Judge throws out mother's lawsuit against son

A HIGH COURT judge has dismissed a Barrackpore mother’s claim against her son and daughter-in-law over two of her late husband’s properties.

In 2018, Deomati Motilal filed a claim against her son Darrel Motilal and his wife Kashema Bhola-Motilal, seeking to have set aside the two deeds of gift for the family’s home in Barrackpore and property in Preysal.

In her lawsuit, Motilal claimed her son used “undue influence” to have her convey the two properties to himself and his wife.

She also accused him of forcing her to transfer a vehicle to him, give him her husband’s insurance settlement cheque and take a purse containing jewellery.

Motilal wanted the vehicle transferred back to her name, the insurance settlement reimbursed, and her jewellery returned.

Her lawsuit also contended that her son assured her he would support her and his two siblings when their father died. But she claimed after he received the properties in 2017, he became abusive to her by demanding that she and one of her other sons leave the family home.

However, in her ruling, Justice Eleanor Donaldson-Honeywell said from as early as the pre-litigation stage, Motilal’s documentary evidence “shed doubt” on her allegations that her son and his wife initiated the conveyancing transactions to the two properties.

She referred to Motilal’s own written instructions to her attorneys for the preparation of the conveyances and a doctor’s certificate provided as proof of her mental capacity.

Donaldson-Honeywell said the defendants’ "un-contradicted arguments persuasively support their case that the deeds are not void since the claimant failed to prove undue influence.”

She also said the independent witnesses – two attorneys, a doctor and a law clerk who witnessed Motilal’s instructions on the conveyances – “lent credibility to the defendants' case and shed doubt on the allegations of undue influence.

“On a balance of probabilities, the evidence on record establishes that the claimant gave instructions to her own chosen attorney for the deeds. She had the presence of mind to obtain medical certification of her mental fitness to do so...

“Many actions of the claimant...are more in keeping with the actions of a person of strong-willed independent thought than of a vulnerable person who would be subject to undue influence."

She said in addition to failing to prove presumed influence, the claimant "failed to prove that there was anything suspicious, per se, in the deed transactions. There is nothing unusual about a mother giving real property to one of her adult children without also giving property to others."

The judge also pointed to evidence that it was Motilal and her husband’s view that the other sons might have squandered the properties, so it was preferred Darrel receive them, as he would keep them in the family.

On the other allegations, the judge said that aspect of Motilal’s case was “even less credible than her unproven case regarding undue influence.”

She said Motilal’s evidence was that she willingly transferred the vehicle to her son so he could continue to drive her to the doctor and help her get around. She also said there was no evidence Darrel received the insurance settlement cheque, nor to establish on what basis he took her jewellery as she alleged.

“That claim also fails.”

Since Motilal died in February 2021, her other son, who was substituted as her representative in the case, will have to pay his brother’s legal costs of $24,284.24.

Motilal was represented by attorneys Mustapha Mushim Khan and Kristin Khan. Roger-Mark Kawalsingh and Ashley Roopchansingh represented Darrel and his wife.