Ko Shway Aung and Others vs Strang Steel and Co.

W. Comer Petheram, C.J., Norris and Pigot, JJ.—This reference has been already twice before the Court, but could not be disposed of, as on neither occasion was the document in respect of which it is made or a copy of it produced. This has now been done. We think the instrument is a mortgage. The interest in the subject matter of it, the boats, etc., is by the terms of the instrument assigned to the mortgagees with a provision allowing the mortgagors to remain in possession on certain conditions: and the mortgagees are given a power of sale. No doubt a special agreement giving a power of sale does not necessarily operate so as to show that the transaction is not a pledge, but must be construed to be a mortgage : (Fisher on Mortgage, Article 22). But here we think the whole character of the instrument points one way, and that it is a mortgage''; there is no provision for anything in the nature of a delivery actual or constructive; there is no pledge.

That being so, Article 44 applies. We think the distinction between Articles 29 and 44 is correctly stated by Mr. Donogh in his book on the Stamp Act, in the note to Article 44, "Article 44 distinguished from Article 29," ''Article 44 deals with cases in which the interest in, or right over, property is transferred whether possession is given or not, for the purposes of the mortgage; Article 29 is limited to cases where moveable property only is given in pledge, coupled with an agreement securing the repayment of a loan.''

The Government notification of 5th June 1885, referred to in the note to Article 29 in that book, is worth noticing; but as to this, it need only be observed that in professed exercise of the powers conferred by the Act, Government permitted the levy of a stamp of the value required under Article 29, upon this particular sort of mortgage referred to in the notification.