The liability of a co-owner to pay a decree debt is not a liability of a trustee in a fiduciary capacity and, therefore, it cannot come under S. 4 (f) of the Madras Agriculturists Relief Act, 1938 and as such the liability is not exempted from the operation of the Act.

SRINIVASACHARI, J. :- This appeal arises out of proceedings which were started under S. 19 of the Madras AgriculturistsRelief Act, IV of 1938. Sriramavadhanulu, Kannepalli China Dakshinamurthi and Kannepalli Laxmi Narasimhavadhanulu were the sons of one Ramavadhanulu. These belonged to one branch of the Kannepalli family while two others Kannepalli Dakshinamurthi Somayajulu and Venkata Narasimhavadhanulu belonged to another branch of the same Kannepalli family. All these owned jointly lands in six villages in Pathapatnam Taluk, in Chicacole District, in the following shares :

Kannepalli Krishnamurthy ... 1/6th share.

do. China Dakshinamurthy ... 1/6th share.

do. Lakshmi Narasimhavadhanulu (Since deceased by his widow Annapurnamma) ... 1/6th share.

do. Visweswara Dakshina- murthy Somayajulu ... 1/6th share.

do. China Dakshinamurthy Somayajulu ... 1/6th share.

do. Dakshinamurthy Somayulu ... 1/6th share.

do. Venkatanarasimhavadhanulu ... 1/6th share.

The co-sharers were receiving their respective share of the annual income either themselves or through their agents.

2. Kannepalli Visweswara Dakshinamurthi and China Visweswara Dakshinamurthi were minors, and therefore, after the death of their father, Kannepalli Dakshinamurthi Somayulu was appointed the guardian of their properties by the District Court, Berhampore, and he continued to act as guardian till 1933. At about this time a suit was filed in the Subordinate Court, Berhampore, as against the guardian and others for rendition of accounts by one Jagannatham, the maternal uncle of Visweswara Dakshinamurthi Somayajulu. A preliminary decree was passed in this suit which became final, the appeal therefrom having been withdrawn. Later on a final decree was also passed and a Commissioner was appointed. The final decree fixed the liability at Rs. 13,029-14-0 and in partial discharge thereof a sale-deed was executed for Rs. 11,000 and a sum of Rs. 10,000 paid in cash.

3. The judgment-debtors applied to the Court for scaling down the debt under the provisions of the Madras AgriculturistsRelief Act and prayed that it be declared that the whole of the decree debt had been wiped off. The Subordinate Judge applying S. 9 of the above Act, held that the liability including the costs of the suit and execution proceedings had been wiped out by reason of the payments made by the judgment-debtors.

4. The decree-holders have come up in appeal. The contention put forward by learned counsel on behalf of the decree-holders is that this debt could not be scaled down coming as it does under S. 4 (f) of the Act. Debthas been defined in S. 3 (iii) of the Act as

"any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or Revenue Court........"

This debt in respect of which the relief for a scaling down is sought, is admittedly covered by the above definition.

5. Particular kinds of debts as have been mentioned in S. 4 of the Act have been declared to be not falling within the purview of the Act and as such, such debts could not be scaled down. Section 4 among such debts speaks of any liability arising out of a breach of trust. It enacts that if a liability had arisen by reason of a breach of trust having been committed by the trustee, such a liability would not be regarded as coming within the ambit of S. 3 of the Act. An agriculturist debtor would not get the protection of the Act where he is bound in fiduciary character, to protect the interests of another person such as an agent, guardian or legal adviser.

6. The question, therefore, arises as to whether the liability of the judgment-debtors against whom a decree has been passed is that of a trustee. If the position of the judgment-debtors is that of a person placed in a fiduciary capacity the next question to be determined is as to whether there has been a breach of trust. Where a person bound in a fiduciary character to protect the interests of another pers