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10. Those cases will suffice to explain the difficulty I have throughout this part of the argument in arriving at some clear and settled principles upon which to ground my own decision upon this issue. Not that I myself, had I not been oppressed by so much authority emanating from Judges much more eminent than I can ever hope to be, should have felt at any time any real difficulty as to the proper ratio decidendi .

11. And first of the argument which is constantly repeated in all these judgments as distinguishing what is called an express trust inferable on the face of the deed from a true resultant trust only coming into being because of the failure of the trust declared in the deed. Here, I think a very little examination will bring to light a perfectly clear and consistent principle, and that principle has already been announced and adhered to in more than one judgment of this Court. The two hypothetical cases which Mr. Inverarity offered me in the course of his concluding argument appear to me to entirely overlord it. Those two cases were of a trust, let me say, for a thousa. pounds to the uses of so much blank for' A, so much blank for*1 B, so much blank for C. Here, said Mr. Inverarity, there is an express trust of the kind intended in Salter v. Cavanagh (3) (1838) 1 D. & W. 668, and though that case was not referred to" in Smith v. Cooke [1891] A. C 297, clear upon the face of the deed. Then, let us take a trust of one thousand pounds, one pound to the use of my daughter and 999 pounds indisposed of. Upon what conceivable principle, Mr. Inverarity asked, can you distinguish between these two cases and say that in one there is an express trust over to the settlor and in the other there is not. It appears to me that there is no difficulty whatever in answering that question. In the first of the cases there is a true resultant trust not express upon the face of the deed but merely implied by law as Kekewich J. put it, not because the deed is void certainly but because of the failure of the intended trusts. If those trusts had not failed and had exhausted the property, there would have been no resultant trust over to the settlor and therefore there is nothing express on the face of the deed which would bring it within the same category as the second case. In the second case the intended trust can be carried out consistently with what is then said by Lord Halsbury to be an express trust on the face of the deed over for the benefit of the settlor and the criterion is equally plain and infallible. Where the ultimate resultant trust which is to spring back to the settlor is consistent with the discharge of the declared trust, then it may by loose use of language be said to be express on the face of the deed but where the extinction or failure of all the intended trusts is a condition precedent to the resultant trusts coming into being, then the latter is clearly a true resultant trust and is not ex-press and never can be express on the face of the deed.

14. Now it appears to me that the true law underlying all sets of facts of that kind was never presented to the minds of the learned Judges who decided that case, or, as far as I can see, has been considered in any of the numerous judgments which have been delivered in Indian Courts professing to follow it. What is the true position when declared trusts failed and there is a resultant trust over to the settlor or his heirs ? The answer to this is to be found in the very elementary proposition that the possession of the trustee is always that of the cestui que trust, and, therefore, however, he may think or wish to be holding as trustee for trusts which have failed in the eye of the law, he is really holding, when those trusts failed, as trustee for the settlor. Then the position is simply this: so long as he retains and professes to retain the character of a good and legal trustee, he is holding the legal estate as stake-holder, for two claimants, the intended beneficiaries of the declared trusts which have failed and the resultant trustee, that is, the settlor. And I entirely fail to understand how any length of possession by a trustee so situated can be adverse to his true cestui que trust as soon as that legal person is discovered and ascertained. It is quite easy, I admit, to conceive of cases in which a trustee so situated might deny the right of the cestui que trust resultant on demand made. It is quite conceivable that in his partiality for the intended objects of the author of the trust's bounty, he should make over the legal estate to them. And there are many ways in which he might, divesting himself of the purely legal character of a trustee, thus put himself in direct opposition and hostility to the resultant cestui que trust. And I can also understand that if there were facts showing that this had been done the character of the trustees' possession might be affected by such facts and time might be deemed to run as from the first of them against the cestui que trust. Then indeed it would be a very serious question how far these decisions governing the application of Section 10 of the Limitation Act might not preclude the resultant cestui que trust from obtaining relief when twelve years had elapsed from the time that he knew his trustee had been holding adversely to him.

18. In the present case the trust was executed in 1886. For the purposes of my present argument it is immaterial whether it was a good trust or a bad trust, provided only that the deed itself was good and as to that there can, I think, be no question. The learned counsel for the trustees, who has argued the question of limitation very fully, has not attempted, as far as I can remember, to suggest that there was anything bad in the deed itself or that it failed to convey the legal estate. At that time the plaintiff was not born. About a year after the execution of the trust-deed the settlor died, the plaintiff being then in existence. Up to his death the author of the trust was himself one of the trustees and was in physical possession, occupation and enjoyment of all the trust property. I do not however, think that that fact has any bearing whatever upon the theoretical argument I have so far unfolded. If there really were any adverse possession, it must have commenced from the moment the legal estate was conveyed and taken possession of by the trustees. Nor is that in any way affected by the fact that one of the trustees happened to be the author of the trusts and the first beneficiary, for I take it to be as clear as day-light that if in such circumstances a donor chooses to divest himself of his property as donor and accept it as donee, interposing the fictional character of trustee between himself and those two characters, then so far as he is < a donor, but as trustee for himself as donee, must hold adversely to himself as donor. Nor can I see that this position is in the slightest degree affected by the conveyance itself originating from himself as donor. For if there were any adverse possession at all, I do not see why it should not begin to run under a conveyance just as it would do in the case of a purchaser against his vendor, once the conveyance be completed.

22. Before I conclude my discussion of this topic, I would say a word or two upon the case of Maulvi Saiyid Muhammad v. Razia Bibi (1905) L.E. 32 I.A. 86, which is the nearest, I can find to direct, authority in favour of the conclusion I myself have come to.

23. That was a case the facts of which very closely resembled the facts of the present case. There was a trust with an ultimate gift to wakf and in the meantime the property was to be applied to the uses of the settlers and their descendants. Pursuant thereto professedly taking under this alleged wakf one of the trustees occupied and held the property, then the other settlor died and on her daughter making a claim to her mother's share of the settled property, it was held that the wakf was bad for various reasons into which I need not go and the question then arose whether the plaintiff was not barred by adverse possession of the so called Mutawali under the wakf settlement. The point was treated in the Allahabad High Court as a pure question of fact, namely, whether or not, the possession of the defendant was adverse. And their Lordships held there that it was merely permissive without going into any of the nice and difficult questions which I have .had to open up in this case. Unfortunately I think--for we badly need an authority on the question,--their Lordships of the Privy Council satisfied themselves with saying that they saw no reason to dissent from the correctness of the conclusion of the Court below upon this point, that is to say, they found that as a matter of fact the defendant's possession was permissive and not adverse. But they do not appear to have gone into the question whether in any event, while the normal relation of trustee and resultant cestui que trust exist in law, the possession of the former could be adverse to the latter. It is really upon that ground and that substantial ground alone that I base this part of my judgment. I am quite clear in my own mind that so long as a trustee occupies the position of a trustee as soon as declared trusts failed and there is a resultant trust in favour of the settlor, the trustee's possession is essentially that of his cestui que trust and can only be changed into adverse possession by a conscious and deliberate act; that is to say, that he must repudiate all intention of holding for the resultant cestui que trust and he must assert his intention of continuing to apply the trust fund to uses which the Court had declared or which are known to him to have failed. Then I do admit that his possession might become adverse to his legal cestui que trust and that if that person did not take steps within twelve years, he might not be able to avail himself, under the Indian authorities, of the provisions of Section 10 of the Limitation Act. But in this case nothing of the kind has happened and nothing of the kind could have happened, for the plaintiff through most of the intervening period has been a minor and as soon as he came of age, he appears to have contemplated taking steps which had resulted in the present suit, so that until the trustees became aware--I am assuming for the purpose of the whole of this argument that the trusts are bad,--that the trusts were bad, I think as a matter of fact it is too clear to admit of serious argument that they were not holding adversely to him who would then be the resultant cestui que trust. That, I believe, is in conformity with all the English authorities. I believe too that it states a principle which will enable us to reconcile all the Indian authorities upon Section 10 with what has really been meant in the English authorities and so I trust that we may come to a clear understanding of what really is implied in this branch of the law which has been clearly understood and always clearly stated in the English Courts but which has in this country, I think, given rise to some confusion and divergence of opinion.