and the failure to hand over the same to the Kovilagam at the appropriate time was the breach of a liability arising out of trust. But I am not sure whether the learned judge meant to say that the amount retained by the deceased judgment-debtor, belonged in specie to the Kovilagam. I am not certain whether the learned judge has understood the distinction between the two. We are accustomed to speak of the money of a person lying in bank. It only means the obligation of the bank to pay a certain amount. It does not mean that the person owns any particular amount in the bank. Be that as it may, there was no investigation as regards this question by the execution court and the statement made by the learned judge that the amount belonged to the Kovilagam was not based upon any evidence. The learned judge is certainly right when he says that the court below should have come to the conclusion one way or other on the basis of some evidence let in the case. In the absence of any evidence as to custom, practice, or agreement between the parties, it was not possible for the judge to say one way or other whether the deceased judgment-debtor was a trustee for the amount. In these circumstances, I think that he was justified in remanding the case to the execution court for a fresh decision. 6. In the result, the appeal is dismissed. I make no order as to costs. Dismissed.