Lord Shaw. -

This is an appeal from a decree of the High Court at Rangoon made in its appellate jurisdiction on 26th April 1926. It reversed a decree of the same Court made in its Original Civil Jurisdiction on 8th May 1925. In the case for the appellant the point to be decided is thus stated :

"The principal question in this appeal is whether the appellant is entitled to a charge upon certain property in Rangoon known as 'Mount Pleasant' as was found by the trial Court or only to a money decree as held by the Court of appeal."

It is unnecessary to repeat the facts of the case antecedent to 2nd August 1923. They are stated with sufficient particularity in the cases for the parties and in the judgments of the Courts below.

One Lim Chin Tsong, a Chinese resident in Burma, had acquired in 1909 a small plot of land of 1-871 acres in extent, part of "the Golden Valley Estate" in the district of Rangoon. In 1919 he also purchased two other properties, one of which was a house and land known as "Mount Pleasant" - the subject-matter of the present suit. Lim Chin died on 2nd November 1923. There had been a variety of business transactions between him and the appellant Khoo Sain Ban. Some months before his death in November, namely, on 2nd August 1923, Lim Soo Hean and Company, being the firm of which Lim Chin was the sole partner, gave to the appellant the document :

Rangoon, 2nd August 1923.

Dear Sain Ban,

I confirm that we owe you nearly half a lakh of Rupees, I shall convey you my property known as "Mount Pleasant" as agreed by me to liquidate the amount as soon as I feel a little better.

(Sd.) LIM SOON HEAN and CO.

The argument before the Board had reference to the proper construction of that instrument. In 1924 his widow, respondent 1, obtained letters of administration, and she executed in April of that year a registered deed in favour of the appellant transferring to him the first small plot of land mentioned, and the appellant Sain Ban accepted the said transfer as "in part satisfaction of" his debt which was stated to be Rs. 52,734. The price of the plot was Rs. 15,000, leaving a balance of Rs. 37,734 still due. In June 1924, the estate was placed for administration in insolvency and respondent 2 was appointed official assignee.

In September the appellant filed a claim as a creditor on the estate as per an account which included two sums of Rs. 1,000 and Rs. 2,800 said to have been advanced to respondent 1 after her husband's death. In that account the Rs. 15,000 - the value of the small property transferred - is clearly credited and the final balance of Rs. 43,533 is followed by this statement :

''This amount is covered by property known as Mount Pleasant with 792 acres freehold in 'Golden Valley.' "

It is accordingly fairly plain that the appellant and his advisers viewed the transaction to be presently noted, as security, or cover for, or charge, upon "Mount Pleasant." The view, however, pressed upon the Board was of a more radical character, viz., that the document fell to be construed as a still existent agreement for sale of which specific performence may be demanded at law.

The second "reason" for the appellant is;

"the appellant was entitled to specific performance or in any event to a charge as held by the trial Court."

By specific performance can only be meant a performance of this obligation, "I shall convey you my property known as 'Mount Pleasant." As has been shown subsequent to the execution of that document the appellant had accepted a property valued at Rs. 15,000 in part satisfaction of the obligation of 2nd August and in part payment of the sum due to him, and had in fact credited that part payment accordingly. To grant specific performance would accordingly be to vest the property fully in the appellant in respect of an obligation which had been in considerable part extinguished. According to one argument laid before the Board the appellant would have been permitted to realize the property and he would then stand in the