TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
H.C.A. No. 1042 of 2000
BETWEEN
DWARPAUL BANSGOPAUL
Plaintiff
AND
KAMINI BANSGOPAUL AND RAJPATEE BABOOLAL
Defendants
Before the Honourable Justice Mira Dean-Armorer
Appearances: Mr Rennie Gosine for the Plaintiff Mr. Suresh Dodol for the Defendants
JUDGMENT Introduction:
The plaintiff is the brother of the Defendants. Their father, Bansgopaul, had signed an agreement for the sale of lands in Woodland, on the 17th November, 1998. Bansgopaul died, leaving a Will, which appointed the Defendants as
executors. The Plaintiff now applies to this Court for specific performance of the Agreement for sale.
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The Defendants are resisting the claim on the ground that the deceased, at the time of executing the Agreement, had no independent legal advice and did not understand the nature, content or effect of the Agreement to which he was committing himself.
The Pleadings:
The Writ and the Statement of Claim:
1.
This action was initiated by a Generally Indorsed Writ of Summons filed on the 22nd August, 2002.
2.
The Plaintiff filed a Statement of Claim on the same day and claimed specific performance of an Agreement in writing dated the 17th November, 1998 (“the alleged Agreement”).
3.
The Plaintiff, in his Statement of Claim, alleged that he entered into the Agreement with “Bansgopaul”, who was referred to in the remainder of the Statement of Claim as “the deceased”. The Agreement was for the sale of the parcel of land, which was described as: “All and singular that parcel of land situate in the Ward of Naparima in the Island of Trinidad comprising Nine Thousand Three Hundred and fifty four square feet more or less being a portion of La Fortune Estate, La Fortune. Section, Ste Madeleine (West) Area of Caroni Limited and bounded on the North by lands of Caroni Limited on the South by an estate trace on the East by La Fortune Pluck Road 66 feet wide and on the West by another estate trace together with the dwelling house standing thereon and more particularly described in Deed of Conveyance No. 163 of 1972 (hereinafter referred to as “the said lands”).”
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This parcel of land is referred to herein as “the disputed property”.
4.
At paragraph 2 of the Statement of Claim, it is alleged that the Plaintiff paid to the deceased the sum of sixty thousand dollars ($60,000.00) as the purchase price.
5.
The Plaintiff alleges further that he entered and occupied the disputed property and that he has at all material times been “ready, willing and able to complete the transaction.”
6.
The Plaintiff pleaded further that after receiving the purchase price of sixty thousand dollars ($60,000.00), the deceased went on vacation to the United States of America.
7.
The Plaintiff has pleaded further that the deceased agreed that he would, upon his return from the United States of America, sign the Deed of Conveyance to transfer the said lands to the Plaintiff. At paragraph 4 of the Statement of Claim, the Plaintiff alleges that the deceased died in the United States of America on the 12th February, 1999.
8.
At paragraph 5, the Plaintiff alleges that the deceased left a Will naming the defendants herein as his executors.
9.
At paragraph 6, of the Statement of Claim, the Plaintiff alleges that the Defendants obtained a Grant of Probate of the Will of the deceased and that the inventory of the estate of the deceased included the subject lands.
10.
The Plaintiff alleges further that he made numerous requests to the Defendants who nonetheless have failed to transfer the lands.
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The Defence: A Defence was filed on the 2nd November, 2000, in which, the Defendants deny the alleged Agreement.
1.
2.
The Defendants have alleged further that the deceased was forced to affix his thumbprint on the alleged Agreement and did so without having the benefit or opportunity of independent legal advice.
3.
The Defendants contend further, at paragraph 2 of the Defence, that the Agreement was not read over or explained to the deceased who could not read or write and that the deceased did not understand, the nature, contents and effects of the Agreement.
4.
The Defendants contend further that the purchase price of the property was “unfair and unjust ……,” ………. being less than one half of the market value of the land and that the price allegedly paid by the Plaintiff was “so grossly inadequate and under the market value as to render the alleged Agreement as unconscionable, unjust and inequitable……”
5.
The Defendants deny that the purchase price was duly paid and contend that the Plaintiff paid to the deceased the sum of fifty thousand dollars ($50,000.00) ordered him to vacate the premises and put his son, Ganesh Dwarpaul into occupation.
6.
The Defendants deny that the deceased agreed to sign the Deed of Conveyance and instead contend that the deceased had threatened the Plaintiff with legal action.
7.
Paragraphs 4 and 5 of the Statement of Claim were admitted. The fact and the date of the death of the deceased were not disputed. It is also
undisputed that the Defendants are the executors of the estate of the
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deceased and that they received a grant of Probate and that the disputed property appears on the Inventory of the deceased’s estate.
8.
The Defendants deny that requests, and in particular a written request, was made of them by the Plaintiff.
The Counterclaim:
1.
In their Counter Claim, the Defendants contend that the alleged Agreement is invalid, null and void.
2.
At paragraph 12 of the Defence and Counter Claim, the Defendants refer to a Will, which the deceased made on the 20th January, 1999 and in which the subject lands were bequeathed to the Defendants by the deceased. The Defendants allege that by a letter dated 2nd March, 1999 the Defendants called upon the Plaintiffs to vacate the premises.
3.
4.
The Defendants plead that they are entitled to beneficial ownership of the lands under the Will of the deceased.
Reply and Defence to Counterclaim:
1.
At paragraph 2 of the Reply and Defence to Counterclaim, the Plaintiff contends that in executing the alleged Agreement for sale and in making the payments of sixty thousand dollars $60,000.00, the deceased acted freely and fully of his own volition in the free exercise of his own independent will and with full knowledge and due consideration of what he was doing.
2.
After furnishing particulars of the deliberate actions of the deceased, the Plaintiff contends at paragraph 3 of the Reply and Defence to Counterclaim that sixty thousand dollars ($60,000.00) was a fair market value for the said
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property and that at the time of the purchase, the house was in need of urgent repairs.
3.
The Plaintiff contends further that the requisite repairs were executed by the Plaintiff’s son, Kanhai Dwarpaul, that the deceased received the entire purchase price of sixty thousand dollars ($60,000.00) and that at the time of execution of the Agreement the subject premises were unoccupied and that the deceased was residing at the home of his daughter.
The Evidence: The Court heard viva voce evidence in this matter on the 4th June, 2002, 5th June, 2002, 6th June, 2002, 10th June, 2002.
1.
2.
Four (4) witnesses testified on behalf of the Plaintiff.
They were the
Plaintiff himself, his son Kanhai Dwarpaul, Magistrate Ray Roopchan and Sankar Dwarpaul, who was also a son of the Plaintiff.
3.
Three (3) witnesses testified for the Defendants. Each defendant testified herself. Their brother, Mohan Bansgopaul also testified on their behalf.
Witnesses for the Plaintiff:
The Plaintiff himself:
1.
The Plaintiff was illiterate.
He testified that his father was the late
Bansgopaul, who died on the 12th February, 1999, leaving a Will dated the 20th January, 1999 and naming the Defendants as Executors.
2.
The Plaintiff referred to an Agreement in respect of the disputed property, known as La Fortune, Woodland.
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3.
The Plaintiff testified that in October, 1998 while on his way to tend his cattle, he visited his father, who was at the time living at the home of his sister, Latpatia Hoesaenie. The Plaintiff testified that the deceased told him that he (the deceased) was selling his house. The Plaintiff alleged further that he asked his father how much the property was being sold for and that his father told him “sixty thousand dollars ($60,000.00)”. The Plaintiff went on to tell the Court that he indicated his willingness to purchase the property in order to keep the house in the family.
4.
The Plaintiff proceeded with his testimony and referred to a second conversation with his late father. His father enquired in October, 1998 of the Plaintiff’s readiness to buy the house. According to the Plaintiff, he suggested Mr. Basil Jack as an attorney. His father countered by saying that he had his lawyer, Ray Roopchan. To this suggestion, the Plaintiff agreed.
5.
The Plaintiff gave evidence of the actual execution of the Agreement on the 17th November, 1998 at the office of Ray Roopchan at No. 1, Lord Street, San Fernando. He gave the following evidence. The Plaintiff attended the lawyer’s office in the company of his son, Sankar Dwarpaul, his sister, Latpatia Hoesaenie and the deceased. They arrived at the lawyer’s office at 10:00 a.m. His sister and his father had a private conference with the lawyer. The Plaintiff and his son were taken into the lawyer’s inner office. The lawyer questioned the Plaintiff as to his intention to purchase the property.
The Plaintiff and his son were sent by Mr. Roopchan to the Warden’s office with a copy of a receipt, which was given to his father for the payment of tax.
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The Plaintiff and his son went to the Warden’s office, leaving the deceased and Latpatia at Mr Roopchan’s office. They then went to Republic Bank on High Street where the Plaintiff drew a cheque for nine thousand dollars ($9,000.00) and then to Royal Bank where they withdrew fifty one thousand dollars ($51,000.00). Copies of the respective cheques formed part of an Agreed Bundle.
The Plaintiff and his son returned to Mr. Roopchan’s office. The Plaintiff showed the cheques to the lawyer, who read out “the paper” which he had made. The lawyer asked both parties whether they agreed.
The Plaintiff handed the cheques to Mr. Roopchan, who passed them to the deceased.
The lawyer told the deceased: “……this property is for your son and not for you again ……” To this the deceased agreed.
The four left the lawyer’s office. The deceased and Latpatia told the Plaintiff that they were going to Penal to cash the cheques.
6.
The Plaintiff testified that he placed his son, Kanhai into possession of the house. Kanhai complained that the house was rotten and carried out repair works.
7.
The Plaintiff testified that his father went on a holiday to the United States of America and promised to sign the deed when he returned from his vacation. The deceased died in the United States.
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8.
The Plaintiff gave evidence of the “one-year prayers” which his sisters held at the disputed property. It is not disputed, that, at this time, the deceased was still alive. The Plaintiff testified that the Defendants came to his home and asked his permission to use the disputed premises. According to him, he gave them the keys.
Cross-examination of the Plaintiff: In Cross-examination, the Plaintiff’s attention was focussed on the actual execution of the deed on the 17th November, 1998.
1.
2.
The Plaintiff was asked to estimate the value of the land. In response to this question, he identified a figure of fifty thousand dollars ($50,000.00).
3.
The Plaintiff was questioned about the need for repairs and replied that, the step, flooring, partition, window and galvanise needed repairs. Mr Dodol, learned Counsel for the Defendants then asked the Plaintiff whether the whole house required repairs. The Plaintiff agreed.
4.
Learned Counsel put to the Plaintiff, that it was untrue that his father had been living at his sister’s home for about one year and in fact the deceased had been staying with Latpatia for only about three days prior to the alleged Agreement.
5.
Learned Counsel further put to the Plaintiff that he was on good terms only with one of his fourteen (14) siblings.
6.
It emerged in cross-examination that the deed was not prepared at the time of the alleged Agreement because the deceased had left it at his home. The Plaintiff also stated in cross-examination that his father was not sick. It also emerged in cross-examination that the lawyer, first read the deed and then explained it to both parties. Learned Counsel, Mr Dodol put to the Plaintiff
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that the document was not explained by the attorney. To this, the Plaintiff replied: “I know he explain it. He read it and explain. He ask if we agree and make we sign it ……”
7.
The following also emerged in the cross-examination of the deceased: The deceased “signed” the alleged Agreement first. followed by the Plaintiff’s “signing”. The lawyer’s clerk was present when the parties placed their thumbprints on the alleged Agreement. This was
Evidence of Ray Roopchan:
1.
Ray Roopchan, who at present is a Magistrate, gave evidence on behalf of the Plaintiff. He testified that on the 17th November, 1998, he had been an attorney, and that his offices were situated at Lord Street, San Fernando.
2.
3.
Mr. Roopchan told this Court that he had been acquainted with the deceased prior to the 17th November, 1998. Mr Roopchan stated that he came to know the deceased when he (Mr. Roopchan) moved to his father-in-law’s home, Pluck Road, San Francique, because of his wife’s health. Bansgopaul was a close friend of Mr. Roopchan’s father-in-law. deceased chatted with Mr. Roopchan and often asked his advice. The Mr.
Roopchan testified that prior to the 17th November, 1998, he actually did a transfer of land by deed from the deceased to Latpatia. Mr. Roopchan stated on oath that he had no “legal” dealings with the Plaintiff.
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4.
Mr. Roopchan testified as to the events of the 17th November, 1998, when the alleged Agreement for sale was executed: The deceased came to Mr. Roopchan in the forenoon of the 17th November, 1998.
The deceased and his daughter went into Mr. Roopchan first. They were followed by the Plaintiff and his son Sankar.
The Plaintiff and the deceased had an agreed price.
Mr. Roopchan asked the deceased for the deed, but the deceased indicated that he could not locate the deed.
Mr. Roopchan suggested that they return another day to do the transaction.
Mr. Roopchan expressed the opinion that it appeared that the deceased wanted the money that day.
In order to prepare the Agreement for sale, Mr. Roopchan needed the description of the property and asked the Plaintiff to use a tax receipt to obtain the relevant information from the Warden’s office.
Mr. Roopchan asked his clerk to prepare the Agreement, while the Plaintiff and his son went to the bank.
The name of the clerk was Krishindai Harrinarine.
5.
Mr. Roopchan testified that the Plaintiff and his son returned with two cheques. The following testimony is critical to the resolution of this matter and is therefore quoted in full:
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“I called them back. I went it over with them. I explained, „ you are selling the property to your son‟ ……then he put his thumbprint Dwarpaul also put his thumbprint.”
6.
Mr. Roopchan went on to testify:
He saw the two cheques, which were brought by the Plaintiff and his son. He (Mr. Roopchan) handed the cheques over to the deceased who took them.
7.
Mr. Roopchan was asked whether Bansgopaul appeared to be healthy. His response was that the deceased was “old and fragile, but was always neatly dressed, dapper ……”
8.
Mr. Roopchan was asked whether the deceased appeared to answer his questions. To this Mr. Roopchan responded: “Yes. He was mentally healthy……”
9.
In cross-examination, Mr. Roopchan was asked whether he was aware that the deceased could neither read nor write. Mr. Roopchan responded by saying that he was aware.
10.
Mr. Roopchan indicated in cross-examination that he was aware that the deceased was living with Latpatia. He was then asked whether Latpatia had any role in the transaction. To this Mr. Roopchan responded: “No. He told me what to do and he was mentally alert at the time ……”
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11.
Mr. Roopchan testified that he was personally aware that the deceased was living at the home of his daughter for a few months prior to this Agreement. It was put to Mr. Roopchan that at the time of the transaction the deceased was not living by Latpatia but was living at home and was just spending a few days. Mr Roopchan responded by saying that this was “not true …”
12.
Learned Counsel, Mr. Dodol asked Mr. Roopchan whether the Agreement was read over to the deceased. In answer to this question, Mr. Roopchan stated: “When the money was passed to the Plaintiff, I went over everything again. It was read over to them and explained in layman‟s language. He understood and was aware of that.”
Following this answer, learned Counsel put his instructions to Mr. Roopchan: My instructions are that the document, ………if read over to him was not explained in layman‟s language.”
Mr. Roopchan responded: “It was explained and he understood……”
Once again learned Counsel, Mr Dodol, put his case to Mr. Roopchan: “My instructions are that the deceased did not understand the nature and content of the document ……”
Mr. Roopchan responded by saying: “He understood ……”
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Evidence of Kanhai Dwarpaul:
Kanhai Dwarpaul testified that he was the son of the Plaintiff and that he had been invited by the Plaintiff to occupy the disputed property.
Kanhai stated that, at the invitation of the Plaintiff, he visited the disputed property in November, 1998 and observed that the front steps were impassable and that the flooring boards, roof and partitions were in need of repairs; there was no running water upstairs and the toilets were in need of repairs. Kanhai testified further that there was no perimeter fence and that everything was rotted in the roof.
Kanhai testified that he took across a builder, Kishore Kissoon who gave him an estimate. The estimate was part of the Agreed Bundle but was never tendered in evidence.
Kanhai stated that he began repairs in January, 1999 and that he paid a total of fifty two thousand dollars ($52,000.00) for the repairs. Kanhai stated that no objection was made by the defendants to the carrying out of repairs.
Kanhai referred to the Valuation Report which was prepared by Raymond & Pierre, Chartered Valuation Surveyors, Real Estate Agents and Property Consultants. This was an agreed document, which was tendered into evidence as “K.B.H. 4” and provides a valuation of ninety five thousand dollars ($95,000.00). The date of the Valuation Report was 6th April, 2001 and provides an evaluation of the property after repairs had been completed.
Evidence of Sankar Dwarpaul:
This witness, who is the son of the Plaintiff corroborated the evidence of Mr. Ray Roopchan. The salient aspects of his evidence-in-chief were:
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Sankar Dwarpaul is the son of the Plaintiff and grandson of the deceased.
He accompanied his father to the office of Mr. Roopchan on the 17th November, 1998. They went with the deceased and Latpatia
Hoesaenie at approximately 10:00 a.m.
When the deceased was asked to produce the deed, he said that he had forgotten it at home.
Sankar Dwarpaul went with the Plaintiff to the Warden’s office to get the deed number and the boundaries.
Sankar Dwarpaul accompanied his father to the bank, where they got two cheques – one for fifty one thousand dollars ($51,000.00) and the other for nine thousand dollars ($9,000.00).
When Sankar Dwarpaul returned to the lawyer’s office, the information was given to the secretary, who typed in the deed number and “something else”.
When Sankar Dwarpaul and the Plaintiff returned to the lawyer’s office, they all went into the office together. stated: “The lawyer read the Agreement for us. He explained it because some words we did not understand.” Sankar Dwarpaul
He testified further that there were six of us in the lawyers office and “the lawyer read the Agreement …the lawyer explained that he was giving up the property and as long as he collected the cheque, the property was no longer his …”
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Sankar Dwarpaul testified to having seen his grandfather affix his thumbprint to the Agreement.
In cross-examination, Sankar Dwarpaul was asked what he did not understand in the document which was read over by the lawyer. Sankar Dwarpaul replied by saying: “I understood. He read it over to make sure that my father and grandfather understood the terms of the Agreement. He read it over and explained it in case they did not understand.”
Mr. Sankar Dwarpaul answered positively when asked whether he got the impression that his father and grandfather understood when the document was read to them.
Sankar Dwarpaul was asked whether the document was read over first or explained first. To this question, he answered that the
document was read first, then explained.
Mr Sankar Dwarpaul was asked whether anyone else signed. The witness stated that the secretary signed before the cheques were exchanged.
This witness was asked where his grandfather was living at the time. He responded by saying that his grandfather was living at the home of Latpatia.
Sankar testified further that his grandfather was not sick or ailing.
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EVIDENCE FOR THE DEFENDANTS:
Evidence of Kamini Bansgopaul:
The first witness for the Defendants was the first Defendant, Kamini Bansgopaul.
Kamini is the sister of the Plaintiff and the Deceased was her father. Kamini testified that she was not in Trinidad on the 17th November, 1998 when the alleged Agreement was made.
Kamini came to Trinidad in December, 1998.
She was clearly a devoted daughter and returned to assist her sisters in performing the one-year prayers for her mother.
She referred to a visit to her father at the home of Latpatia Hoesaenie on the day before the prayers. Kamini expressed her grief at the condition in which she found her father. She described his feet as “black with dirt”.
Kamini testified of the day after the prayers, when there was a get together for all the children of the deceased at the disputed property. Kamini
testified that Kanhai Dwarpaul approached her with abusive language and told her to leave. She testified further that Kanhai told the deceased: “Do you know what you went by the lawyer to do ……”
Shortly after this incident, she accompanied the deceased where he bought another property from Aclima Hussein.
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Kamini told this Court that her father was very small, frail looking with an ulcerated stomach. He had been in an accident and walked only with assistance.
She testified further that he had a hearing problem and “Alzheimer’s”.
The Valuation Report:
The Valuation Report was prepared by the firm of Raymond and Pierre, who are Professional Chartered Valuation Surveyors, Real Estate Agents and Property Consultants. The Valuation Report was dated the 6th April, 2001. In the Report, the value of the land was placed at sixty thousand dollars ($60,000.00) and of the house, after repairs at thirty five thousand dollars ($35,000.00).
The First Defendant was questioned on the Valuation Report and testified that she had heard of the Valuation Report only the day before. The Valuation Report was an agreed document and was tendered into evidence by consent. The First Defendant admitted that Kanhai carried out “substantial repairs” and that the valuation was done after.
Evidence of Mohan Bansgopaul:
Mohan Bansgopaul testified on behalf of the Defendants. He is the brother of the Plaintiff and of the Defendants. By trade he is a taxi driver and is also a practicing pundit. The salient aspects of his testimony are set out hereunder:
Mohan Bansgopaul lives at Reform, which is twelve miles from the disputed property, where the deceased had lived.
He enjoyed a good relationship with his father, prior to the demise of the latter. He visited the deceased approximately once per week.
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Immediately prior to the departure of the deceased to the United States of America, Mohan Bansgopaul claims that he visited him at the disputed property.
Prior to his death, the deceased could speak but could not walk properly. He used to vomit and could not stand for lengthy periods of time.
Mohan Bansgopaul was friendly with Latpatia, but stopped visiting her home because she began rearing hogs. On occasion, when he visited
Latpatia, Mohan Bansgopaul would see his father. He explained that the occasional presence of his father at the home of Latpatia by saying that “some one took him there”.
Mohan Bansgopaul received a gift of twenty one thousand four hundred dollars ($21,400.00) from his father about four to five years before his father’s death.
He was on good terms with all his siblings.
Evidence of Rajpattee Baboolal:
Rajpattee Baboolal was the daughter of the deceased and the sister of the Plaintiff. She was one of the executors of the estate of the deceased and a
defendant in these proceedings. The salient aspects of her evidence are set out hereunder:
Rajpattee Baboolal lived in Hartford, Connecticut, United States of America. In the year 1998, she visited Trinidad on approximately four (4) occasions.
This witness, as with the other Defendant, was very close to her father, whose health was failing.
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This witness denied that her father ever lived at the home of her sister, Latpatia. She insisted that her father never left his home.
During 1998, when this witness visited Trinidad she visited her father at the disputed property, that is on the 25th February, 1998; 17th June, 1998, 11th October, 1998 and 2nd December, 1998.
Rajpattee Baboolal referred to the one-year prayers. Notwithstanding her earlier evidence of having visited her father at the disputed property in December, 1998, this witness told the Court that in December, 1998 she first went to the home of her sister Savitri. From there, her brother-in-law took her to visit her brother in Woodland and then to Latpatia’s home to visit her father.
Rajpattee, like her sister, expressed shock and grief at seeing the condition of her father at Latpatia’s home.
Rajpattee testified that, with her sister, she took her father to the disputed property to prepare for the prayers the following day. They first went to “Dwarpaul”, the Plaintiff, who took the two sisters and his father to the disputed property, because “Dwarpaul had the key”.
Rajpattee referred to the incident on the day following the prayers, when Kanhai confronted Kamini.
Rajpattee referred to the pleas by her father to the Plaintiff, when the deceased begged for the return of the house: “Beta give me back the house, where will the children go…”
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Rajpattee referred to her brothers refusal to comply and the utter insolence of her nephew, particularly on the day of her father’s funeral, when repair works were nonetheless progressing as usual.
Findings of Fact:
1.
The Undisputed Facts:
The undisputed facts of this case were agreed by learned Counsel for the Plaintiff and learned Counsel for the Defendant and filed herein as “Agreed Facts” on the 13th November, 2001. hereunder: The “Agreed Facts” are set out
(a)
The Defendants are the executors of the estate of Bansgopaul (hereinafter called “the deceased”). On the 17th November, 1998 the deceased together with the Plaintiff, Sankar Dwarpaul and Latpatia Hoesaenie attended the office of Mr. Ray Roopchand at No. 1 Lord Street, San Fernando and the deceased placed his thumb print on a purported Agreement for sale dated the 17th of November, 1998 with respect to a property described in Deed No. 63 of 1972.
(b)
(c)
The deceased left the United States of America, accompanied by the Defendants in January, 1999. The deceased died whilst in the United States on the 12th of February, 1999. The deceased died leaving a Will dated the 20th of January, 1999 naming the Defendants as executors.
(d)
(e)
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(f)
On the 20th of August, 1999 the Defendants obtained a grant of Probate for the deceased estate.
2.
The Issues of Fact:
The Court has been called upon to determine the following issues of fact, which were identified in a Statement of Issues filed by the parties on 13th November, 2001:
(i)
Whether Mr. Ray Roopchan acted on behalf of the Plaintiff or the deceased.
(ii)
Whether Mr. Ray Roopchan explained the contents of the Agreement to the deceased.
(iii)
Whether the deceased understood and/or was aware of the nature, contents and effects of the said Agreement.
(iv)
Whether the Plaintiff paid to the deceased sixty thousand dollars ($60,000.00)
(v)
Whether the sum paid by the Plaintiff to the deceased was grossly inadequate and under the market value as pleaded in the defence.
An issue of fact appears to have arisen in the course of the evidence as to whether the deceased was residing with Latpatia immediately prior to the alleged Agreement. The Court does not find it necessary to resolve this issue since it does not arise on the pleadings and was not referred to in the addresses of Counsel for the Defendants.
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Resolution of Issues:
Issue (i): Whether Mr Roopchan acted on behalf of the Plaintiff or the deceased:
The Plaintiff has alleged in the course of his evidence in chief that while speaking to his father about the proposed Agreement for sale, the Plaintiff suggested that Basil Jack prepare the Agreement.
The Plaintiff alleged further that the reference and suggestion of Mr. Ray Roopchan emanated from the deceased himself.
In his evidence-in-chief, Mr Ray Roopchan testified that he had befriended the deceased earlier that year, when Mr Roopchan came with his wife to live at Pluck Road. He testified further that he gave the deceased legal advice and assisted him in preparing and executing a deed of transfer to his daughter, Latpatia Hoesaenie. Mr Roopchan testified further that on one occasion he had met the deceased at his (Mr. Roopchan’s) father-in-law’s home and that the deceased told him that he wanted to sell his house to Dwarpaul. Mr. Roopchan had testified further that no lawyer/client
relationship existed between himself and Dwarpaul, with whom he (Mr. Roopchan) was acquainted.
The evidence which was adduced to tilt the evidential scale in the other direction were questions directed to the Plaintiff, as to his association with Basil Jack. The Plaintiff was asked whether he knew that Basil Jack had prepared a Will for the deceased, the Plaintiff stated that he did not know. The Plaintiff was then asked whether Basil Jack had ever done legal work for him (the Plaintiff). The Plaintiff responded to this by stating that he had retained Basil jack in respect of four (4) land transactions.
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Regrettably however, it was never put to either the Plaintiff or to Mr. Roopchan that Mr. Roopchan was seeking the interest of the Plaintiff and not the interest of the deceased. The positive evidence, which emanates from Mr. Roopchan, is that he had been retained by the deceased. Mr Roopchan was an independent witness. He was treated with respect by both Counsel and in this Court’s view, his testimony is reliable. Accordingly, on a balance of probabilities, the Court finds that Mr. Ray Roopchan had been retained by the deceased for the preparation and execution of the Agreement.
Issue (ii) and (iii):
Whether Mr. Ray Roopchan explained the contents of the Agreement to the deceased and whether the deceased understood and/or was aware of the nature, contents and effects of the said Agreement
The second issue, which is critical for the determination of this case, concerns the understanding of the deceased of the transaction to which he was a party.
The evidence in favour of the Plaintiff came from the Plaintiff himself, his son, Sankar Dwarpaul and Mr. Roopchan. Both the Plaintiff and his son testified that the Agreement was both read to the parties and explained by Mr. Roopchan. Mr. Roopchan himself testified that he explained the
Agreement and that the deceased understood.
The responses of Mr. Roopchan in cross-examination are of particular importance. Mr. Roopchan stated that he was aware that the deceased could neither read nor write. “mentally alert”. Mr. Roopchan testified that the deceased was
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Mr. Roopchan was asked in cross-examination whether the Agreement was read over to the deceased. In response to this he stated: “When the money passed, I went over everything again. It was read over to them. It was explained in layman‟s language. He understood and was aware of that.”
It is also relevant that following the execution of the Agreement, the deceased made a Will. All witnesses have agreed that the deceased was highly intelligent. In spite of his illiteracy, he was able to amass a fortune and died a wealthy man. The evidence of his poor health related to physical disabilities. He could walk only with assistance and appeared to have had problems with his stomach. His mind, however, appeared to be in good condition. There has been no suggestion that he was mentally incapable of making the Will, which followed the execution of the Agreement for Sale.
On the other hand, the Defendants offered no evidence as to what transpired at Mr. Roopchan’s office on the 17th November, 1998. There is no evidence that Mr. Roopchan was being untruthful when he testified that he read over and explained the transaction and there is no evidence that the deceased did not understand his actions on the 17th November, 1998.
It is possible that he may have regretted entering the Agreement, but all the evidence before this Court points to the deceased being fully cognisant at the time of the execution of the Agreement of the effect of his actions.
Accordingly, on a balance of probabilities, the Court is constrained to resolve this issue in favour of the Plaintiff.
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Issue (iv):
Whether the Plaintiff paid the deceased sixty thousand dollars ($60,000,00) In his evidence-in-chief, the Plaintiff testified that on the 17th November, 1998, he went with his son, Sankar to two different banks and obtained two (2) cheques. One cheque, for the sum of nine thousand dollars ($9,000.00), the Plaintiff obtained from Republic Bank on High Street and the other for fifty one thousand dollars ($51,000.00) was obtained from Royal Bank.
Copies of these cheques were included in the agreed bundle. However, for some reason, they were not tendered in evidence.
The Plaintiff testified further that he returned to Mr. Roopchan’s office with the cheques. The Plaintiff eventually gave the cheques to Mr. Roopchan, who gave them to the deceased.
This evidence was supported by the evidence of Mr. Roopchan, who in evidence-in-chief testified that there were two cheques, which he handed over to “Bansgopaul”.
Similarly, Sankar Dwarpaul testified that on the 17th November, 1998, he accompanied his father to the bank and that they obtained two (2) cheques, the one for fifty one thousand dollars ($51,000.00) and the other for nine thousand dollars ($9,000.00). Sankar also testified that both cheques were passed to his grandfather, while they were in the lawyer’s office. It is also of relevance that it was never put to any of the witnesses for the Plaintiff that the Plaintiff gave the deceased one cheque only.
The evidence which contradicts the existence of two cheques came from Kamini Bansgopaul, who testified that she went to the bank with her father
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in December, 1998, just prior to the purchase of the house from Aclima Hussein. Kamini Bansgopaul testified:
At the bank there was in one account, fifty one thousand dollars ($51,000.00) and in the other, one hundred and something thousand.” Learned Counsel asked Kamini “Do you know what happened to the monies?” To this she replied, “He took it out, there wasn‟t the nine thousand dollars ($9,000.00) cheque.”
Learned Counsel asked Kamini whether she knew about a cheque for nine thousand dollars ($9,000.00). She replied that she knew about it from her father. In the evidence of Rajpattee Baboolal, the witness was asked whether her father was paid sixty thousand dollars ($60,000.00) for the property. To this she replied that she only saw a cheque for fifty one thousand dollars ($51,000.00).
In the Court’s view, this evidence does not contradict the Plaintiff’s evidence that two cheques were given to the deceased on the 17th November, 1998. It suggests that for some unknown reason the nine thousand dollars ($9,000.00) cheque never got to the deceased’s account.
Accordingly, on the balance of probabilities, the Court finds that the Plaintiff paid to the deceased the sum of sixty thousand dollars ($60,000.00), by way of two cheques – the one for fifty one thousand dollars ($51,000.00) and the other for nine thousand dollars ($9,000.00).
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Issue (v):
Whether the sum of sixty thousand dollars ($60,000.00) was a reasonable market value for the property
In respect of this issue, the critical and most useful evidence is the agreed Valuation Report of Raymond & Pierre. The Report of Raymond & Pierre places the value of the land at sixty thousand dollars ($60,000.00) and the value of the building and site improvements of thirty five thousand dollars ($35,000.00).
In making inferences from the Valuation Report, the Court is mindful of two factors:
(i)
The alleged Agreement and the payment of sixty thousand dollars ($60,000.00) by the Plaintiff to the deceased occurred some two and a half (2 ½) years prior to the date of the Valuation Report.
(ii)
The Valuation Report was prepared in respect of the disputed property after its value had been enhanced by repairs and refurbishments.
There has been no dispute that Kanhai Dwarpaul carried out repairs to the structure on the disputed property. Kanhai testified that he expended fifty two thousand dollars ($52,000.00) in carrying out repairs.
The Defendants, on the other hand, have contradicted the evidence of Kanhai that the house was in need of repairs. They have not however, suggested that he did not expend the sum of fifty two thousand dollars ($52,000.00) as he has alleged.
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The Defendants have also failed to provide evidence of a reasonable market value in 1998. The allegation that the price of sixty thousand dollars ($60,000.00) was “grossly inadequate and under the market value” was made by the Defendants. The burden of thus proving therefore lies on them.
In this Court’s view, it seems that sixty thousand dollars ($60,000.00) would not be grossly inadequate if, after two and a half (2 ½) years and considerable enhancement, the property would fetch ninety five thousand dollars ($95,000.00).
Accordingly the Court holds as a matter of fact that the sum of sixty thousand dollars ($60,000.00) was not grossly inadequate or under the market value.
Law:
General Principles:
1.
The remedy of specific performance is an equitable remedy which, when granted enables a party to a contract to compel the other party to perform his contractual obligations specifically. See 37, Atkins Court Forms (1990) paragraph 1.
2.
Specific performance, being an equitable remedy, is not available as of right, but only according to the Court’s discretion. This is a well
established principle, support for which may be found at 37, Atkins Court Forum (1981 Issue) p. 10.
3.
Specific performance will only be granted to a purchaser who comes promptly to Court. See Milward v. Earl of Thanet [1801] 5 Ves 720.
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4.
In equity, the Court may refuse a decree of specific performance where the Defendant raises a defence which would be a complete answer to a claim at law for example where the contract is void or voidable for duress or fraud. See Barnsley’s Conveyancing Law and Practice (3 Ed.) p. 545.
5.
In equity, the Court may also refuse specific performance if the purchaser was misled by the vendor in some way.
6.
The maxim that he also comes to equity must come with clean hands applies to claims for specific performance. The Court will not assist the Plaintiff if there is evidence of fraud, sharp practice, duress, undue influence, misrepresentation or non-disclosure. See Barnsley’s
Conveyancing Law and Practice (3 Ed.) p. 548.
The case of Fraser v. Ramoutar:
Counsel for the Defendants referred to the case of Fraser v. Ramoutar HCA No. 1613 of 1983, which was a decision of the Honourable Justice Crane, sitting in the High court.
Fraser v. Ramoutar was similar to the instant case in that the Plaintiff there sought specific performance of an agreement for the sale of land. The vendor, Ganesh Ramoutar had been illiterate and had died prior to the institution of proceedings. At the time of the agreement, the Plaintiff, Fraser had paid a deposit of ten thousand dollars ($10,000.00) to Ramoutar, who was unable to produce the deed for the land. Ramoutar had agreed to obtain a new deed but died before doing so.
The Defendant put forward a defence of the inadequacy of consideration. At p. 3 of the unreported judgment, Justice Crane referred to paragraph 317, 9, Halsbury’s Laws of England (4th Ed.), where the following learning may be found.
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“……Whilst the courts are not substantively interested in the adequacy of the consideration, the fact that a contracting party pays too much or too little may be relevant for some other purposes. At common law, it may be evidence of duress or mistake; or it may induce the court to imply a warranty. In equity, it may give grounds for setting aside a bargain on the basis of fraud, undue influence or that it is unconscionable; or it may lead to a refusal to grant specific performance.”
Learned Counsel stressed the words: “In equity it (inadequacy of consideration) may give grounds for setting aside a bargain on the basis of fraud, undue influence or that it is unconscionable, or it may lead to a refusal to grant specific performance.”
In applying the principle expounded, the learned Justice Crane referred to the evidence of the Solicitor who prepared the deed: “The consideration here did not strike me as odd……”
Justice Crane also considered the certificate for the non-payment of Estate and Succession duties and held ultimately that the estimate of the defendant’s witness was “a gross over-estimation”.
In the case of Fraser v. Ramoutar, the defendant sought to question the existence of an agreement. The learned Justice Crane referred to the evidence of the Solicitor who testified that Ramoutar made the “X” after following standard procedure of reading over the document to Ganesh Ramoutar and ensuring that he understood the full meaning and purport thereof.
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Notwithstanding a delay of six years in entering occupation the learned Justice Crane found for the Plaintiff.
Delay:
This Court raised the problem of delay with Mr. Gosine, learned Counsel for the Plaintiff. Learned Counsel referred to the principle which is found at p. 546 of Barnsley’s Conveyancing Law and Practice: “In one important respect, there is no bar, that is where the purchaser takes possession of the land under contract.”
Learned counsel referred to the case of Williams v. Greatrix [1956] 3 All E.R. 705, where the purchaser and the vendor had concluded an agreement for the sale of land referred to as “…plots 3 and 4…” The purchaser through his solicitor had paid a cheque of £20. The cheque was received and a receipt was issued. The vendor, however, never cashed the cheque. The purchaser applied for specific performance of the agreement some ten (10) years after the agreement. The Court of Appeal, comprising Lords Denning, Hodson and Morrison considered inter alia whether the purchaser’s claim was defeated by delay.
At p. 708E, Lord Denning said: “On this point it is necessary to remember that when the deposit was paid there was a binding contract… it was a contractual licence which the vendor could not repudiate at will. It created an equity.”
At p.708 H, Lord Denning said further: “Once the purchaser went into possession of the land, having the contractual right to be there, he had not only an equity to be there. He had more. He had the benefit of a contract to sell him these two
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plots. That was not only an equity : it was equitable interest in the land. He was in a sense the equitable owner of the land. So long as he was in possession of the land, he did not lose the right simply by not proceeding at once for specific performance.
Lord Denning referred to the case of Crofton v. Omsby(1806) 2 Sch. & Lef . and in particular to the words of Lord Redesdale, Lord Chancellor of Ireland and continued at p.709 B as follows: “…..Likewise we have here possession which is taken under a contract of purchase with an equitable right to be there. All that needs to be done is for the legal title to be perfected. In such a case laches or delay is not a bar.”
Delay will operate as a bar to an action for specific performance only where there has been acquiescence on the part of the owner of the legal title to the land. This proposition was endorsed by all three of their Lordships in Williams v. Greatrix [1956] 3 All E.R. 705.
Reasoning and Decision:
1.
The overriding issue in this case is whether the deceased in executing an agreement for the sale of land on the 17th November, 1998 fully understood
2.
The transaction to which he was committing himself by affixing his thumb print.
3.
It must be emphasised that the fact that the agreement was made is not in issue. The defendants have not contended that the alleged Agreement had not been executed at the law offices of Ray Roopchan on the 17th November, 1998. Their contention is however that the deceased “was
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forced to affix his thumb print by the Plaintiff and did so without the benefit of independent legal advice.”
4.
The Defendants contend further that the deceased was not aware of the true nature or contents of the Agreement, because the Agreement was “…not read over or explained to him …” The is no evidence of “force”. The Defendants have offered no evidence as to what transpired on the 17th November, 1998 or immediately before. There is nothing to suggest that any physical, economic or emotional pressure was placed on the deceased to induce him to execute the Agreement.
5.
6.
In respect of the defence that the Agreement was not read over or explained to the deceased, the overwhelming evidence, of which the most reliable is that of Mr. Ray Roopchan is that the alleged Agreement was read over and explained to the deceased who understood the full implication of his acts on the 17th November, 1998. Even if the Court were to question the evidence of the Plaintiff and his son, Sankar, the Court is constrained to rely on the evidence of Mr. Ray Roopchan, as both independent and professional.
7.
In respect of whether the deceased had the benefit or opportunity of independent legal advice, once again, the evidence of Mr. Roopchan remains unshaken. Mr. Roopchan testified that he had supplied the
deceased with legal advice and had earlier assisted him in conveying lands to Latpatia. Mr. Roopchan testified that he did not have a lawyer/client relationship with the Plaintiff.
8.
Sight must not be lost of the fact that the playing field was level, in that the Plaintiff was himself illiterate. The evidence before this Court is that both parties understood the effect of the Agreement. Accordingly, the Court rejects the defence put forward at paragraph 1 and 2 of the Defence
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9.
The second defence put forward by the Defendants at paragraph 3 of their defence was that the purchase price which was paid by the plaintiff to the deceased was “so grossly inadequate and under the market value as to render the alleged Agreement unconscionable unjust and inequitable.”
10.
The burden of proving the inadequacy of consideration falls on the Defendants who have made that allegation.
11.
There had been no independent valuation when the alleged Agreement was made. The Valuation Report of the firm of Raymond & Pierre was put into evidence as an agreed document. It is not disputed that it was prepared some two and a half years later than the alleged Agreement. The
Defendants have also admitted that the house which was standing on the disputed property was repaired, so as to enhance the value of the disputed property.
12.
It has been agreed between the parties that the current market value of the disputed property is shown in the Agreed Valuation Report. The Court is required to decide whether the price of sixty thousand dollars ($60,000.00), was unreasonable having regard to the fact that this sum was paid two and a half years prior to the Valuation Report and prior to the enhancement of the property by refurbishments of the existing structure.
13.
The burden to prove the inadequacy of the purchase price rests on the Defendants and it is regrettable that they did not see it fit to provide expert evidence as to the value of the property in November, 1998. The Court is guided only by the estimates of the Plaintiff and his son, Kanhai and the assertions of the Defendants that the price of sixty thousand dollars ($60,000.00) was too low. There was no suggestion that the Defendants had obtained a valuation of the disputed property prior to specifying one hundred and twenty thousand dollars ($120,000.00) as the value of the
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disputed property on the Inventory which is submitted with the application for a grant of Probate. Both parties also omitted to obtain the views of Mr. Roopchan as the Conveyancer, who may have been well-placed, as in the case of Fraser v. Ramoutar, to provide useful assistance to the Court.
14.
The Court has received no evidence to enable it to determine what would have been the market value of the disputed property in 1998. However, in this Court’s view the Defendants have failed to discharge their burden of proof that the price was unreasonable. It seems to this court, as it had to the Court in Fraser v. Ramoutar that the purchase price was reasonable, in the light of the available Valuation Report and the evidence of the enhancement of the property.
The Counterclaim:
15.
In their Counterclaim, the Defendants have claimed that by virtue of the Will of the deceased they are entitled to ownership of the disputed property.
16.
Upon payment of the purchase price, the Plaintiff became entitled to equitable ownership of the disputed property. It is the view of the Court that the ownership of the disputed property was now vested in the Plaintiff, who having entered possession had only to have his legal title perfected. The Defendants, as the personal representatives of the deceased, are now required to complete the agreement on behalf of the deceased.
17.
The issue of delay was raised by the Court. By the authority of Williams v Greatrex, the rule that delay defeats equity does not operate as a barrier against a purchaser of land who has already entered into possession at the time the action for specific performance was initiated. All the evidence, including the evidence of the Defendants, point to the probability that the Plaintiff entered into possession soon after the alleged Agreement. There has been no dispute that by the middle of the following year Kanhai had
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started repairs on the premises. There is also no dispute that in December, 1998, the Defendants went to the Plaintiff for the purpose of gaining entry into the disputed premises. Accordingly, the Court holds that on a balance of probabilities, the Plaintiff had taken possession of the disputed property, long before these proceedings were filed.
Order:
1.
The Counterclaim is dismissed. The Plaintiff is entitled to a decree of specific performance of the alleged Agreement which was executed on the 17th November, 1998 between the plaintiff and his late father, Bansgopaul.
2.
The Court orders that the Defendants do convey the said lands to the Plaintiff forthwith and in any event within 21 days of this Order and in default thereof the Assistant Registrar, Sub-Registry, San Fernando do execute a conveyance of the said lands to the Plaintiff.
3.
The Defendants do pay to the Plaintiff the costs of this action fit for advocate attorney.
Dated this
31st
day of
July,
2002
……………………………. Mira Dean-Armorer Judge
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