Judgment

SHAH, J. (For himself and Gajendragadkar, C.J.I.) : An action instituted by Phanindra Mohan Majumdar-hereinafter called the plaintiff on the original side of the High Court of Calcutta for a declaration that he "is the sole proprietor of and absolutely entitled to a boarding house business carried on in the name and style of International Home at 42, Harrison Road, Calcutta, and for an order for delivery of possession of the boarding house business" was decreed by a Single Judge, of the High Court, and the decree was confirmed in appeal under cl. 15 of the Letters Patent by a Division Bench of the High Court.

2. Surasaibalini Debi a trustee appointed under a deed of settlement dated August 23, 1952 executed by the defendant Prabhendra Mohan Gupta her father, was impleaded as a party on the death of the defendant has appealed to this Court with special leave.

3. The case of the plaintiff set out in his plaint was that in or about the year 1941 he took a lease of No. 42, Harrison Road, Calcutta and had started a boarding house business in the premises under the name and style of International Home, that he conducted the business with his own funds which belonged to him absolutely from the date of its inception that he was personally managing the business and utilising the profits thereof for his own purposes, that when he started the business he was in the employment of the Court of Wards and by the Service rules governing the said employment he was not permitted to start or carry on any trade or business of his own and on that account it was arranged with the defendant Prabhendra Mohan Gupta hereinafter called Gupta -that the latter be held out as the nominal owner of the said business and pursuant to that arrangement the lease of the premises for the business was taken in the name of Gupta and licences from the police and the municipal authorities were also taken in the name of Gupta, that from the very inception he was in possession and management of the business and exercised all rights of ownership over the same being absolutely entitled thereto, that Gupta had never made a claim to title in the business that towards the end of the year 1948 he - the plaintiff - suffered a serious illness and was advised to leave Calcutta temporarily, that on or about December 8, 1948 he entrusted the management of the business of the boarding home to Gupta with all its assess on the understanding that upon his return to Calcutta, Gupat would hand over to him possession and management of the said business and of all papers, documents and books of account relating thereto and render accounts of the receipts and disbursements during the period of his management, that in or about December 1949 he returned to Calcutta and occupied one of the rooms in the boarding house and called upon Gupta to hand over possession and management of the business, and to return all papers, document, books of account relating thereto and to render accounts of the management of the business by Gupta during his absence but the latter wrongfully and in breach of the trust and confidence reposed in him refused to hand over posssssion and management of the business and moreover wrongfully denied the plaintiff s right, title and interest in the premises and in the business.

4. Gupta by his written statement submitted that the business was started by him with his own funds in premises obtained on leave by him and that he had appointed the plaintiff as his manager or agent in respect of the business. He asserted that he was the real owner of the business, and denied that the management of the business was entrusted to him by the plaintiff when the latter left Calcutta on account of his illness on December 8, 1948 or at any time. He also denied that there was any understanding that he Gupta would hand over the management or possession of the business to the plaintiff as alleged.

5. On these pleadings the only substantial issue raised by the Trial Court was about the