Inche Noriah v Shaik Allie Bin Omar

JurisdictionUK Non-devolved
Judgment Date1929
CourtPrivy Council

Gift - Undue Influence - Fiduciary Relations - Independent Legal Advice.

Where the relations between a donor and donee raise a presumption that the donee had influence over the donor, the Court will set aside the gift unless (as laid down in Allcard v. Skinner (1887) 36 Ch. D. 145, 171) the donee establishes that it was the spontaneous act of the donor acting in circumstances which enabled him to exercise an independent will, and which justified the Court in holding that it was the result of a free exercise of the donor's will. lf the evidence establishes the fact above stated it should not be disregarded merely because the donor did not receive independent legal advice. On the other hand the receipt of independent legal advice may rebut the presumption although it is not acted upon. But to have that effect it must be given with a knowledge of all the relevant circumstances, and be such as a competent and honest adviser would give if acting solely in the interest of the donor.

A Malay woman, who was of great age and wholly illiterate, executed a deed of gift of landed property in Singapore in favour of her nephew, who had the management of all her affairs. Before executing the deed the donor had independent advice from a lawyer who acted in good faith. He was unaware, however, that the gift constituted practically the whole of the donor's property, and did not bring home to her mind that she could more prudently, and equally effectively, benefit the donee by bestowing the property upon him by will:—

Held, that the gift should be set aside, as the presumption which arose was not rebutted.

Powell v. Powell [1900] 1 Ch. 243; Morley v. Loughnan [1893] 1 Ch. 736; and In re Coomber [1911] 1 Ch. 723 discussed.

Judgment of the Supreme Court of the Straits Settlements reversed.

APPEAL (No. 64 of 1927) from a judgment of the Supreme Court of the Straits Settlements, Singapore (August 6, 1926), reversing a judgment of Deane J.

On April 18, 1922, the appellant, a Malay woman, who was a widow of great age and wholly illiterate, executed a deed of gift of landed property in Singapore of considerable value in favour of the respondent, her nephew by marriage, who for some time had wholly managed her business and domestic affairs. Before executing the deed, which related to the whole of her property except property producing 30l. a year, the appellant had independent advice from a Singapore lawyer.

The circumstances are fully stated in the judgment of the Judicial Committee.

On July 17, 1925, the appellant brought an action against the respondent in the Supreme Court of Singapore, claiming to set aside the deed and for consequential relief.

The trial judge (Deane J.) set aside the deed and made an order as prayed. On appeal the Court (Murison C.J. and Brown J.; Reay J. dissenting) reversed the decision and dismissed the action. The majority of the Court held that at the time of the gift no such relations existed between the parties as raised a presumption of undue influence, but that if that presumption arose it had been rebutted by the evidence.

1928. June 15, 18. Jenkins K.C. and Macaskie for the appellant.

W. A. Greene K.C. and Greenland for the respondent.

In addition to cases referred to in the judgment here reported, reference was made in argument to: Dent v. BennettF1; Cooke v. LamotteF2; Turnbull & Co. v. DuvalF3; Blake v. BayneF4; and Willis v. Barron.F5

Oct. 15. The judgment of their Lordships was delivered by

LORD HAILSHAM L.C. In this case the appellant brings an action against the respondent claiming that a deed of gift, dated April 18, 1922, and made between the appellant and respondent, should be set aside on the ground that the relationship between the parties at the time when the deed was executed was such as to raise a presumption of undue influence against the respondent, and that that presumption had not been rebutted. The respondent denies that the relationship between the parties was such as to raise any presumption, and alleges that if there were such a relationship, the presumption was rebutted. The trial judge decided in favour of the appellant; but his judgment was reversed by the Court of Appeal, which held, by a majority, that there was no such relationship as raised any presumption of undue influence, and that if there were such presumption, it had been rebutted by the facts proved by the respondent. The facts leading up to the present action are as follows:—

The appellant is a Malay woman, wholly illiterate and of great age. The respondent is of Arab birth, and is the nephew by marriage of the appellant. The appellant's husband died before the year 1902, leaving her a considerable amount of landed property. This property consisted of (a) Two pieces of leasehold land of an area of some 4097 square feet, situate at Minto Road, in Singapore, and held by him at a rental of $2 per annum for a term of ninety-nine years from October, 1858. (b) A house known as 104 Southbridge Road, Singapore, held for a term of 999 years at a rent of $1 per annum. (c) Certain leasehold premises known as 1, 2 and 3 Minto Road, together with a small piece of land in...

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163 cases
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  • Gregg v Kidd
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    • High Court
    • 5 May 1956
    ...J. in Powell v. PowellELR [1900] 1 Ch. 243 not followed. Decision of the Privy Council in Inche Noriah v. Shaik Allie Bin OmarELR [1929] A.C. 127 approved and followed; 5, that the defendant, J.G.K., had not discharged the onus of rebutting the presumption of influence; 6, that the said ind......
  • Provincial Bank of Ireland v McKeever
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    ...if it be shown that the transaction was the result of the free exercise of an independent will. Inche Noriah v. Shaik Allie Bin OmarELR, [1929] A. C. 127, and Mills v. FoxELR, 37 Ch. D. 153, applied. In considering whether the onus of rebutting the presumption has been discharged, the Court......
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8 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 1998, December 1998
    • 1 December 1998
    ...Sub-Section. 280 [1997] 1 All ER 144 at 156 (emphasis added). Cf per Nourse LJ ibid at 152. 281 See eg, Inche Noriah v Shaik Allie Omar[1929] AC 127. Reference may also be made to the recent case of Banco Exterior International SA v Thomas[1997] 1 WLR 221 at 229, per Sir Richard Scott V-C. ......
  • Duress, Undue Influence, and Unconscionability
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    • Irwin Books The Law of Contracts. Third Edition Vitiating Factors
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    ...inf‌luenced by their children 121 and spouses inf‌lu- 119 Ibid at 215 (DLR). 120 See, for example, Inche Noriah v Shaik Allie Bin Omar , [1929] AC 127 (PC) (nephew and elderly aunt) [ Inche Noriah ]. 121 Bank of Montreal v Stuart , [1911] AC 120 (PC) [ Stuart ]. Compare with Bank of Montrea......
    • Singapore
    • Singapore Academy of Law Journal No. 2018, December 2018
    • 1 December 2018
    ...EWCA Civ 885. 126 See Royal Bank of Scotland plc v Etridge (No 2)[2002] AC 773 at [22]. 127 See Inche Noriah v Shaik Allie Bin Omar[1929] AC 127 and Royal Bank of Scotland plc v Etridge (No 2)[2002] AC 773. 128Alec Lobb (Garages) Ltd v Total Oil Great Britain Ltd[1983] 1 WLR 87 at 94–95. 12......
    • Canada
    • University of British Columbia Law Review Vol. 54 No. 2, September 2021
    • 15 September 2021 para 12; Longmuir, supra note 70 at para 75. (75) See Allcard, supra note 56 at 171, adopted in Inche Noriab v Sbaik Allie Bin Omar, [1929] AC 127, [1928] All ER 189. See also Bradley v Crittenden, [1932] SCR 552 (76) See Geffen, supra note 56 at 370. See also Waddams (2017), supra note ......
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