republic of trinidad and tobago in the...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL Civil Appeal No: S-197 of 2013

Claim No. CV2007-03629

BETWEEN

SUMATEE ENAL Appellant

AND

SHAKUNTALA SINGH

KIRAN SINGH ROSHINI SINGH ANDRA SINGH

Respondents PANEL: A. Mendonça J.A. P. Rajkumar J.A. A. des Vignes J.A. Date of Delivery: January 16, 2019

APPEARANCES:

Mr. E. Koylass S.C. and Ms. D. Roopchand appeared on behalf of the Appellant

Mr. A. Fitzpatrick S.C. and Mr. M. Seepersad appeared on behalf of the Respondents

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I have read the judgment of Mendonça J.A. I agree with it and have nothing to add. /s/ P. Rajkumar J.A. I have read the judgment of Mendonça J.A. I also agree with it and have nothing to add. /s/ A. des Vignes J.A.

JUDGMENT

Delivered by Mendonça J.A.

1. The Appellant commenced these proceedings seeking, inter alia, a declaration that a certain

deed of conveyance is not a valid deed, is null and void, is of no effect and an order setting

aside the deed. The deed of conveyance relates to two parcels of land situate at 6 – 8 High

Street, San Fernando. The deed is dated January 4th, 2006 and is registered as No.

DE200601475095D001. I shall hereafter refer to this deed of conveyance as “the 2006 Deed

of Conveyance” and to the parcels of land at 6-8 High Street as “the Disputed Lands”.

2. The Appellant was the common law wife of Ravidath Ramnarine Maharaj also called Ravi

Maharaj. He was murdered on January 11th 2006. The Appellant is the sole executrix and

beneficiary of his estate. I shall refer to Ravidath Ramnarine Maharaj for convenience and

meaning no disrespect simply as “Ravi”.

3. The First Respondent, Shakuntala Singh, was the sister of Ravi. The Second Respondent, Kiran

Singh, is the son of the First Respondent, the Third Respondent, Roshini Singh and the Fourth

Respondent, Andra Singh, are the daughter and step-daughter respectively of the First

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Respondent. Again, simply for convenienceand meaning no disrespect, I shall refer to the

Respondents by their first names.

4. Ravi and Shakuntala are the children of Ramnarine Ramphal Maharaj (Mr. Maharaj) who died

in June 2006. It is not disputed that Mr. Maharaj was a man of substantial wealth. He was a

large land developer and during the course of his life he bought and sold a number of

properties. It is also common ground that on occasion he purchased properties in the names

of his children while retaining a power of attorney given to him by them which allowed him

to deal with the properties.

5. By Deed of Conveyance dated July 1st, 1976 and registered as No. 12415 of 1976 the Disputed

Lands together with two other parcels of land, namely lots 2 and 4 High Street, San

Fernandowere conveyed to Ravi and Shakuntala as joint tenants. In this deed of conveyance

Ravi and Shakuntala are named as the purchasers and Mr. Maharaj is described as their agent.

There is a recital in the deed which provides that Mr. Maharaj was the “indisclosed agent”

(which,I do not believe there was any dispute, was a typographical error for “undisclosed

agent”) for Ravi and Shakuntala at the time he entered into the agreement for the sale of the

said parcels of land and has requested that the parcels of land be conveyed to Ravi and

Shakuntala as purchasers. There is no dispute that Mr. Maharaj paid for the parcels of land.

I shall refer to this deed of conveyance as “the 1976 deed of conveyance” and to the disputed

lands and lots 2 and 4 High Street together as “the High Street lands”.

6. At the time of the 1976 deed of conveyance there was in existence a power of attorney given

by Ravi to Mr. Maharaj. This was done by deed dated May 22nd 1964 and registered as No.

6812 of 1964. The appointment of Mr. Maharaj as Ravi’s Attorney was expressed to continue

until revoked by deed. The appointment was, however, not revoked prior to the death of

Ravi.

7. The powers given to Mr. Maharaj by the power of attorneywere very wide and were in

relation to all the real and personal property of Ravi save for three parcels of land described

in the schedule to the power of attorney. The excepted parcels of land do not include the

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disputed lands. At this point I would simply point out that the disputed parcels of land were

purchased after the power of Attorney.

8. Among rights and powers contained in the power of attorneywas the power to “act, conduct

and manage for Ravi and in his name all of his affairs” in Trinidad and Tobago and for that

purpose to execute all and or any of the several acts mentioned in the power of

attorneywhich included:

“4. From time to time if and when my Attorney may thinkfit to sell, exchange,

surrender,give up, demise, let, assign, lease, mortgage, charge or dispose of

any house, buildings, lands, plantations, mines minerals (including properties

held under the Real Property Ordinance) and/or any chattels effects and

personal property including shares and debentures in any company

whatsoever and also life insurance policies belonging to orheld by me or in

which I have or may hereafter have any estate or interest in the said Territory

upon such terms, conditions and stipulations as my Attorney shall in his

absolute discretion think fit…

6. On my behalf and as and for my act and deed to execute, sign, seal and deliver,

enter into, perfect, complete, acknowledge and to do all such conveyances,

assurances, assignments, demises, leases, transfers, bonds, options, releases,

reconveyances, discharges, surrenders, mortgages, charges, pledges,

instruments, memoranda, agreements, acts, matters and things including all

memoranda or transfers, mortgages, leases, releases, consents, surrenders,

charges and instruments under the provision of the Real Property Ordinance

as shall may be requisite necessary expedient for or in relation to all or in any

of the matters herein contained.”

9. By the 2006 Deed of Conveyance which was executed by Mr. Maharaj as attorney for Ravi

pursuant to the power of attorney, the Disputed Lands were conveyed to the Respondents at

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and for the price of $550,000.00, being the consideration expressed in the 2006 Deed of

Conveyance.

10. The Appellant in her pleaded case made several allegations in relation to the 2006 Deed of

Conveyance. She alleged that it was a forgery, that it was executed after the death of Ravi

who was murdered a matter of days after the 2006 deed of conveyance was said to have

been made, that it was made by Mr. Maharaj in breach of his fiduciary duty as attorney for

Ravi, that it was made pursuant to a conspiracy, that Mr. Maharaj was not of sound mind to

understand the nature of the transaction and enter into the 2006 Deed of Conveyance, that

the 2006 Deed of Conveyance of the Disputed Lands constituted an unconscionable bargain

and that it was executed by Mr. Maharaj under the undue influence of the Respondents or

either of them acting on behalf of the others and not in the proper exercise of the power

under the power of attorney.

11. The Respondents denied the allegations made and counter-claimed for, inter alia, a

declaration that the 2006 Deed of Conveyance was a valid and subsisting deed of conveyance.

12. It is however fair to say that at the Trial the Appellants only pursued the allegations that the

said deed was made under the undue influence of the Respondents.

13. The Trial Judge identified three issues, two of which are relevant to the issues raised on this

appeal. They are (i) in whom did the beneficial interest in the Disputed Lands lie and (ii)

whether the 2006 Deed of Conveyance was procured by reason of undue influence.

14. As to the issue at (i) the Trial Judge referred to the competing submissions. He noted that

the submission of the Respondents was that the Disputed Lands, having been purchased by

Mr. Maharaj with his own funds, there was a presumption of a resulting trust in favour of Mr.

Maharaj. He also noted the contention of the Appellant that there was in this case the

presumption of advancement which prevailed over that of a resulting trust as the property

was bought by Mr. Maharaj but conveyed in the name of Ravi who was his son. The Trial

Judge summarised the position in law as follows:

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“23. Thus, according to the principle of the resulting trust, where a person

buysproperty, but takes the purchase in the name of another, who is neither his

child, adopted child nor spouse or civil partner, prima facie there is no giftbut

a resulting trust for the person paying the money. Where the relationship of

father and child exists, the presumption of advancement operates to itself rebut

the presumption of a resulting trust. But the presumption of advancement is

itself a rebuttable presumption.

24. So that despite the existence of the father child relationship, the court can

nonetheless conclude based on the evidence that the purchase was not intended

to be a giftthereby permitting the operation of the original resulting trust.”

15. The Trial Judge concluded that the presumption of advancement was rebutted on the

evidence with the consequence being the Disputed Lands were conveyed to Ravi on trust for

Mr. Maharaj and Ravi did not hold thebeneficial interest in the disputed lands. The Trial Judge

stated:

“30. In all the circumstances therefore the court finds that Ravi did not take the

said property as a gift and did not acquire the beneficial interest in the

property which remained vested in Maharaj. The presumption of

advancement has therefore in the court’s view been sufficiently rebutted on

the evidence with the consequence being the creation of a resulting trust in

favour of Maharaj.”

16. As to the issue at (ii) the Trial Judge held that the Appellant had failed to establish that there

was a relationship of influence between the Respondents and Mr. Maharaj. In any event, the

conveyance of the Disputed Lands was not one that called for an explanation. The Trial Judge

therefore held that the 2006 Deed of Conveyance was not procured by the undue influence

of the Respondents.

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17. In the circumstances, the Trial Judge dismissed the Appellant’s claim and granted a

declaration on the Respondents’ counterclaim that the 2006 Deed of Conveyance is a valid

and subsisting deed of conveyance. The Trial Judge also orderedthe Appellant to pay the

Respondents’ prescribed costs of the counterclaim in the sum of $14,000.00 and of the claim

in the sum of $184,000.00.

18. The Appellant now appeals.

19. Counsel for the Appellant submits that in identifying the first issue, i.e. in whom did the

beneficial interestin the Disputed Lands lie, the Trial Judge failed to appreciate that that issue

was not raised in the Respondents’ defence. That apart, he submitted, in coming to the

conclusion that the presumption of advancement was rebutted, the Trial Judge was

improperly influenced by the power of attorney given by Ravi to Mr. Maharaj and was wrong

to find on the evidence that the presumption of advancement had been rebutted. Further,

the Trial Judge was wrong to conclude that the 2006 Deed of Conveyance was not procured

by the undue influence of the Respondents.

20. The Respondents contend the Trial Judge was correct to consider the issue relating to the

beneficial interest of the Disputed Lands and was also correct to hold that it was held by Mr.

Maharaj. The Respondents also support the Trial Judge’s conclusion on the issue of undue

influence. Further, the Respondents submit that the failure to join the estate of Mr. Maharaj

as a party to the proceedings was fatal to any grant of relief in the first place. The Respondents

therefore contend that the appeal is academic in those circumstances.

21. The issues that arise in this appeal are therefore:

i. Was the failure to join the estate of Mr. Maharaj as a party to the proceedings fatal to

any grant of relief in the first place so that this appeal is academic?

ii. Was the Trial Judge correct to consider the issue as to whether the beneficial interest

of the disputed lands was held by Ravi or Mr. Maharaj?

iii. If the answer to (ii) is yes, was the Trial Judge correct to find that the beneficial interest

in the disputed lands was held by Mr. Maharaj?

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iv. Was the Judge correct to conclude that the conveyance of the Disputed Lands was not

procured by the undue influence of the Respondents or any of them?

22. With respect to the first issue I may note that it was raised in the court below. The Trial Judge

however found it unnecessary to decide the issue having regard to his findings on the two

issues mentioned earlier (i.e. the issue in relation to the beneficial interest and whether the

2006 Deed of Conveyance was procured by undue influences) which were in favour of the

Respondents.

23. Counsel for the Respondents submitted that Mr. Maharaj in executing the 2006 Deed of

Conveyance acted under the power of attorney. Counsel argued that the Appellant’s claim

depended upon findings in relation to the conduct of Mr. Maharaj. Any challenge to the

power of attorney required the estate of Mr. Maharaj to be joined as a party to these

proceedings. Mr. Maharaj, through his estate, was therefore entitled to be heard as a matter

of natural justice. The failure to make the estate a party to the proceedings was fatal to the

grant of any relief sought by the Appellant.

24. I do not agree with that submission. It must be judged in the context of this case where the

challenge to the 2006 Deed of Conveyance of the Disputed Lands to the Respondents is

essentially on the basis that it was procured by undue influence. In that context it is relevant

to note the following:

i. If the claim is successful there is no liability that attaches to the estate of Mr. Maharaj.

ii. The claim of undue influence is not an allegation of any wrongdoing by Mr. Maharaj but

amounts to an allegation of wrongdoing by the Respondents or any one of them.

iii. The likely result of the claim if successful is that the 2006 Deed of Conveyance would be

set aside in which case the Disputed Lands would revert to the estate of Mr. Maharaj and

so would be abenefit to the estate, unless this Court were to find that the Trial Judge was

wrong to say that Mr. Maharaj held the beneficial interest in the Disputed Lands.

iv. The issue whether Mr. Maharaj held the beneficial interest in the Disputed Lands was an

issue that was raised by the Respondents and vigorously argued by them.

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v. Shakuntala and Ravi are the executors of the will of Mr. Maharaj and the sole

beneficiaries of his estate. If a claim were made against the estate of Mr. Maharaj they

are the ones to represent the estate and they are before the Court. Although there is as

yet no grant of probate,my understanding is that there is yet to be a challenge to the will

of Mr. Maharaj and there will not likely be any challenge to the will.

vi. The parties who have any interest in opposing or defending the allegation that the 2006

Deed of Conveyance was procured by undue influence are before the Court.

25. In the circumstances,I am of the view that there was no necessity to have made the estate of

Mr. Maharaj a party to these proceedings and failure to do so is not fatal to the Appellant’s

claim and the appeal cannot be considered an academic one.

26. As to the second issue, counsel for the Appellant contended that the Trial Judge was wrong

to consider the issue whether the beneficial interest of the Disputed Lands was held by Ravi

or Mr. Maharaj. He contended that it was not an issue that was raised in the Respondents’

defence andcounterclaim. He argued that there was no plea by the Respondents in their

defence to the averment in the Appellant’s statement of case that Ravi was the beneficial

owner of the Disputed Lands so as to put that allegation in issue. The Respondents had simply

not admitted the averment and did not put forward any other version as to the beneficial

title of the Disputed Lands. Further, it was argued that in the Respondents’ proposed

statement of agreed facts,it was stated as an agreed fact that Ravi was the beneficial owner

of the Disputed Lands.

27. Counsel for the Respondents submitted that the Respondents did not admit in their defence

that Ravi was the beneficial owner. In fact, the Respondents expressly did not admit that fact

and contrary to what was submitted by the Appellant, the parties did not agreeon a

statement of facts. Further, the Appellant took no objection while evidence was being

adduced in the Court below as to the beneficial interest of Mr. Maharaj in the Disputed Lands.

Indeed the issue was raised by the Appellant in the course of her cross-examination. Further,

the Appellant also dealt with the issue in her final submissions. The effect of all of that, it is

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contended, is that the Trial Judge was not only entitled to but was bound to treat with the

issue as to the beneficial ownership of the Disputed Lands and decide it.

28. The Appellant in her statement of case pleaded at paragraph 6 that Ravi became the sole

beneficial owner of the Disputed Lands by deed of partition made in 1992. It is not disputed

that there was a dispute between Shakuntala and Ravi which resulted in partition

proceedings and a partition order. Pursuant to that order the High Street lands (being lots 2

and 4 and the Disputed Lands) which were conveyed to Ravi and Shakuntala by the 1976 Deed

of Conveyance as mentioned above, were partitioned with the result that lots 2 and 4 were

vested by the 1992 deed of partition in Shakuntala and the Disputed Lands (which are lots 6

and 8) were vested in Ravi. So the averment of the Appellant in the statement of case was

that Ravi in the 1992 deed of partition became the sole beneficial owner of the Disputed

Lands.

29. In response to that averment the Respondents pleaded simply “paragraph 6 is not admitted”.

30. In Civil Appeal No.244 of 2008 M.I. 5 Investigations Limited vs Centurion Protective Agency

Limited the Court of Appeal had to consider the effect of a defence that consisted of simple

denials and admissions. The Court noted that the Rule 10.5of the Civil Proceeding Rules, 1998

(the CPR) sets out what a defendant must say in his defence. The Court drew particular

attention to Rules 10.5 (3), 10.5 (4) and 10.5 (5) of the CPR. These are as follows:

“10.5 (3) In his defence the defendant must say—

(a) which (if any) allegations in the claim form or statement of case he admits;

(b) which (if any) he denies; and

(c) which (if any) he neither admits nor denies, because he does not know

whether they are true, but which he wishes the claimant to prove.

(4) Where the defendant denies any of the allegations in the claim form or statement

of case—

(a) he must state his reasons for doing so; and

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(b) if he intends to prove a different version of events from that given by the

claimant, he must state his own version.

(5) If, in relation to any allegation in the claim form or statement of case the defendant

does not—

(a) admit or deny it; or

(b) put forward a different version of events,

he must state each of his reasons for resisting the allegation.”

31. The summary of the effect of these rules was set out by the Court of Appeal at paragraph 7

of its judgment which is as follows:

“7. In respect of each allegation in a claim form and statement of case

thereforethere must be an admission or a denial or a request for a claimant to

prove the allegation. Where there is a denial it cannot be a bare denial but it

must be accompanied by the defendant’s reasons for the denial. If the

defendant wishes to prove a different version of events from that given by the

claimant he must state his own version.I would think that where the defendant

sets out a different version of events from that set out by the claimant that can

be a sufficient denial for purposes of 10.5(4)(a) without a specific statement of

the reasons for denying the allegation. Where the defendant does not admit or

deny an allegation or put forward a different version of events he must state his

reasons resisting the allegation (see 10.5 (5)). The reasons must be sufficiently

cogent to justify the incurring of costs and the expenditure of the Court’s

resources in having the allegation proved.”

32. The Court then focused on the denials in the defence in the matter before it and stated:

“9. The defence filed in this matter fell well short of what was required of the

Appellant under Rule 10.5. It contained denials but there are no reasons for the

denials or no statement of a different version of events that the Appellant

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wishes to prove. The denials were bare denials. The Appellant has clearly failed

to comply with Rule 10.5 (4).

10. Where a defence does not comply with Rule 10.5 (4) and set out reasons for

denying an allegation or a different version of events from which the reasons

for denying the allegation will be evident, the Court is entitled to treat the

allegation in the claim form or statement of case as undisputed or the defence

as containing no reasonable defence to that allegation.”

33. While those statements are referable to denials in a defence, in my judgment they apply with

equal force to a statement in the defence that the defendant does not admit a particular

allegation. This must be so as rule 10.5 (5) refers not only to where the defendant denies an

allegation in a statement of case but where he does not admit it. In the latter case the rule

also requires the defendant to statehis reasons for resisting the allegation. Here too, as in the

case of a denial, if the defendant does not state the reasons for resisting the allegation he

may put forward a different version of events from which it may be apparent why the

allegation is resisted. In such a case he would not be in breach of Rule 10.5(5).

34. In this case the Respondents neither state the reasons for resisting the allegation that Ravi is

the beneficial owner of the Disputed Lands nor do they set out a version of events from which

it may be apparent why the allegation is resisted. In accordance with M.I. 5 Investigations

Limited (supra) the Court would be entitled to treat the allegation in the statement of case

as to the beneficial ownership of Ravi in the Disputed Lands as undisputed.

35. Further,while it istrue, as counsel for the Respondents contend, there is no agreed statement

of facts, there was a proposed statement of agreed facts prepared by the Respondents in

which one of the proposed facts was that Ravi was the beneficial owner of the Disputed

Lands.

36. Yet, despite the pleadings and the proposed agreed facts, the issue as to who held the

beneficial interest in the Disputed Lands became an issue in the case at a very early stage of

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the trial. Indeed it is conceded by the Appellant that “the issue emerged in the course of the

trial”. This is evident from the cross-examination of the witnesses.

37. In the cross-examination of the Appellant, she was cross-examined without objection as to

the fact that Mr. Maharaj bought properties and put them in the names of Ravi and

Shakuntala while retaining a power of attorney from them, the fact that the Disputed Lands

were bought and paid for by Mr. Maharaj and conveyed in the name of Ravi, and the fact that

he held a power of attorney from Ravi. That evidence was relevant to whether Mr. Maharaj

conveyed the lands on trust to Ravi or beneficially. At one point in the cross examination of

the Appellantshe was asked:

“Q: In fact you say in paragraphs 59, 57 of your statement that while Ravi was

abroad he appointed [Mr. Maharaj] as his power of attorney, this power of

attorneyRavi told me was done so as [to deal with] with lands he purchased

or transferred in Ravi’s name. See that

A: Yes

Q: That was the intention I take a power of attorney I might buy lands I might put

it in my children’s name but it is mine, it is my property, that was far as

understanding and intentions, if he died and left it to them fine.

A: Well I disagree in this case of this property because Ravi and Shakuntala

considered it theirs, Shakuntala even took Ravi to court to partition the

property. Shakuntala kept 2 – 4 High Street.

Q: But Shakuntala would tell you when she gives evidence in chief, as far as she

is concerned her father could have sold that whenever he wanted because it

was his.

A: Well that’s not how I see it.”

And later: she was asked:

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“Q: And that [Mr. Maharaj] who was an enormously successful businessman in

San Fernando, perhaps one of the most successful real estate businessmen in

San Fernando, was a careful meticulous man who took out the powers of

attorney to retain control over his properties, ultimate control.

A: That property wasn’t passed, it was on Ravi’s name. There was a partition

through a court action.

Q: M’am all of the properties that he put in Ravi’s name were in Ravi’s name.

A: I don’t see it that way, that was a gift, that was a gift to a child, both to

Shakuntala and Ravi. Shakuntala took it to court, [Mr. Maharaj] didn’t get

involved. The court partitioned the property for two of them.

Q: Are you saying therefore that [Mr. Maharaj] did not purchase the property in

their names.

A: I never said that.”

What was being suggested by those questions was that (i) the lands were conveyed to Ravi

but they were paid for by Mr. Maharaj. And (ii) in those circumstances there was a resulting

trust in favour of Mr. Maharaj so that the beneficial interest was vested in him and that it

was Mr. Maharaj’s intention that Ravi held the lands on trust for him.

38. The aim of this cross-examination was plainly understood by counsel for the Appellant. In the

cross examination of Kiran, the Second Respondent, counsel for the Appellant, interrogated

him on matters touching on the beneficial ownership of the Disputed Lands. He was asked:

“Q: In your witness statement you said you became surprised by what your

grandfather was telling you and I suppose you would have been surprised at

your grandfather was telling you that he was selling Ravi’s property because

you would have appreciated that the property did not really belong to him.

A: I knew it was in Ravi’s name.

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Q: It did not belong to your grandfather.

A: I knew he bought the property.”

39. It seems plain to me that the effect of the questions were directed to the beneficial interest

in the Disputed Lands. It was being suggested although they were bought by Mr. Maharaj

they did not “belong” to him but to Ravi. It is fair to construe “belong” in that context as

referable to the beneficial interest.

40. Immediately after the answer above-mentioned, counsel for the Appellant asked the second

Respondent “It did not belong to your grandfather. That is why they have to use the power

of Attorney.” To which there was this objection from Counsel for the Respondents:

“That is a legal question. Whether it belongs to somebody is a legal question.

Whether it is vested in their name does not mean belongs to them, in law.”

41. The clear purport of that objection was that although the legal interest was vested in Ravi it

was for the Court to determine whether the beneficial interest was also vested in him or was

vested in Mr. Maharaj and it was not for the witness to provide the answer. There was no

rebuttal from counselfor the Appellant that that was not an issue before the court.

42. That the issue as to the beneficial ownership of the lands was a live one before the court is

also apparent from the cross-examination of the First Respondent and Dr. Seepersad who

was the Attorney-at-Lawwho prepared the 2006 Deed of Conveyance and also prepared the

Respondents’ defence and counterclaim.

43. With respect to Dr. Seepersad he was asked:

“Q: I accept what you are saying. Let us be clear, when you were drafting this

Defence it was on the basis that the old man was acting on behalf of the young

boy, his son, under the power of attorney and to transfer the property of the

son to the [Respondents].

A: Yes

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Q: You were not preparing the Defence on the basis that [Mr. Maharaj] owned

the property, that is the old man as distinguished from the son.

A: Well no, no, he did, he never owned it he transferred it under the power of

Attorney.”

Later Dr. Seepersad was asked:

“Q: So that by the time then, that is in your inner chambers, you would have

realized that this is a property that belonged to a person other than [Mr.

Maharaj].

A: Yes.

Q: You had told him so.

A: Yes.

Q: So when he told you that he got this ½ million to give as donations would you

then have advised him that that money wouldn’t be his.

A: I told him that he should tell Ravi about the transfer.

Q: You consider that to be important.You considered that to be important

because you realised the property belonged to Ravi.

A: Yes. He had bought it in Ravi’s name.

Q: You had the deed as Ravi as the owner together with Shakuntala.

A: Yes, that is true

Q: When you told him that he had to pay the money over to Ravi did he make any

complaint about that.

A: No. When I said to him you have to talk to Ravi because you have to pay the

money over to him he nodded.

Q: As far as you were appreciating [Mr.] Maharaj, senior, knew that he was

transferring property to which Ravi was entitled to the proceeds.

A: Yes.”

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44. In relation to Shankuntala, the First Respondent, the following extract of the cross-

examination pointed to the fact that the beneficial ownership of the Disputed Lands was an

issue in the proceedings:

“Q: Why you kept that secret. [i.e. not informing Ravi of the sale of the disputed

lands]

A: Why would I have to tell him.

Q: Why, decency they call it.

A: Mr. Koylass, from the time we were young[Mr. Maharaj] had power of

attorney for all three of us and he constantly bought and sold properties and

as far as I am concerned [Mr. Maharaj] worked that was his money, it was his

property, he was free to buy and sell anytime he wished. Anything he wanted

to do with it he could do. It was not mine.

Q: When [Mr. Maharaj] was selling you this property it was on the basis, as far

as you concerned that because [Mr. Maharaj] worked and buy property he

could sell it.

A: Yes.

Q: He said that Mr. Maharaj said that he had bought it in [Ravi’s] name, but that

since then [Ravi] has become rich and he thought that we should purchase

that property. So that you heard Mr. Maharaj say something like that.

A: Yes.

Q: You understood that [Mr. Maharaj] was thinking that he had a right to sell

that property because he had purchased it.

A: Well yes, if [Mr. Maharaj] had bought it. He bought and he could sell

whenever he wanted, to whoever he wanted. That was his right.

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Q: In so thinking, you didn’t seek to alert [Mr. Maharaj] to the fact that the

properties really now belong to me, in terms of the one that you kept, and the

other one belonged to Ravi. You didn’t seek to do that.

A: Mr. Koylass, I told you, my father, is the person, who worked saved the money

and bought endless properties and it was many times before properties that

were on our names, he used the power of attorney and he would buy and sell

all the time. I did not regard it as my property. If he wanted to sell it he could

sell it.

Q: That is how you regard it.

A: That is my attitude towards it.

Q: From the way in which the property was being dealt with, it was being dealt

with on the basis that these properties were gifts to you and to Ravi.

A: I didn’t consider it gifts. I consider that we would use it and any day he wanted

to sell it, as had happened before. It was not a property gift like one or two

others where it was a matter of those properties were not to be sold, right.”

45. Mr. Koylass in his final submissions made at the end of the trial argued,as he did before this

Court,that there was no issue as to the beneficial ownership of the lands on the pleadings.

That of course was well after the question as to the beneficial interest in the Disputed Lands

had become an issue at the trial. The written submissions made on behalf of the Appellant

in fact rightly conceded that to be so. There was evidence elicited through cross-examination

by both parties on the point. When the Appellant was cross-examined on the issue counsel

for the Appellant did not object. He sought to address the point in the cross-examination of

the Respondents. This is not surprisinggiven Mr. Koylass’ response to this Court that he would

not have conducted his case differently if the issue arose on the pleadings. In view of the

above, it seems to me that the question as to the ownership of the beneficial interest having

been made an issue, it was the obligation of the Court to address it and the Court could not

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have ignored the evidence in that regard. In the circumstances, in my judgment the Trial

Judge cannot be faulted for having dealt with the issue as towhether the beneficial interest

in the Disputed Lands were vested in Mr. Maharaj or Ravi. This conclusion brings me to the

third issue, whether the Trial Judge was correct to find that the beneficial interest in the

Disputed Lands was held by Mr. Maharaj.

46. The relevant law on this issue may be simply stated. Where one party (A) pays for the

purchase of property which is vested in another party (B) there is a presumption that A did

not intend to make a gift to B. In such a case B would hold the legal interest but the property

will be held in trust for A. Where, however, B is in a close relationship to A, such as father

and son, a presumption of advancement will apply. The implication is that A intended to make

a gift of the property to B and the transaction will take effect accordingly (see Lavelle v Lavelle

[2004] EWCA Civ 223 at paras 13 and 14).

47. In this case it is not in dispute that the Disputed Lands were bought and paid for by Mr.

Maharaj and conveyed to Ravi who is his son. In those circumstances there is the

presumption of an advancement or gift to Raviof the Disputed Lands. It is important,

however, to appreciate that the presumption of an advancement is rebuttable, and if

rebutted, the effect in this case is that Mr. Maharaj is the beneficial owner of the Disputed

Lands under a resulting trust in his favour. Whether the presumption of the advancement has

been rebutted will depend on the intention of Mr. Maharaj. Was it his intention for the

Disputed Lands to be held on trust for him? While that entails a search for the subjective

intention of Mr. Maharaj, it is to be objectively determined. The issue for the Court therefore

is whether Mr. Maharaj could objectively be understood to have intended Ravi to hold the

property in trust for him.

48. In this case the Trial Judge found that the presumption of advancement was rebutted on the

evidence with the consequence that Mr. Maharaj was the beneficial owner of the property

under a resulting trust. The Trial Judge accepted that “a man of means such as [Mr. Maharaj]

would seek to provide his children with assistance to build a life for themselves.” He saw that

as a “common feature of the parent child relationship particularly in respect of parents who

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can really afford it.” As such the conveyance to Ravi of the Disputed Lands could be seen as

a parent seeking to provide assistance, in other words a gift, to his child. The Trial Judge also

referred to the fact that from the time the Disputed Lands were conveyed to Ravi, Mr.

Maharaj had no further dealings with them until he conveyed them to the Respondents under

the power of attorney in 2006. The Trial Judge stated that those two considerations “may

well lead one to the conclusion that [Mr.] Maharaj intended the property to be a gift to his

son at a time when he was just beginning his independent journey along adulthood.” The

Trial Judge however stated that the power of Attorney “has weighed heavily in the court’s

consideration”. He stated (at paragraph 27):

“However the court is not satisfied that the presumption of advancement ought

not to be set aside. The power of attorney has weighed heavily in the court’s

consideration. The obvious and overwhelming question remains that of the

intention of a man whose business it is to purchase real estate developing a

practice whereby he uses his funds to purchase property but permits the

conveyance of those properties unto his children. Not only does he so do but

additionally, he ensures that those children execute and register powers of

attorney in his favour in respect of those properties. This in the court’s view is

demonstrative of a clear and unambiguous intention by that man to maintain a

level of control over those properties that is not merely illusory as the powers of

attorney contain the power to sell. In so doing the man is exerting the absolute

and ultimate rights of ownership over the property, that of the ability to dispose

of same. The fact that the power of attorney is revocable does not weigh heavily

against this finding in these circumstances. The fact of revocability may have

been of more weight should this have been a case of a man transferring a single

property which he purchased into the name of his child but the evidence shows

that Maharaj was an astute land owner with several high end properties and

had cultivated a practice of so doing while maintaining ultimate control.”

The Trial Judge expressed his conclusion on the issue at paragraph 30 of his judgment which I

have set out atparagraph 15 of this judgment.

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49. The Appellant has submitted that the Trial Judge erred in coming to the finding that the

beneficial interest was held by Mr. Maharaj. The Respondents supported the Trial Judge’s

finding.

50. That finding by the Trial Judge is a finding of fact. The approach of an appellate court to a

challenge to the Trial Judge’s finding of fact is well settled and has been referred to on

numerous occasions. Essentially the appellate court will not interfere with the Trial Judge’s

finding simply because on its own assessment of the evidence it would have come to a

different finding. It is often said that before the appellate court would interfere with the Trial

Judge’s finding of fact and substitute its own, it must be satisfied that the Trial Judge has gone

plainly wrong. In Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014]

UKPC 21 the Privy Council explained that the phrase “plainly wrong” directs the appellate

court to consider whether it was permissible for the Trial Judge to make the finding on the

evidence as a whole and requires a court to identify a mistake in the Judge’s evaluation of

the evidence that is sufficiently material to undermine his conclusions. The Privy Council

stated at paragraph 12 (which I quote without reference to the authorities stated therein):

“It has often been said that the appeal court must be satisfied that the judge at

first instance has gone “plainly wrong”…This phrase does not address the

degree of certainty of the appellate judges that they would have reached a

different conclusion on the facts…Rather it directs the appellate court to

consider whether it was permissible for the judge at first instance to make the

findings of fact which he did in the face of the evidence as a whole. That is a

judgment that the appellate court has to make in the knowledge that it has only

the printed record of the evidence. The court is required to identify a mistake in

the judge’s evaluation of the evidence that is sufficiently material to undermine

his conclusions. Occasions meriting appellate intervention would include when

a trial judge failed to analyse properly the entirety of the evidence.”

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51. Similarly in Petroleum Company of Trinidad and Tobago v Ryan and another [2017] UKPC

30 the Privy Council quoted with approval the following paragraph in Henderson v Foxworth

Investments Limited [2014] 1 WLR 2600, at para 67 which acknowledges the need for an

identifiable error before the appellate court would interfere with the Trial Judge’s findings of

fact:

“67. It follows that, in the absence of some other identifiable error, such as

(without attempting an exhaustive account) a material error of law, or the

making of a critical finding of fact which has no basis in the evidence, or

demonstrable misunderstanding of relevant evidence, or demonstrable failure

to consider relevant evidence, an appellate court will interfere with the findings

of fact made by a trial judge only if it is satisfied that his decision cannot

reasonably be explained or justified.”

52. So too in Privy Council Appeal 28 of 2002 Harracksingh v. the Attorney General and anor it

was stated:

“11. It is axiomatic that even where a case on paper would support a decision

either way, the trial judge’s decision ought not to be disturbed unless it can be

demonstrated that it is “affected by material inconsistencies and inaccuracies

or he may be shown to have failed to appreciate the weight or bearing of

circumstances admitted or proved or otherwise to have gone plainly wrong”

see: Watt or Thomas v Thomas [1947] AC 484 per Lord Macmillan at page 491.”

53. Where the challenge before the appellate court is to inferences drawn by the Trial Judge from

his findings of primary facts, the Trial Judge’s decision is more open to be reassessed by the

appellate court. In Beacon Insurance Company Limited(supra)the Privy Council explained the

approach of an appellate court to inferences drawn from primary facts found by the Judge in

this way (at para 17):

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“Where a judge draws inferences from his findings of primary fact which have

been dependent on his assessment of the credibility or reliability of witnesses,

who have given oral evidence, and of the weight to be attached to their

evidence, an appellate court may have to be similarly cautious in its approach

to his findings of such secondary facts and his evaluation of the evidence as a

whole. In re B (a Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR

1911, Lord Neuberger at 60 acknowledged that the advantages that a trial

judge has over an appellate court in matters of evaluation will vary from case

to case. The form, oral or written, of the evidence which formed the basis on

which the trial judge made findings of primary fact and whether that evidence

was disputed are important variables. As Lord Bridge of Harwich stated in

Whitehouse v Jordan [1981] 1 All ER 267 at 286, [1981] 1 WLR 246 at 269-270:

“[T]he importance of the part played by those advantages in assisting the

judge to any particular conclusion of fact varies through a wide spectrum

from, at one end, a straight conflict of primary fact between witnesses,

where credibility is crucial and the appellate court can hardly ever

interfere, to, at the other end, an inference from undisputed primary facts,

where the appellate court is in just as good a position as the trial judge to

make the decision.”

54. In this case as I mentioned (and in the words of the Trial Judge) the power of attorney

“weighed heavily” in his consideration. It is fair to say that in the Trial Judge’s analysis of the

evidence on this issue the power of Attorney was a crucial piece of evidence which had

persuaded him that the presumption of advancement was rebutted. This, I think, is evident

from paragraph 27 of his judgment which I have set out earlier at paragraph 48 of this

judgment. I, however, do not accept that the power of attorney on the evidence in this case

was capable of having that persuasive effect.

55. There was evidence that there was property (37 – 39 High Street) which was bought by Mr.

Maharaj and put in the name of Ravi that was clearly gifted to Ravi. This is not disputed. It is

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not among the properties excluded from the ambit of the power of attorney and, though an

undisputed gift, would be covered by the power of attorney. The power of Attorney

therefore by its terms covered property in respect of which Mr. Maharaj in fact did not retain

beneficial ownership. It applied also to property which although bought by Mr. Maharaj and

conveyed to Ravi was intended as a gift to him. It therefore does not necessarily follow that

as Mr. Maharaj had a power of attorney over the Disputed Lands that they were not intended

as a gift to Ravi since there also existed property though clearly intended as a gift to him that

within the power of attorney.

56. The Trial Judge considered that the non-revocation by Ravi of the power of attorney was

reflective of a desire by both Ravi and Mr. Maharaj to keep Mr. Maharaj in control of the

Disputed Lands, which therefore supported the claim that the Disputed Lands were held by

Ravi in trust for Mr. Maharaj. However, while the non-revocation of the power of attorney

could be consistent with that fact, it is equally consistent with simple inertia and/or a belief

that such a power of attorney continuing for more than forty years after initially being

granted, would not be utilised by Mr. Maharaj in a manner detrimental to Ravi’s ownership

of the Disputed Lands. This would be especially so where (i) Ravi had the benefit of the 1976

deed of conveyance and (ii) the consent order in the partition action. In those circumstances

it would have been reasonable for the continued existence of the power of attorney to have

been overlooked or ignored.

57. In view of the above there is merit in the Appellant’s submission that the power of attorney

is neutral and not determinative of the issue as the Trial Judge seemed to have thought.

58. I should note that the Trial Judge did refer to the property at 37 – 39 High Street, San

Fernando. At paragraph 28 of his judgment he said:

“Furthermore, it is clear from the cross examination of the [Appellant] that [Mr.]

Maharaj had provided at least one other property at 37-39 High Street San

Fernando (at which site Ravi and the Claimant constructed a mall) as an

absolute gift to Ravi. In addition [Mr.] Maharaj also funded Ravi’s medical

studies which he pursued in Canada. These appear to have clearly been gifts

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from a father to a son. That appears to the court however not to have been the

case with respect to the disputed property.”

59. The Trial Judge stated in that paragraph that 37-39 High Street San Fernando was clearly a

gift to Ravi from Mr. Maharaj. He, however, does not refer to the fact that that property is

also within the ambit of the power of attorney. He therefore does not address the issue that

if the intention of Mr. Maharaj was that properties bought by him and conveyed to Ravi were

to be held on trust is evident by his having a power of attorney over the properties, why is

that not true of 37-39 High Street San Fernando. Before the Trial Judge could say the

existence of the power of attorney was indicative of Mr. Maharaj’s intention not to make a

gift of the Disputed Lands to Ravi, he had to consider that the power of attorney applied to

lands which Mr. Maharaj intended for Ravi to take beneficially. The Trial Judge did not do so

and in my view failed to properly analyse the entirety of the evidence.

60. Further, no one has suggested that Ravi did not own other properties which he acquired from

his own means and were vested in his name. There could be no suggestion that the beneficial

interest in such properties belonged to anyone other than Ravi. Yet, the power of attorney

applied to those properties as well. This too is suggestive of the fact that the existence of the

power of attorney could not be probative of whether or not property in Ravi’s name that fell

within the scope of the power of attorney was held on trust.

61. There was other evidence relevant to this issue that was not properly analysed by the Trial

Judge.

62. It is not in dispute that since the High Street lands were conveyed to Ravi and Shakuntala by

the 1976 Deed of Conveyance, Mr. Maharaj had nothing to do with the Disputed Lands until

he conveyed them to the Respondents in 2006. That is a period of non-involvement for thirty

years. As I mentioned, the Trial Judge was of the mind that this period of non-involvement

together with the fact that someone such as Mr. Maharaj would seek to provide for his

children may lead to the conclusion that it was Mr. Maharaj’s intention that Ravi should own

the disputed lands beneficially. The Trial Judge, however, was persuaded otherwise by the

power of attorney. However, having failed to consider that the power of attorney applied to

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property that was also gifted outright to Ravi and did not have the conclusive effect he

attached to it as discussed above, the Trial Judge failed to properly consider in that context

the evidence of Mr. Maharaj’s non-involvement and effect of same on the issue whether the

Disputed Lands were held beneficially or on trust.

63. It is not in dispute that after the High Street lands were conveyed to Shakuntala and Ravi that

Mr. Maharaj did not collect rents generated by the property and it seems that the rents were

collected by Ravi. This led to a dispute between Shakuntala and Ravi. According to

Shakuntala’s evidence, Ravi was collecting the rents and she was not happy with that. She

felt that as “part owner of the property” she was entitled to part of the rents. She, however,

stated that there was more to it than that. She said she asked Ravi to pay the “debts” by

which she meant income tax from the rents generated by the property as well as the Water

and Sewerage Authority rates. However, Ravi did not do so. She also referred to insurance

that she had to pay. She complained that she was not getting any rent and she had to pay the

“debts” out of her own personal monies. According to Shakuntala therefore, she and Ravi had

an entitlement to the rentsand responsibility for the payment of income tax on it as well as

for the payments of water rates in respect of the property. This evidence is clearly suggestive

of the fact that the High Street lands (which include the Disputed Lands) belonged beneficially

to Ravi and Shakuntala and they considered and understood that to be so. Further, the fact

that it was understood that the rents belonged to Ravi and Shakuntala and that there was no

responsibility on the part of Mr. Maharaj to pay the income tax on the rent and the water

and sewerage rates in respect of the High Street Lands (for the non-payment of which rates

the property could be sold, see s. 11 of the Rates and Charges Recovery Act Chap. 74:03) is

indicative of an intention on the part of the deceased to have made a gift of the lands. As I

mentioned, the Disputed Lands is a portion of the High Street lands that were conveyed to

Ravi following the partition proceedings and the order made in those proceedings. The

evidence is clearly indicative that the common intention of Ravi, Shakuntala and Mr. Maharaj

was that Ravi had a beneficial interest in those lands.

64. There is no evidence that Mr. Maharaj knew of the partition proceedings by which the High

Street lands were partitioned between Ravi and Shakuntala. But there is evidence that he

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knew of the dispute yet on the evidence he did nothing. It would not be reasonable to expect

if those lands belonged to Mr. Maharaj beneficially that he would not intervene in the dispute

and would allow his children to fight over lands that were not theirs. After all, on the evidence

he had shown his preparedness to intervene when Ravi attempted to deal with lands that

were not his as when he intervened to stop Ravi’s construction of a mall upon property that

was owned by acompany. This evidence also points to the intention of Mr. Maharaj that the

Disputed Lands were conveyed to Ravi beneficially and not on trust for Mr. Maharaj.

65. Shakuntala did say at one point in her cross-examination that she did not consider the

conveyance of the High Street lands to her and Ravi to be gifts. She considered that they could

use the High Street lands and that Mr. Maharaj, when he wanted, could sell them “as had

happened before”. However, she did not seek to offer any cogent explanation why she

considered the conveyance of the High Street lands not to be gifts other than the fact that

Mr. Maharaj bought the land and held the power of attorney. Nor did she provide any

particulars of the properties Mr. Maharaj had sold before and what were the circumstances

surrounding those properties. Her statement that she considered the High Street Lands to be

gifts lacks any probative value. It is also in stark contrast to her earlier cross-examination

where she considered herself as “part owner” of the Disputed Lands and wanted part of the

rent because as a “part owner” [she] felt entitled to part of the rent” and had no choice but

to seek, by the partition proceedings, to divide the High Street Lands “down the middle so

Ravi would get his and she would get hers”. The very fact that she instituted proceedings for

partition rather than have Mr. Maharaj determine the issue points directly against her

actually being of the view that Mr. Maharaj rather than Ravi and herself retained the

beneficial ownership. It is also in complete contrast to the proposed agreed statement of

facts to which I have referred earlier and in which the Respondents accepted that Ravi was

the beneficial owner of the disputed lands. It is fair to assume that such assertion would have

been based on the Respondents’ instructions.

66. There is also the 1976 Deed of Conveyance in which Mr. Maharaj is referred to as the

undisclosed agent of Ravi and Shakuntala. According to the recitals in the deed, he was acting

as the undisclosed agent for Ravi and Shakuntala at the time of the agreement for the sale of

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the High Street Lands. There is no explanation why Mr. Maharaj so described himself and

whether he similarly described himself as the undisclosed agent in deeds in relating to other

properties which may have been conveyed to persons on trust for him. The 1976 Deed of

Conveyance does not support the finding of a resulting trust and is itself evidence that tends

to support the presumption of an advancement.

67. There is also the evidence of Dr. Seepersad in this case that was not considered by the Trial

Judge.

68. As I mentioned earlier, Dr. Seepersad prepared the 2006 Deed of Conveyance. From Dr.

Seepersad’s evidence it is clear that he proceeded with the preparation of the 2006 Deed of

Conveyance on the basis that the Disputed Lands belonged to Ravi beneficially (see his cross-

examination at paragraph 43 of this judgment). Indeed Dr. Seepersad had prepared the

Respondents’ defence and counterclaim on the basis that Mr. Maharaj was acting on behalf

of Ravi when he conveyed the Disputed Lands and his understanding was that the Disputed

Lands were owned by Ravi (See paragraph of 43 of this judgment).Here too it is reasonable

to infer that the defence and counterclaim would have been prepared on the basis of

instructions given to Dr. Seepersad.

69. In circumstances where Dr. Seepersad considered the property to belong to Ravi as one

would expect, Dr. Seepersad told Mr. Maharaj that as he was transferring property that did

not belong to him, he had to pay the money over to Ravi. In response Mr. Maharaj made no

objection to doing so and in fact according to Dr. Seepersad in his witness statement he

agreed to do so. His cross-examination is of similar effect in that when he said to Mr. Maharaj

that he needed to speak to Ravi because he had to pay the purchase money over to him, Mr.

Maharaj nodded. This evidence of Dr. Seepersad is very relevant as it demonstrates Mr.

Maharaj himself understood Ravi to be beneficial owner. The Trial Judge failed to consider

this evidence.

70. In all the circumstances it is my judgment that the finding that Ravi held the property on trust

for Mr. Maharaj cannot stand. The Trial Judge went plainly wrong by attaching the

importance he did to the power of Attorney in the light of all the evidence. It is not

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conclusiveof the issue as he apparently thought. But, by holding that view he was blind to

other evidence that was relevant to the issue and failed to properly analyse it or to do so at

all. When that evidence, which I have sought to outline above, is taken into account, I believe

it leads inevitably to the conclusion that the beneficial interest in the Disputed Lands was

vested in Ravi and he did not hold them on trust for Mr. Maharaj. In my judgment the

presumption of advancement has not been rebutted on the evidence.

71. This brings me to the fourth issue, whether the conclusion of the Trial Judge that the

conveyance of the Disputed Lands was not procured by the undue influence of the

Respondents or any of them is one that was available to him on the evidence.

72. There is no dispute between the parties as to the applicable law. The relevant principles may

be summarised as follows.

73. Undue influence is one of the grounds developed by the courts of equity as a court of

conscience. The objective is to ensure that the influence one person has over another is not

abused (see Royal Bank of Scotland pc v Etridge (No. 2) [2002] 2 AC 773, 794-795). As it was

put in National Commercial Bank (Jamaica) Limited v Hew and Others [2003] UKPC 51at

paragraph 29, undue influence “arises whenever one party has acted unconscionably by

exploiting the influence to direct the conduct of another which he has obtained from the

relationship between them.”

74. Undue influence is of two kinds. One is actual undue influence where there is evidence of

actual overt acts of undue influence. The other is where,in certain circumstances, undue

influence is presumed, that is to say where the party relies on the presumption of undue

influence. This case relates to the latter. Where undue influence has been established, the

transaction of which the complaint is made will be set aside.

75. In the case of presumed undue influence, what has to be established is a pre-existing

relationship between the parties in which the alleged wrong doer has acquired influence or

an ascendancy over the other and that the transaction complained of is one which calls for

an explanation. The burden to establish these two matters is on the claimant i.e. the person

alleging undue influence. Where these matters have been established the burden shifts to

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the defendant to provide a satisfactory explanation from which the court may conclude the

transaction is not procured by undue influence. In Etridge, (supra), it was put this way (at

para 14):

“On proof of these two matters the stage is set for the court to infer that, in the

absence of a satisfactory explanation, the transaction can only have been

procured by undue influence. In other words, proof of these two facts is prima

facie evidence that the defendant abused the influence he acquired in the

parties’ relationship. He preferred his own interests. He did not behave fairly

to the other. So the evidential burden then shifts to him. It is for him to produce

evidence to counter the inference which otherwise should be drawn.”

76. There are some relationships where the law, because of the very nature of the relationship,

presumes irrebuttably a relationship of influence. Such relationships include the relationship

of parent and child. In the relationship of parent and child the law presumes irrebuttably that

the parent has acquired influence over the child. So that where the child is the complainant

the law presumes that the parent has influence over the child. Of course the presumption is

to the relationship of influence. The child will still be required to establish, so as to raise the

presumption of undue influence, that the transaction is one that calls for an explanation.

77. The presumption of influence, however, does not apply when the child exercises undue

influence over the parent. In such a case the law does not presume that the child has

influence over the parent and it must be established that the relationship between them was

such that the child had acquired influence over the parent.

78. In this case there is no special relationship where the law presumes that there is a relationship

of influence. To the extent that Shakuntala was the child of Mr. Maharaj, the complaint is

that she (or any of the Respondents) exercised undue influence over her parent. It is therefore

necessary for the Appellant to establish the existence a relationship of influence between the

Respondents or any of them and Mr. Maharaj and that the transaction was one that called

for an explanation.

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79. The Trial Judge held that the Appellant had failed to establish either. I will first consider

whether there existed a relationship of influence between the Respondents or any of them

and Mr. Maharaj.

80. In considering whether there existed such a relationship, where one party had influence over

the other, a commonly applied test by the courts is to ask whether one party reposed trust

and confidence in the other since it is generally assumed that influence grows out of trust

and confidence. In Etridge(supra)at para 10Lord Nicholls for example (whose speech received

the support of the majority of the House) noted:

“Relationships are infinitely various. Sir Guenter Treitel QC has rightly noted

that the question is whether one party has reposed sufficient trust and

confidence in the other, rather than whether the relationship between the

parties belongs to a particular type: See Treitel, The Law of Contract 10th ed

(1999), pp 380 – 381.”

81. And in Goldsworthy v. Brickell and Another [1987] Ch 378, 400Nourse L.J. stated (at page

400):

“Undue influence is of two kinds: (1) express or, as it is nowadays more usually

known, actual undue influence, and (2) that which in certain circumstances is

presumed from a confidential relationship; by which in this context is meant a

relationship wherein one party has ceded such a degree of trust and confidence

as to require the other, on grounds of public policy, to show that it has not been

betrayed or abused.”

82. It is to be noted in the quotation from Etridge (supra) reference is made to relationships in

which “sufficient” trust and confidence is reposed. So too in Goldsworthy (supra), Nourse L.J.

referred to a relationship in which one party ceded “such a degree of trust and confidence as

to require the other” to show that it has not been betrayed or abused. This suggests, as has

been noted in Nelson Enonchong, Duress, Undue Influence and Unconscionable Dealing

(2006) that the mere fact that a party has reposed some trust and confidence is not enough

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and that it must be of a nature that will leave the court to infer the existence of influence. I

accept that to be correct.

83. The trust and confidence reposed by the wronged party in the wrongdoer need not be in

relation to the management of his financial affairs. As is noted by Nourse L.J. in Goldsworthy

(supra) at page 401:

“But there are many and various relationships lacking a recognisable status to

which the presumption has been held to apply. In all of these relationships,

whether the first kind or the second, the principle is the same. It is that the

degree of trust and confidence is such that the party in whom it is reposed,

either because he is or has become an advisor of the other or because he has

been entrusted with the management of his affairs or everyday needs or for

some other reason, is in a position to influence him into effecting the transaction

of which complaint is later made.”

84. The Trial Judge in coming to the conclusion that there did not exist a relationship of influence

asked the question whether there existed a relationship in which Mr. Maharaj reposed trust

and confidence in the Respondents. In view of what I have said above, that was an

appropriate question except that I would add after the Respondents “or any of them”. The

Trial Judge reviewed some of the evidence and noted that there was no reliable evidence

from the Appellant that at the time of the conveyance Mr. Maharaj was bound or beholden

to his daughter, i.e. (the First Respondent), for his general care and support. This he said

applied equally to Mr. Maharaj’s ability to look after his own financial affairs. He stated at

paragraph 63:

“This in the court’s view applied equally to [Mr.] Maharaj’s ability to look after

his own financial affairs at the relevant time. The evidence on the part of the

[Appellant] has failed to prove that [Mr.] Maharaj had reposed trust and

confidence in any of the [Respondents] in relation to the management of his

financial affairs. While the court accepts that it will very often be difficult for a

claimant to pass muster when it comesthis type of proof owing to the

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circumstances, it is nevertheless the duty of the claimant to prove same and the

[Appellant’s] evidence in this case is devoid of such proof”.

85. The Appellant contends that the Trial Judge erred in failing to find that there was a

relationship of influence between the Respondents and Mr. Maharaj. The finding by the Trial

Judge that there was no such relationship is a finding of fact and the ability of the Court of

Appeal to interfere is subject to the same strictures described above (see paragraphs 50-53).

86. It is not in dispute that at the time of the 2006 Deed of Conveyance Mr. Maharaj was living

with Kiran, the Second Respondent. He had been living with him since 2004. Prior to that, he

resided with Shakuntala from about October 1998. There was evidence from the Appellant

to the effect that at around the time of the 2006 Deed of Conveyance Mr. Maharaj was easily

confused, forgetful, weak-minded, could not communicate clearly and was completely reliant

on and followed the directions of his caregiver who at the time was Kiran. However, it is safe

to say from the finding of the Trial Judge that he did not accept that evidence. That was a

finding the Trial Judge was entitled to make on the evidence. The only medical evidence came

from a Dr. Ramroop in whose care Mr. Maharaj was from about June 2003. Prior to the 2006

Deed of Conveyance he last saw Mr. Maharaj in June 2003 and again in October 2005 by

which time Mr. Maharaj was in his nineties. In 2003 Mr. Maharaj had complained of joint

pain, swelling of the knees and ankles and having difficulty performing normal activities of

daily life. In 2005 Mr. Maharaj complained of pain in the lower back and according to Dr.

Ramroop, “was still having problems with osteoarthritis”. Dr. Ramroop stated that Mr.

Maharaj in some instances would have needed some assistance in his daily living but his

observations however are of a man who had his mental faculties.

87. It seems that the evidence does not establish any more than that Mr. Maharaj at around the

time of the 2006 Deed of Conveyance was an old man in his early nineties requiring some

assistance with his daily living and was reliant to some extent on Kiran with whom he was

living from 2004 to 2006 for his care and comfort. However, one need not be feeble and

totally reliant for one’s care to be in a relationship of influence.

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88. There was evidence before the court that on July 19th, 2004 Mr. Maharaj executed a power

of attorney by which he appointed Kiran as his Attorney. The power of Attorney gave Kiran,

as Mr. Maharaj’s attorney, very broad powers. The power of attorney provided that Kiran, on

behalf of Mr. Maharaj and in his name, may do and execute all or any of the several acts,

deeds and things. The following are examples of the broad powers given to Kiran as Mr.

Maharaj’s attorney:

“2. To invest any moneys belonging to me in such manner at such rate of interest

and upon such securities as my Attorney shall in his absolute discretion think

fit and from time to time to vary the said investments or any of them.

3. To manage or superintend the management of all the lands and

hereditaments of whatever tenure of or to which I am or shall become seised,

possessed or entitled and to repair houses or other buildings and to insure

houses and other property against loss or damage by fire and to execute any

works required by any public or local authority.

5. To sell, exchange or dispose of at such time or times and on such terms and

conditions as my Attorney shall think fit all or any of the plantations, lands and

hereditaments in the said Republic of Trinidad and Tobago and outside

Trinidad and Tobago which may belong to me or in which I may be interested

during the continuance of this power and to sell the same either in whole or in

lots and either by public auction or private contract and either with or without

special conditions as to title or otherwise with liberty to buy in at any sale by

auction, to rescind or vary contracts for sale and to resell without being

answerable for any loss arising thereby AND ALSO to execute such deed or

deeds as may be required for conveying and/or assigning any of the said

premises to any purchaser or purchasers, lessee or lessees thereof and to give

effectual receipts and discharges for the purchase money and/or rents

reserved”.

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89. It is fair to say that in the face of such powers that the boast of Kiran to the Appellant that he

was the boss of all Mr. Maharaj’s business was not without merit. Be that as it may, the

power of attorney in favour of Kiran isstrong evidence that a relationship existed between

Mr. Maharaj and Kiran whereby Mr. Maharaj had come to repose substantial trust and

confidence in Kiran.The power of attorney given by Mr. Maharaj to Kiran was not considered

by the Trial Judge when he came to the consideration whether there was a relationship of

influence between Mr. Maharaj and the Respondents. In failing to do so, in my judgment, the

Trial Judge overlooked a very material aspect of the evidence and his finding on this issue

cannot stand. In my judgment, it is reasonable to infer from the existence of the power of

attorney that having reposed such trust and confidence in Kiran that there existed a

relationship of influence at least between Mr. Maharaj and Kiran. But, that is not to disregard

the evidence that he was reliant also on the Second Respondent for his care and normal living

activity. I think it is clear on the totality of the evidence that there existed a relationship of

influence between Mr. Maharaj and the Second Respondent.

90. The next consideration is whether the transaction is one that calls for an explanation.

91. In addressing this issue in Etridge (supra), Lord Nicholls stated that the transaction that

requires an explanation is one that is not readily explicable by the relationship of the parties.

At paragraphs 22 and 25 he stated:

“22. Lindley LJ summarisedthis second prerequisite in the leading authority of

Allcard v Skinner 36 Ch D 145, where the donor parted with almost all her

property. Lindley LJ pointed out that where a gift of a small amount is made to

a person standing in a confidential relationship to the donor, some proof of the

exercise of the influence of the donee must be given. The mere existence of the

influence is not enough. He continued, at p 185 “But if the gift is so large as not

to be reasonably accounted for on the ground of friendship, relationship,

charity, or other ordinary motives on which ordinary men act, the burden is upon

the donee to support the gift.” In Bank of Montreal v Stuart [1911] AC 120, 137

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Lord Macnaghten used the phrase “immoderate and “irrational” to describethis

concept.

25. This was the approach adopted by Lord Scarman in National Westminster

Bank plc v Morgan [1985] AC 686, 703 - 707. He cited Lindley LJ’s observations

in Allcard v Skinner 36 Ch D 145, 185 which I have set out above. He noted that

whatever the legal character of the transaction, it must constitute a

disadvantage sufficiently serious to require evidence to rebut the presumption

that in the circumstances of the parties’ relationship, it was procured by the

exercise of undue influence. Lord Scarman concluded, at p 704:

“the Court of Appeal erred in law in holding that the presumption of undue

influence can arise from the evidence of the relationship of the parties

without also evidence that the transaction itself was wrongful in that it

constituted an advantage taken of the person subjected to the influence

which, failing proof to the contrary, was explicable only on the basis that

undue influence had been exercised to procure it. (Emphasis added.)”

92. In view of above, I believe it is appropriate to ask whether the transaction is one that

constitutes a disadvantage sufficiently serious which cannot be reasonably accounted for

simply by the parties’ relationship, charity or other ordinary motives on which ordinary

persons act. Disadvantages in this context refer to disadvantages as between the parties and

not commercially disadvantageous (see National Commercial Bank (Jamaica) Limited v Hew

and Others [2003] UKPC 51). And in this case, in so far as Mr. Maharaj was acting as Ravi’s

agent under the power of Attorney, it would need to be established that the transaction was

disadvantageous to Ravi.

93. The Trial Judge did not think that the transaction was one that called for an explanation. His

finding in that regard is a finding of fact and is subject to the stricture outlined above (see

paragraphs 50-53). That finding was made both explicitly and under the shadow of his finding

of the Disputed Lands belonging beneficially to Mr. Maharaj; a finding with which I am unable

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to agree as discussed earlier. In those circumstances the finding of the Trial Judge must be

reassessed.

94. In this case there is no dispute that the Disputed Lands were sold at a gross undervalue. The

Disputed Lands were sold at the price of $550,000.00 whereas they were valued at $5,500,

000.00. This is a sufficiently serious disadvantage to Ravi. He received absolutely no benefit

from the transaction other than what must be regarded as a paltry sum when compared to

the true value of the property. This cannot be accounted for having regard to the relationship

of the parties, which is brother to Shakuntala and uncle to Kiran and the other Respondents.

This is particularly so in this case where the relationship between Ravi and Shakuntala was at

best strained. Neither is the transaction one which can be accounted for by any other motive

by which ordinary people act.

95. In the circumstances, in my judgment, the transaction is one that called for an explanation.

The Trial Judge’s finding to the contrary is therefore set aside.

96. In view of the above, the presumption of undue influence is raised. There is therefore a

presumption that the 2006 Deed of Conveyance was procured by the improper or

unacceptable use of the influence held over Mr. Maharaj. In other words, there is a

presumption that the conveyance was procured by the exercise of undue influence over Mr.

Maharaj. The burden therefore shifts to the Respondents to provide an explanation for the

transaction that is sufficient to rebut the presumption of undue influence.

97. In that regard, the written submissions of the Respondents were premised on the basis that

the Disputed Lands were not owned beneficially by Ravi but were held on trust by him for

Mr. Maharaj. The thrust of the written submissions is summed up in the submission that the

Trial Judge “was correct in coming to the conclusion that there is nothing suspicious in (Mr.

Maharaj) a grandfather, selling land to his grandchildren [the Second to Fourth Respondents]

at less or indeed substantially less than market value.”What follows in the written

submissions provide flesh to that general submission. However, once it is accepted that the

Disputed Lands were owned beneficially by Ravi, the search for an explanation sufficient to

rebut the presumption on the evidence in this case is a futile one.

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98. What must be shown to rebut the presumption is, I think, correctly stated in Nelson

Enonchong, Duress, Undue Influence and Unconscionable Dealing (2006), paragraph 12-

003, as follows:

“The defendant must prove that the complainant entered into the transaction

“only after full, free and informed thought about it.” There are two elements to

this requirement. First it must be shown that the complainant understood the

nature and effect of the transaction and intended to enter into it. That is not

enough. It must in addition be shown that he was free to enter into the

transaction. The question, as Lord Eldon famously said in Huguenin v

Basely[(1807) 14 Ves. 273 at 299] is not just whether the complainant knew

what he was doing, but also “how the intention was produced”. So, a finding

that a donor knew that he was making a gift and intended to make a gift is not

by itself sufficient to rebut the presumption that the gift was procured by undue

influence. Nor is the presumption rebutted by showing that the conduct of the

defendant has been unimpeachable or that there has been nothing sinister in it.

A defendant may fail to rebut the presumption even though it is found as a fact

that he did not consciously seek to take advantage of the complainant. The rule

that the presumption of undue influence is not rebutted by lack of evidence of a

specific act of wrong doing is a sensible one. It is necessary to achieve the

purpose of the presumption, which is to bridge an evidential gap in cases where

proof of specific wrongdoing is impossible.To hold otherwise would be to render

the presumption redundant. Therefore, absence of evidence of an actual

exercise of undue influence over the complainant does not amount to a rebuttal

of the presumption.”

99. In those circumstances, to say therefore that the deceased was satisfied with the deed as

prepared by Dr. Seepersad, his attorney-at-law or that the Second Respondent never exerted

pressure on Mr. Maharaj or in other words his conduct was unimpeachable, is not sufficient

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to rebut the presumption. As was noted in Hammond v Osborn and another [2002] EWCA

Civ 885 at para 32:

“Even if it is correct to say that Mrs. Osborn’s conduct was unimpeachable and

that there was nothing sinister in it, that would be no answer to an application

of the presumption. As Cotton LJ said in Allcard v Skinner (1887) 36 Ch D 145,

the court does not interfere on the ground that any wrongful act has in fact been

committed by the donee but on the ground of public policy, which requires it to

be affirmatively established that the donor’s trust and confidence in the donee

has not been betrayed or abused.”

100. The evidence is that Mr. Maharaj obtained legal advice at the time he executed the Deed

of Conveyance of the Disputed Lands to the Respondent. That can be helpful in rebutting the

presumption if it can be shown that the advice was relevant and effective to free the donor

from the impairment of the influence and to give him the necessary independence of

judgment and freedom to make choices with a full appreciation of what he was doing (see

Niersmans v Pesticcio [2004] EWCA Civ 372 at para 23).

101. It cannot be suggested on the evidence of Dr. Seepersad and the evidence to which I have

referred and addressed in relation to the question of the beneficial ownership, that Mr.

Maharaj did not appreciate he was selling lands that belonged to Ravi and was doing so under

the power of attorney. Nor can it be said that Dr. Seepersad did not appreciate this to be so.

In those circumstances, it was necessary in order for the legal advice to free Mr. Maharaj

from the impairment of the influence and to give him the necessary independence of

judgment and freedom to make choices with a full appreciation of what he was doing, that

he be advised of his duties and responsibilities as an attorney; that he owed duties of a

fiduciary character to Ravi and was required to carry out those duties with proper skill, care

and diligence. He was not given such advice. Indeed he was simply told that he should inform

Ravi of the transaction and pay to him the proceeds of sale.

102. According to Kiran, the explanation for Mr. Maharaj wishing to convey the Disputed Lands

to the Respondents is that he had bought them in the name of Ravi but as Ravi had gotten

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rich he decided to sell the Disputed Lands to them at the price of $550,000.00 dollars. That

smacks of a redistribution of wealth in favour of the Respondents at a nominal fee. I do not

think it can be said that Mr. Maharaj would not have known that the consideration of

$550,000.00 dollars for the Disputed Lands was nowhere approaching their true value being

as they are on banker’s row in the city of San Fernando. Mr. Maharaj was after all a successful

developer having bought and sold numerous properties and had achieved a great wealth

from so doing. It is reasonable to infer that he would have known the value of the Disputed

Lands. With the appropriate advice as to the duties of attorney so as to enable Mr. Maharaj

to come to an independent and free judgment of what he was doing, the position might have

been different. He might have appreciated that he could not seek to sell the Disputed Lands

belonging to his principal at a fraction of their true value.

103. In my judgment, there is nothing on the evidence to rebut the presumption that the 2006

Deed of Conveyance was procured by the exercise of undue influence over Mr. Maharaj.

104. In the circumstances, I would allow this appeal and set aside the order of the Trial Judge

made on July 3rd, 2013. I would declare that the Deed of Conveyance dated January 4th, 2006

and registered as No. DE200601475095D001 and made between Mr. Maharaj as attorney for

Ravi and the Respondents ought to be set aside on the ground that it was procured by the

exercise of undue influence over Mr. Maharaj. I would also order that the deed of conveyance

be accordingly set aside. I would also dismiss the Respondents’ counterclaim.

105. Further, I would hear the parties on the question of costs.

A. Mendonça

Justice of Appeal

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