Jattan v Wati [2011] FJHC 660; Civil Action 361.2009 (19 October 2011)

IN THE HIGH COURT OF FIJI AT SUVA

Civil Action No. 361 of 2009

BETWEEN:

RAM JATTAN and PARANPATI
PLAINTIFFS

AND:

KAMLA WATI and ARVIND KUMAR
and RAJESH KUMAR
DEFENDANTS

Appearances : Mr Shelvin Singh for the plaintiffs
Ms S. Devan for the defendants

Date of Hearing: 01 August, 2011
Closing submissions of the plaintiffs' filed on 30 August, 2011.

JUDGMENT

1. Ram Jattan and Paranpati had migrated to New Zealand 20 years ago. It is alleged that on a visit to Fiji, for the funeral of their daughter, their son Rati Ram had exercised undue influence and fraudulently induced them to transfer their property to him on 18 July, 2006. The property is comprised in Certificate of Title No. 31120.

The issue of undue influence is raised in these proceedings filed on 2 November, 2009, after the demise of Rati Ram on 22 August, 2009.The defendants are the personal representatives of his estate.

2. The hearing

2.1 Paranpati testified that the deceased took her to a lawyer's office. The lawyer did not explain the "paper" to her. Rati Ram (the "deceased") had told her that she has to sign the paper, as he was looking after the property and collecting the rent. She asserted she was not told she could seek independent legal advice. Her husband, Ram Jattan did not accompany her to the lawyer's office, but had subsequently approved her course of action. In cross-examination, she stated his signature was on the transfer document.

Counsel for the plaintiffs tendered a medical report being in terms of the Civil Evidence Act, 2002, for the limited purpose of demonstrating that Ram Jattan was medically unfit to attend the hearing.

Shobna Kishore, the daughter of Ram Jattan and Paranpati testified in support.

2.2 Arvind Kumar and Kamla Wati, (the son and wife of the deceased) and a tenant of the property gave evidence for the defence. These witnesses referred to several conversations they had with Paranpati, to which counsel for the plaintiff correctly objected to, as these matters were not posed to Paranpati in cross examination, in accordance with the rule in Brown v Dunn (1893) 6 R.67.

Very little evidence can be gleaned from Arvind Kumar. He asserted he had migrated to New Zealand in May, 2006 and stayed with his grand-parents, Ram Jattan and Paranpati. Ram Jattan had then told him that he desired to give the property to the deceased.

Kamla Wati testified to the same effect and that she accompanied Ram Jattan, Paranpati and the deceased to the lawyer's office. Kamla Wati's evidence was supported by a tenant of the property.

2.3 At the close of hearing, counsel for the plaintiffs and defendants were ordered to file closing submissions on 31 August,2011.

3. The determination
   

3.1 In the light of Ram Jattan not giving evidence, Paranpati's testimony will be analysed to ascertain whether the transfer deed can be set aside as a whole or only as against her.

3.2 The closing submissions of the plaintiffs relied by analogy on the decision in Kumari v. Ammai [1978] FJCA 1. The facts are not comparable. In that case, it transpired the donor was 90 years old and illiterate. She had testified that "the daughter got hold of my hand. The clerk got me to put my thumb print on two documents". The donor had left her son's house in Lautoka to stay with her daughter and grandson in a remote cane growing area and the property was transferred to her grandson, after a period of 1 year and 10 months. Marsack JA found that the evidence clearly demonstrated not only a family relationship, but also a dependence on all matters, including those financial due to the infirmities of her age.
As regards Paranpati, it was contended she did not understand the contents of the document she signed. To this issue the quality of her understanding is relevant. Her testimony, 5 years after the impugned transfer, did not disclose she was illiterate .She was aware of the rent she and her husband are paying her daughter in New Zealand, the source of her income and that her husband used to pay the city rates for the property in Fiji. It transpired she had asked the lawyer for a copy of the deed and was aware she could have objected to signing the document. She proffered no explanation for Ram Jattan's signature on the transfer document.

I am satisfied on Paranpati's evidence that she did have the understanding to execute the transfer.

Solicitor M.V.Bhai, in the transfer document provides that the signatures of the plaintiffs were made in his presence and the document was "read over and explained the contents hereof to the transferor in the Hindustani language and they appeared fully to understand the meaning and effect thereof ". This answers the contention that the document was not explained to Paranpati .

The presumption omnia praesumuntur rite esse acta applies and "throw(s) the burden of proving fraud, etc., upon the party asserting it." - Phipson on Evidence, 13th Edition (1982), page 57.

3.3 The mainstay of Ram Jattan and Paranpati's case is that the deceased unduly influenced them to transfer the property .

A prerequisite of the presumption of undue influence is that there must be a relationship of influence arising out of confidence reposed by one party in the other.

In Kumari v. Ammai, (supra) Spring JA cited with approval Lord Hailsham L.C. in Inche Noriah v. Shaik Allie Bin Omar [1929] A 127 as follows:

"Where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor, the court will set aside the voluntary gift unless it is proved that in fact the gift was the spontaneous act of the donor acting in circumstances which enabled the donor to exercise an independent will and which justifies the court in holding that the gift was the result of a free exercise of the donor's will." (emphasis added)

Spring JA relied on a dictum of Lord Chelmsford L.C. judgment in Tate v. Williamson, [1866] UKLawRpCh 107; (1866) 2 Ch. App. 55 at 60, cited in the closing submissions of the plaintiffs. The relevant extract reads as follows:

"Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, ....."(emphasis added)

Turning to the facts of the present case, Ram Jattan and Paranpati reside across the Tasman under the shadow of Shobna Kishore, who testified she looked after them "24/7". She had brought them to Fiji in 2006. The deceased had asked her to take them back, since the health facilities in Fiji were inadequate. She had been in frequent communication with them from New Zealand, 2-3 times a week. Her brother had called them from Canada once a week. Kamla Wati, in re-examination by counsel for the defendants, admitted albeit with reluctance that in Fiji, Ram Jattan and Paranpati stayed independently in the adjoining flat/house.

There remains to be considered Paranpati's assertion that she reposed confidence in the deceased. It is not enough to assert that the party had reposed confidence. It must be demonstrated that "the party in whom the trust and confidence is reposed is in a position to exert influence over him who reposes it" -Nourse LJ in Goldsworthy v Brickel,. (1987) 1 All ER 853 at 868.

I am satisfied on the evidence that the deceased was not in a position to influence Ram Jattan and Paranpati into transferring the property, during their sojourn of 6 months in Fiji. In the circumstances, the presumption of undue influence does not come into operation.

The other aspects of the evidence I find unconvincing are: Paranpati's testimony that she came to know that the deceased had taken her property when she returned to New Zealand, and Shobna Kishore's assertion that she became aware of the transfer in 2008, upon her mother advising her that she had signed a paper.

4. The upshot of the uncalled evidence of Ram Jattan is that it gives rise to the inference that his evidence would not help Paranpati's case.

In Jones v Dunkel, [1959] HCA 8; (1959-60) 101 CLR 298, 320, Windeyer J citing Wigmore on Evidence 3rd ed. (1940) vol. 2, s.285, p. 162 stated as follows:

"The failure to bring before the tribunal (a) witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear in some evidence that the .. witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted."(emphasis added)

Ram Jattan's evidence could have been led in terms of the provisions enabling hearsay evidence under the Civil Evidence Act, 2002, or by "video link"- William Marshall JA in Mobil Oil (Australia) Ltd v Digitaki,(Civil Appeal No.CBV0008 OF 2008S).

Counsel for the plaintiffs elicited from Arvind Kumar and Kamla Wati in cross-examination, that the deceased was a ne'er-do-well carpenter. These two defendants attributed the dire circumstances of the deceased and his other siblings being well settled in greener pastures, as the reasons that led Ram Jattan to transfer the property to the deceased.

5. The evidence adduced in support of the plaintiffs' claim was inconsistent with the agreed fact that Ram Jattan and Paranpati were under the care and control of the deceased. A more glaring inconsistency is the agreed fact that the plaintiffs lodged a caveat on the property "on or about 10 January, 2008, and as soon as the Plaintiffs ceased to be under the care and control of the said Rati Ram".

6 For the foregoing reasons, the plaintiffs' claim is dismissed with costs summarily assessed at $2500 payable by the 1st and 2nd plaintiffs to the 1st, 2nd and 3rd defendants.

A.L.B.Brito-Mutunayagam
19th October, 2011 Judge