Wakilii

Jafferji v Lukmanji (Civil Appeal No. 31 Of 1946)

East African Court of Appeal · [1946] EACA 17 · 1946 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. High Court of Zanzibar dismissing mortgagee's claim for recovery of money under mortgage deed
Decision
Mortgagee's claim for recovery under mortgage dismissed; mortgaged property not ordered for sale

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Where a mortgage deed recites that the mortgagor received consideration but the recital is proved incorrect, parol evidence is admissible under section 92 of the Indian Evidence Act to rebut it. The initial onus lies on the mortgagor to prove the recital incorrect. Once established, the onus shifts back to the mortgagee to prove consideration passed by other means. The mortgagee's failure to give evidence or produce supporting documents meant he did not discharge this burden. Appeal dismissed.

Outcome

Mortgagee's claim for recovery under mortgage dismissed; mortgaged property not ordered for sale

Facts

The appellant mortgagee sued the respondent mortgagor for recovery of Sh. 2,000 under a mortgage deed executed on 4 June 1941, or in default for sale of the mortgaged property. The mortgage deed recited that the mortgagor acknowledged receiving Sh. 2,000 as consideration. The mortgagor admitted executing the mortgage but pleaded it was fictitious and he never received any money. At trial, the mortgagee's case shifted: he claimed he paid Sh. 2,000 to the firm of Adamji Jafferji and Co. to discharge the mortgagor's debt, and the mortgage secured this advance. The mortgagor denied owing the firm and disputed receiving any credit. The mortgagee did not give evidence himself and did not produce the firm's statement of account or books. The trial court found the recital incorrect and dismissed the suit for lack of proof of consideration.

Issues

  1. Whether parol evidence was admissible to rebut the recital in a mortgage deed acknowledging receipt of consideration.
  2. On which party the burden of proof lay to establish that consideration had passed for the mortgage.
  3. Whether the mortgagee discharged the burden of proving that consideration had in fact passed despite the incorrect recital in the mortgage deed.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Evidence — Parol Evidence — Admissibility to Rebut Recital in Deed — Indian Evidence Act s.92
Under section 92 of the Indian Evidence Act, parol evidence is admissible to rebut a recital in a mortgage deed acknowledging receipt of consideration, and such recital is not conclusive evidence of payment.
Evidence — Burden of Proof — Recital of Consideration in Mortgage Deed
A recital in a mortgage deed that the mortgagor has received consideration raises a strong presumption of payment, and the onus lies on the mortgagor to rebut that presumption.
Evidence — Burden of Proof — Shifting of Onus After Recital Proved Incorrect
Once a mortgagor establishes that the recital acknowledging receipt of consideration is incorrect, the onus shifts back to the mortgagee to prove that consideration passed in some other way.
Contract Law — Mortgage — Proof of Consideration — Failure to Produce Documentary Evidence
Where a mortgagee claims consideration passed by payment to a third party on the mortgagor's behalf, but fails to produce the relevant statement of account or books of account and does not give evidence himself, he does not discharge the burden of proving consideration.

Legislation cited (2)

  • Indian Evidence Act s.92
  • Indian Evidence Act s.29

Cases cited (1)

  • Makund v Bahori Lai (3 A. 824)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Jafferji v Lukmanji (Civil Appeal No. 31 Of 1946) [1946] EACA 17 (1 January 1946)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.