Judgment :- 1. The first defendant's claim that she is entitled to the benefits of the Kerala Agriculturists' Debt Relief Act (Act XXXI of 1958), has given rise to this appeal. Her application under that Act was opposed by the decree-holder on several grounds. Some of the objections raised by the decree-holder were heard as preliminary points and the execution Court overruled those objections. The correctness of the order of the execution Court overruling these objections has been challenged by the decree-holder in the present appeal. 2. When the appeal came up for hearing, two points were raised on behalf of the decree-holder appellant and these are (1) the amount of mesne profits due from the first defendant is not a debt as defined in the Kerala Agriculturists' Debt Relief Act and (2) the liability of the first defendant is one arising oat of a breach of trust and that such liability is excluded from the scope of the Agriculturists' Debt Relief Act. 3. The properties involved in the suit belonged to the plaintiff and the first defendant as co-owners and the suit was for partition and recovery of the plaintiff's share in the properties. As per the final decree passed in the case, plaintiff is entitled to recover from the first defendant the mesne profits due in respect of the plaintiff's share in the properties for the period from the date of the suit up to the date of obtaining possession of her share of the properties. The question for consideration is whether the amount thus decreed against the first defendant is a debt as defined in the Kerala Agriculturists' Debt Relief Act. For the purpose of the Act the word 'debt' has been defined in clause (c) of S.2. The question for consideration is whether the amount thus decreed against the first defendant is a debt as defined in the Kerala Agriculturists' Debt Relief Act. For the purpose of the Act the word 'debt' has been defined in clause (c) of S.2. The relevant portion of that definition runs as follows: "debt" means any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act, whether payable under a contract or under a decree or order of any Court, or otherwise, and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists' Repayment of Debts Act (1955), or the Travancore-Cochin Indebted Agriculturists' Relief Act (1956); but does not include" The decree in this case was passed prior to the passing of the Kerala Agriculturists' Debt Relief Act and the first defendant's liability for the payment of the mesne profits due to the plaintiff is a liability incurred under this decree. Thus prima facie, the mesne profits due from the first defendant would be a debt as defined in the Act if it is found that the first defendant is an agriculturist as defined in the Act. The learned counsel for the appellant argues that the mesne profits due to the plaintiff really represent the accumulated profits of her share of the properties and that such profits form part of the assets directed to be partitioned under the decree. We do not see much force in this argument. The decree does not direct any division of the mesne profits. The decree merely directed the partition of the properties scheduled to the plaint. It was because the first defendant continued to maintain her wrongful possession of the plaintiff's share of the properties that the first defendant was made liable for the mesne profits due in respect of that share. It is obvious that the mesne profits thus decreed is the mesne profits as defined in clause (12) S.2 of the Code of Civil Procedure. It is obvious that the mesne profits thus decreed is the mesne profits as defined in clause (12) S.2 of the Code of Civil Procedure. That definition is as follows: Mesne profits' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence has received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession." Such being the scope of the expression 'mesne profits', it is difficult to hold that the decree for mesne profits is not a debt as defined in the Kerala Agriculturists' Debt Relief Act. It follows, therefore, that the first point urged on behalf of the appellant has to fail. 4. Then there is the second contention urged on behalf of the appellant that the first defendant's liability for mesne profits falls under clause (iii) of S.2 (c) of the Kerala Agriculturists' Debt Relief Act and as such it is a liability excluded from the scope of the Act. What is excluded under that sub-clause is a liability arising out of a breach of trust. Plaintiff can invoke the aid of this sub-clause only if it is made out that her claim as against the first defendant arose out of a breach of trust. The pleadings in the case do not lend any support to such a contention. When the suit was instituted, the plaintiff had no case that the first defendant was holding the properties in trust for the benefit of the plaintiff also and that the first defendant had committed a breach of her obligations arising out of a fiduciary relationship. On the other hand, the suit proceeded on the basis that the first defendant was unauthorisedly retaining possession of the properties and that she should be made answerable for mesne profits for her wrongful possession of the properties. In view of such a stand taken by the plaintiff, it is not now open to her to take up an entirely different position and to contend that the first defendant was holding the plaintiff's share of the properties as a trustee for the plaintiff. Plaintiff and the first defendant were co-owners in respect of the suit properties. In view of such a stand taken by the plaintiff, it is not now open to her to take up an entirely different position and to contend that the first defendant was holding the plaintiff's share of the properties as a trustee for the plaintiff. Plaintiff and the first defendant were co-owners in respect of the suit properties. Since the first defendant was in possession of the entire properties, she was answerable to the plaintiff for the profits due from the plaintiff's share of the properties. But this liability does not arise on account of any fiduciary relationship as between the plaintiff and the first defendant. Thus there is no substance in the contention urged on behalf of the appellant that the first defendant's liability for the mesne profits decreed in the present suit is a liability arising out of a breach of trust. The lower court was therefore right in holding that the first defendant's liability for mesne profits does not fall under the exclusion provided for in S.2, clause (c) (iii) of the Kerala Agriculturists' Debt Belief Act. 5. The question whether the first defendant is an agriculturist as defined in the Kerala Agriculturists' Debt Relief Act, does not appear to have been considered by the lower court. That matter has also to be considered along with the other outstanding points raised by the decree-holder before final orders are passed on the application put in by the first defendant. Subject to this direction, this appeal is dismissed with costs. Dismissed.