HIGH COURT OF KERALA
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(1.)This appeal arises in execution of a final decree for partition between two Ezhava brothers, the decree holder appellant, and the judgment debtor respondent. It was common ground, that after the death of their father Mundan, they were tenants in common, or coowners. The respondent made alienations of common property including the appellant's share and had made realisations, a half share of which was decreed to the appellant against the respondent subject to certain items of mutual account. The respondent appealed to the High Court against the final decree and the appellant filed a memorandum of objections. The High Court resettled the accounts and allowed the appellant to recover from the respondent, the sum of Rs. 1950 - as 9-ps. 8 with interest at 6% per annum from the date of the final decree.
(2.)When execution was levied, the respondent invoked the provisions of the Kerala Agriculturists Debt Relief Act, 1958, Act 31 of 1958, and the appellant contended that the liability of the respondent having arisen out of breach of trust within the meaning of S.2(c)(iii) of the Act is not a debt and therefore the Act is not applicable. The execution court repelled the contention of the appellant. Before the lower court, the appellant put his case also on the ground, that the amount was payable to him by the respondent by way of owelty. This was negatived and in this Court learned counsel for the appellant relied only on the exception is S.2(c)(iii) in the definition of debt in the Act.
(3.)Even if one coowner in possession of the whole of the common property is not a trustee for the other coowners, different considerations come into play when one coowner, not authorised to deal with more than his share of the common property, transfers such property, makes realisations thereby, and holds them for himself. Under S.90 of the Indian Trusts Act, when a coowner by availing himself of his position as such, gains an advantage in derogation of the rights of the other coowners, he must hold the advantage so gained for the benefit of the others and under S.95 of that Act, he is subject to the same liabilities and disabilities as if he were a trustee for the person for whose benefit ha holds. So there is little difficulty in holding, that the respondent was standing in a fiduciary relationship towards the appellant, so far as the realisations in excess of his share were concerned, that it may well be said, that his liability which arose from his failure to account, arose from breach of trust. In Peer Mohideen Rowther v. Asia Bivi, AIR 1934 Mad. 686 , it was held that when one coowner dealt with his coowner's share and assumed responsibility in regard to it, and further acted as guardian, his conduct created a fiduciary relationship so as to be treated as a trustee for the other coowner. The fact that he was also the guardian of the other coowner, who was a minor, though an additional feature, does not affect the principle now under consideration. In my view the application of S.2(c)(iii) may well extend to obligations in the nature of trusts. This seems to be the view of the division bench also, which decided Ratnamma v. Govindan 1960 KLT 406 . So I hold that the liability in so far as it is traceable to or may be traced to the realisations under the alienations in excess of his share, arose from breach of trust.
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