Samdai Camla Sirju v Menawatie Singh

• Jurisdiction: Trinidad & Tobago
• Judge: Madam Justice Eleanor J Donaldson-Honeywell
• Judgment Date: 18 January 2024
• Neutral Citation: TT 2024 HC 22
• Docket Number: Claim No. CV 2019-03757
• Court: High Court (Trinidad and Tobago)

In the matter of the Action for Setting aside Deed of Gift registered as DE201701512089D001, amongst other reliefs

Between

Samdai Camla Sirju

Claimant

and

Menawatie Singh

First Defendant

Menawatie Singh (The Legal Personal Representative of the Estate of Darren Sirjoo, deceased)

Second Defendant

Before

the Honourable Madam Justice Eleanor J Donaldson-Honeywell

Claim No. CV 2019-03757

THE REPUBLIC OF TRINIDAD AND TOBAGO

Appearances:

Ms. Suzette Bullen instructed by Ms. Neela Maharaj, Attorneys-at-Law for the Claimant

Mr. Jagdeo Singh with Ms. Karina Singh instructed by Mr. Vashisht Seepersad, Attorneys-at-Law for the Defendant

DECISION

A. Introduction

1 In this Claim, Samdai Sirju seeks to set aside a conveyance by her deceased brother, Baliram Sirju also known as Baliram Sirjoo, a divorced businessman. Baliram Sirju died on 1 March 2017 at age 50 having suffered alcohol liver disease. The conveyance was by Deed of Gift dated 28 December 2016. By that Deed, Baliram Sirju (‘Baliram’ or ‘the father’) was conveying his interest in a commercial property at Lot 215 Toco Road, Sangre Grande which he held as a Joint Tenant with his sister, the Claimant. He conveyed his interest to himself for life then to his only child, the Second Defendant, after his death.

B. Background

2 Four days after Baliram died, the Claimant found out from his son, the Second Defendant – Darren Sirjoo (‘the son ‘or ‘Darren’) about the Deed of Gift. The son died on 27 May 2018. His mother, Menawatie Singh, who was his father's ex-wife, took over management of the property. She also become the Legal Personal Representative of Darren's estate. She is the First Defendant in this case and represents her deceased son as the Second Defendant.

3 The Claimant contends that the Deed of Gift should be set aside for two reasons:

• i. The Deed was procured by the undue influence of the Second Defendant

• ii. The father lacked mental capacity.

4 Additionally, the Claimant seeks possession of the part of the commercial property that the Defendants took control of after the father's death. The said part was mainly the downstairs occupied to the west by Nan's Bar, which the Claimant asserts was operated jointly by herself and the father from 1989 to his death in 2017. She says the income from the bar was herself and her family's main source of income.

5 The Claimant also seeks:

• i. Damages for trespass

• ii. An account of rents received from the premises and of profits from Nan's Bar

• iii. Mesne profits for the rate of occupation of the premises

• iv. Payment of Claimant's share of Nan's Bar's profits.

6 The Defendant's case is that Baliram, the father, operated downstairs and the Claimant rented out upstairs. Then the Defendants occupied and operated business and managed rentals downstairs after the father's death. This is reflected in bar licenses issued to Baliram alone.

7 They contend that Baliram, though ill in his last years, was not of sound mind, infirm and incapacitated at the date of the execution of the Deed. He continued to operate Nan's Bar plus another business, Nan's Transport Services, up to his death. He also had assistance from employees and his son with the bar but not the Claimant. The Claimant's allegation of lack of mental capacity is not credible since she purported to rely on a Will by Baliram, dated August 2016.

8 The Defendants deny the Second Defendant took his father to a lawyer, Ivan Daniel, and say his father gave all instructions for the Deed to Daniel who was his lawyer for many years.

9 They say the Second Defendant was not a trespasser to the property since, upon his father's death, he became co-owner with the Claimant.

10 They also say that the Defendants are not required to account to the Claimant re operations of the ground floor since she controls the top floor and collects all income from the top floor.

C. Legal Principles

Undue Influence

11 The starting point to be considered in determining whether a case of undue influence has been made out is to identify either:

• i. Proof of actual undue influence; or,

• ii. Proof of the existence of a relationship that raises a presumption that undue influence has been exercised and that said presumption has not been rebutted by the other party.1

12 The principles, relevant to identifying either scenario, are as follows 2:

• i. Actual undue influence comprises overt acts of improper pressure or coercion, such as unlawful threats. For a claim to succeed on the ground of actual influence, it must be shown that the intention of the complainant to enter into the transaction was secured by some unacceptable form of persuasion, especially one with improper pressure, such as an unlawful threat.

• ii. There are two requirements 3 for establishing the presumption of undue influence:

  Firstly, the Claimant must establish the existence of a relationship of influence between herself and the Defendants. Certain relationships, as a matter of law, raise a legal presumption that the relationship is one of influence, but a relationship of influence by a child over a parent is not included. It must be established on facts ( Avon Finance Co. Ltd v Bridger (1979)(1985) 2 All E.R. 281 at 287f) 4. The relevant facts to prove such a relationship of influence would include Baliram's trust and confidence in his son, the Second Defendant's management of his financial affairs and some general aspects of his life.

  Secondly, the transaction must not be easily explicable on ordinary motives. This is explained, as follows, by the Privy Council in Nature Resorts Ltd v First Citizens bank Ltd(2022) UKPC10 at para 12:

  “ The underlying idea behind the test is that the nature and/or contents of the transaction must make or

  conclude, in the context of the relationship of influence, that, absence evidence to the contrary, undue influence has been exercised. A contract between A and B which is substantively very unfair to A stands on one side of the line: a Christmas present by A to B stands on the other side of the line.”

13 The instant case is one where there is no evidence of actual undue influence. Therefore, the Claimant had to prove the aforementioned two factors of presumed undue influence. Once these two requirements are satisfied, the presumption of undue influence is raised, and the onus then shifts to the Defendants seeking to uphold the transaction to rebut the presumption by showing that Baliram was not acting under undue influence, i.e. that he exercised free and independent judgment when entering into the Deed of Gift transaction.

14 The main method of rebuttal is to show that the Claimant obtained independent advice from a trusted person or professional such as a lawyer.5

Mental Incapacity

15 The case of Adeeta Kissoon (otherwise Maraj-Kissoon, Adeeta) v Anthony Maraj, Neela Abdool Indira Maraj, CV2008-04330, at paragraph 35, referenced Re Beaney ( supra) which stated that the test of capacity to execute a deed is whether the person is capable of understanding what he does by executing the deed in question when its nature and effect are explained to him. However, the degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect; if the subject matter and value of a gift are trivial in relation to the donor's other assets, a low degree of understanding will suffice; but if its effect is to dispose of the donor's only asset of value and thus for practical purposes to pre-empt the devolution of his estate, then the degree of understanding is as high as that required for a will.

16 Further, at paragraph 36 it provides:

36. “Similarly, in Gorjat & Ors v Gorjat 2010 All ER (D) 247 the Court stated that the starting point in relation to the legal test for capacity in respect of an inter vivos transaction should be the case of Re Beaney. Sarah Asplin QC (sitting as a deputy High Court judge) explained:

“It seems to me that if the evidence were that a donor had formed an intention at the outset to make a series of gifts which he effected over a relatively short period, it would be appropriate to consider the course of conduct as a whole and as Mr. Waterworth suggests, in such circumstances, it should not be necessary to require a higher degree of understanding in relation to the last gift in the intended sequence merely because by that stage, it had greater significance when compared with the donor's remaining assets which had been diminished by the course of conduct….

Finally, at common law, the burden of proving lack of mental capacity lies on the person alleging it. To put the matter another way, every adult is presumed to have mental capacity to make the full range of lifetime decisions until the reverse is proved…

I accept Mr. Waterworth's submissions in this regard that there must be influence which has been abused. The influence therefore, must be improper or undue. However, a presumption of undue influence can arise from a relationship of trust and confidence where one person has acquired a measure of ascendancy over the other or one of the parties is vulnerable and reliant and where the transaction is not readily explicable by ordinary motives. In such circumstances, it must be proved that the donor knew and understood what he was doing. The legal burden of proving undue influence lies on the person alleging it but as I have already mentioned, once a relationship of ascendancy and a transaction which calls for explanation because of its very nature or the surrounding circumstances are proved, the onus shifts to the donee to counter the inference of undue influence and prove that the transaction was entered into freely. Whether a transaction has been brought about by undue influence is a question of fact.”

D. Issues

17 The issues to be determined are as follows:

• i. Did Baliram execute the Deed of Gift of his...