| Fiji Islands - Kumari v Anmai - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
APPELLATE JURISDICTION
Civil Appeal No. 19 of 1978
BETWEEN:
ass=MsoNormal align=center style="text-align:center;tab-stops:right 531.0pt">1. RAJ KUMARI d/o Lakhan Singh
2. YENKAIYA NAIDU s/o Appana
Appellants
AND
AMMAI d/o Nag Reddy
Respondent
Mr. A. Singh for the Appellants
Mr. D.S. Sharma for the Respondent
Date of Hearing: 17th November 1978
Delivery of Judgment: 30th November, 1978
JUDGMENT OF SPRING J.A.
Judgment was given in the Supreme Court at Lautoka in favour of the abovenamed respondent Ammai ordering the abovenamed appellants Raj Kumari and Yenkaiya Naidu (1)
to refund to the respondent the sum of $5459 withdrawn from the respondent's bank account (2) the second appellant Yenkaiya Naidu to deliver up all documents of title relating to the respondent's house property and to hand same to the respondent and (3) the second
named appellant to execute any documents which may be necessary to vest the title to the house property in the respondent. The appellants
now appeal to this Court against the judgment.
The facts may be briefly stated. The respondent at the time of the hearing in the Supreme Court was aged 90 years or more; she was
illiterate. In July 1975 she left the home of her son Subramani Ponsami at Lautoka and went to stay with her daughter the 1st appellant Raj Kumari and her grandson the 2nd appellant Yenkaiya Naidu at Lomawai, Nadroga: we are informed that it is a remote cane growing area; the homesteads are scattered
over a wide area and are not close together: there is no settlement or township. The appellant's house is 2 miles from the main road.
The respondent took with her in July 1975 the title to a house property owned by her in Lautoka; 2 wooden cases containing clothing, jewellery and other personal
effects and a Savings Bank Book No. 002289 with the First National City Bank at Lautoka. Shortly after arriving at her daughter's
residence the respondent's account with the First National City Bank at Lautoka was closed and a savings account opened in the respondent's
name at the First National City Bank at Nadi which was closer to the appellants' residence. In 19 months while the respondent was
living with the appellants $6709 was withdrawn from her savings account at Nadi; the Statement of Claim, however, refers to a sum
of $5459 only. The house property owned by the respondent valued by a professional valuer at $19893 was transferred in May 1977 to the 2nd appellant Yenkaiya Naidu for $8000 - a grandson of
the respondent whom the learned trial Judge described as a "very mature man"; the terms of sale being $1000 deposit and
$7000 secured on mortgage. The house was currently let at $195 a month. After 22 months the respondent left the home of the appellants
and returned to live with her son Subramani. It was found on her return to her son's residence that all her jewellery had disappeared.
The respondent brought an action against the appellants alleging fraud on the part of the appellants and also claiming that the appellant
had exerted undue influence upon her while she was in their care. It was alleged that the appellants had taken advantage of her advanced years and impaired mental and physical condition and prevailed upon her to sell her house property to the 2nd appellant for $8000; and to withdraw not less than $5459 from her savings account which the
appellants retained. The respondent claimed also the return of the jewellery which she alleged the appellants had taken. The learned
Judge in the Court below made the orders abovementioned but refused to make any order in respect of the jewellery as there was insufficient evidence from the respondent as to its nature or value. A claim of $2000 for damages was not pursued at the hearing and no aware was made under this head. We were informed at the Bar that the respondent died on the 24th September 1978 and that an order made by the Supreme Court at Lautoka appointing the son Subramani Ponsami as the representative of the respondent. The appeal proceeded
on this basis.
The appellants appealed to this Court and their grounds of appeal overlapped to a great extent; they may be summarised as follows-
(1) That the learned trial Judge erred in law and in fact in holding that there was a presumption of undue influence when the documents
transferring the house property were signed and further that he erred in presuming that at such time the respondent did not receive
proper independent legal advice;
(2) That the learned trial Judge came to a premature conclusion during the trial as to the respondent's mental condition and erred
in law and in fact in concluding that the moneys withdrawn from the respondent's savings bank account must have been used by the
defendants.
Mr. Singh submitted that the mere blood relationships of mother and daughter, and grandmother and grandson did not of themselves give
rise to the presumption of undue influence. That in the instant case before the presumption of undue influence necessarily arose
evidence must be adduced to show that there was a relation of confidence between the appellants and the respondent to such an extent
that the appellants exercised dominion over the respondent.
Counsel. for the appellants submitted that there was insufficient evidence to justify the learned trial Judge concluding that a close
and confidential relationship existed between the parties and further that no presumption of undue influence arose. The learned trial
has in my view, with respect, correctly set forth in his judgment the legal principles that are in issue.
Lords Chelmsford L.C. said in Tate v. Williamson [1866] UKLawRpCh 107; 2 Ch. App. 55 at 60 -
"The jurisdiction exercised by Courts of equity over the dealings of persons standing in certain fiduciary relations has always
been regarded as one of most salutary description. The principles applicable to the more familiar relations of this character have
been long settled by many well-known decisions but the Courts have always been careful not to fetter this useful jurisdiction by
defining the exact limits of its exercise. 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, although the transaction could not have been impeached if no such
confidential relation had existed."
Where the presumption of undue influence arises as a result of a close and confidential relationship which is shown to exist between
the parties it is incumbent upon the party presumed to have exercised such undue influence to support the validity of the transaction
beneficial to him. The principle is to be found in the judgment of Lord Hailsham L.C. in Inche Noriah v. Shaik Allie Bin Omar [1929] A 127. It may be stated 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.
Dealing with the first ground of appeal, Mr. Singh submitted that there was no evidence that at the date the transfer of the house
property was signed - 11th May 1977 - the respondent was under the influence or dominion of the appellants, and as a consequence
she signed over her property at Lautoka to the 2nd appellant for the mere sum of $8000.
In the Supreme Court the respondent stated in evidence-
"I did not sell my house to Yenkaiya (defendant No. 2) they cheated me. I have not received a single penny for the house.
When I was sick and having a bath someone took the lease from my box and my belongings. The box was opened with a key.
The lease shows it was transferred to Yenkaiya Naidu (defendant No. 2). I never wanted to sell it to anybody. They forcibly got me
to fix my thumb print; I was yelling; I was crying. There was only one lawyer.
(NB. Demonstrates how daughter picked her from rear and son of daughter pressed her thumb)"
In the appellants Amended Statement of Defence it is pleaded in paragraph 6 thereof -
”The defendants in answer to paragraph 9 of the Statement of Claim admit the plaintiff executed a Memorandum of Transfer as stated
therein, and that the said transfer was approved by the Director of Lands. Save as herein admitted the defendants deny that they
exercised any undue influence on the plaintiff, or were guilty of fraud. They say that the plaintiff was independently advised, and
made the transfer freely and voluntarily, and that Messrs. B.K. Pillay & Co. Solicitors of Nadi acted for both parties."
In cross-examination the respondent said -
"Q. Can you recall the occasion when you went to the lawyer's office about the lease?
A. My daughter got hold of my hand. The clerk got me to put my thumb print on two documents.
Q. You wanted Yenkaiya (your grandson) to have the land?
A. No.
Q. Mr. B.K Pillai explained the transaction to you?
A. He was not there.
Q. After he spoke to you, you applied your thumb print?
A. They forced me to do it. I was crying."
Param Anan Singh, a professional valuer of 43 years experience, testified that the house including the value of the lease was worth
$19893. In this case the learned trial Judge saw the respondent and heard her evidence, admittedly, some 9 months after the transfer
of the house property was signed. Apart from the above quoted statement of the respondent when she said "When I was sick"
there was no evidence of any illness or deterioration in her mental or physical condition between the date the transfer was signed
and the date upon which she gave evidence in the Supreme Court. The learned trial Judge said-
"I am in a different position from that of some judges who have reviewed the law relating to undue influence.................. in the instant case I saw the plaintiff and as I noted in the record at the time
she is clearly and obviously senile and dependent and she is uneducated. Her condition at once suggests that she could quite easily be victimised by those whom she trusted and upon whom she
relied."
The task of the Court in deciding whether there is a free exercise of will by the transferor is obviously made easier when the parties are seen and heard
as witnesses. The Privy Council in Williams v. Williams [1937] 4 All E.R. 34 at page 38 stated -
"There is, however, one matter which in their Lordships' opinion is of very great importance and which distinguishes this from other cases in which a question, similar
to that now under consideration, has arisen. In many of such cases the question came up for consideration after the donor was dead. In this case, however, both the donor and the
donee, the plaintiff and the defendant, were available as witnesses and gave evidence at the trial. Webber C.J., therefore had the
great advantage of seeing both parties in the witness-box and of hearing their evidence."
The learned Judge then had regard to the nature of the sale of the house property when he said -
"The nature of the sale of the house on 11.5.77 which also took place whilst the plaintiff was under their roof is also such
in my opinion as to raise the presumption that the deft. 2, no doubt aided by deft. 1, exercised undue influence over the plaintiff and I have no doubt that even the $1,000 deposit
did not come from deft. 2 or deft. 1 personally. On 11.5.77, the day the $1,000 was allegedly paid to the old woman, a sum of $1,770
was drawn from her account."
No evidence was called by the appellants: the solicitor whom the appellants alleged in the pleadings gave independent legal advice
was not called. It is to be noted however that in the appellants' Statement of Defence it was stated that the solicitor acted for
both parties.
"For a down payment of tile deft. 2 received the right to the house and an income of $2,360 per annum therefrom which would repay
the mortgage in 3 years subject of course to any interest which might be payable on the $7,000. The defence have not revealed any anxiety to place before
the Court any of the details concerning the mortgage transaction.
The senility of the plaintiff and her relationship as mother and grandmother of defts. 1 & 2 is such as to show that the latter
were in a position to victimise her by exercise of undue influence. I saw the defendants in Court;"
In my view therefore there was ample evidence before the learned Judge in particular having regard to all the surrounding circumstances
for him to conclude that the presumption of undue influence arose in respect of the transfer of the house property to the second
appellant. Accordingly this ground of appeal fails.
Turning now to second ground of appeal. The respondent stated that she had not visited her daughter before the first appellant called
in July 1975 to take her to Lomawai. The learned trial Judge commented upon the suddenness of the decision to remove the old lady from her son's residence at Lautoka to the 1st appellant's residence
at Lomawai when he said -
"It is to my mind most significant that whilst the plaintiff was living in Lautoka with her son P.W.3 and without any evidence to suggest that the plaintiff had been
wanting to move, the deft. No. 1, her daughter, arrived one day in July 1975, and on that same day persuaded her aged parent (the
plaintiff) to go with her and to stay with her. What was the reason for this interest which the deft. No. 1 appears to have suddenly
taken in her mother?"
The circumstances surrounding the inviting of the respondent to go to Lomawai are somewhat suspicious and unusual. The son Subramani
Ponsami said in evidence -
"On 17 July 1975 she went to Lomawai.
1st defendant came to my neighbour. I saw her. A boy came to my house. He spoke to my mother - plaintiff. My mother went to the neighbour's.
She told me she would be away for an hour.
My sister - 1st defendant - did not come to my place.
My mother returned and said she was going to 1st defendant's house for a week."
In July 1975 shortly after the respondent went to her daughter's home the respondent's savings bank account was transferred from the
Lautoka branch to the Nadi branch of the First National City Bank. The respondent said -
"I had about $10,000.00 to $14,000.00 in the bank.
It was withdrawn. I do not know how it came to be used.
My Nadi, City Bank Savings Account is marked closed. I see my savings book. I am now told it is marked closed."
The learned trial Judge stated in his judgment -
"The plaintiff would not be able to go to the bank in Nadi unless escorted and physically assisted and there is no doubt that
she was not alone when those withdrawals were made."
In 19 months from July 1975 some $6709 was withdrawn from the respondent's savings bank account and it is apparent that the respondent
would not have need of such a large sum of money; she was living with her daughter in a remote cane growing area, unable to get about
on her own and dependent upon the appellants.
In their Amended Statement of Defence the appellants admit that the moneys were withdrawn from the respondents' savings bank account
but aver that they were withdrawn for the benefit of and on account of the respondent.
In her evidence the respondent said "My laughter was asking for money."
The learned trial Judge found as follows:-
"The details of the money withdrawn from the plaintiff's account during her sojourn with the defendants showing the promptness
with which the withdrawals began once the defendants had the old woman under their own roof, and the large amount withdrawn are sufficient,
in my view to raise the presumption that undue influence was in fact exercised by the defendants. I say large amount because sums
must be relative to the affluence of the individuals concerned and it seems to me that $6,000 is a large sum to all parties involved in these proceedings. The plaintiff said, and I believe her and accept that portion
of her evidence as credible, that the deft. 1 was always wanting money from her."
The learned trial Judge then considered the proposition that the moneys withdrawn from the bank account of the respondent had been
used for her benefit and he said-
"In 19 months $6,709 were withdrawn from the plaintiff's account in Nadi although the Statement of Claim refers to a sum of $5,459.
Why was all that money withdrawn? Surely the plaintiff at her age and living with her daughter could not possibly have needed any
of it. I say this because it is not disputed that she owned a house in Lautoka which produced a rent of $195.00 per month and which
at her age would cover her personal requirements. The statement of claim alleges that of the sum of $5459 the only amount used for
the plaintiff's benefit was about $220 being Crown Land Rent and Lautoka City rates. Those items could easily have been met from
the rent.
The plaintiff is, in my opinion, the last person who would be able to explain why $6,709 was drawn from her account and for what purpose
it was used."
The learned Judge drew the inference and with respect correctly, in my view, that the moneys withdrawn from the respondent's bank
accounts were used by the appellants. The learned trial Judge found that the presumption of undue influence by the appellants arose
in respect of the withdrawals from the bank and that it was for the appellants to support that the withdrawals from the bank account
were genuinely made by the respondent and were the exercise of her own free will and rebut the presumption of undue influence which
necessarily arose on account of the manifestly close and confidential relationship between the appellants and the respondent.
The appellants elected to call no evidence. Accordingly, the presumption of undue influence which the learned trial Judge held existed
in respect of the withdrawals from the respondent's savings bank account remained unassailed. In my view this ground of appeal also
fails.
For the reasons which I have given I am of the opinion that this appeal should be dismissed and that the orders made by the trial
Judge should stand. Accordingly I would dismiss the appeal and order the appellants to pay the costs of Subramani Ponsami the representative
of the respondent now deceased.
SPRING JA
JUDGE OF APPEAL
SUVA,
30 November, 1978.
----------------------------------------------------------
IN THE FIJI COURT OF APPEAL
APPELLATE JURISDICTION
Civil Appeal No. 19 of 1978
BETWEEN:
1. RAJ KUMARI d/o Lakhan Singh
2. VENKAIYA NAIDU s/o Appana
Appellants
AND:
ass=MsoNormaNormal align=center style="text-align:center;tab-stops:right 531.0pt">AMMAI d/o Nag Reddy
Respondent
Mr. A. Singh for the Appellants
Mr. D.S. Sharma for the Respondent
Date of Hearing: 17th November 1978
Delivery of Judgment: 30th November, 1978
JUDGMENT OF MARSACK J.A.
This is an appeal against a judgment of the Supreme Court at Lautoka delivered on the 30th March, 1978 ordering:
(a) That appellants refund to the respondent the sum of $5459 drawn from the respondent's bank account;
(b) that the second appellant deliver up all documents of title relating to a certain house property and to execute any documents
necessary to vest that title in the respondent;
(c) that an interim injunction of the 3rd June 1977 restraining the appellants or either of them from registering a transfer of lease
No. 68339, remain in form.
Subsequently to the commencement of the proceedings the respondent died, on the 24th September, 1978. An order was made by the Supreme Court at Lautoka appointing her son Subramani Ponsami as the representative of
the respondent in the present appeal, and the case proceeded on that basis, counsel for the respondent acting for Subramani.
The relevant f acts may be shortly stated. At material times the respondent was an old lady of approximately 90 years of age; the
first appellant is her daughter and the second appellant her grandson. Until the month of July, 1975, the respondent had been living
for some years with a son, Subramani Ponsami at Simla, Lautoka. On one day in July 1975, the first appellant arrived at Subramani's
home in Lautoka and persuaded the respondent to go and stay with her on her property at Lomawai. The respondent remained there until
May 1977 when she returned to live with her son Subramani at Lautoka. At the time in July, 1975 the respondent owned a Crown leasehold
house property in Waiyavi, Lautoka under lease No. 68339. This house property produced a rent of $195 per month which was paid to
the respondent. She also had moneys on deposit with a Savings Bank (First National City Bank) and took her Savings Bank book No.
002289 with her to Lomawai. She also took two wooden cases containing clothing, jewellery and other personal effects.
While at Lomawai she made withdrawals from her Savings Bank account of the following amounts on the dates ant out:-
Date Amount
Sept/9/75 &nbs> &nnbsp;; &nsp; &nsp; &&nbp;; $50.00
Dbr> Dec/18/75 n style=mso-tab-count:1> &nbssp;&nnbsp;&nsp; &nsp; &nbssp; bsp; $pan>$1,000.,000.00
Dec/18/75 &nbbsp; &nbbsp;  &nbp; p; Jan/2Jan/21/75 ;&nbssp;pnnbsbs;&n p;,2001,200.0200.00
0
March/23/77 &t:1> nbsp; &nnbsp;;&nbp; &nsp; ;&nbs> &nbp; &nsp; p; &nnbp; &nbp; 0030.> No6&nbsan stan stso-tab-count:1> &nnbsp; &nbs;&nbs; &nbpp &nssp;&nnbs; &nbp; 0
March/8/77&nb77 && &bsp; ;&nbssp; p;nbss; $570.00
May/11/77 &nbbsp;&&nsp;;&nsp; &nsp; & pan>$0nt:1>  &nbs; & p;&nbp; &nsp; &&nbp;; $1,200.> 00.> & ; &nbbp; &nbp; &nbs; nbsp; & &nbss; &nbp; &nbbsp; n lanGB ssize:12ze:12.0pt;m0pt;mso-bidi-size:t>yes"> $6$6,709.,709.00
The respondent took action in the Supreme Court at Lautoka against the appellants claiming the refund of all moneys which she alleged
had been taken from her, a re-transfer of the leasehold house property and the return of the jewellery or, in default, its value.
The learned trial judge held that there was no proof that the appellants had taken the jewellery but gave. the judgment already quoted
for the return of certain moneys and a re-transfer of the house property.
In connection with the purported sale of the house property, it is significant that on the very day that a thousand dollars was said
to have been paid to her in cash, the respondent had drawn two sums totalling $1,770 from the Savings Bank, which amount, she stated,
was paid to her daughter who wan asking for money.
The basis of respondent's claim in the Supreme Court against the appellants was an allegation of fraud on the part of the appellants,
and also that the appellants had exercised undue influence on the old lady, whose mental and physical condition made it impossible
for her to withstand that influence. The respondent was called to give evidence in the Supreme Court. After she had been cross-examined
for some time, counsel for the appellants said-
"In view of the witness's mental state I do not propose to try and question her further."
At this stage the learned trial judge commented on the physical and mental condition of the respondent and informed counsel of his
views. The record made by the learned trial judge is in these words:-
"This witness is obviously very old and very feeble minded. She is chattering constantly and whispering. She is certainly very
dependent and whatever may be needed to support her case will largely depend on 3rd parties. It is obvious that she will be virtually
at the mercy of any relative or person with whom she resides or who is looking after her.
I have communicated the above comments to the advocates."
Later in the course of his judgment the learned trial judge noted that he was in a different position from that of some judges who
had reviewed the law relating to undue influence. Those judges had had to rely on evidence of witnesses describing the age and senility
of the person concerned at the time the transactions were entered into. He went on to say:
"In the instant case I saw the plaintiff and as I noted in the record at the time she in clearly and obviously senile and dependant
and she in uneducated. Her condition at once suggests that she could quite easily be victimised by those whom she trusted and upon
whom she relied."
Counsel for the appellants contended that observations of the judge on the 17th February, 1978 could not definitely establish the
mental and physical condition of the respondent some nine months previously, on the 11th May, 1977, when the transfer of the lease
was executed. Considering all the circumstances of the case and the evidence generally as to the old lady's .behaviour, I am satisfied that from the statement of
the learned trial judge that she had been ill, there in no evidence of any such supervening illness or other cause of mental or bodily
change, an would be liable to effect any significant change to a woman of her age occurring in the period of nine months. Therefore
in my view the learned judge was thoroughly justified in coming to the conclusion which he did, with regard to her susceptibility
to victimisation by those whom she trusted.
The presumption of undue influence by the appellants on the respondent in this case, must necessarily arise in the circumstances which
are set out in detail in the learned judge's judgment. During the term of her stay with the appellants the old lady was not only
weak mentally but she was unable to leave the premises of her own motion. Her house property produced a rental of $195 a month, which,
as the learned judge pointed out, would cover her personal requirements. In ample measure, in my opinion. Yet in the space of some
20 months, she drew a sum of $6709 from her deposits in the Savings Bank. In this respect there is a definite finding by the learned
trial judge:-
"The plaintiff said, and I believe her and accept that portion of her evidence an credible, that the deft.1 (first appellant)
was always wanting money from her."
He further found that even the $1,000 deposit which the appellants alleged was paid to the respondent on the purported purchase of
the house property did not come from either of the appellants personally. As has been pointed out, on the very day that the $1,000
was allegedly paid to the old woman, a sum of $1,770 was drawn from her bank account. As the trial judge said:-
"It would be strange if the old woman on the day she received $1,000 deposit on the sale of her house should, at the age of 90
or more years, require a further $1,770 from her bank. It is a commonsense inference that the $1,000 deposit probably came out of
the $1,770 withdrawn that same day from her bank account."
All these factors raise a strong presumption that undue influence wan exercised by her daughter and son-in-law to induce the old lady
to withdraw considerable sums of money from her bank account and to execute in favour of the second appellant a transfer of her income-yielding
property for but a fraction of its true value.
The general principle which is affirmed in the authorisation quoted to the Court is that there must exist a "relation of confidence"
between the parties. Such a relation may arise, for example, as between doctor and patient and between members of a family. The circumstances
established by the evidence in this case clearly show, not only a family relationship, but also a situation which the infirmities
of the old lady were such that her dependence on the appellants in practically all matters, including those financial was inevitable
during her stay with them. That being so, the presumption of undue influence would necessarily arise.
Leading authorities on the legal aspects of the questions in issue in this present case were fully considered by the learned trial
judge in his judgment and I do not find it necessary to repeat them here.
Once the presumption of undue influence arises, the onus is then cast on the party presumed to have exercised such influence to satisfy
the Court that the transaction in issue was not brought about by undue influence on his part. As is said by Cotton L.J. in Allcard v. Skinner [1887] UKLawRpCh 151; 36 Ch D. 145 at p.171:
"These decisions may be divided into two classes: first where the Court has been satisfied that the gift was the result of influence
expressly used by the donee for the purpose; secondly, 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. In such a case the Court
sets aside the voluntary gift, unless it in proved that in fact the gift was the spontaneous act of the donor acting under circumstances
which enabled him to exercise an independent will and which justify the Court in holding that the gift was the result of a free exercise
of the donor's will."
This statement of the law was quoted with approval by Lord Hailsham LC in Inche Noriah v Shaik Allie Omar (P.C.) [1929] AC 127 at p.132, and by Jenkins L.J. in Tufton v. Sperni (1952) 2 T.L.R. 516 at p.527. The onus of supplying the proof the law requires lies on the party benefited: Zamet v. Hyman (1961) 1 W.L.R. 1442 at p.1446.
In the present case the learned trial judge found, on what were in my opinion thoroughly substantial grounds, that he was entitled
to infer that the moneys drawn from the respondent's Savings Bank account were, in the absence of adequate explanation, used largely
for the benefit of the appellants. He also found that presumption of undue influence arose with regard both to the Savings Bank transactions
and to the transfer of the respondent's house property to the second appellant at a gross under-value. Therefore, in accordance with
the principles laid down in the authorities quoted, the onus lay on the appellants to rebut that presumption. No attempt was made
by the appellants to do so. They called no evidence. In the result, the presumption of undue influence, for which in my opinion there
were substantial grounds, was not rebutted. The Court then is under a duty to set aside the transactions effected by the undue influence
and to restore the respondent, as far as possible, into the position she would have been in if that undue influence had not been
exercised.
In the result I am firmly of the opinion that the judgment of the learned trial judge was correct. I would therefore dismiss the appeal
and order the appellants to pay the respondent's costs.
MARSACK JA
JUDGE OF APPEAL
Suva,
30 November 1978
-----------------------------------------------------------
IN THE FIJI COURT OF APPEAL
APPELLATE JURISDICTION
Civil Appeal No. 19 of 1978
BETWEEN:
1. RAJ KUMARI d/o Lakhan Singh
2. YENKAIYA NAIDU s/o Appana
Appellants
AND:
AMMAI d/o Nag Reddy
Respondent
ass=MsoNormal>Mr A. Singh for the Appellants
Mr D.S. Sharma for the RespondentDate of Hearing: 17th November, 1978
Delivery of Judgment: 30 November 1978
JUDGMENT OF GOULD V.P.
I have had the advantage of reading the judgments of Marsack J.A. and Spring J.A. in this appeal and fully agree with their reasoning
and conclusions.
All members of the court being of the same opinion the appeal is dismissed with .
GOULD VP
VICE PRESIDENT
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