Wakilii

Jaseri and Another v Dinshaw and Others (Privy Council Appeal No. 10 of 1929)

East African Court of Appeal · [1929] EACA 2 · 1929 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal to the Privy Council from the Court of Appeal for Eastern Africa, which had allowed the respondents' appeal from the High Court of Zanzibar
Decision
First lease declared void as against the mortgagees; possession to be delivered to the second lessee

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A written lease for one year is valid without registration under the Registration of Documents Decree 1919 s.6(f), which exempts leases of a year or less from registration. A lease granted by a mortgagor is not binding on mortgagees where the mortgage conveys the property absolutely to the mortgagees, in the absence of their consent or approbation.

Outcome

First lease declared void as against the mortgagees; possession to be delivered to the second lessee

Facts

Mahomed Bin Salim El Jaseri owned shambas which he mortgaged to Cowasji Dinshaw & Bros in August 1921 and to Dr. Lawrence D'Albuquerque in April 1923. Both mortgages conveyed the property absolutely to the mortgagees. On 2 March 1928, El Jaseri granted a lease to Fazel Mohamed Champsi without the mortgagees' consent. On 16 March 1928, he granted a second lease to Pedro Domingos D'Sa, either with the mortgagees' concurrence or subsequently approbated by them. The mortgagees and the second lessee sued the mortgagor and first lessee, seeking a declaration that the first lease was void and possession for the second lessee. El Jaseri subsequently went bankrupt and his official assignee was substituted. The trial court held the first lease valid. The Court of Appeal reversed, holding the first lease not binding on the mortgagees.

Issues

  1. Whether an agricultural lease for a period of one year which is in writing but is not registered is valid.
  2. Whether a lease granted by a mortgagor without the consent of the mortgagees is binding upon the mortgagees.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Registration of Documents — Leases — Exemption from Registration
A written lease for a period of one year or less is valid without registration under the Registration of Documents Decree 1919 s.6(f), which exempts such leases from the requirement of registration.
Mortgages — Rights of Mortgagor — Power to Lease
Where a mortgage conveys the mortgaged property absolutely to the mortgagee, the mortgagor has no power to grant a lease binding on the mortgagee without the mortgagee's consent, as the mortgagor cannot confer greater rights on third parties than he himself possesses.
Mortgages — English Mortgages and Anomalous Mortgages — Effect of Absolute Conveyance
Whether a mortgage is classified as an English mortgage under s.58 of the Transfer of Property Decree 1917 or an anomalous mortgage under s.98, if the mortgage conveys the property absolutely to the mortgagee, the property vests in the mortgagee and the mortgagor cannot grant a lease binding on the mortgagee without consent.
Leases — Validity Against Third Parties — Mortgagees' Rights
A lease granted by a mortgagor without the concurrence of the mortgagees does not bind the mortgagees and cannot prevail over a subsequent lease granted with the mortgagees' consent or approbation.
Transfer of Property and Registration Decrees — Harmonious Construction
The Transfer of Property Decree and the Registration of Documents Decree must be read as supplementary and in pari materia; where the Registration of Documents Decree 1919 s.6(f) exempts leases of a year or less from registration, this applies to all leases including agricultural leases, notwithstanding s.107 of the Transfer of Property Decree 1917.

Legislation cited (11)

  • Transfer of Property Decree 1917 s.107
  • Transfer of Property Decree 1917 s.117
  • Transfer of Property Decree 1917 s.58
  • Transfer of Property Decree 1917 s.98
  • Transfer of Property Decree 1917 s.69
  • Transfer of Property Decree 1917 s.60
  • Transfer of Property Amendment Decree 1925
  • Registration of Documents Decree 1919 s.6(f)
  • Registration of Documents Decree 1908
  • Registration of Documents Amendment Decree 1915 s.2(f)
  • Conveyancing Act 1881 s.18

Cases cited (1)

  • Keoch v Hall

Full judgment

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

Jaseri and Another v Dinshaw and Others (Privy Council Appeal No. 10 of 1929) [1929] EACA 2 (1 January 1929)
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.