[1946] EACA 17

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and SINCLAIR, J. (Tanganyika)

## FAKHRUDDIN MOHAMEDALI JAFFERJI, Appellant (Original Plaintiff)

## $\mathbf{v}$ .

## AHMEDALI ABDULHUSSEIN LUKMANJI, Respondent (Original Defendant) Civil Appeal No. 31 of 1946

(Appeal from decision of H. M. High Court of Zanzibar)

Mortgage-Claim of money under a mortgage deed-Recital in deed containing acknowledgment of consideration by mortgagor-Parol evidence to establish absence of consideration—Indian Evidence Act, S. 92—Burden of proof.

In a deed of mortgage the mortgagor acknowledged receiving Sh. 2,000 as consideration for the mortgage. In a suit by the mortgagee for recovery of the Sh. 2,000 or in default of payment for the sale of the mortgaged property the mortgagor pleaded that the mortgage deed was a fictitious document and that he never received a single cent from the mortgagee.

It was proved at the trial that the recital in the mortgage deed to the effect that the mortgagor had received the Sh. 2,000 was incorrect. The mortgagor gave evidence in support of his contention but the mortgagee did not.

The Court dismssed the suit. The mortgagee appealed.

Held (23-11-46).—(1) That under S. 29 of the Indian Evidence Act parol evidence was admissible to rebut the recital in the mortgage deed.

(2) That the onus was on the mortgagor to establish that the recital was incorrect and that having succeeded in doing so, the onus shifted back to the mortgagee to prove<br>the existence of consideration. This the mortgagee failed to do.

Appeal dismissed.

Makund v. Bahori 3 A. 824 referred to.

Vellani for the Appellant.

Ahmed Ayub for the Respondent.

SIR JOSEPH SHERIDAN, C. J.-I have had the advantage of reading the judgment of my brother Sinclair with which I am in full agreement. I will only add a few words which I had already committed to paper. On the facts of this case where the defendant executed a mortgage for Sh. 2,000 but contended that despite the customary acknowledgement of the receipt of the consideration in the deed he had received no consideration and where it appears from the evidence that no money was paid as alleged or at all to the defendant but on the contrary the plaintiff is founding his case on an alleged credit in an account which was not produced in evidence and which credit the defendant denied having received, there is an onus on the plaintiff in such circumstances to give at least some evidence that consideration passed. The plaintiff deliberately chose to give no evidence in rebuttal of the defendant's evidence. I would dismiss the appeal with costs.

SIR G. GRAHAM PAUL, C. J.—I concur in the judgment of the learned President. I have had the opportunity of reading the very full judgment which is about to be read by my brother Sinclair which sets out so clearly my own views of the case that I find it unnecessary to add anything further.

SINCLAIR, J.—The plaintiff (appellant) in this case sued the defendant (respondent) for recovery of a sum due under a mortgage and the sale of the mortgaged property in default of payment thereof.

The defendant in his statement of defence admitted that he executed the mortgage but alleged that it was a fictitious document and that he did not receive a single cent from the plaintiff, the mortgagee. There were further allegations with which this appeal is not concerned.

The learned Chief Justice was of the opinion that the defence had made out their assertion that the mortgage deed was a fictitious document and that the plaintiff had called no satisfactory evidence to rebut that assertion and he. therefore, dismissed the plaintiff's claim with costs to the defendant.

To my mind, the questions to be decided in this appeal are: $-$

(a) On which party did the burden of proof finally lie?; and

(b) did that party sufficiently discharge it?

The mortgage was executed on 4th June, 1941, and recites that "in consideration of the sum of Sh. 2,000 (Shillings Two thousand) paid by the Mortgagee to the Mortgagor before the execution of these presents (the receipt whereof the Mortgagor hereby acknowledges) the Mortgagor hereby covenants with the Mortgagee to pay him the sum of Sh. 2,000 (Shillings Two thousand) on the Third day of June. One thousand nine hundred and forty-two". Although the defendant admitted in the mortgage that the consideration money had been received by him, it is clear from Section 92 of the Indian Evidence Act and the authorities quoted thereunder that this recital is not conclusive evidence of such payment and it may be rebutted by parol evidence of non-payment. The recital, however, raises a strong presumption of the payment of such consideration and the onus was on the defendant to rebut it.

The defendant gave evidence in which he denied that he had received any money from the plaintiff in respect of the mortgage. At the trial the plaintiff's case was not that the defendant had been paid the consideration money as recited in the mortgage but that the defendant owed money to an amount exceeding Sh. 2,000 to the firm of Adamji Jafferji and Co., that the plaintiff paid off Sh. 2,000 of this debt on behalf of the defendant and at the same time obtained the mortgage as security for this advance of Sh. 2,000. The recital in the mortgage that the defendant had received the consideration money was therefore proved and admitted to be incorrect. In Makund v. Bahori Lai (3 A. 824) the defendants in a suit on a bond admitted the execution of the bond, but denied that they had received, as the bond recited they had at the time of its execution, the consideration for it. The court of first instance instead of calling on the defendants to establish the fact that they had not received the consideration for the bond, as it ought to have done under the circumstances, irregularly allowed the plaintiff to produce witnesses to prove that the consideration had been paid at the time of its execution. The evidence of these witnesses proved that the consideration of the bond had not been paid at the time of execution and that, if it had been paid at all, it had been paid at some subsequent time. The plaintiff did not give any further evidence to establish such payment, and the court of first instance. without calling on the defendants to establish their defence, dismissed the suit. It was held on appeal that, although the plaintiff ought not to have begun, yet as he had done so, and his witnesses had proved that the consideration for the bond had not been paid, as admitted in the bond, a new case was opened up in which the onus was shifted back to the plaintiff to establish that he had. not at the time alleged in the bond, but at some subsequent time, paid to the defendants the consideration for the bond. With respect, I agree with that decision. Applying the same principles to the present case, as the defendant

admitted the execution of the mortgage, the onus was on him to establish that the recital in which he acknowledged the receipt of the consideration money was not correct. Once, however, it was established that this recital was not correct the onus then shifted back to the plaintiff to prove that consideration had in fact passed in some other way.

The plaintiff did not himself give evidence. A relative of his testified that the defendant invoked his assistance to settle the plaintiff's claim by instalments and that a settlement was reached. The defendant denied this. Another witness, Mohamed Fazal, who was then working in the Official Assignee's Department, said that the defendant came to him about the assignment of a claim the defendant had in an insolvency case to satisfy his mortgage debt. There was nothing in his evidence to indicate that the mortgage debt referred to was the debt which the plaintiff sought to recover in this suit. The learned Chief Justice did not accept the evidence of either of these witnesses. The plaintiff, however, relied mainly on the admission of the defendant that he had received a statement of account from Adamji Jafferji and Co. showing a credit of Sh. 2,000 as received from the plaintiff. The plaintiff also put in a document in the defendant's handwriting headed "Invoice of the account of Seth Adamji Jafferji, 27-6-43" which is a statement of certain overcharges which the defendant alleged the firm of Adamji Jafferji and Co. made during the period 1st January, 1939, to 11th December, 1942. It was made out after the defendant received the statement from Adamii Jafferii and Co., but contained no reference to the credit of Sh. 2,000 which the defendant in his evidence said he did not agree to. From these two documents, one of which was not produced, the Court is asked to infer that on the date of the mortgage the defendant owed Adamji Jafferji a sum in excess of Sh. 2,000 and that it was arranged that a sum of Sh. 2,000 was to be paid by the plaintiff to the firm for and on account of the defendant, being consideration for the mortgage. In my opinion neither of these inferences can be drawn from this evidence. As neither a copy of the statement of account nor Adamji Jafferji's books of account were produced there was no evidence as to the state of the account at the date of the mortgage. The defendant in his evidence disputed the account and, indeed, alleged that the firm owed him money. The defendant's own statement of overcharges established no more than that he had an account with the firm; this he did not deny. But even if the defendant did owe the firm a sum in excess of Sh. 2,000 and the plaintiff did pay a sum of Sh. 2,000 to the firm on behalf of the defendant some further evidence, such as a correspondence of dates, was required to show that the sum paid by the defendant was the consideration for the mortgage. In my judgment the plaintiff did not discharge the onus which lay on him to prove consideration for the mortgage.

I would therefore dismiss the appeal with costs to the respondent.