JUDGMENT Balakrishna Menon, J. 1. In this appeal against a preliminary decree for accounting the defendant challenges the finding of the lower court that he was an agent of the plaintiffs liable to account for the profits received in carrying on business on their behalf. A question also as to whether the defendant is a constructive trustee under section 88 of the Indian Trusts Act liable to account to the plaintiffs also arises for decision. The plaintiffs are the widow and the minor children of one K. S. Raman who died on account of a heart attack on 2nd November 1973. Raman had a prosperous trade in stationery goods at Pattambi. He had also wholesale and retail agencies for sale of the products of various companies such as the Tata Oil Mills, Godrej Soap Company, Kerala Soaps and Oils, Reckitt Coleman of India Ltd., Colgate Palmolive India Ltd., Fargo Sales, Spencer and Company, Western India Match Company, A.S.R. Traders and Agency, Parry and Company, Mahatma Gandhi Perfumery Works etc. Raman had also two cars and a lorry for use in his business. The first plaintiff was only 35 years old at the time of Raman's death. Plaintiffs 2 to 6 were minors even on the date of the suit. The defendant is Raman's elder brother. He was carrying on a piece-goods business at Pattambi. The plaintiffs, a young widow and her minor children, were in a desperate situation on the sudden death of Raman on 2nd November 1973. The defendant undertook to carry on the business on behalf of the plaintiffs and from 3rd November 1973 onwards he was conducting Raman's business until 21st July 1975 when he returned the keys of the business premises to the first plaintiff through a common friend examined in this case as P.W. 2. A general power of attorney (Ext. A-4) was executed by the first plaintiff to the defendant authorising him to represent her in all the business dealings in respect of the trade. Raman was conducting business in a rented building. Shortly after the execution of the power of attorney (Ext. A-4) the defendant shifted the business to his own building retaining also the rented premises for use as godowns. The defendant had received amount due under policies of insurance taken by Raman on the strength of the power of attorney Ext. A-4. Raman was conducting business in a rented building. Shortly after the execution of the power of attorney (Ext. A-4) the defendant shifted the business to his own building retaining also the rented premises for use as godowns. The defendant had received amount due under policies of insurance taken by Raman on the strength of the power of attorney Ext. A-4. He had also sold the cars and the lorry and the amounts received are misappropriated. The liabilities appertaining to the business were not paid. Revenue recovery proceedings were started against the plaintiffs for arrears of tax due to the Government. The plaintiff's were compelled to pay the tax from other sources. It was at this stage that the defendant returned the keys of the godowns and the business premises to the plaintiffs on 21st July 1975. The plaintiffs issued notices Exts. A-1 and A-2 to the defendant calling upon him to account for the profits of the business carried on by him as an agent of the plaintiffs and on his failure to account, the suit was instituted for rendition of accounts and for recovery of the amounts found due from him. The defendant is sought to be made liable to account as an agent of the plaintiffs. He denied his liability as an agent. According to him on the death of his younger brother Raman the business was carried on by his widow, the first plaintiff, and the defendant was only helping her out of humanitarian considerations. He denied having received any amounts on behalf of the plaintiffs and prayed for dismissal of the suit. 2. The trial court on a consideration of the documentary and oral evidence adduced in the case found that the defendant was carrying on the business as an agent of the plaintiffs and a preliminary decree is passed for accounting relating to the business and other transactions carried on by the defendant on behalf of the plaintiffs. 3. Section 182 of the Indian Contract Act defines an agent as a person employed to do any act for another or to represent another in dealings with third persons. Section 186 enacts that the authority of an agent may be, express or implied and under section 187 an authority is said to be implied when it is to be inferred from the circumstances of the case. Section 186 enacts that the authority of an agent may be, express or implied and under section 187 an authority is said to be implied when it is to be inferred from the circumstances of the case. The relationship of agency arises whenever one person called the 'agent' has authority to act on behalf of another called the 'principal' and consents so to act-vide Syed Abdul Khader v. Rami Reddy AIR 1979 SC 553 . In the words of Lord Cranworth: "No man can become the agent of another person except by the will of that other person. His will may be manifested in writing or orally, or simply by placing another in a situation in which, according to ordinary rules of law, or perhaps it would be more correct to say, according to the ordinary usages of mankind, that other is understood to represent and act for the person who has so placed him, but, in every case, it is only by the Will of the employer that an agency may be created." [Polev. Leask 1860 (54) E.R. 481)]. In Garnac Grain Co. Inc. v. H.M.F. Fame and Fairclough Ltd., 1967 (2) All E.R 353. Lord Pearson Stated: "The relationship of principal and agent can only be established by the consent of the principal and the agent. They will be held to have consented if they have agreed to what amounts in law to such a relationship, even if they do not recognise it themselves and even if they have professed to disclaim it........But the consent must have been given by each of them, either expressly or by implication from their words and conduct." Referring to the above passage Lord Wilberfbforce stated in Branwhite v. Worcester Finance Ltd. 1969 (1) AC 552. "The significant words, for the present purpose, are 'if they have agreed to what amounts in law to such a relationship.' These I understand as pointing to the fact that, while agency must ultimately derive from consent, the consent need not necessarily be to the relationship of principal and agent itself (indeed the existence of it may be denied) but may be to a State of fact upon which the law imposes the consequences which result from agency. It is consensual not contractual. So interpreted, this formulation allows the establishment of an agency relationship in such cases as the present." 4. It is consensual not contractual. So interpreted, this formulation allows the establishment of an agency relationship in such cases as the present." 4. The large volume of evidence adduced in the case and adverted to by the court below leaves no room for doubt that the defendant was constituted as an agent of the plaintiffs for continuing the business left behind by Raman. Ext. A-4 is a general power of attorney executed by the 1st plaintiff in favour of the defendant on 24th November 1973 authorising him to do all acts on behalf of the 1st plaintiff for conducting the business. Exts. A-5 to A-107 are the correspondence between the Tata Oil Mills Ltd. and the defendant on behalf of "K. S. Raman Sons". Exts. A-108 to A-132 are similar correspondence between Godrej Soap Company and the defendant on behalf of "K.S. Raman Sons". Exts. A-138 to A-155 are correspondence between the Reckitt Coleman of India Ltd. and the defendant wherein also the defendant had acted on behalf of "K. S. Raman Sons". There were similar correspondence with other companies with whom Raman had business dealings. The defendant examined as D. W. 1 has admitted that he was signing all the correspondence on behalf of the plaintiffs. As per Ext. A-5 the defendant on behalf of "K. S. Raman Sons" had informed the Tata Oil Mills about the death of his brother and had requested them to advice the formalities to be complied with for further dealings with the company. Exts. A-108 A-115 A-134, A-156 and A-209 are similar letters by the defendant to several other companies with which late Raman had dealings. Exts. A-159 and A-160 are letters addressed by the defendant to the State Bank of Travancore and the Life Insurance Corporation. The order forms such as Exts. A-8, A-9, A-22, A-28, A-72, A-73 and A-152 to A-154 for supply of goods to companies of which Raman had agency are all signed by the defendant. Exts A-13 A-15, A-37, A-80, A-129, A-172 and A-145 to A-148 stock statements in respect of agencies forwarded to the different companies are also signed by the defendant. Ext A-171 dated 5th December 1973 is a copy of the letter written by the defendant to the Post Master,. Pattambi forwarding a copy of the power of attorney (Ext. A-4) and requesting delivery of all registered letters and money orders to him In Ext. Ext A-171 dated 5th December 1973 is a copy of the letter written by the defendant to the Post Master,. Pattambi forwarding a copy of the power of attorney (Ext. A-4) and requesting delivery of all registered letters and money orders to him In Ext. A-109 letter dated 19th November 1973 by the defendant to the Godrej Soaps Pvt. Ltd. it is stated that he has taken all necessary steps for changing the business name as "K. S. Raman Sons". In Ext. A-134 statement under the Drugs Rules submitted by the defendant he has admitted that he is the person in charge of the shop It is unnecessary to refer to all the documents produced to prove an implied agency. In Ext. A-3 reply notice it was the defendant's case that he was carrying on the business under the supervision of the 1st plaintiff and he had settled accounts on 20th July, 1975. The defendant examined as D.W. 1 has however given a different version that he was only helping the first plaintiff in carrying on the business through her paid employees. P.W. 1 is the first plaintiff. She has spoken about the circumstances under which the defendant was entrusted to carry on the business on behalf of herself and her children. P.W. 2 is an advocate of the Pattambi Bar and is a common friend of late Raman and the defendant. It was through P.W. 2 that the keys of the business premises were handed over by the defendant to the 1st plaintiff. P.W. 2 has spoken that the business was carried on by the defendant after the death of Raman. P.W. 3 is the wholesale godown clerk and P.W. 5 is a person who writes the accounts of the business. P.W. 4 is a common friend of late Raman and the defendant and P.W. 6 is a merchant who carries on business in a neighbouring shop-room. All these witnesses have spoken in support of the plaintiffs' case that it was the defendant who had been carrying on the trade of late Raman after his death on behalf of the plaintiffs. Ext. A-211 cheque book of "K. S. Raman Sons" contains cancelled cheques under the signature of the defendant. Ext. All these witnesses have spoken in support of the plaintiffs' case that it was the defendant who had been carrying on the trade of late Raman after his death on behalf of the plaintiffs. Ext. A-211 cheque book of "K. S. Raman Sons" contains cancelled cheques under the signature of the defendant. Ext. A-161 is a letter by the defendant to the Assistant Branch Manager of the Life Insurance Corporation of India, Ottappalam for payment of the amounts due under a policy of insurance held by Raman to the defendant. On a consideration of the evidence in the case we have no doubt that the defendant was carrying on the business of late Raman as the agent of the plaintiffs from 3rd November 1973 to 21st July 1975 on which date he returned the keys through P.W. 2. The general power of attorney Ext. A-4 authorised the defendant to act on behalf of the first plaintiff in all matters relating to the business. There is thus the creation of an express agency and at any rate the overwhelming documentary evidence in the case would clearly show an implied agency under which the defendant was carrying on business on behalf of the plaintiffs. 5. On the facts and circumstances of the case disclosed by the evidence the defendant had also a fiduciary character to protect the interests of the plaintiffs and was hence a constructive trustee for the plaintiffs under section 88 of the Indian Trusts Act. Almost on similar facts a Division Bench of the Andhra Pradesh High Court in Abdul Razack v. Mohammed Rahamatullah AIR 1964 A.P. 522 inferred a constructive trust under section 88 of the Indian Trusts Act. The Division Bench, referring to section 88 of the Indian Trusts Act, stated thus at page 525: "The principle, however, is quite clear, in that a person who is in a fiduciary position and is bound to protect the interests of another person and who takes advantage of the same and makes profit or derives benefit or acts in any manner adverse to the interests of that person he would be liable to that person or holds the benefit as a trustee of that person whose property he had utilised or against whose interests he had acted. The principle embodied in that section is wide. The principle embodied in that section is wide. It embraces all cases of dealings entered into by the person under circumstances in which his own interests may be adverse to that of the beneficiary. This section also was held not to be exhaustive and is wide enough to cover the case of those transferees who had taken the property with notice of the transferor's defective title." In Lewin's Practical Treatise on the Law of Trusts, Fifteenth Edn. it is stated at page 155: "A constructive trust is raised by a Court of equity wherever a person, clothed with a fiduciary character, gains some personal advantage by availing himself of his situation as trustee; for as it is impossible that a trustee should be allowed to make a profit by his office, it follows that so soon as the advantage in question is shown to have been acquired through the medium of a trust, the trustee, however good a legal title he may have, will be decreed in equity to hold for the benefit of his cestui que trust." Again at page 161 it is stated: "The principle upon which a court of equity elicits constructive trusts might be pursued into numerous other instances; as if a factor, agent, partner, promoter of a company, or other person in a fiduciary position, acquire any pecuniary advantage to himself through the medium of his fiduciary character, he is accountable as a constructive trustee for those profits to his employer or other person whose interest he was bound to advance; but unless the money was originally that of the principal it cannot be said to be his until a judgment or order has been obtained." Hanbury in his text on Modern Equity, Eighth Edn. states at page 226: "It may be said that a stranger who gets into possession of trust money, knowing it to be such, is not rendered liable as a trustee unless either he knew of Some dishonest design on the part of the trustee who confided it to his keeping, or he himself oversteps the character of agent, by doing things with the money that only a trustee should do." In Kathoom Bi v. Abdul Wahab AIR 1939 Mad. 313 a Division Bench consisting of Leach, G. J. and Abdur Rahman, J. stated at page 315: "A trustee is not permitted to make a profit out of his trust and a guardian of a minor is in the position of a trustee when in possession of the minor's property. In 1737 (1) Atk 489 = 26 ER 310 Lord Hardwicke observed that where a person, whether a father or a stranger, enters upon the estate of an infant and continues the possession the court will consider such person as a guardian of the infant. In 1744 (3) Atk 124 = 26 ER 875 Lord Hardwicke declared that the court will decree an account from the time the infant's title accrued, 'for every person who enters on the estate of an infant enters as a guardian or a bailiff,' and in 1797 (7) TR 386 = 101 E R 1034, Lord Kanyon, C.J. said that nothing can be clearer than that an infant may consider whoever enters on his estate as entering for his use. This principle has many times been affirmed and is now embodied in the Indian Trusts Act. Section 88, Trusts Act, provides that where a trustee, executor, partner, agent, director of a company, legal adviser or other person bound in 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." 6. On the facts of the case and the principles adverted to above, we have no doubt that the defendant is a person bound in a fiduciary character to protect the interests of the plaintiffs and he is under section 88 of the Indian Trusts Act bound to account for the profits received in running the business left behind by late K. S. Raman. The appeal fails and is dismissed with costs.