Bal Mohinder Singh v Jasminder Singh and Another
| Jurisdiction | England & Wales |
| Judge | Sir William Blackburne |
| Judgment Date | 08 April 2014 |
| Neutral Citation | [2014] EWHC 1060 (Ch) |
| Docket Number | Case No: HC11C00268 |
| Court | Chancery Division |
| Date | 08 April 2014 |
[2014] EWHC 1060 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir William Blackburne
Case No: HC11C00268
John McDonnell QC and Daniel Burkitt (instructed by Richard Slade & Co) for the Claimant
Ian Croxford QC and Daniel Lightman (instructed by Orrick, Herrington & Sutcliffe (Europe) LLP) for the First Defendant
Andrew Thompson (instructed by Magwells) for the Second Defendant
Hearing dates: 19–22, 25–29 November, 2–6, 9–11, 13 and 19 December 2013
Introduction
This is litigation of a most unusual nature. It is a dispute between Bal Mohinder Singh ("Father"), who is the claimant and was represented by John McDonnell QC and Daniel Burkitt, and his elder son, Jasminder Singh ("Jasminder"), who is the first defendant and was represented by Ian Croxford QC and Daniel Lightman. The dispute is over the ownership of certain property. That property includes Tetworth Hall which is a spacious house standing in its own grounds on the edge of Ascot race course and in which the two of them live together with Satwant Kaur Singh, who is Father's wife and Jasminder's mother ("Mother"), Jasminder's wife, Amrit ("Amrit"), and their children. Tetworth Hall was purchased by Jasminder and is registered in his sole name. Other property subject to the dispute includes the shares held by individual members of the Singh family in a hugely successful hotel group called Edwardian Group Limited ("EGL"). EGL holds and runs a number of hotels in central London and others at Heathrow and elsewhere. Jasminder, who is its chairman and chief executive, has a personal holding of 5.28% of the issued shares in EGL. A further 90.7% is held on various Singh family trusts. Herinder has a personal holding of 0.36% and Father and Mother each have holdings of 0.13%. Outside (non-Singh related) shareholders hold nearly all of the remaining shares. Father's claim, insofar as it concerns the shares in EGL, relates to the beneficial ownership of the Singh family's personal holdings, in particular Jasminder's very valuable 5.28% which is worth several millions of pounds.
So summarised there is nothing out of the ordinary about a contest of this kind. What makes the dispute so unusual is Father's claim that these and other items of property are joint family assets which are held in accordance with the principles of what is known as the Mitakshara. This is the legal code, for want of a better description, by which a Hindu family living and eating together as a composite household may hold its property. The code which is of very ancient origin applies as much to Sikhs as to Hindus. This is relevant because, as their name implies, the Singh family are Sikhs. The beneficial interest in property of a joint Hindu (or Sikh) family, if held subject to the Mitakshara, belongs jointly to the male members of that family down to the third generation from a common male ancestor. The male members are sometimes called "coparceners." The property owned by the coparceners is frequently referred to as "coparcenary property." Before me it was referred to, and I shall also so refer to it, as "joint family property." That expression must not be confused with property which is jointly owned according to notions of English property law. I will explain in more detail later how, so far as it is material to understand it, the Mitakshara operates.
Apart from Jasminder, Father and Mother have two other children, namely a daughter called Suninder Kaur or, as she prefers, Seema ("Seema"), and a second son called Herinder Singh ("Herinder"). All three children are married and have children. In the case of Jasminder and his wife, Amrit, there is one son, Inderneel, and three daughters. Inderneel is 29 and their youngest daughter is 23. Inderneel is married and has an infant daughter. The eldest of the three daughters is married and has an infant daughter. Seema and her husband, Deepak Abhi, have three children (and a further child who died at the age of nine). Their eldest child is married and has an infant son. Herinder and his wife, Alka, have a teenage son and daughter. For ease of reference a family tree is attached to this judgment. It shows the Singh family and certain collaterals on both Father's and Mother's sides. I understand that all of the persons shown on the family tree are Sikhs in terms of their ethnic and cultural origins.
Father contends that he and Mother brought up their children from infancy to regard themselves as a new Hindu joint family consisting of the two of them and their children. It is "Hindu" in the sense that, as I have mentioned, a Sikh family is for Mitakshara purposes treated as if it were Hindu, and "new" in the sense that (as it is alleged) it was started by themselves as distinct from forming part of some larger joint family derived from Father's paternal side. He contends that he and Mother brought up their children to regard all of their savings and any property acquired or to be acquired by any member of the family as joint family property. In particular, he contends that Tetworth Hall and the shares in EGL (other than those that were placed in certain trusts for members of the family —I will come later to these) and any other property similarly treated are held subject to the Mitakshara under a common intention constructive trust. In paragraph 56 of his particulars of claim he pleads that the
"principles and customs [of the Mitakshara] provide the content of a constructive trust which governs the family property of the Singh family by virtue of the common understanding of Father, Mother and their children throughout the period when the property was being acquired that they all had beneficial interests in that property which were in accordance with those principles."
Jasminder resists the claim. He contends that what he holds in his name, including in particular Tetworth Hall and his shares in EGL, is beneficially his own and is not held by him as joint family property in accordance with the Mitakshara. Indeed, he says that until this dispute first arose he had never even heard of the Mitakshara, let alone had any understanding of how it operates. Although a defendant, the only part Herinder has taken in these proceedings has been to give evidence broadly supportive of Father. He takes no position on whether the Mitakshara applies and, if it does, what property is subject to it. He like Jasminder had never heard of the Mitakshara until this dispute first arose. He is a defendant because, on Father's case, he is a coparcenar. It is not clear whether Father claims that the shares held by Herinder are joint family property but the logic of his case would suggest that they are. Father's remoter male descendants (Jasminder's and Herinder's sons) have not been joined.
By an order dated 27 July 2012 Newey J ordered that there be a trial of the following preliminary issues:
"a. whether there was, at any material time, a common understanding of the Claimant and the Defendants that any property acquired and legally owned by the Claimant and/or the Defendants and each of them would be subject to a common understanding that the concept of Joint Hindu Property as alleged at paragraphs 9–12 and 15 of the Particulars of Claim applied to all such property; and
b. if the answer to Issue (a) is "yes", whether such property was then held as a matter of English law subject to a constructive trust; and
c. if such property or any of it was held subject to a constructive trust, what the terms of such trust were."
At the same time Newey J made directions for the trial of these issues, including a direction permitting each side to rely on the evidence of an "expert in the principles of the Hindu Joint Family System and the principles of the Mitakshara as applicable to a family of Sikh origin." Both sides have adduced expert evidence in conformity with that direction. (I should say that, although the reference is to 'Hindu Joint Family' and there were references in the evidence to 'Hindu United Family' or 'HUF' for short, they are the same as joint Hindu family, the phrase most commonly used in the expert evidence and the expression which I shall adopt.) It is as a result of that evidence and the textbooks and authorities, principally Indian, to which reference has been made, coupled with help from counsel that I have been able to derive an understanding of the Mitakshara and how, so far as I need to know, it operates in practice.
On the fifth day of the trial Mr McDonnell sought by amendment to introduce a new way of advancing the claim. This was to allege that Indian law, as the law of the domicile of Father, Mother and their children, applied to their dealings as regards property of the kind in issue in these proceedings and that as the family lived as a joint Hindu family Mitakshara principles provided the basis upon which their property was held. He submitted that there was no reason why this court should not give effect to this and that if it applied there was no need to establish a common intention constructive trust. He sought my permission to add a further preliminary issue to enable the court to adjudicate upon this new basis of claim. The application was opposed. For reasons set out later in this judgment I was not willing at so late a stage of these proceedings to allow this. So the claim — and therefore the trial of the preliminary issues — proceeded on the basis pleaded.
It is the trial of those preliminary issues that has come before me and this is my judgment on those issues. In order to understand Father's claim, and thus to reach a conclusion on the preliminary issues, it is necessary to go into the relevant background, including the legal basis, in some detail. I start...
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