Nair v Nair [1994] FJHC 127; Hbc0037j.91s (23 September 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 37 OF 1991

BETWEEN:

HARI NARAYAN NAIR
(father's name Embichuni Nair) as the sole Executor
and Trustee of the ESTATE OF LATCHAMMA NAIR
- Plaintiff

AND

GIDEON GOPALAN NAIR
(father's name Embichuni Nair)
of Sacramento, C.A. 95823, U.S.A.
- Defendant

Mr. V. Maharaj for the Plaintiff
Dr. M.S. Sahu Khan for the Defendant

Dates of Hearing: 20th - 22nd April, 5th May 1993
and 7th April 1994.
Date of Judgment: 23rd September 1994

JUDGMENT

The Plaintiff and Defendant are brothers and two of the four sons of their late mother Latchamma Nair who died on the 26th of September 1987 at the age of 76 years. Their father died in 1953 leaving their mother and eldest brother Krishna Nair now a retired farmer, to bring them up. There are also five sisters all of whom are married, two living overseas and three in Fiji. The Plaintiff is the sole Executor and Trustee under the last Will and Testament of Latchamma Nair dated 12th August, 1985 and is the youngest of the four brothers, the Defendant being the second eldest and now aged 53 years.

Both the Plaintiff and Defendant were born in Labasa and both now live abroad, the Plaintiff in Vancouver, Canada and the Defendant in Sacramento, California. The Plaintiff who left Fiji to reside in Canada in 1970 is a building maintenance operator. The Defendant who migrated to America in June 1983 is a part-time Pastor, now of the Christian faith, and works in full-time employment as a Mail Co-ordinator. The family were brought up in Labasa and after their father's death their mother the deceased lived with them in the family house. The Plaintiff who was then single stayed with his mother until he migrated to Canada. The Defendant stayed with the mother until May 1962 when he went to India for further studies on a Church Scholarship. He was away for five years and returned home in September 1967 when he settled in Suva.

He got married in May 1968 after which he lived in Suva where he bought his own house. He and the Plaintiff both helped their mother financially although, as will appear later, the Defendant gave greater financial support to his mother than did the Plaintiff.

After his marriage the Defendant never returned to Labasa to live. Around 1973 the mother's land was changed from residential into industrial and in compensation the mother was promised a residential section. There is uncontested evidence that the Defendant had to fight for this and eventually succeeded. The land in question was held under a Crown Lease and is described in Crown Lease No. 5302 a copy of which was tendered in evidence.

In May 1978 the Defendant went to the United States of America for further studies. He was away until the 1st of July 1980. The mother was granted the land in May 1978 but it was a condition of her being given a lease of it that she must build a house to retain the land. There is evidence which I accept that the Defendant helped her in this regard initially from the United States. He told her not to do anything by way of selling the land until he returned to Fiji to help her to build a house because she could not sell the land undeveloped.

Clause 3 of the Lease required the mother to erect on the land to the satisfaction of the Director of Lands a residential building within twelve months of the date of the commencement of the lease but this was extended.

When the Defendant returned to Fiji in July 1980 he stayed in Suva and was engaged in full-time church work. In October 1980 the Defendant went to Labasa to investigate the possibility of building a house on the land to comply with the lease conditions. He went to the Bank of New South Wales (or Westpac as it is now known) and after much discussion was informed that because his mother had no independent source of income she could not obtain a loan. If however the Defendant were to be joint owner with her the bank was prepared to grant a loan.

The practical effect of this, and I so find, would have been that the Defendant would have to pay for the whole house and all outgoings because the mother did not have any other income or assets except the land and a little money in the bank.

Eventually the bank agreed to make a loan to the mother and the Defendant jointly on the condition that the Defendant was to be a joint owner with his mother of the property.

Mortgage documents were then prepared by the bank and registered upon the understanding that the Defendant would become joint owner in due course.

Later when pressed by the bank to effect a transfer, an Agreement which is the subject of the present proceedings was drawn up by Vijay Parshu Ram a solicitor of Labasa who was a personal friend of the mother and who had previously acted for her.

The agreement was made on the 1st of May 1981 between Latchamma and the Defendant and under it Latchamma purportedly agreed to transfer half her interest in the land to the Defendant pursuant to certain terms and conditions mentioned in the agreement for a consideration of the sum of $9,000.00.

Clause 2 of the Agreement reads as follows:

"The Vendor shall sell and the Purchaser shall purchase a joint interest in the said land and improvements for the price or sum of $9000.00 (NINE THOUSAND DOLLARS) which sum shall be paid as follows:

(a) By a payment of the sum of $3000.00 to the Vendor's son Hari Narayan Nair now resident at Vancouver, Canada as a partial reduction of the said purchase price;

(b) By the payment to the Bank of New South Wales of the sum of $4000.00 being one half of the moneys secured by the said mortgage to the Bank it being agreed that all interest and other charges accruing on such advance to the Bank shall be borne equally by the Vendor and the Purchaser;

(c) By the payment of the balance then due of $2000.00 by monthly instalments of not less than $125.00 commencing with the first such payment on or before the last day of May 1981 until the whole of the same shall have been fully repaid."

By Clause 3 Latchamma, the vendor, was to pay all rents and rates on the land to the 30th of June 1981 after which Latchamma and the Defendant were together to pay such rates and all other outgoings.

By Clause 4 the parties agreed to execute with the Agreement a transfer of the land under which Latchamma transferred all her estate and interest in the land to herself and the Defendant as joint tenants.

Clause 5 states that neither party shall in anyway interfere with the granting or otherwise of consent to the Agreement.

By Clause 7 settlement was to be effected within one month of the date of the granting of the consent to the sale and purchase.

Simultaneously with the aforesaid Agreement the mother signed a first Transfer but this was lost apparently by the Department of Lands and Latchamma signed another Transfer on the 18th of November 1982.

The Writ herein was issued on the 14th of January 1991. The Statement of Claim alleges at the time of signing the alleged Agreement and Transfer the deceased Latchamma was then over 70 years of age and was in poor health suffering from dyspepsia, hyper-tension and poor eye-sight.

The Plaintiff alleges that the Defendant in his position as a Church Minister acquired dominion over the mind of his mother by the false promise of payment of sums of money referred to in the Agreement by way of consideration and thereby fraudulently induced the deceased to execute the Agreement and the Transfer documents. Four particulars of fraud and inducements are then given as follows:

(1) The Defendant deliberately or knowingly failed to explain to the deceased the meaning and effect of holding her interest in the land as a joint tenant as opposed to a tenant in common.

(2) The Defendant knew or ought to have known that the deceased because of her failing health might not live long and the Defendant thereby fraudulently induced her to execute the Sale and Purchase Agreement and the Transfer with no intention of fully paying the consideration referred to in Clause 2 of the Agreement.

(3) The Defendant failed to pay the consideration sum in terms of Clause 7 of the Agreement.

(4) The deceased was neither given the opportunity nor did she obtain any independent legal advice before executing the Agreement and the Transfer document.

By reason of the Defendant's fraud it is alleged that the deceased's estate has suffered loss and damage.

The Plaintiff then claims the following:-

(a) A Declaration that the Sale and Purchase Agreement dated 1st May 1981 between the Defendant and the deceased and the Conveyance dated 18th November 1982 whereby the deceased purportedly transferred her half interest in Crown Lease 5302 to the Defendant be wholly set aside.

(b) Further and in the alternative damages for fraudulent mis-representation whereby the deceased was induced as aforesaid.

(c) A Declaration that all income derived by the Defendant in the form of rent or otherwise since the date of the alleged conveyance of the land to the Defendant be paid to the Plaintiff for the benefit of the deceased's estate.

(d) An Order against the Defendant for a full and complete account of all income derived by the Defendant from the property since the conveyance.

(e) Costs of the action.

The Statement of Defence, in so far as material, is as follows:

(1) Although Latchamma Nair was the owner of the property known as Crown Lease No. 5302 the house was erected by the Defendant and paid for by him after a transfer by the deceased of a joint interest to the Defendant. After the erection of the dwelling it was -

(a) let to a tenant for $150.00 per month from June 1981 until 30th June 1982; and

(b) thereafter the deceased occupied the whole of the same.

(2) The rent of $150.00 was supplemented by a further sum of $100.00 by the Defendant and the total amount paid to the Westpac Bank in reduction of the mortgage debt.

(3) After the deceased went into occupation no further income was generated from the property and the deceased made no contribution towards the loan repayments. The Defendant thereafter paid the whole of the balance, advance and all the bank charges and interest.

(4) The Defendant paid the whole of the insurance premiums on the property and the municipal rates throughout since the date of the transfer of the joint interest in the property, in addition to maintaining the deceased.

(5) The Defendant denies all allegations of undue influence and says that the deceased was fully advised of her position including the consequences of the act in transferring a joint interest. She was not at any time fraudulently or otherwise induced to enter into any transaction dealing or Agreement whatever.

(6) The Plaintiff is estopped from raising any of the claims since because of the transfer the Defendant has acted to his detriment.

(7) The deceased did not attempt to set aside the transfer or make any alteration to the title during her life-time which she could have done had she been aggrieved.

(8) The title of the Defendant is indefeasible in law.

(9) The Defendant further pleads laches and acquiescence on the part of the Plaintiff and/or the deceased.

(10) The action of the Plaintiff is statute barred and the Defendant relies on Section 4 of the Limitations Act, Cap. 35.

Before discussing the evidence I can say immediately, since they were never seriously contested by the Plaintiff, that I accept the matters pleaded by the Defendant set out in paragraphs 1 to 4 above. I shall now refer to such of the evidence as I consider relevant to this matter.

The parties called five witnesses, in the case of the Plaintiff, himself and Krishna Nair and in the case of the Defendant, himself his wife and Mr. Vijay Parshu Ram. First I refer to the Plaintiff's evidence.

He stated that he had migrated to Canada in 1970 and before that lived in Labasa with his mother. He was employed as a furniture polisher by the Department of Public Works. While living with his mother he supported her. When he arrived in Canada he obtained a job as a cook and sent initially $50.00 per fortnight to his mother in Labasa by bank draft. In 1972 he increased these payments to $100.00 a fortnight and kept records of these payments, which I should mention here, were never produced. He said he knew he had a duty to support her and did so until her death in 1987.

In 1976 he paid his mother's fare to Canada where she stayed for eleven months during which he financially supported her.

In 1987 he called her over to help look after his son. She stayed for three or four weeks and then became ill and was admitted to a hospital in Canada. After two days in the hospital her treating doctor advised the Plaintiff that she should return to Fiji. The Plaintiff returned to Fiji with his mother and admitted her to the Lautoka General Hospital. In Canada he paid $600.00 per day for the two days his mother was in the hospital.

She was a patient in the Lautoka Hospital for about six days and died shortly after the Plaintiff returned to Canada. Neither the Plaintiff nor the Defendant returned to Fiji for her funeral. In the case of the Defendant I accept that this was because of the second military coup of that year. The Plaintiff did not say why he did not return to Fiji for his mother's funeral but I surmise that these were for financial or political reasons and no criticism can be levelled at him for so doing.

He stated that from 1982 the Defendant lived in the United States of America where he was studying. The Plaintiff said he helped the Defendant financially and gave him $1,000.00 for his study fees. He said that he gave his brother other money while they were overseas and did not expect the Defendant to repay this. However in 1986 he lent the Defendant $700.00 which he expected to be repaid. The Defendant has repaid $200.00 of this.

The Plaintiff said that he was the sole Executor and Trustee of a Will made by his mother on the 12th of August 1985 under which he was to receive a personal bequest of some of his mother's jewellery and an absolute devise of his mother's share in Crown Lease No. 5302 and in the dwelling house erected on that land.

After hearing through Krishna Nair of this Will he applied for a grant of Probate of it on the 17th of November 1989 and it was duly granted. He then gave his brother Krishna Nair a Power of Attorney to look after his mother's estate. As a result of information given him by Krishna Nair he consulted his solicitors who on the 28th of March 1990 wrote to the Defendant requesting him to transfer back to the Plaintiff the half share given him by his mother. The letter suggested that at the time Latchamma made this Will she must have honestly believed that she had retained the half share in the property with the remaining half share being owned by the Defendant. He followed up this letter with another letter written on the 15th of April.

On the 10th of April 1990 the Defendant wrote to the Plaintiff criticising him for giving the Power of Attorney to Krishna Nair and wrote another letter on the 15th of April, part of which reads as follows:

"You know very well that the matter of your share and inheritance of what Amma left to both brothers that is you and me is between us and nothing to do with Krishna Nair. You should deal with me if you want this matter to be settled.

I gave you the opportunity to help Amma to build the house on the land in Yaka Street. You said you did not want to do it.

Before I got involved in the building project, Amma and I made an agreement which included a share of the land value for you. The value of the land estimated was $6,000.00 (six thousand dollars). Your share was $3,000.00 (three thousand dollars) and our lawyer drew the agreement between Amma and I before I got the loan from the bank to build the house.

I told you before that I have to pay you only $3,000.00 (three thousand dollars) and nothing more. This letter is intended to convey the same message.

If I don't hear from you within a week, I will arrange with my Attorney in Labasa to arrange payment of $3,000.00 (three thousand dollars) to Krishna Nair who has the Power of Attorney to act legally on your behalf.

Hari, I want you to know that I had suspected that some day I might have to face this kind of situation. For this reason I had discussed everything with my lawyer in Labasa and made agreement with Amma before I built the house. I have legal safeguard and I hope that you understand that I would not have done anything otherwise.

I am willing to pay you the $3,000.00 (three thousand dollars) directly as per my agreement with Amma. So, please call me as soon as possible. If I do not hear from you I will have the money paid to Krishna Nair who has the Power of Attorney from you.

(Sgd.)

Gideon Nair"

The letter of the Plaintiff's solicitor to the Defendant of the 28th of March 1990 was given by the Defendant to his solicitor who replied in a letter of the 7th of June 1990 from which I will quote four paragraphs which are relevant to the issues in this case. These read:

"We are surprised that the transfer of the above property should be challenged eight years later. The writer had personally dealt with the transfer and took great pains to explain to the deceased as well as Gideon the nature of the transaction into which she was entering at the time. We recall telling her that if she died the effect of the transfer would be that the whole property would pass to Gideon and likewise the reverse would take place if Gideon predeceased her. This was explained several times and we obtained the parties oral acknowledgement that they each understood the effect of the transfer before signature.

(The letter then sets out Clause 2 of the Agreement.)

It is clear from the above that the property was to be jointly held and any alleged unclear statement on the transfer document is of little moment in view of the clear representation of the intention of the parties in the accompanying agreements. Again the fact that the transfer was registered by the transferee has no bearing on the matter.

We do not see any fraud involved in the matter of the transaction. It may be trite to say that an alleged unclear statement (with which we do not agree) does not amount to fraud.

In the above circumstances we do not see how your client Hari Nair can claim a transfer of a half interest in the land back to the estate. The remaining statements by him just constitute a threat."

The Plaintiff said, continuing his evidence, that he had never received the $3,000.00 from the Defendant but that before the house was built on the land in Labasa he had spent $700.00 in 1989 levelling the land so as to develop it.

In cross-examination he stated that he did not want the $3,000.00 and that his claim was only to set aside the Agreement and Transfer. He claimed that he had obtained a valuation of the property in April 1993 which estimates its current value at $42,000.00 and that the value of the property at the date of the transfer on 13th January 1983 would have been $20,000.00. He agreed that by Clause 2 of the Agreement the value of the half share transfer was $9,000.00 so that the full value of the property must have then been estimated at $18,000.00, an amount which was very close to that of the Plaintiff's own Valuer. He denied that he had agreed to assist in the financing of the house and said that the Defendant had never approached him either by letter or telephone and made such a request. He also denied that his mother had asked him to give some assistance in building the house and in paying it off. He said that his mother had no independent source of income and that whenever he telephoned her from Canada she sounded very well. He agreed that in July 1981 he came to Fiji to re-marry and stayed here for about a month. During that time he never discussed any payments with his mother nor did he ask her whether she wanted any. He said that in July 1981 he had sold his house in Vancouver and intended to invest in land in the area known as Coquitlam in Vancouver. He denied that that was why he had told his mother and the Defendant that he could not assist them in building the house. He admitted that after the sale of his Vancouver property he had bought shares in the North Sea Oil Company but this was not the second reason for his not helping in the Labasa property. He said neither his mother nor the Defendant had ever asked him to do so.

He did not know who was re-paying the loan to the bank, land rates or rent to the Ministry of Lands. He had never had any discussion with his mother or the Defendant about the transfer of a half share to the Defendant. He did not know the circumstances surrounding the agreement between the Defendant and Latchamma because he was not in Fiji between 1974 and 1981. When he came here to marry in 1981 his mother was in reasonably sound health. He did not know the cost of building the house and said that because it was not his house he was not interested. He said that he knew some of the problems his mother had in obtaining another block of land but at first said he did not know whether the Defendant had made any representations to the Minister for his mother. He was then shown a copy letter which the Defendant had written on behalf of his mother and which bore her mark dated the 30th of January 1974 to the Divisional Surveyor in Labasa. He then agreed that the Defendant had attempted to get land for his mother. He then admitted that following correspondence with the Defendant by August 1986 he knew that the Defendant was making all the payments required on the Labasa house. He knew the Defendant was then having some financial difficulties but did not offer to help him in paying for the house. He said that he helped his mother.

When asked why he had not applied for Probate of the 1985 Will until nearly two-and-a-half years after his mother died he said that because he knew that he was the sole Executor and the sole beneficiary he did not think there was any need to hurry in obtaining probate. He said that he did not know of the agreement until after his solicitor had received all the papers relating to the estate. He also did not know whether the Defendant had paid more than $9,000.00 towards the purchase of the property nor whether his mother had ever received any independent legal advice when she signed the agreement. He also did not know whether the Defendant had made any false promises to his mother.

The Second witness called by the Plaintiff was Krishna Nair, the eldest son of Latchamma and now a retired farmer living in Labasa. He supported the Plaintiff's evidence about the levelling of the block of land in Labasa and the Plaintiff had paid approximately $700.00 to the contractor for this purpose. He said that his mother had been sick for about seven years before her death. He had never expected anything from his mother's estate because he was financially independent. He said he had never been on bad terms with the Defendant whom he had supported after their father's death in 1953. Krishna Nair had done all the farm work at that time.

He said that when the Defendant had gone to Bangalore in India for religious study he had got into some financial difficulties and when he wrote to his brothers for help all the brothers in Fiji contributed financially towards his studies. He said that of all the four brothers the Defendant is the best educated. He said he did not know until February 1990 that the Defendant was one of the joint tenants of the property in Labasa.

In cross-examination he agreed that the property in Labasa is in a prime residential area of that town and there are many houses now in the area. He said he was unaware that the Defendant had arranged a loan on the property and until he went to the office of Maqbool & Co. solicitors in Labasa who had prepared the Will of 1985 Mr. Nair thought his mother had owned the whole of the property. He said that when he received the 1985 Will he thought there must be another Will giving the half share to the Defendant.

In answer to a question from me the witness said that when his mother was admitted to the Lautoka Hospital she told him that the shares, meaning the half shares, were for both brothers.

The Defendant's case then began and the first witness was Mr. Vijay Parshu Ram a solicitor from Labasa who had prepared the 1981 agreement. Mr. Parshu Ram has been a Barrister and Solicitor in Fiji since 1958 and he practises mainly in conveyancing. He said that over the years he had frequently had to advise clients as to the differences between tenancies in common and joint tenancies and as to the benefits and problems which often arise depending on the circumstances of particular cases concerning them. He said that he knew the Defendant better than the Plaintiff and knew their mother before he knew them. He said in 1981 Latchamma and the Defendant had come to his office. He had known Latchamma and acted for her personally. In 1980 he had drawn up a building contract for her in respect of the same property. He recalled some of the conversation with Latchamma and, because it will be seen I attach considerable importance to this, I record it now verbatim.

Mr. Parshu Ram said to Latchamma, "Mum what do you want?"

She said, "I got this property and I want to transfer it to my son Gideon."

Gideon said, "I do not want Mum to feel she has given up all."

Mr. Parshu Ram said, "O.K. Why don't we find another way of dealing with this?"

He said that he spoke in Hindi and the mother was not distressed. Mr. Parshu Ram had a very cordial relationship with her. He then talked to the mother and the Defendant about half and joint shares but said that as the mother was more interested in disposing of the property because her main concern was that she was unable to repay the money owing to the bank, Mr. Parshu Ram then spoke about establishing a joint interest for her. He explained fully to her what this was, that she would have an interest but that if she died the whole property would then go to her son and she would then have achieved what she was trying to do now. On the other hand Mr. Parshu Ram told her that if Gideon died then the whole property would revert to her. He said that he had to make sure that she understood what all this meant. It was only after he was satisfied that she understood that he began to work out the figures.

He wrote down the valuation, the cost of building and other figures for certain eventualities and he repeated those figures to the mother.

At that point the discussion ended for that day. Then on the 1st of May 1981 Latchamma and the Defendant returned to Mr. Parshu Ram's office. By then he had prepared the agreement. He read it all to her in Hindi, in the presence of the Defendant and explained again to Latchamma the effect of the joint holding or tenancy. He said that the preamble to the agreement recites how the valuations and figures were arrived at and the valuation of the house, the amount of the loan and other relevant matters.

He said on the question of joint tenancy that after his discussion with Latchamma and the Defendant and because he was aware of difficulties in outright transfers which can cause family problems, he did not want Latchamma to transfer the whole of the property to the Defendant and then possibly find herself on the street. He said he had problems with clients about this and therefore tried to discourage people from making outright transfers of properties. He tried to discourage Latchamma from giving the Defendant an outright transfer of the whole property.

The mother then agreed to have a joint tenancy. Mr. Parshu Ram said that he was satisfied that she knew that after her death the whole property would go to the Defendant. Mr. Parshu Ram said he would not have done otherwise. He had given similar advice to the Defendant.

The transfer was signed on the same day but later the original of the agreement and transfer were lost and another transfer was prepared and signed in November 1982, this being Exhibit P.4. That transfer was executed in his presence by the deceased and the Defendant and was an exact copy of the earlier transfer.

Mr. Parshu Ram said that he again explained to Latchamma the meaning of a joint tenancy and a Deed and then said, "Look Mum, you have got another chance. If you don't want to do it this way I will tear up the document."

The mother replied, "No I am quite sure and I will sign the document."

Mr. Parshu Ram said that when she signed the transfer in November 1982 she appeared normal to him.

The witness said that when the deceased had told him that she wanted to transfer the whole property to the Defendant he immediately disclaimed any wish to have this.

In 1980 Mr. Parshu Ram's office had made a Will for Latchamma which had been executed on the 12th of August 1980. Under that Will her estate was to be divided equally between the Plaintiff and the Defendant.

Then on the 1st of May 1981 she had made another Will revoking the first and giving the Plaintiff $3,000.00 and the rest of her estate to the Defendant. Mr. Parshu Ram had witnessed that Will which was designed to give effect to the agreement of the same date. He said the deceased's intention was to transfer all her property to the Defendant subject to a bequest of $3,000.00 to the Plaintiff. He explained the contents of the Will to Latchamma and eventually the property was transferred to the Defendant and herself as joint tenants.

From 1981 until she died Mr. Parshu Ram never discussed the matter again with the deceased. He said that if she did not want it to be a joint tenancy he would not have prepared the agreement.

In cross-examination Mr. Parshu Ram said that he believed Latchamma had made other Wills and had kept changing them. He believed she had made one or two previous Wills before that of the 1st of May 1981. He said that he knew Latchamma socially and gave her this advice three times. He said that she wanted the Plaintiff and the family to have the land and that therefore they had stated the value of the land at approximately the same price of other land in the same area. $3,000.00 was a reflection of the interest of the Plaintiff. The deceased had wanted the Plaintiff to have something. It was her wish to give him $3,000.00 in partial reduction of the purchase price.

He said that the $3,000.00 was worked out on the basis of his estimate of the value of the land. He denied that the deceased had said, referring to the Plaintiff, "He owns half the land." Mr. Parshu Ram said that if the deceased had said that he would have had to do something different. There was no time fixed for payment of $3,000.00 to the Plaintiff and therefore Mr. Parshu Ram expected that it would be paid in a reasonable time. He did not think of this at all but left it to the parties. He said there was no doubt that the mother had wanted the Plaintiff to have the $3,000.00 and that it had been put in the Agreement in such a way as to be given effect. He had not advised the deceased about the difference between an Agreement and a Deed because he had not thought this necessary. He said that Latchamma's intention when she came in to see Mr. Parshu Ram had been to transfer the property outright but then he had explained to her that this would leave her "absolutely bereft".

He also said that although Latchamma signed the Transfer and Agreement on the 1st of May these documents were ineffectual until the consent of the Director of Lands had been obtained. Sometimes this took a long time in Mr. Parshu Ram's experience. If by any chance Latchamma had died before the consent was given then not only would the transaction be inoperative but her intention would not have been effected and there would have been an intestacy. He said he may have suggested making the second Will to the mother as a supplementary document and as additional advice. He did not think that failure to mention a time for payment of the $3,000.00 vitiated the Agreement. He regarded the matter as a family affair and therefore did not ask Latchamma when the money was to be paid. He said that he had advised Latchamma primarily. He said that Clause 8 of the Agreement was designed to cover the possibility of the Defendant refusing to proceed with the purchase. He said he had not suggested to the deceased to go to another solicitor because he did not consider this necessary.

He did not know that she had consulted Messrs Maqbool & Co. and regarded this as merely a possibility and not a probability that Latchamma had lost confidence in him because after the transfer had been signed he had met her on a number of social occasions and considered that if she had any doubts or further thoughts about the transfer she would have mentioned them. She had addressed Mr. Parshu Ram as "Beta" an Indian word for "Son". He said "Beta" is a term of respect also. In Latchamma's case he had regarded her as using the term in the first sense. He did not see any strain in their relationship. The initial thing had been to protect her and Mr. Parshu Ram could see no conflict of interest between mother and son. The Defendant had wished to protect her. Mr. Parshu Ram said that his principal interest was to ensure that the mother knew what she was doing. He said that he had never received any letter from any solicitor or the deceased complaining about his conduct or work for the deceased or the Defendant.

He said in Fiji it was a common practice for the same solicitor to act for vendor and purchaser and Mr. Parshu Ram saw no conflict of interest here. He repeated that when she told him she wanted to transfer the whole property to the Defendant it was to her advantage that he should advise her to the contrary. He said under the agreement if the Defendant had died first the property would have gone to Latchamma but the Will would have protected the Defendant's wife. He added that although the agreement had been signed on the 1st of May 1981 the consent of the Director of Lands had not been given to the purchase until the 7th of September 1982 so that he thought his fears were justified. He said that if the Defendant and his mother had died the whole property would have gone to the Plaintiff if the Will were not there. He said that his firm had done a number of transactions in the same sub-division. Prices were between $4,000.00 and $6,000.00 so in this case he had used the higher valuation. He said that if there were any doubts whatever as to what the deceased had wanted Mr. Parshu Ram would not have permitted this transaction because he gave her the option and she had a second chance in 1982 and had done precisely the same thing.

The next witness called was the Defendant's wife, Miriam Mani Nair who said in July 1981 she and the Defendant were living in Suva. The Plaintiff came to Fiji to get married and stayed at their house at her husband's invitation. When he came before he married they had discussed the house and property at Labasa. She said that the Defendant had asked the Plaintiff to help him on payment of the house but the Plaintiff had replied that he had sold his house in Vancouver and was buying another property in Coquitlam and investing money in the North Sea Oil Co. He was therefore unable to help the Defendant. She said the Plaintiff had told them that the only help he could give would be to have the $3,000.00 later whenever they could pay. She said the discussion was very friendly. After the Plaintiff married, he and his new bride came to the Defendant's house again. This time Latchamma was also there. The witness said Latchamma had brought up the question of the property and had asked the Plaintiff if he could help them with payments for the house and he gave a similar answer to Latchamma as he had previously given the Defendant and his wife. She said that Latchamma had mentioned the $3,000.00 and the Plaintiff again had said that they could pay it when it was possible; this was the help he was giving the Defendant and his wife.

The last witness called was the Defendant and I have already referred to some of his evidence. He said that before entering into the agreement there had been a discussion with Mr. Parshu Ram. His mother had wanted to transfer the whole property to him but the Defendant did not agree. He said he put no pressure on his mother to transfer the property to him. He confirmed the substance of Mr. Parshu Ram's evidence about the discussions in his office.

He said in July 1981 when the Plaintiff came to Fiji to marry, the Defendant had told him of the discussion between his mother and himself at their home in Suva. He talked twice to the Plaintiff about the property in the Defendant's home. Their mother had been present on the second occasion. He said that he had told the Plaintiff of his entitlement to $3,000.00 under the agreement and had asked him if he could join in the purchase of the property. The Defendant said that he was having difficulties in making payments on the loan. The Plaintiff had stated that he could not help because he was buying a piece of land in Coquitlam, Vancouver, and also some shares in the North Sea Oil Co. The Defendant then had explained to the Plaintiff what had happened in Mr. Parshu Ram's office and the Plaintiff said, "You can pay me that $3,000.00 whenever you are in a position to do so."

He said the discussion was friendly and he did not hold anything against the Plaintiff when he said he could not help with the purchase. He said the Plaintiff and he had enjoyed a good relationship but the Defendant had very little contact with Krishna Nair who was very unhappy that the Defendant had become a Christian in October 1959.

The Defendant then gave details of the payments he had made towards the purchase and rates and other outgoings on the Labasa property. He said altogether he had paid $14,730.81 whereas he had originally agreed to pay $9.000.00 for the purchase price. He said he was also entitled to but never received half the rent from the house. He also sent his mother money monthly for her expenses. He denied putting any pressure on his mother to sign the Agreement or Transfer.

When he was asked in cross-examination why he had not come to Fiji when he knew that his mother was then in the Lautoka Hospital, he said he would have come but for the military coups. He had been advised not to come at that time. He also said that he was doing something good for his mother and so she trusted him. He said that after the Agreement had been signed his mother had often talked about the Defendant getting everything if she died and vice- versa. He also said that whenever he spoke to his mother he spoke as a son and not as a Pastor and that when the joint tenancy had been explained to him he realised that he was also taking a risk - that the whole of the property would go to his mother. He alone of the four brothers had offered to build and pay for the house.

Finally he said that until these proceedings no one had ever raised the question of the Agreement with him.

I turn finally to the submissions of the parties and the law applicable to this case.

The Plaintiff's case opened on the basis that the Agreement and Transfer were executed in circumstances of fraud and undue influence by the Defendant. Under Section 39 of the Land Transfer Act, Cap. 131 to set aside the transfer to the Defendant, the Plaintiff must establish fraud.

In Ram Nandan v. Shiu Datt Civil Appeal No. 29 of 1982 the Court of Appeal stated that there was no difference in substance in the comparable sections of the New Zealand Legislation with those of the Fiji Act so as to render New Zealand cases on the subject inapplicable.

Thus in Sutton v. O'Kane (1973) 2 NZLR 304 Richmond J. and Turner P. agreed that a person who knows of another's interest in land and procures registration which cheats the other of that interest is guilty of fraud and his title can be impeached. Thus at p.321 Turner J. stated that it was plain from the authorities that fraud under the Land Transfer Act means dishonesty, no more and no less. If it is dishonest in the circumstances of a particular case for the registered proprietor with a clear title to refuse to recognise an unregistered interest it would be fraud to do so.

He then quoted from Salmond J. in Waimiha Sawmilling Co. Ltd v. Waione Timber Co. Ltd. [1923] NZGazLawRp 32; (1923) NZLR 1137 who said in part at 1173:

"It is well settled that knowledge of a breach of trust or of the wrongful disregard and destruction of some adverse unregistered interest does itself amount to fraud. In Locher v. Howlett it is said by Richmond J: 'It may be considered as the settled construction of this enactment that a purchaser is not affected by knowledge of the mere existence of a trust or unregistered interest, but that he is affected by knowledge that the trust is being broken, or that the owner of the unregistered interest is being improperly deprived of it by the transfer under which the purchaser himself is taking'"

The decision of Salmond J. was subsequently affirmed by the Privy Council in (1926) A.C. 101.

Later at p.328 Turner P. cited with approval the remark of Prendergast C.J. in Merrie v. McKay (1897) 16 NZLR 124 who said:

"If the defendant acquired the title intending to carry out the agreement with the plaintiff, there was no fraud then; the fraud is in now repudiating the agreement, and in endeavouring to make use of the position he has obtained to deprive the plaintiff of his rights, under the agreement. If the defendant acquired his registered title with a view to depriving the plaintiff of those rights, then the fraud was in acquiring the registered title. Whichever view is accepted, he must be held to hold the land subject to the plaintiff's rights under the agreement, and must perform the contract entered into by the plaintiff's vendor."

Merrie v. McKay was later cited with approval by Salmond J. in Wellington City Corporation v. Public Trustee (1921) NZLR 423 at 433 where Salmond J., described by Turner P. in Sutton v. O'Kane as a very experienced equity Judge, said:

"It is true that mere knowledge that a trust or other unregistered interest is in existence is not of itself to be imputed as fraud. A purchaser may buy land with full knowledge that it is affected by a trust, and the sale may be a breach of trust on the part of the seller, but the purchaser has the protection of s.197 unless he knew or suspected that the transaction was a breach of trust. Fraud in such a case consists in being party to a transfer which is known or suspected to be a violation of the equitable rights of other persons. Where, however, the transfer is not itself a violation of any such rights, but the title acquired is known by the purchaser to be subject to some equitable encumbrance, the fraud consists in the claim to hold the land for an unencumbered estate in wilful disregard of the rights to which it is known to be subject.

The first question therefore to be asked in this case is whether the Plaintiff acquired any interest in the land? If he did the next question is did the Defendant fraudulently acquire his interest in the land with a view to depriving the Plaintiff of his rights as the holder of an unregistered interest? As to this it is necessary to refer to the evidence of Vijay Parshu Ram and the Defendant. Shortly after his cross-examination began Mr. Parshu Ram said this, "The deceased decided to leave $3,000.00 to the Plaintiff. She owned a piece of land and a house building for $12,000.00 and she wanted the two boys to have the land. We therefore put the value on the land at approximately the same price as for land in the same area."

It is further submitted that the evidence is clear is that the Defendant knew of this but registered the transfer nonetheless in complete disregard of the Plaintiff's interest.

I do not accept this submission. In particular it is not supported by the evidence of Mr. Parshu Ram which generally impressed me nor, in my judgment is it supported by Clause 2(a) of the Agreement. Describing how the purchase price of $9,000.00 was to be paid Clause 2(a) reads:

"By a payment of the sum of $3,000.00 to the vendor's son Hari Nair in a partial reduction of the said purchase price."

In my view Clause 2(a) is not on its proper construction intended to convey any interest in the land to the Plaintiff but rather simply to give him the sum of $3,000.00.

This is borne out by the evidence of the Defendant and his wife of the remarks of the Plaintiff when he came to Fiji to be married in July 1981, and which I accept as the truth, that the Plaintiff was prepared to forego payment of $3,000.00 to him until the Defendant was in a position to do so.

Whilst I have no doubt that the Plaintiff and the Defendant loved their mother nonetheless it is clear in my judgment that the Plaintiff preferred to look after his own interests to a greater degree than those of his mother. He is not to be criticised for this; any man is entitled to protect his own interests and advance them as best he can if he considers it desirable to do so. Having considered the evidence I have come to the conclusion that the Plaintiff's primary concern was first to sell his house in Vancouver and with the proceeds to then purchase a house in Coquitlam and use whatever money was left over from that purchase to buy shares in North Sea Oil Co. It is true, and I so find, that he also made other contributions towards his mother's welfare such as paying for her visits to Canada and then the costs of two days hospitalization of her in Vancouver which probably marked the onset of her terminal illness. To argue from that however that his mother's agreement to give him $3,000.00 was intended to convey with it also an interest in the land is simply a non se-qui-tur.

It is clear on the evidence that the Defendant's contributions to the purchase of the land were far greater than those of the Plaintiff and I am satisfied that this was recognised by their mother when she entered into the agreement and signed the transfer in 1981. This view is re-inforced by the fact that owing to the original transfer being lost by the Lands Department, more than twelve months later Latchamma signed a further transfer. The evidence of Mr. Parshu Ram satisfies me that Latchamma understood the meaning of the term "joint tenants" and there is no suggestion that at all relevant times the deceased was not in full possession of her senses so as to understand the nature of the transaction into which she was entering.

The evidence also satisfies me that there was no fraud on the part of the Defendant.

It appears to be suggested that because the Defendant was a Minister of Religion he was able to influence his mother to deprive the Plaintiff of an interest in the land which, by herself she would have given him.

That also in my judgment is a non se-qui-tur. In my judgment it is abundantly clear the reason why the Defendant became a joint tenant with his mother of the property was because the Bank of New South Wales would not have advanced any money on the property unless the Defendant was jointly liable for the loan and a joint owner of the land. In my view it was only natural for the Bank to require such a condition for the loan, and to then suggest that by the Defendant agreeing to this course he was guilty of fraud against the Plaintiff simply does not follow as a matter of logic or indeed of common sense.

A further factor against the Plaintiff in this regard in my judgment is that it took him approximately ten years to contest the transfer when he was fully aware from the beginning that the Defendant was meeting all the commitments on the property.

Furthermore when it was put directly to him in cross-examination the Plaintiff admitted that he had no direct knowledge whether the Defendant made any false promises to his mother or whether she was given any independent legal advice before signing the agreement.

In my judgment on this question the Plaintiff's case is based purely on speculation. There is nothing in the evidence to show that as a Church Minister the Defendant acquired any dominion over the mind of his mother which would persuade her to deprive the Plaintiff of the rights which he now asserts. I was impressed by the manner in which the Defendant gave his evidence to such an extent that I am unwilling to find that he was guilty of any fraud against the Plaintiff. It is of course true as the courts have remarked from time to time that a lying witness can be a persuasive one but that is not my impression of the Defendant.

I pass now to the question of whether the deceased should have been given any independent advice before entering into the agreement and transfer. In Inche Noriah v. Shaik Allie Bin Omar (1929) A.C. 127 the Privy Council set aside a gift given by a Malay woman, who was of great age and illiterate in favour of her nephew, who had the management of all her affairs. The gift comprised practically the whole of the donor's property. Following the case of Allcard v. Skinner (1887) 36 Ch.D.145 the Board held that the relationship between the donor and her nephew as donee raised the presumption that the donee had influence over the donor and it set aside the gift on the ground that the presumption which arose had not been rebutted. The Board held that in the circumstances, although the donor had received independent advice from a lawyer who acted in good faith, he was unaware however that the gift constituted practically the whole of the donor's property and did not advise her that she could more prudently, and equally effectively, benefit the donee by bestowing the property upon him by will.

However the receipt of independent legal advice is only one of the factors to be taken into account in deciding whether or not a transaction should be set aside. Thus in Kali Bakhsh Singh v. Ram Gopal Singh (1913) 30 T.L.R. 138 at p.139 Lord Shaw speaking for the Judicial Committee said, referring to a remark by the trial Judge that a gift can not stand unless it was proved that the donor had independent advice:

"In their Lordships' opinion there is no rule of law of the absolute kind here indicated. The possession of independent advice, or the absence of it, is a fact to be taken into consideration and well weighed on a review of the whole circumstances relevant to the issue whether the grantor thoroughly comprehended, and deliberately and of her own free will carried out, the transaction. If she did, the issue is solved and the transaction is upheld."

Several of the other authorities relevant to this question are mentioned by Gillard J. in Union Fidelity Trustee Co. v. Gibson [1971] VicRp 69; (1971) V.R. 573 at p.577.

The Plaintiff submits that in this case Mr. Parshu Ram should have advised the deceased to obtain independent legal advice and the case Watkins and Another v. Combes and Another [1922] HCA 3; (1922) 30 C.L.R. 180 is mentioned. But the facts of that case were different from those of the instant as I find them. There the court held that at the time a woman of sixty-nine years of age had transferred certain land to the Defendants she was under the complete dominion of the Defendants and that, accordingly, in the absence of independent advice the transaction could not stand. The advice in question in Watkins had been given by a solicitor who acted for all the parties in the transaction and obtained his original instructions for it from the Defendants. The High Court held that in these circumstances this was not an independent advice.

I have said earlier that I was impressed by the manner in which Mr. Parshu Ram gave his evidence. He had acted previously for the deceased and the Defendant said that he had never acted for him and that it was his mother who had taken him to see Mr. Parshu Ram. Mr. Parshu Ram certainly regarded himself as the deceased's solicitor and I can find no fault in the advice he gave the deceased. I am satisfied that he explained to the deceased the problems which could arise unless the matter was dealt with as he advised and that at the time the deceased understood this advice. Furthermore Mr. Parshu Ram stated that he got no benefit from the transaction.

In these circumstances I fail to see what advice from any other solicitor could have achieved. It is also of some importance to note that as a result of the agreement the deceased received more benefits than she was entitled to in that the Defendant paid far more for the property than he was strictly bound to by the agreement. In these circumstances I am not surprised that the deceased never complained to anyone regarding the transfer, nor did she ever commence any action to challenge the transfer.

I therefore reject the submission that Mr. Parshu Ram should have requested the deceased to consult another solicitor before finally signing the agreement.

Finally I refer to a submission by the Plaintiff that if the deceased knew that she had transferred her half interest as a Joint Tenant she is unlikely to have made the 1985 Will giving her share in Crown Lease No. 5302 to the Plaintiff.

There is no evidence as to why the deceased should have made such a devise. It is possible that she had overlooked her interest as a Joint Tenant or that who ever took her instructions for the Will did not question her about any previous transactions or go in to detail as to the extent of her interest in Crown Lease No. 5302. It is pointless to speculate. I therefore derive no assistance in reaching my decision from the existence of the 1985 Will except possibly this, that in 1985 the deceased was then approximately seventy-four years old and in fact died just over two years later. It is possible that by then her memory was beginning to fade but again this is speculation and does not assist me. I therefore reject this submission.

For the reasons I have given I decline to make the Declarations and the Order claimed in the Statement of Claim. The result is that the Plaintiff's claim must be dismissed and I order him to pay the Defendant's costs unless the Defendant agrees to waive these. There will be judgment for the Defendant.

JOHN E. BYRNE
J U D G E

Legislation and authorities referred to in judgment:

(1) Land Transfer Act Cap. 131.
(2) Inche Noriah v. Shaik Allie Bin Omar (1929) A.C. 127.
(3) Kali Bakhsh Singh v. Ram Gopal Singh (1913) 30 T.L.R. 138.
(4) Merrie v. McKay (1897) 16 NZLR 124.
(5) Ram Nandan v. Shiu Datt Civil Appeal No. 29 of 1982.
(6) Sutton v. O'Kane (1973) 2 NZLR 304.
(7) Union Fidelity Trustee Co. v. Gibson [1971] VicRp 69; (1971) V.R. 573.
(8) Waimiha Sawmilling Co. Ltd. v. Waione Timber Co. Ltd. [1923] NZGazLawRp 32; (1923) NZLR 1137.
(9) Watkins and Another v. Combes and Another [1922] HCA 3; (1922) 30 C.L.R. 180.

Additional cases and authorities cited in argument:

(1) Allcard v. Skinner [1887] UKLawRpCh 151; (1887) 36 Ch.D. 145.
(2) Chandrika Prasad v. Chabraji Court of Appeal Civil Appeal No. 42 of 1976.
(3) Introduction to Land Laws, Hinde McMorland & Sim.
(4) The Atlantic Baron (1978) 3 All E.R. 1170.
(5) Chitty on Contracts paragraph 514.
(6) Bullock v. Lloyds Bank (1955) A.C. 317.
(7) Howes v. Bishop [1909] UKLawRpKQB 96; (1909) 2 K.B. 390.
(8) Mitchell v. Homfray [1881] UKLawRpKQB 47; (1882) 8 Q.B.D. 587.
(9) Morley v. Loughnan [1893] UKLawRpCh 15; (1893) 1 Ch. 736.
(10) Wright v. Vandiplants (1885) 2 K.&.J. 1
(11) Lloyds v. Bundy (1975) NSWLR 14.
(12) Whereat and Another v. Duff (1972) NSWLR 14.

HBC0037J.91S