Name of the Case: Rosli Darus v Mansor Hj Saad [2001] 4 CLJ 226

Tutorial Section: Section 3- Tuesday (3pm-4pm)

Name of the Group Members:
1. Muhammad Zaid Bin Abu Hassan Kusaheri (1819225)
2. Mohd Syahmi Bin Amiran (1816843)
3. Amer Hazem Bin Haron (1810581)
4. Asyraf Fathi Bin Abdul Karim (1816679)

No Item Answer Explanation Relevant

Provision(s)
1 Why did the plaintiff bring the The plaintiff The plaintiff is the owner of Section 10(1) of
case? brought the case a piece of land. He inherited the Contracts Act
for a declaration it from his late adoptive 1950 (CA 1950)
that his transfer mother. Subsequently, he
to the transferred his share in the 10. (1) All
defendants of land to the defendants. He agreements are
his 1/3 brought the case for a contracts if they
undivided share declaration that the transfer are made by the
of land is null was null and void because free consent of
and void, and there was no consideration parties competent
for and there exist the element to contract, for a
consequential of undue influence. The lawful
orders. defendant had told the consideration and
plaintiff that he was not the with a lawful
lawful owner of the land object, and are
since he was only an not hereby
adoptive child, hence the expressly
transfer. The consideration declared to be
of the memorandum of void.
transfer (MOT) was that
“return of 1/3 share to the Section 14 of CA
lawful transferees.” At the 1950.
same time, the defendant
said that, the plaintiff 14. Consent is
willingly transferred the land said to be free
as he felt morally obligated when it is not
to the defendant since he was caused by—
the one who helped raising (a) coercion, as
him after the death of his defined in
adoptive father. section 15;
(b) undue
influence, as
defined in
section 16;
(c) fraud, as
defined in
section 17;
(d)misrepresentat
ion, as defined in
section 18; or (e)
mistake, subject
to sections 21, 22
and 23.

Consent is said to
be so caused
when it would
not have been
given but for the
existence of such
coercion, undue
influence, fraud,
misrepresentatio
n, or mistake.

Section 16 of CA
1950.

16. (1) A
contract is said to
be induced by
“undue
influence” where
the relations
 subsisting
between the
parties are such
that one of the
parties is in a
position to
dominate the will
of the other and
uses that position
to obtain an
unfair advantage
over the other.
2 What is the nature of The first It is presumed that the
relationship between the defendant was in defendant had influence and
disputing parties? (Who are loco parentis or authority over the plaintiff. It
they) had put himself also would have appeared
in loco parentis that the defendant implied
in respect of the more than mere moral
plaintiff. authority since the plaintiff
was jobless, without parents
and was totally dependent on
the first defendant.
3 Was the defendant in a It is presumed Given the condition of the
position to dominate the will so. parties, the defendant in loco
of the plaintiff? parentis, it would appear that
the first defendant could
dominate the will of the
plaintiff if he wanted to. It
was fair to presume that
there was a relationship in
which the defendant was in
position to exert undue
influence or ‘dominion’ over
the plaintiff. The defendant
had helped raised the
plaintiff after the death of the
plaintiff’s adoptive father.
 According to the defendant,
he provided the plaintiff with
food, clothing and expenses
and carried out his role as the
plaintiff’s guardian and
during that time, the plaintiff
always obeyed the
defendant. The defendant
also bore the expenses for
plaintiff’s marriage
expenses. These had led the
plaintiff to feel morally
obligated towards the
defendant. Therefore, the
transfer was then executed.
4 Was there a real or apparent Apparent Since the plaintiff is still
authority? authority. young during the adoptive
mother’s death, plaintiff was
being undue influence by the
defendants to be induced the
plaintiff to execute the
transfer of the land. The
defendants didn’t have any
authority to take the land as
the land were given to the
plaintiff legally.
5 Was there a fiduciary Yes. There was a fiduciary Section 16 of the
relationship? relationship between the CA 1950:
plaintiff and defendants as
the defendants helped raise (1) A contract is
him after the death of his said to be
adoptive father. The first induced by
defendant showed good faith 'undue influence'
by providing the plaintiff where the
with food, clothing and relations
expenses and carried out his subsisting
role as the plaintiff’s between the
 guardian and during that parties are such
time, plaintiff always obeyed that one of the
the first defendant. Other parties is in a
than that, the first defendant position to
and his wife organized the dominate the will
marriage of the plaintiff. of the other and
uses that position
to obtain an
unfair advantage
over the other.
6 Was there an affected mental Yes. The defendants with the Section 16(2)(b)
capacity? knowledge that he was in a of the Contract
state of mental anguish by Acts 1950:
reason of the death of his
mother, induced him to (2) In particular
transfer the land without any and without
execute, without legal prejudice to the
counsel and without being generality of the
told by the defendants of the foregoing
purport and effect of his act, principle, a
with knowledge that plaintiff person is deemed
was naive, immature in to be in a
thinking and character and position to
was without other family dominate the will
members, induced him to of another-
execute the said transfer.
(b) where he
makes a contract
with a person
whose mental
capacity is
temporarily or
permanently
affected by
reason of age,
illness, or mental
or bodily
 distress.
7 Did the defendant use his Yes. The defendants used their Section 16 of the
dominating position? dominating position to make CA 1950:
the plaintiff to believe that
the defendants would hold (1) A contract is
the land as trustees for him said to be
and that the transfer to the induced by
defendants would be in his 'undue influence'
interest although the where the
defendants knew it was not. relations
Plus, knowing that the subsisting
plaintiff was a naïve youth between the
and not aware of the parties are such
consequences of his act of that one of the
the transfer and he was also parties is in a
in a state of mental anguish position to
because of his adoptive dominate the will
mother’s death, the of the other and
defendants took advantage uses that
from the plaintiff’s situation position to
to induced him to execute obtain an unfair
the transfer of the land. The advantage over
defendants used their the other.
dominating position to
exploit the ignorance of the In this particular
plaintiff about the transfer by case, this
not correcting the plaintiff’s provision is
misconception about the relevant because
identities of the 'lawful it is proven that
transferees' which were the defendants
actually the defendants. The used their
defendants allowed the dominating
plaintiff's misconception to position to obtain
endure in a transaction that an unfair
benefited only the advantage over
defendants. Besides, the first the plaintiff.
defendant also used his
 dominating position to tell
the plaintiff that he could not
take the land as it was the
property of the estate of Tok
Wan Abu Bakar, his
mother's father. This means
the first defendant made the
plaintiff to be in a position
where he felt morally
obligated as the first
defendant had raised the
plaintiff (took care of him
for 18 years, bore his
marriage expenses etc.) and
the plaintiff knew that he is
an adopted child, whereas
the land was the property of
the first defendant’s father.
So, it is clear that the
defendants used their
dominating position to
induce the plaintiff to
transfer the land to the
defendants without any
considerations.
8 Was there an unfair advantage Yes. When the plaintiff executed Section 16 of the
obtained by the defendant? the transfer, the defendants CA 1950 reads as
obtained equal share of the follows:
land. Why is this unfair for
the plaintiff? The plaintiff (1) A contract is
inherited the land from his said to be
adoptive mother after her induced by
death and he was the 'undue influence'
registered proprietor of 1/3 where the
undivided share in a piece of relations
land. So, by right, the subsisting
plaintiff owned the land. between the
 However, the fact that the parties are such
defendants used their that one of the
dominating position to parties is in a
induce the plaintiff to position to
transfer the land to the dominate the will
defendants without of the other and
consideration was unfair to uses that position
the plaintiff. Plus, the to obtain an
plaintiff also argued that unfair
after the transfer, the advantage over
defendants threatened to the other.
evict the plaintiff from the
land and they also refused to In this particular
retransfer the land to the case, this
plaintiff even though the provision is
plaintiff was the rightful relevant because
owner of the land. it is proven that
the defendants
obtained unfair
advantage.
9 Was the claim of Undue Yes. Because defendant was in
Influence successful? loco parentis. Plaintiff was
Why/Why not? unemployed, without parents
and was totally dependent on
the defendant for his daily
subsistence. The defendant
could dominate the will of
the plaintiff if he wanted to.

The defendant failed to argue

the presumption that the
transfer was performed by
the exertion of undue
influence and not given with
due freedom and
deliberation.
10 What was the remedy given by Court ordered The memorandum of transfer
court? the defendant to made by the Defendant is
deliver up to the declared as null and void.
document of
title for
cancellation and
pay the costs of
this action to
plaintiff.