Derrile Singh Lohia v Dalbara Singh Lohia (Deceased) (proceeding by the representative of the Deceased's estate, Gurmesh Kaur Lohia)
| Jurisdiction | England & Wales |
| Judge | Master Francis |
| Judgment Date | 15 October 2021 |
| Neutral Citation | [2021] EWHC 2752 (Ch) |
| Docket Number | Case No: PT-2020-000793 |
| Court | Chancery Division |
[2021] EWHC 2752 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (Ch D)
Royal Courts of Justice
Fetter Lane, London, EC4A 1NL
DEPUTY Master Francis
Case No: PT-2020-000793
Araba Taylor (instructed by Premier Solicitors) for the Claimants
George Woodhead (instructed by Vanderpump & Sykes LLP) for the Defendant
Hearing dates: 1, 2 and 3 September 2021
APPROVED JUDGMENT
I direct that this approved judgment, sent to the parties by email on 15 October 2021, shall deemed to be handed down on that date, and copies of this version as handed down may be treated as authentic.
Introduction
34 Wilberforce Road is a three-storey semi-detached property in Finsbury Park, London N4 (“the Property”). It was for many years the family home of Joginder Singh Lohia, his wife Harbhajan Kaur Lohia, and their seven children: Margret (born in 1968), Geeta (born in 1969), Dalbara (born in 1970), Seeta (born in 1973), Derrile (born in 1978), Delvin (born in 1980) and Narinder (born in 1987). I shall refer to all the family members by their given names for convenience in the course of this judgment, without intending any discourtesy thereby.
Joginder acquired the Property in his sole name in 1978 and he was registered as proprietor under title number LN184295. He died on 3 January 1988, without having made a will. His estate has never been fully administered, or at any rate the administration properly documented and concluded in accordance with the formal rules of intestate succession. However, the Property remained for many years the family home, where the younger children were brought up after the elder children had bought or set up homes elsewhere. The Property has now been divided into three self-contained flats, under redevelopment works carried out by Delvin and assisted by Derrile in the period between 2016 and 2018. One of those flats is now occupied by Delvin and his family; there is a dispute as to whether another is or continues to be occupied by Harbhajan; the third at any rate is rented out.
The present dispute, in form at least, is one between Derrile and Delvin, the named claimants, and Gurmesh Kaur Lohia, as representative of Dalbara's estate, following his regrettable death on 13 January 2021 whilst these proceedings were ongoing, a victim of Covid 19. It arises following the transfer of the Property into the joint names of Dalbara, Derrile and Delvin in October 2014 in circumstances which I will have to set out and examine in detail in this judgment. That transfer, in form TR1, contained a declaration that the Property was held by the transferees as tenants in common in equal shares, effected by the simple expedient of checking the second of the three boxes in panel 10 of the form. Derrile and Delvin contend that this was a mistake and did not properly reflect the intentions of the parties to the transfer, which were that Dalbara should have no beneficial share in the Property, and they seek an order for rectification of the transfer accordingly. On behalf of Dalbara's estate Gurmesh disputes such contention, and by counterclaim seeks declaratory relief that the Property is held beneficially in such declared shares, together with an order for the sale of the Property and the taking of accounts.
Both sides have been ably represented by counsel at the trial of this dispute, Derrile and Delvin by Ms Araba Taylor, and Gurmesh by Mr George Woodhead. They have fought their respective clients' cases doggedly but with courtesy and respect, and I have been greatly assisted by them throughout the course of the trial for which I express my gratitude.
Background
In order to set the dispute in its proper context, I must first set out some more of the background, identifying along the way various matters of factual controversy, some of which at least I will need to resolve in reaching my determination on the key issues.
Letters of administration to Joginder's estate were granted to Harbhajan and Dalbara on 1 November 1989. His estate was declared to have a gross value of £95,198, and a net value of £94,515. No estate accounts have been produced showing of what it consisted, but it may reasonably be inferred that the Property was the only declared asset of the estate of any value.
Under the rules of intestate succession, Harbhajan was entitled to a statutory legacy of £75,000 from her husband's estate. Subject to that and following the due administration of the estate, the residuary estate would be held on the statutory trusts arising under section 46 of the Administration of Justice Act 1925, that is as to a life interest in one half thereof for Harbhajan, and as to the remainder for the children in equal one-seventh shares. As personal representatives Harbhajan and Dalbara would have held the Property and any other assets within the estate as fiduciaries pending the due administration of the estate and thereafter on those statutory trusts.
On 2 March 1992 Harbhajan and Dalbara executed an assent as personal representatives vesting the Property in themselves. It is evident that a firm of solicitors, Harman Garfinkel & Co were acting for them at the time; that firm lodged an accompanying application to register the dealing with HM Land Registry on the same date, stating the value of the property then to be £100,000.
It is common ground that Margret, Geeta and Seeta entered into a deed of variation at or around this time under which they transferred their entitlement in Joginder's estate to their mother, Harbhajan. No copy of the deed has been produced, or, so far as anyone is aware, still exists. There is a statement in evidence from David Garfinkel, who identifies himself as the solicitor who acted in the administration of Joginder's estate, in which he states his recollection that:-
“Those children who were aged 18 or over agreed to enter into a Deed of Variation and executed a Deed of Variation transferring their interest to [Harbhajan]. The children who were under 18 though could not execute a Deed of Variation and were entitled to their interest in their father's estate”
Insofar as this statement suggests that Dalbara too was a party to the deed of variation (he had turned 18 in 1988) it is inconsistent with the evidence not only of Delvin and Derrile but all other family members, none of whom state that Dalbara entered into any such deed. In the light of that, and as Mr Garfinkel was not called to give evidence so that he might be questioned on this point, I am unable to place any reliance upon his suggestion that Dalbara was also party to the deed.
It is nevertheless Delvin's and Derrile's case that Dalbara received monies from Harbhajan which were intended to be paid in satisfaction of his share of the estate. Three sums are alleged to have been paid or taken: a sum of £15,000 drawn from a lump sum Harbhajan had received from her husband's London Transport pension scheme, a sum of £25,000, and a sum of £13,000 which Dalbara is alleged to have taken from Harbhajan's bank account. It was suggested that these sums were used by Dalbara and Gurmesh to finance the acquisition of two properties during the 1990s – a property at 38 Vicarage Road in Leyton which they purchased in June 1993 for a sum of £52,000, and a property at Grove Green Road purchased in 1996. For her part, Gurmesh accepts that Dalbara was given £15,000 by his mother to assist with the purchase of the first property, but disputes that any other monies were given to Dalbara by his mother and used to fund either purchase. She does accept that an additional sum of £25,000 was given to Dalbara but says that this was only some years later from the proceeds of the Lohia v Lohia litigation to which I shall refer shortly.
Despite their purchase of these two properties, Dalbara and Gurmesh continued to live at the Property from the time they were married in 1990 until 1998 when they moved out. Gurmesh explains in her evidence that they stayed at the Property because she had been left by Harbhajan with responsibility to look after Derrile, Delvin and Narinder who were all still young children, whilst Harbhajan spent time in India. She accepts they lived at the Property all this time rent free, but explains that they met the general household expenses including food and clothing for the children.
Although it appears that the Property was the only declared asset of any value in Joginder's estate, there was in fact a second valuable asset, Joginder's claim to a beneficial half-share in a property at 41 Aberdeen Road in nearby Highbury, a property which had been held in the sole name of Joginder's father, Man Singh Lohia, prior to his death in 1971, and which would have passed on his intestacy to Joginder and his older brother, Ugara Singh Lohia. Proceedings had been issued by Joginder against his brother to vindicate his interest in the Aberdeen Road property in 1987, and an order was subsequently made in 1992 substituting Dalbara and Harbhajan as plaintiffs in the proceedings following their appointment as personal representatives of Joginder's estate. It was not disputed that Joginder was entitled at least to a one quarter share in the property, the issue between them being whether their father had held the property prior to his death for the brother as to a 50% beneficial share. It must therefore have been clear to both Dalbara and Harbhajan at least at the time they were substituted as plaintiffs to the proceedings that they were likely to yield further substantial sums for the estate. In the event, following a trial of the action in 2000 before Nicholas Strauss QC sitting as a...
To continue reading
Request your trial
-
Jaswinder Singh Bahia v Inderdeep Singh Sidhu (as Personal Representative of the Estate of Tara Singh Sidhu)
...and whose interest, therefore, cannot be bound by an agreement or transfer to which he or she was not a party (see Lohia v Lohia [2021] EWHC 2752 (Ch) at 125 Insofar as it is necessary in this case to construe the MoS, I did not understand the parties to be in dispute over the applicable p......