KUNHI Vs. SANKARAN

JUDGEMENT

(1.) I consider that the courts below were right in holding that the obligation resulting in the decree under execution arose out of a breach of trust and that therefore liability under the decree came within clause (iii) of S.2(c) of Kerala Act XXXI of 1958 and was not a debt within the meaning of the Act. The obligation arose out of a partition in a Marumakkathayam family in which a male member agreed to make a house built with his personal funds available for partition and allotment to one of the branches on condition that he was to have a right of residence therein and that, on his death, that branch was to pay his wife and children the sum of Rs. 300/-, the price of the house, as a charge on the property. This was accepted by the members of the branch in question, and I see no difficulty in regarding the transaction as creating a trust in favour of the wife and children. In fact it seems to me that it is only on this basis that the wife and children, who are strangers to the partition deed, could have obtained the decree under execution against the members of the branch. I dismiss the appeal with costs.