Lohia and Another v Lohia
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,Lord Justice Mummery,LORD JUSTICE MUMMERY,SIR CHRISTOPHER SLADE |
| Judgment Date | 25 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1691 |
| Docket Number | No A3/2000/2951 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 October 2001 |
[2001] EWCA Civ 1691
IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR N STRAUSS QC
(Sitting as a deputy High Court Judge in Chancery Division)
Royal Courts of Justice
Strand
London WC2
Lord Justice Kennedy
Lord Justice Mummery
Sir Christopher Slade
No A3/2000/2951
MR R SOHANTE (Instructed by Messrs Raymond Saul & Co of London) appeared on behalf of the Appellant
MR W GELDART (Instructed by Harman Garfinkel & Co of London) appeared on behalf of the Respondents
Lord Justice Mummery will give the first judgment.
Ugara Singh Lohia, the appellant, appeals from the decision of Mr Nicholas Strauss QC, sitting as a Deputy High Court Judge in the Chancery Division on 6 July 2000. 3. This is a long running family dispute concerning the beneficial ownership of a residential property at 41 Aberdeen Road, London N5 (“the property”). The judge rejected the appellant's contention that at the time of the death of his father, Man Singh Lohia (“the father”), in 1971 he and his father held the property as tenants in common in equal shares, even though his father was the sole registered proprietor of it.
The appeal is brought with the permission of the judge.
The Facts
The father came to England in 1954. He and the appellant lived in Bristol until they moved to London and bought the property on 16 December 1955. It was agreed that they would buy the property together and that they would own it in equal shares. The purchase price was £1,650. Today the property is worth over £500,000. It was transferred by the seller into the joint names of the appellant and his father. £1,300 of the purchase price was left outstanding and secured by a mortgage back to the seller. The mortgage was paid off at the rate of £12 a month, the final payment being in April 1967. The mortgage was discharged in July 1967. The appellant paid the greater part of the balance of the purchase price as well as paying the expenses of the purchase.
The appellant lived with his father and his brothers in the property, parts of which were let out. The rent was used to help with the mortgage repayments and outgoings. If there was a shortfall the father and his sons made equal contributions to the repayments of the mortgage and the outgoings.
On 14 April 1965 the father was registered as the sole proprietor of the property. No copy can be found of any document by which the property was transferred to the father by the appellant. There are no letters or other documents explaining the circumstances of the transfer or shedding any light on the reason for it. No money changed hands. The case has proceeded on the basis that the transfer was a voluntary one.
On 20 February 1971 the father died intestate. Letters of administration were granted on 13 October 1972 to a younger son, Joginder Singh Lohia. At that time he was also living in the property with his family. He signed an assent on 17 April 1974 vesting the property in the joint names of himself and the appellant as tenants in common in equity. The assent was silent on the size of their respective beneficial interests. They were registered as joint proprietors of the property. The brothers and their families continued to live in the property until Joginder Singh Lohia and his family left in November 1977. 9. Unfortunately, relations between the appellant and his brother deteriorated. Joginder Singh Lohia claimed that he and his family had been locked out of the property, He started proceedings in 1987, claiming an occupation rent in respect of the property on the footing that it was held in trust for the appellant and himself as tenants in common in equal shares and that he had been excluded from the enjoyment of the property. Little progress was made in bringing the proceedings to trial. In 1992 Joginder Singh Lohia died. Letters of administration to his estate were granted to his widow and to Darbra Singh Lohia. On 11 August 1992 they were substituted as plaintiffs in the proceedings. They are the respondents to this appeal.
The appellant resisted the proceedings, claiming that he was entitled to a 75 per cent beneficial interest in the property, made up of the half share vested in him when the property was acquired jointly with his father in 1955 and half of his father's half share in the property to which he became entitled on his father's intestacy.
The Judgment
The issue of the extent of the appellant's beneficial interest in the property turned on the circumstances in which the father became registered as sole proprietor of the property in 1965. The appellant denied in evidence that he had ever seen, signed or authorised any transfer of his interest in the property to his father. He contended that he had continued to pay his share of the mortgage repayments until the mortgage was discharged in 1967 and that when his father died in 1971 he became entitled to half of his father's 50 per cent interest in the property.
The judge held that there must have been a transfer to the father in 1965 in order to enable him to become registered as sole proprietor of the property. The judge formed an unfavourable view of the appellant's reliability as a witness on the issue of the transfer. He rejected the appellant's suggestion that a transfer of his interest in the property to his father had been forged or was fraudulent. The judge held that it was more probable that a deed of transfer was made in the father's favour as part of some kind of family arrangement.
The judge also rejected the appellant's submission that if, contrary to his primary contention, there was a valid deed of transfer of his interest to his father in 1965, his beneficial interest in the property did not pass because a presumption of a resulting trust in the appellant's favour arose from the voluntary nature of the transfer. The judge held that the presumption of a resulting trust arising from a voluntary conveyance had been abolished by Section 63 (3) of the Law of Property Act 1925. The judge also declined to make an inference that the appellant did not intend to benefit his father in a transfer. It must have been executed to enable him to become registered as sole proprietor. On this point the judge referred again to the probability that the transfer was made as part of the family arrangement in order to benefit the father. The legal position was therefore that the father was the sole beneficial owner of the property at the time of his death. The property formed part of his estate. On his intestacy, Joginder and the appellant became entitled to it in equal shares. The beneficial interests in the property were not held in the proportions of one-quarter and three-quarters contended for by the appellant.
On the exclusion issue the judge found in favour of the appellant. He dismissed the claim against him for an occupation rent. Although the two brothers and their families had undoubtedly fallen out, the judge found that the appellant had not, by his conduct, driven Joginder and his family out of the property. There was no misconduct on the appellant's part which would justify the finding of exclusion. There is no cross-appeal against that part of the judgment.
The Appellant's Submissions
On behalf of the appellant Mr Sohante developed two grounds of appeal. The first was one of fact. He attacked the judge's conclusion that the transfer of the property into the name of the father was, or was part of, a family arrangement. The second ground was one of law turning on the effect of Section 60 (3) of the Law of Property Act 1925 on the application of the presumption of a resulting trust in the case of a voluntary conveyance. Mr Sohante accepted, however, that if he failed in his appeal on the factual ground he was bound to fail, on the facts as found by the judge, in seeking to reverse the judge's decision that there was no resulting trust in favour of the appellant.
Mr Sohante's main submission on the first ground was that there was simply no evidence of a family arrangement under which a deed of transfer was executed by the appellant in favour of his father. In his evidence the appellant had denied there was any family arrangement....
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