1944 Present: Moseley S.P.J. and Wijeyewardene J.

PERUMAL, Appellant, and HARDING, Respondent.

164-D. C. Galle,  38,843.

Trust-Claim to recover property-Constructive trust treated as express trust- Prescription-Trusts Ordinance (Cap. 72) ".111 (I) (b).

The plaintiff as cestui que trust of a constructive trust sued the defendant for declaration of title to an immovable property. The defendant had purchased the property with notice of the trust from the trustee within ten years of the institution of the action.

Held, that the provisions of section 111 (1) (b) of the Trusts Ordinance read with section 111 (5) operated against the defendant relying on the possession' of the trustee in support of his prescriptive title, as the trust was a constructive trust which would be treated as an express trust under the Law of England.

APPEAL. from a judgment of the District Judge of Galle.

H. V. Perera, K.C. (with him N. E. Weerasooria, K.C, and Peri Sunderam), for the defendant, appellant.

N. Nadarajah, K.C. (with him N. Kumarasingham), for plaintiff, respondent.

Cur. adv. vult.

June 15, 1944. WIJEYEWARDENE J.-

The plaintiff-respondent filed this action in respect of an undivided half share of Kanapathy estate, the entirety of which was owned originally by one G. E. Gunasekere and mortgaged for securing the loans made to him by Somasunderam Chettiar who was carrying on business under the vilasam of Ar. Ar. Sm. through his attorney and agent Narayan Chettiar, son of Murugandi Sami. In satisfaction of a mortgage decree entered against G. E. Gunasekere the estate was sold and conveyed to Ar, Ar. Sm. Narayan Chettiar by P 2 of 1919. The plaintiff, as administrator of the intestate estate of Somasunderam Chettiar, filed action No. 24,593 in the District- Court of Galle in 1927 against Narayan Chettiar pleading that the latter was holding the land in trust for Somasunderam Chettiar and asking for a decree against him. During the pendency of that case, Narayan Chettiar died and his widow and son, Velayuthem Chettiar, who was the administrator of Narayan's estate, were substituted as defendants and the decree entered against them in the District Court in February, 1938, was affirmed in. appeal in June, 1938 (see P 1). Neither, that action nor the decree in that action was registered. In spite of that decree Velayuthem Chettiar executed an administrator's conveyance D 1 of August 21, 1938, in his own favour as heir of his father in respect of a half share of the estate and conveyed the same to the defendant-appellant by D 2 of the same date. The consideration for the transfer is, according to the deed D 2, the payment of a sum of Rs. 250 and the discharge of a debt of Rs. 1,750 alleged to have been due from Velayuthem to the defendant-appellant. The deeds D 1 and D 2 have been duly registered.

The present action went to trial on thirteen issues, six of which were as follows: -

Issue 1.-Did Somasunderam Chettiar carry on business or money-lending under the vilasam of Ar. Ar. Sm.?

Issue 2.-Was Narayan Chettiar at all times material the Agent of the said Somasunderam Chettiar?

Issue 3.-Was the property in dispute purchased by Narayan Chettiar as Agent and Trustee for Somasunderam Chettiar?

Issue 4.-Did defendant by deed 193 of August 21, 1938, purchase the said property with notice of the said trust?

Issue 5.-If so, does the defendant hold the said property in trust for plaintiff?

Issue 8.-Have the defendant and his predecessors in title acquired a prescriptive title to the premises in question?

The District Judge answered these issues and several of the remaining issues in favour of the plaintiff and entered judgment for him.

It was admitted by the Counsel for the defendant-appellant that the District Judge had answered correctly issues 1, 2 and 3 in the affirmative but it was argued that the issues 4 and 5 should have been answered in the negative and issue 8 i