Lord Buckmaster :-

The appellant and the first respondent are the heirs at-law of one Arunasalam Chetty, who died intestate in January, 1901. Arunasalam Chetty had two sons, the appellant and Ramanathan Chetty, who predeceased his father, leaving an only son - the first respondent. The second respondent is the administrator of the estate of Arunasalam Chetty.

The action out of which this appeal has arisen was instituted in the District Court of Jaffna by the first respondent on the 16th December, 1910, the claim being for one-half of certain lands and premises of which the appellant was in possession, an order for accounts and payment of the rents, and transfer of the land.

The real, and, in substance, the only question raised in the action was whether the appellant was beneficially entitled to the property, or whether he had acquired it as trustee for his father. The second respondent was added as plaintiff by an order made by the District Judge on the 8th January, 1918, on the application of the plaintiff, owing to the defendant having alleged in his amended answer that the plaintiff could not maintain the suit in the absence of the administrator. This, however, did not remove but rather added to the plaintiff's difficulties, as a variety of technical questions were then urged by the appellant both against the constitution of the suit with the administrator and against the claim that the administrator could bring.

All these points have been decided adversely to the appellant, both in the District Court and in the Supreme Court, and it was found impossible to urge them further on the hearing of this appeal. Nor can the appellant any longer contest that these lands originally came into his possession as trustee for Arunasalam Chetty. In a dispute between the same parties raising the same issue with regard to lands similarly held it was decided by the learned judge who tried the case, by the Supreme Court and by this Board, that there was abundant evidence to establish his fiduciary relationship, and this reduced the appellant's case to the simple question of whether or no he can establish under the provision of the Prescription Ordinance Act of 1871 that he was in possession for ten years (the necessary statutory period) before the commencement of the suit. It is clear he took possession under a deed of transfer of the 1st May, 1900, and, as already stated, the suit was commenced in December, 1910. But Section 14 of the Act provides that if at the time when the right of any person to sue for the recovery of any redeemable property shall have first occurred he has been absent beyond the sea, then, during such absence, the possession shall not be taken as giving the possessor any such right or title.

It is admitted that the respondent was in fact, absent during the whole period, and also that, though absent himself, his agent, one Raman Chetty, received on his behalf rents and profits from the lands between the years 1901 and 1908, so that, in either view, the defence could not avail. Finally, it is, to their Lordships, plain that the appellant held these lands not as constructive but as express trustee to whom the statute admittedly does not apply. The property was originally acquired by Arunasalam Chetty through his agent, Subramanian Chetty, and by the latter transferred to the appellant by deed of the 1st May, 1900.

Now Arunasalam Chetty traded under a firm name of which the letters R. M. A. R. A. R. were the descriptive title. They were not the initial letters of the name of Subramanian Chetty nor of the appellant but the conveyance was made in the first instance to Subramanian Chetty with this description, and, with the same description, it was transferred, to the appellant. Upon the face, therefore, of the document of title, there is the clear statement that the appellant was the agent of the firm.

The distinction between an express and a constructive trustee is clearly stated by Lord Justice Bowen in Soar v. Ashwell, [1893] 2