1951 Present : Gratiaen J. and Pulle J.

ABDUL CADER, Appellant, and SITTINISA et al., Respondents

S. C. 77-D. C. Galle, 818

Appeal-Abatement-Application for typewritten copies-Failure to tender fult fees prescribed by Schedule-Revision-Civil Appellate Rules, 1938-Need for-amendment-Rules 2 and 4 (a)-Interpretation Ordinance (Cap. 2), s. 14 (1) (e)-Civil Procedure Code, s. 756 (3),

Proctor and client-Client's deed of gift in favour of Proctor or Proctor's dose relative- Validity thereof-Confidential relationship-Conflict between interest and' duty-Presumption of undue influence-Burden of proof-Requirement of independent adviser.

(i) The appellant, when he made his application for typewritten copies under Rule 2 of the Civil Appellate Rules, 1938, tendered by mistake Rs. 20 instead of Rs. 25 which was the appropriate sum according to the Schedule. As no objection was taken either by the Court Secretary or by the respondents, the sum tendered was accepted and the record was duly forwarded to the Supreme Court.

On objection taken in appeal, under Rule 4 (a) of the Civil Appellate Rules, that the appeal had abated in consequence of the failure to tender the proper sum of Rs. 25-

Held, that as the respondents had not been in any manner prejudiced the appellant should, as a matter of indulgence, be heard by way of revision.

Observations regarding the urgent need for the amendment of the Civil Appellate Rules so as to enable the Court to grant relief to the appellant in a case where a technical breach of the rules has caused no prejudice to the other side.

(ii) The Courts are under a duty to scrutinize with " close and vigilant suspicion " any transaction in which a Proctor is professionally concerned and from which he or a relative in whom he has a special interest obtains from the lay client a benefit by way of gift. The transaction, when it is impugned, belongs to a class of case where the special relationship between the Proctor and his client at the time of execution of the gift raises a presumption that the former had influence over the latter. In such cases, unless the legal presumption of undue influence can be rebutted. " the Court interferes, not on the ground that any wrongful act has in fact been committed, but on the ground of public policy".

In such cases, the donee must rebut the presumption of undue influence by proof of circumstances which satisfy the Court that the gift was the result of the free exercise of the donor's independent will Often, the only way to prove this is by establishing that the gift was made after the mature and effect of the transaction had been fully explained by some independent and qualified person so completely as to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing.

APPEAL from a judgment of the District Court, Galle.

Plaintiff had fallen ill and, as he took a pessimistic view of his chances of recovery, decided to distribute a considerable part of his assets among the members of his family. He entrusted to his nephew the 2nd defendant, who was a Proctor and Notary, the professional duty of drafting, and attesting a number of notarial conveyances. One of the conveyances executed was P1, which was an irrevocable gift of a valuable residential house, in favour of the 1st defendant who was the wife of the 2nd defendant and niece of the plaintiff. When the plaintiff expressed to the 2nd defendant his desire to make the gift to the 1st defendant, the 2nd defendant did not insist that the plaintiff should obtain independent legal advice in regard to the transaction; the 2nd defendant merely procured the services of another Proctor to draft and attest the deed upon instructions communicated by himself.

Shortly after the plaintiff recovered from his illness he brought the present action to have the deed of gift P1 set