BRIDGET ANTONY , Appellant , and IMELDA WEERASEKERA et al, Respondents.

136-NLR-NLR-V-54-BRIDGET-ANTONY-Appellant-and-IMELDA-WEERASEKERA-et-al-Respondents..pdf

M!b. Ii. M. D. DE SILVA—Antony v. Wee^asekera
553
[In the Privy Council.]
1953 Present: Lord Normand, Lord Cohen, Sir Lionel Leach andMr. L. M. D. de SilvaBRIDGET ANTONY, Appellant, and IMELDA WEERASEKERAet al., Respondents
Privy Council Aureal 13 ot 1952S. C. 534—D. G. Colombo, 175
Donation—Undue influence—-Fiduciary relations.
The English law relating to undue influence is part of the law of Ceylon.
Where a deed of gift executed by the plaintiff' in favour of her grand-daughterwas impugned by the plaintiff on the ground that undue influence was exercisedon her by the prospective father-in-law of the donee—
Held, that a deed of gift may be set aside on the ground that the relationsbetween the donor and donee were at or shortly before the execution of the giftsuch as to raise a presumption that the donee had influence over the donor.To create the relationship of confidence the person owing the duty need notnecessarily be one who is “ clothed in the recognizable garb of a guardian,trustee, solicitor, priest, doctor, manager or the like ” ; certain circumstancescan give rise to a relationship between two parties which makes it “ the dutyof one party to take care of the other ”, when the duty of taking care includesthe duty of giving advice._
The Court will not, however, set aside a gift if it is proved that in fact thegift was the spontaneous act of the donor acting under circumstances whichenabled him to exercise an independent will and which justifies the Court inholding that the gift was the result of a free exercise of the donor’s will.
A.PPEAB from a judgment of the Supreme Court.
N. Pritt, Q.C., with Stephen Chapman, for the plaintiff appellant.Ralph Milner, with T. H. Kellock, for the 1st defendant respondent.No appearance for the 2nd defendant respondent.
Cur. adv. vuU.
>*
July 8, 1953. {Delivered by Mr. L. M. D. de Silva]—.
The plaintiff instituted this action in the District Court of Colombo onthe 11th June, 1916, to obtain a declaration that a deed of gift executed onthe 12th April of that year in favour of the first defendant, a grand-daughter, was “ void on the ground that it had been obtained by pressureand surprise, without making her aware of the contents and through the24liv
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exercise of undue influence and by fraudulent representations Theplaintiff was then a widow of the age of 70 years. Her husband had diedthree years previously and she was living with her son and the 1stdefendant who was the plaintiff’s granddaughter through a deceaseddaughter. The deceased daughter had in her lifetime first married thefather of . ^e 1st defendant, and, after his death, a Dr. Van Dort who,at the times material to this action, was in close touch with the family.The 1st defendant married the son of the 2nd defendant on the 28thJune, 1947.
The two defendants filed separate answers in which the above mentionedallegation of the plaintiff was denied. The 2nd defendant pleaded furtherthat no cause of action had arisen against him even if the facts statedin the plaint were true. He was unrepresented at the hearing before theBo'ard, and their Lordships do not propose to go into the question,which was not argued before them, whether he should have been joinediti this action.
The learned District Judge dismissed the action after examining allthe relevant aspects of the case and he expressed his views upon them indetail. His judgment was affirmed by the Supreme Court. TheirLordships take the view that the Supreme Court were clearly right indoing so, and their Lordships have very little doubt that the SupremeCourt before whom the case was argued for four days dismissed the appealwithout giving any reasons because they were in full agreement withthe findings of fact of the learned District Judge and the views taken byhim on the law. Their Lordships would however have derived greatassistance if the reasons for the dismissal had been stated.
The plaint which has been filed set out in outline the facts upon whichthe plaintiff relied to sustain her ease. It stated inter alia that :—
“ The 2nd defendant commenced to visit the plaintiff in or aboutthe year 1945 and to evince concern and interest in the plaintiff andthe 1st defendant and continued such behaviour as a self-constitutedfriend and adviser to the plaintiff.
In or about November, 1945, the 2nd defendant through his brotherJohn Zoysa suggested to the plaintiff a marriage between the 2nddefendant’s son and the 1st defendant to which proposal the plaintiffdid not agree.
Notwithstanding the plaintiff’s rejection of the said proposal the2nd defendant continued his visits which became more frequent there-after and gained an ascendancy over the minds of the 1st defendantand the plaintiff with a view to gaining his purpose of putting throughthe marriage for his son with 1st defendant and securing aJil theproperties of the plaintiff for the benefit of his son.
With the aforesaid intent, the 2nd defendant succeeded in making the■ 1st defendant amenable to his wishes prior to the dates hereinafterset out. ”
It then proceeded to give in some detail the events of the 11th April,1946, which led to the execution of the impugned deed. The plaintiff
MR. L. M. I>. DE SILVA—Antony v. Weeraaekera
555
said she was “ induced and prevailed upon ” by.. “ those present ” tosign it in spite of a refusal by her so to do. The case was opened od thebasis of the plaint but, as observed by the learned District Judge, “ Inher evidence the plaintiff made it quite clear that the second defendantdid not at any stage gain an ascendancy over her mind. … Itis her case that at no time did she consult the second defendant withregard to any of her actions. ” She said in the course of her evidence“ I have nothing to consult him (2nd defendant) about. I have nothingto do with him. … After my husband’s death I did not find it
necessary to get his advice. He gave me no advice and I did not consulthim on anything. ” And as observed by the learned District Judge“ There is no other evidence in the case … which indicates that
the 2nd defendant had in the slightest degree gained an ascendancyover the mind of the plaintiff. ”
The plaint averred that the 1st defendant was aware of the facts allegedby the plaintiff. There was nothing further averred against her exceptthat she had agreed to execute a retransfer but had not done so. Thewords “ those present ” (referred to above) were wide enough as a matterof language to include the 1st defendant, but it was no part of the argu-ment before the Board that she “ induced ” or “ prevailed upon ” theplaintiff to execute the deed or that she did anything she should not havedone. Presumably no such suggestion was made in the Courts below.
The case for the plaintiff was based on the conduct of the 2nd defendantin relation to her. It was not disputed that if undue influence was shownto have been exercised on the plaintiff by the 2nd defendant, it wouldvitiate the deed in favour of the 1st defendant even though the 1stdefendant took no part in the exercise of that undue influence.
Seven issues were framed by the District Judge of which the first sixwere suggested by counsel for the plaintiff. The seventh suggested bycounsel for the 2nd defendant raised the question whether a case againsthim had been made out in the plaint. It is sufficient to say of the firstsix issues that they put in issue the facts stated in the plaint and referredto above, and raised the question whether, on the basis of those facts,undue influence or fraud had been established. The learned DistrictJudge observed “ Strictly speaking, even on the plaintiff’s own evidence,these issues will have to be answered mainly against the plaintiff becauseaccording to the evidence, even if there was any pressure, surprise orundue influence, it was not exercised as alleged in the plaint or in thecircumstances set out in the plaint. ” Fiona what has been said earlierand from other observations correctly made by the learned DistrictJudge it is clear that there is much substance in this view. He howeverdid not decide the case on that ground. He went on “ to considerwhether on the evidence led there was undue influence, pressure, surpriseor fraudulent representation of any kind which would justify the settingaside of the deed of gift. ” This was a more satisfactory course. TheirLordships see no ground on which they could disturb the findings of factof the learned District Judge, concurred in as they must be taken to beby the Supreme Court, and they agree with him that the facts as so founddo not give rise in law to a case for setting aside the deed..
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MR. L. M. 3D. DE SILVA—Antony v. Weerasokera
The English Law relating to undue influence is part of the law ofCeylon. It was so held by the Supreme Court of Ceylon in the case ofPer era v. Tissera1. -The view there expressed was not challenged at thehearing of the present case before the Board or in the Courts in Ceylon.Their Lordships are of the opinion that that view is correct.
The principles upon which this case falls to be decided were laid downby Cotton L.J. in the case of Allcard v. Skinner 2. It was there statedthat voluntary gifts would be set aside in two classes of cases :—
“ First, where the Court has been satisfied that the gift was theresult of influence expressly used by the donee for the purpose ; second,where the relations between the donor and donee have at or shortlybefore the execution of the gift been such as to raise a presumptionthat the donee had influence over the donor. In such a case the Courtsets aside the voluntary gift, unless it is proved that in fact the giftwas the spontaneous act of the donor acting under circumstanceswhich enabled him to exercise an independent will and which justifiesthe Court in holding that the gift was the result of a free exercise ofthe donor’s will. The first class of cases may be considered as depend-ing on the principle that no one shall be allowed to retain any benefitarising from his own fraud or wrongful act. In the second class ofcases the Court interferes, not on the ground that any wrongful acthas in fact been committed by the donee, but on the ground of publicpolicy, and to prevent the relations which existed between the partiesand the influence arising therefrom being abused. ”
This case was approved and applied by Lord Hailsham (delivering thejudgment of the Board) in Inche Noriah v. Shaik Allie Bin Omar 3. Itwas referred to also in the recent case of Titfton v. Sperni 4 in which theMaster of the Rolls examined the case law relating to undue influencein great detail. He observed that the decided cases on the subjectestablished the proposition that the jurisdiction exercised by Courtsof Equity over the dealings between persons between whom there wasa relationship of confidence was “ not circumscribed by reference todefined limits ” and that “ the existence of the jurisdiction and the rightand duty to exercise it must in every case depend on the special facts ofthat case and the inferences properly to be drawn from them. ” Hepointed out that the eases refuted the suggestion “ that to create therelationship of confidence the person owing the duty must be foundclothed in the recognizable garb of a guardian, trustee, solicitor, priest,doctor, manager or the like ”. Of special relevance to this case is hisobservation, based on previous cases, that certain circumstances cangive rise to a relationship between two parties which makes it “ the dutyof one party to take care of the other ” and it is clear from what he saysthat the duty of taking care includes the duty of giving advice.
Before their Lordships it was stated by counsel for the plaintiff thathe did not find it possible to press the plea of fraud. He said also that
' (1933) 35 N. L. R. 257, pp. 266 and 282.- (1887) 36 Oh. D. p. 145 and p. 171.
(1929) A. C. 127.(1952) T. L. R. 516.
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it was not possible to argue that this case came within the first category-of cases referred to in Allcard v. Skinner, namely cases where “ the giftwas the result of influence expressly used His argument was that itcame within the second category. He urged that the relationship betweenthe plaintiff and the 2nd defendant was in the circumstances of this ease,one of confidence giving rise to a duty on the part of the 2nd defendant:to surround the plaintiff with care and to advise her. He argued thatthere had been a breach of that duty and that consequently a presumption,of undue influence had arisen. With this ' contention their Lordships-are unable to agree.
It is common ground that the impugned deed was signed in the houseof Dr. Van Dort on the 12th April, 1946, and that there were presenton that occasion the plaintiff, the two defendants, Mr. P. D. A. Mack, aproctor acting for the 1st defendant, Mr. J. A. V. Modder, a proctor whohad been instructed to act for the plaintiff, and Dr. Van Dort. Mr. Modderhowever had not met the plaintiff before that day, and the plaintiff statedin evidence that she was taken to Dr. Van Dort’s house in the belief thatshe was being taken elsewhere. It is admitted that the car in which shewas taken there had been procured by the 2nd defendant. She statedfurther that she was prevailed upon to execute the impugned deedalthough she had expressed unwillingness to do so on that day. Thesefacts and these allegations called for careful investigation. Their Lord-ships see no reason to doubt that they received due consideration fromthe learned District Judge when reaching his conclusions as to the credi-bility of the witnesses who have been called and as to the facts which hefound to be established. It is not necessary for their Lordships to referin this judgment to more than a few of the facts so found.
It is clear from what has been stated earlier that the plaintiff in herevidence had disavowed any suggestion that she consulted the 2nddefendant or took his advice. Consequently the case for- her could beput and was pressed before their Lordships only on the basis that the dutywhich it was suggested the 2nd defendant owed the plaintiff arose on the12th April, 1946. It was argued that the 2nd defendant was the pros-pective father-in-law of the 1st defendant and that he had been instru-mental in securing the presence of the plaintiff at the house of Dr. VanDort, on .that day. She was there asked to sign the impugned deed towhich she had given no thought till that day. It was argued that inthese circumstances, taking into account that the prqctor who usuallyattended to her affairs was not present, it was the duty, of the 2nd defen-dant to warn the plaintiff against signing the deed pr at least to explainto her its implications. The findings of fact destroy this argument.
»The learned District Judge had no doubt about the credibility of Dr.Van Dort who gave evidence. Dr. Van Dort said that he had earlier in1946, probably in February or March, told the 1st defendant in thecourse of a conversation about her affairs, that she should have indepen-dent advice with regard to her share of her grandfather’s (plaintiff’shusband) intestate estate ; that with the plaintiff’s approyal Mr. Mackwas retained by him to act for the 1st defendant ; that in the course ofinvestigation Mr. Mack discovered that certain valuable properties had
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been transferred by the plaintiff to her son; that he (Dr. Van Do*b)informed the plaintiff that she had “ signed away ” these propertiessend that she appeared to be angry when she realised what she had done ;that some days before its execution the plaintiff asked'him to get a lawyerto prepare the deed which is now impugned “ before her son forced herto sign other things away ” ; that he asked Mr. Mack to prepare thedeed but Mr. Mack was unwilling as he was acting for the 1st defendantand that Mr. Modder was thereafter secured to do the work. This evi-dence is corroborated by Mr. Mack whom the learned District Judgeregards, no doubt correctly, as a person of integrity with a high standingin his profession.
, It will thus be seen that the train of events which led to the executionof the impugned deed was set on foot by Dr. Van Dort. The reason forits execution was the idea entertained by the plaintiff that she had“ signed away ” properties to her son and that immediate provisionshould be made for the 1st defendant. It is not necessary for theirLordships to go into the question whether this idea was correct or not.She certainlyl entertained it. On the findings in the Court below theirDordships have formed the view that "without doubt the plaintiff wentto Dr. Van Dort’s house on the 12th April, 1946, with the object ofexecuting the impugned deed having given instructions for its preparationearlier. It is impossible to accept the suggestion that the 2nd defendantalone or with others lured her to Dr. Van Dort’s house and asked her tosign a deed which had not been under contemplation by her prior to thatday. There are no facts established in this case upon which it can beSuggested that a duty was cast upon the 2nd defendant to advise theplaintiff or to surround her with care. Even if there was it is difficultto see why the 2nd defendant, upon such knowledge of facts as could besupposed he had, should have advised the plaintiff not to execute thedeed. Even if the plaintiff’s knowledge of the facts was faulty thereis nothing to show that the 2nd defendant knew better. There is nothingin this lease upon which the impugned deed can be assailed on theprinciples discussed earlier.
Their Lordships feel that reference should be made to an applicationmade at the trial by the counsel for the plaintiff to call evidence in rebuttalafter the case for the defendant had been closed. It was urged thatcertain evidence led for the defendant, namely, that the plaintiff wassurprised when she learnt that she had transferred certain properties toher son, had not been put to the plaintiff in cross-examination. And alsothat an incident spoken of by the 1st defendant as having taken place onthe 11th April was not so put. With regard to the first point it is tobe observed that in examination-in-chief one Father Bourgeois, the firstwitness called by the plaintiff, made reference to a statement made bythe plaintiff to him that “ people told her that she had signed awayvaluable things belonging to her and she did not know what she hadsigned ”. This evidence was, in the context in which it was given,.materially the same as the evidence complained of and consequentlyif was unnecessary for the defence to put the latter in cross-examinationto the plaintiff. The incident of the 11th April was put to one of theplaintiff’s witnesses who was one of the principal participants in it. Their
ROSE C.J.—Latija Umma ®. JemaZdeen
509
Lordships do not attach much importance to the failure to put it to theplaintiff. Upon the view their Lordships have formed on these twopoints certain submissions of law relating to the calling of evidence inrebuttal, and involving a consideration of certain sections of the CeylonCivil Procedure Code, which were made in the Courts below (but notargued before their Lordships) do not arise for comment in this judgment.
For the reasons they have stated their Lordships will humbly adviseHer Majesty that the appeal be dismissed. The appellant must pay thecosts of the appeal.
Appeal dismissed.