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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