Taylor J:

The facts and arguments sufficiently appear from the Judgment.

In this action the plaintiff, who is a landowner, claims possession of No. 1 Joo Chiat Road, damages for trespass and mesne profits

The defendant, who is a master barber, contends that he is entitled to possession, because he became a tenant, in one or other of four ways, viz:

(a) On assignment or sub-letting by a previous tenant;

(b) by acquiescence;

(c) on transfer to him of the business carried on in the premises;

(d) a letting to him by the Japanese Custodian during enemy occupation.

The facts are as follows:

In 1939, the property was conveyed to the plaintiff, who is now abroad, by his father who has since managed the property on his behalf. The authority is not disputed and the word "plaintiff", in this judgment may, for brevity, include the father as the plaintiff's agent.

There are two bundles of correspondence, an agreed bundle A, and a supplementary bundle s

On 11 November 1937, by an agreement in writing, s 1, the plaintiff let the house to one Singaravelu, proprietor of the Union Hairdressing Saloon, from 1 December, on a monthly tenancy, terminable by one month's notice on either side; the rent was $30; the agreement provided, inter alia:

The tenant shall not transfer the tenancy or sublet without the previous written sanction of the landlord.

There was no proviso for re-entry in the event of a breach of this stipulation.

A general security deposit of $30 was paid by the tenant, and a receipt therefor was embodied in the agreement.

Singaravelu was already in occupation as tenant of the plaintiff's vendor.

By a written instrument, s 3, dated 21 August 1939, Singaravelu, in consideration of $650, "assigned" to the defendant "all the rights in respect of a Barber Shop" to be carried on by the defendant for 18 months, at the expiration of which Singaravelu was to repay the $650 and take over the shop, or in default, the defendant was "to have all the equipment as his absolute property.

Similar agreements were made on several subsequent occasions; they differ in detail but are all the same in substance; there was some argument as to their effect but in my opinion the key was supplied by the defendant himself who said, spontaneously:

I needed money and allowed the other man to take the profits.

This transaction is essentially oriental in character and it is misleading to call it by any name derived from English Law because it does not correspond to any on English concept. At first sight it may look like a lease but in essence it is a conveyance in security and our nearest analogue is a usufructuary mortgage. It is similar to the Malay chagaran. For want of a convenient short name, I will call it a "hypothecation" but that does not mean that it is identical with a hypothec in Roman Law.

In our law it is a contract and as such it is valid and enforceable between the parties but though it is in the nature of a mortgage the legal incidents of a mortgage do not arise - Abdul Rahman v. Hassan 1 FMSLR 290 (PC). In that case the subject matter was land but the principle is the same.

In this case the subject matter is the business as a going concern, including the trade name and the goodwill, in so far as goodwill attaches to a precarious tenancy, but the instrument does not purport to assign the tenancy itself.

It is clear from the oral evidence that the tenancy was dealt with by means of a separate concurrent oral agreement between the parties Singaravelu handed over the agreement-cum-deposit-receipt of November 1937 and received from the defendant a separate specific payment of $30. He then told the plaintiff that he was going to India and introduced the defendant as the man who would manage his business and pay the rent during his absence. To this the plaintiff assented but the document of 21 August was not shewn to him. It is not suggested that he was informed of its existence, still less that he was invited to assent to a transfer of the tenancy. That would have be