1. Their Lordships think it unnecessary in this case to call upon learned counsel for the respondent. They are of opinion that the judgment of the Chief Court of Lower Burma appealed from is correct.
2. The rights of the parties have to be determined, in their Lordships' opinion, by a written agreement, which is, in their Lordships' view, the limit and standard fully measuring the obligations of Mah Saw, who obtained an advance of 13,000 rupees from the respondent on the Ist June, 1906.
3. On that date there was a notandum put upon the back of a promissory note then granted, and the notandum is to this effect: 'As security, grant of a house in 14th Street, Rangoon.' Their Lordships take no stock of an alteration made after that notandum was signed, by which there was an interpolation of the words ' Strand Road and,' which words would have, in appearance at least, extended the scope of the -V security from ' a house in 14th Street, Rangoon, to ' a house in Strand Road and 14th Street, Rangoon.' Had-an argument been raised as to whether, this alteration having been made, any rights in law could now be founded upon this document, that argument would have been considered: but it is unnecessary to make any pronouncement upon this topic, and accordingly their lordships deal with the document signed by Mah Saw on the Ist June, 1906, as definitely limiting and describing the scope of the security. It was a 'grant,' in the singular 'of a house,' in the singular 'in 14th Street, Rangoon.'
4. The law upon this subject is beyond any doubt, (I) Where titles of property are handed over with nothing said except that they are to be security, the law supposes that the scope of the security is the scope of the title. (2) Where, however, titles are handed over accompanied by a bargain, that bargain must rule. (3) Lastly, when the bargain is a written bargain, it, and it alone, must determine what is the scope and the extent of the security. In the words of Lord Cairns in the leading case of Shaw v Foster (1872) L.R. 5 H.L. 321:
Although it is a well-established rule of equity that a deposit of a document of title without more, without writing, or without word of mouth, will create in equity a charge upon the property referred to, I apprehend that that general rule will not apply where you have a deposit accompanied by an actual written charge. In that case you must refer to the terms of the written document, and any implication that might be raised, supposing there were no document, is put out of the case and reduced to silence by the document by which alone you must be governed.
5. Their Lordships accordingly have admitted in argument the only possible question which remains (standing the document specifying the security and signed by Mah Saw), namely, the question of identification of the term 'grant of a house in 14th Street, Rangoon.' To identify this grant, a reference has been made by learned counsel for the appellant, to the various title-deeds of the properties called Plots 65, 66, 66A, and 67. These deeds are as follows: With reference to Plot 65, there is a lease of land in favour of a person named Ma Thit, who was the mother of Mah Saw. With reference to Plot 66, and apparently also to 66A, there is a document for sale of a house and of land in favour of Ma Thit. But then, with reference to the last document, namely, as to Plot 67, there is a ' grant of a house,' a conveyance of a house on the 3rd January, 1901, in favour of Ko Tha Gywe. Ko Tha Gywe was the husband of the grantee, or lessee, of the other plots of ground covered by the other documents. He was the father of Mah Saw, and it does occur as a matter of interest that this person, the father of Mah Saw, who had a conveyance of a house, that on Plot 67, was himself a borrower from the persons who are interested in this suit, who were bankers and money-lenders in the district. On the 10th October, 1902, he borrowed a sum of 5,000 rupees from them; and a somewhat curious transaction took place, namely, that he deposited with the money-lenders, not only the title of the property belonging to himself, namely, the grant of the house, but also the title-deeds of the other three properties which belonged not to himself, but to his wife. It was on this occasion that all these titles found their way into the hands of the lenders, Mah Saw succeeded to Ko Tha Gywe in the ownership of the house on Plot 67.
6. Their Lordships have, in these circumstances, no doubt whatsoever that the identification of the ' grant of a house in 14th Street, Rangoon,' by her is accomplished by a reference to the conveyance of the house in favour of Ko Tha Gywe, which house had .been his property when the original advance of 5,000 rupees, some years before, was obtained by him.
7. Their Lordships finally remark that, as against this identification of the house in 14 th Street there is no evidence at all satisfactory in this case, and it was for the persons holding this security clearly to satisfy the Court of the scope thereof. They have not done so. There is nothing in the case which confirms the view that, under the term 'grant of a house,' which would be a singular term applicable to a singular title, there was included the subject of three other plots of land under leases. Their Lordships cannot assent to such a construction, They think the security is distinctly and by contract limited, and they cannot extend it as desired. They have no doubt that the Chief Court of Lower Burma has reached a proper conclusion.
8. Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.