Judgment :- 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-holder's 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 plaintiff's 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. 10673 Ch. 13 as due to the plaintiff. It was also stated in the plaint that Sankaran Padmanabhan's status as the plaintiff's 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-holder's 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. 4. Reference may be made to some of the decisions cited by both sides. The respondent relied on the decision of Varadaraja Iyengar, J., in Saithu Mohammad Ismail v. Abdul Rahiman (1958 K.L.T. 436). The clause 'liability arising out of a breach of trust' came up for construction in that case, and it was held that whenever confidence is reposed in a person and that person betrays the same, the obligation which arises in consequence would be assimilated to that under the clause in question. The clause 'liability arising out of a breach of trust' came up for construction in that case, and it was held that whenever confidence is reposed in a person and that person betrays the same, the obligation which arises in consequence would be assimilated to that under the clause in question. In arriving at this conclusion reliance was placed on a decision of the Travancore High Court in Narayani Amma Govinda Pillai v. Kaliyani Amnia Bai Amma (1946 T.L.R. 592) where it was held that the word 'trust' in the context does not mean the strict liability of a trustee. The conclusion may have been justified in Saithu Mohammed Ismail's case, as the liability of the debtor was one arising from his failure to produce a lorry which was entrusted to him by court for custody to be handed over to the rightful claimant on the decision of a claim enquiry. 5. It was held in K. Visweswara v. K. Krishnamurthi (A.I.R.1957 And. Pr. 337) that a co-owner in possession of properties who fails to account for the profits thereof cannot be said to commit a breach of trust. It was pointed out that under S.90 of the Trusts Act if a qualified owner of any property by availing of his position as such gains an advantage in derogation of the rights of others interested in the property he must hold it for the benefit of those interested persons and that if he merely fails to pay the share of profits to the other co-owners it would only amount to a breach of the agreement. Co-owners may in certain circumstances place themselves in the position of trustees but it does not follow that in every case in which a co-owner is in possession he is a trustee in respect of the income collected by him. This decision is relied on by the appellant who contends that Sankaran Padmanabhan collected the income only as agent of the plaintiff and that mere failure on his part to pay the amount would not make his liability one arising out of a breach of trust. 6. In Meera v. Abdul Kadir (A.I.R.1939 Mad. This decision is relied on by the appellant who contends that Sankaran Padmanabhan collected the income only as agent of the plaintiff and that mere failure on his part to pay the amount would not make his liability one arising out of a breach of trust. 6. In Meera v. Abdul Kadir (A.I.R.1939 Mad. 471) it was held that the case of a co-owner who had realised interest by the investment of common funds was one governed by S.90 of the Trusts Act, that by virtue of S.95 of the Act he incurred a liability to pay interest under S.23 of the Act and that the liability to pay such interest was unaffected by the Madras Agriculturists Relief Act (IV of 1958) which contained a provision similar to that in the Kerala Agriculturists Debt Relief Act. The liability in that case was clearly one arising from an obligation in the nature of a trust and that decision is of no help to the respondent in this case. 7. We have already indicated that in cases governed by Chapter IX of the Trusts Act the liability could be treated as arising out of breach of trust, but that the clause cannot be construed so as to include every case of contractual obligation. On the facts of this case, it is not possible to hold that the liability is one arising out of a breach of trust. (The case set up in the plaint is that Sankaran Padmanabhan was collecting the profits of the plaintiff's properties as his 'agent' and except for the allegation that he failed to pay the amounts collected by him as agent, there is no plea that he did any act which would make out a case of constructive or resulting Trust. The utmost that can be said on the pleadings is that Sankaran Padmanabhan who was liable to pay the amounts collected by him as the plaintiff's agent failed to do so. The plaintiff, no doubt, had confidence or trust in Sankaran Padmanabhan but this by itself is insufficient to render the latter's liability one arising out of a breach of trust. We are therefore unable to uphold the view taken by the learned District Judge. 8. The plaintiff, no doubt, had confidence or trust in Sankaran Padmanabhan but this by itself is insufficient to render the latter's liability one arising out of a breach of trust. We are therefore unable to uphold the view taken by the learned District Judge. 8. In the result, we allow the appeal, reverse the order of the court below and hold that the appellant is entitled to discharge the debt subject to the conditions in Act XXXI of 1958. In the circumstances of the case we direct the parties to bear their costs. Allowed.