BASSAKUTTY METHAR AMINA OOMMA Vs. METHIANKUTTY METHAR

JUDGEMENT

(1.) The liability here sought to be enforced was the obligation of a party receiver to pay to court the income realised by him from the properties committed to his charge and in respect of which obligation he had executed a security bond. We have no doubt that the liability is a liability arising out of a breach of trust within the meaning of clause (iii) of the exclusions from the definition of, "debt" in S.2(c) of Act 31 of 1958 and that therefore the liability was not a debt within the meaning of the Act to be scaled down thereunder. The word, "trust" is not used in the clause in question in the restricted sense of a trust as defined in S.3 of the Indian Trusts Act, but has a wider connotation. A person can be guilty of criminal breach of trust as defined in S.405 of the Indian Penal Code without his being a trustee and without there being a trust within the meaning of the Indian Trusts Act. A receiver of court is we should think a trustee even within the meaning of the Indian Trusts Act in respect of the income realised by him from the property committed to his charge. But, it is not necessary to go so far to hold, as we have done, that his failure to perform his obligation is a breach of trust within the meaning of Act 31 of 1958. "That a receiver is a trustee for the parties interested of any money due from him as receiver and not accounted for by him" is well recognised (Ker on Receivers thirteenth Edn. P. 225) and that is enough to make his failure to discharge his obligation as receiver a breach of trust attracting the clause in question That an obligation analogous to that of a trustee is sufficient to attract the clause was laid down in Subramania Ayyar v. Sivakami Achi AIR 1944 Mad. 256 in construing the identical clause in Madras Act 4 of 1938; and, Linga Reddi v. Subarami Reddi AIR 1942 Mad. 202 on which the learned single judge placed reliance is clearly distinguishable in that what was being there enforced was not the liability of a receiver but the liability of a person who had stood surety for the fiduciary. And surely the nature of the fiduciary's obligation does not change when he has given security for the due performance of his duties and what is being enforced against him is the security he has given.

(2.) We think that the learned District Judge was right in disallowing the respondent Judgment debtors' claim to have their liability (which we might remark is not a personal liability, they being themselves not receivers but only the legal representatives of the receiver) scaled down under the provisions of Act 31 of 1958.

(3.) In the result we allow this appeal with costs, set aside the decree of the learned single judge, and restore that of the District Judge.