RATNAMMA Vs. GOVINDAN

JUDGEMENT

(1.) This appeal arises from an order in execution of the decree in O.S. No. 112 of 1950 of the District Court of Trivandrum, dismissing an application made by the fourth defendant for permission to discharge the debt under the Kerala Agriculturists Debt Relief Act, XXXI of 1958. The decree holder opposed the application contending that the liability was one arising out of a breach of trust. This objection was upheld by the court below and the application was dismissed. The fourth defendant has therefore preferred this appeal.

(2.) It is necessary to state a few facts for appreciating the question arising for decision, namely, whether the debt is one exempted from the operation of Act XXXI of 1958. The defendants are the legal representatives of Sankaran Padmanabhan (deceased), the eldest brother of the decree holder. He had executed a will bequeathing properties to defendants 4 to 6. Sankaran Padmanabhan was looking after and collecting the income of the decree holders properties from the year 1111 till his death in 1125, and the suit was instituted for recovery of the amounts collected by him. After the death of Sankaran Padmanabhan there was an application for probate of his will and the receiver appointed in probate proceedings had deposited in court the collections made by him. The decree holder attached the said amount when the fourth defendant filed the application for discharge of the debt under Act XXXI of 1958. It was contended by the decree holder that the amount for which the decree was obtained was a liability arising out of a breach of trust and was therefore exempt from the operation of the Act. This objection was upheld, and the only point arising for decision in this appeal is whether the debt is one arising out of a breach of trust.

(3.) The material averments in the plaint of which a copy was furnished to us at the hearing were that ever since the plaintiffs tarwad because divided in 1111 Sankaran Padmanabhan was looking after his properties and taking the income as his agent, that he died in 1125 and that when the plaintiff returned from England where he was prosecuting his studies it was found that Sankaran Padmanabhan had left accounts showing a sum of Rs. 10673 Ch. 13 as due to the plaintiff. It was also stated in the plaint that Sankaran Padmanabhans status as the plaintiffs agent terminated on his death and that the cause of action for the suit arose on 14-3-1125, i. e., the date on which he died. The question is whether on these facts it can be held that the liability of Sankaran Padmanabhan is one arising out of a breach of trust. The decree holders contention is that the words breach of trust should be construed in a popular sense and not in the strict terms of the Indian Trusts Act. It is urged that it was as a result of the trust reposed by the decree holder in Sankaran Padmanabhan that he was asked to look after the properties and collect the income and that the liability should therefore be treated as one arising out of a breach of trust. We are unable to accept the argument. Parties enter into contracts as a result of mutual confidence or trust, but it does not follow that liability, if any arising out of such contracts would be one out of a breach of trust. The Indian Trusts Act refers to cases of express trust as well as obligations in the nature of trusts. We are of opinion that liabilities resulting from obligations in the nature of trusts are also excluded from the operation of the Act but that the clause breach of trust cannot be construed in such a wide manner as to include any liability arising from a transaction entered into on account of the confidence or trust reposed by one of the parties in the other.