Mehra v Mehra & Aras
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas |
| Judgment Date | 17 June 2009 |
| Neutral Citation | [2009] EWCA Civ 584 |
| Docket Number | Case No: B5/2008/2937 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 June 2009 |
[2009] EWCA Civ 584
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London County Court
HH Judge Marshall QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thomas
Case No: B5/2008/2937
Steven Woolf (instructed by The Bar Direct Access Scheme) for the Appellant
Hearing date : 9 March 2009
Lord Justice Thomas :
This is the judgment in a renewed application for permission to appeal against the judgment of Her Honour Judge Marshall QC, given at the Central London County Court on 28 November 2008 dismissing the claim of the applicant Dr Madhav Mehra against the second and third respondents (Mr and Mrs Aras) in finding for them on the counter-claim. The application was refused on paper by Rimer LJ. This was renewed orally to me.
At the outset of the hearing I was told on express instructions on behalf of Dr Mehra that he was entirely content that I heard this case, although I had given the principal judgment in the court in an entirely separate matter in which Dr Mehra had been the appellant, Greenwood Reversions Ltd v World Environment Foundation Ltd [2008] EWCA Civ 47.
At the hearing of the appeal some further supplementary submissions and, more importantly, a large bundle, had been delivered to the court by counsel for Dr Mehra, but unfortunately the court office had mislaid the file and I had not had an opportunity of reading it. I heard oral submissions. The bundle and further submissions raising a further ground of appeal were sent to me after the hearing, including some on 4 June 2009. I have carefully read and considered these.
Dr Mehra claimed to be the beneficial owner of 101 Park Avenue, Potters Bar. In 1991 the property had been registered in the name of his son, Randiv, the first respondent. In 2007 Randiv had sold it to Mr and Mrs Aras with completion on 21 August 2007. These proceedings were an attempt by Dr Mehra to establish that he was the beneficial owner of the property and to set aside the sale to Mr and Mrs Aras.
An outline of what had happened to the property can be given simply. The property was purchased by Dr and Mrs Mehra in July 1977. In 1987 the property was transferred into the sole name of Mrs Mehra, The explanation given was that Dr Mehra, as an employee of the Indian Government, could not own foreign property. In 1991 Dr Mehra ceased to be an employee of the Indian Government. He purchased property for Mrs Mehra in India. In consequence Dr Mehra claimed that he agreed that the property should be transferred by Mrs Mehra into the names of their son Randiv and Dr Mehra; Randiv would administer the property, but it would be held for Dr Mehra beneficially alone. The transfer was made to “Randiv Madhav Mehra”. It was Dr Mehra's evidence that the transfer to his son Randiv alone was a mistake; the property should have been transferred to Dr Mehra and Randiv as joint owners in trust for Dr Mehra alone.
On 4 September 2007 Dr Mehra applied for an injunction to prevent Randiv selling the property, but it was then too late as completion had taken place. A few days later he joined Mr and Mrs Aras to the claim. There was a significant amount of evidence in relation to what Mr and Mrs Aras knew about Randiv's position and the occupation of the property, but, for reasons which I shall explain, it is not necessary to set it out.
The judge heard evidence from Dr and Mrs Mehra, Mr and Mrs Aras and other witnesses. She found:
i) That she did not accept the evidence of Dr Mehra in respect of the transaction which had taken place in 1991 in relation to the claim by Dr Mehra to be the beneficial owner.
ii) There was no evidence of collusion between Randiv and Mr and Mrs Aras. Mr and Mrs Aras were honest and did not have any knowledge that would not have made them bona fide purchasers.
iii) If she was wrong on Dr Mehra's contention that he did not have any beneficial interest in the property, then the claim of Dr Mehra was defeated by s.29 of the Land Registration Act 2002 which provides as follows:
“(1) If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration.
(2) For the purposes of subsection (1), the priority of an interest is protected –
(a) in any case, if the interest -
(i) is a registered charge or the subject of a notice in the register,
(ii) falls within any of the paragraphs of Schedule 3, or
(iii) appears from the register to be excepted from the effect of registration.”
The judge held that Dr Mehra was not in actual occupation of the house at the time of the transfer and could not rely upon his secretary's occupation of the property, even if she had been satisfied that either his secretary or Dr Mehra was in occupation of the property. Had she been wrong about that, the judge concluded that the occupation was not obvious and, even if she was wrong on that, Mr and Mrs Aras did not have actual knowledge.
On the renewed application for permission, it was made clear by Dr Mehra's counsel that he no longer sought to challenge the findings of fact made in relation to Mr and Mrs Aras. In my view that concession was an inevitable one as there was no material before this court on which the findings of fact involving Mr and Mrs Aras could...
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