Mirza and Another v Mirza and Others
| Jurisdiction | England & Wales |
| Judgment Date | 07 January 2009 |
| Neutral Citation | [2009] EWHC 3 (Ch) |
| Docket Number | Claim No: 5BM74165 |
| Court | Chancery Division |
| Date | 07 January 2009 |
[2009] EWHC 3 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Before: Mr Stephen Smith Q.C.
Claim No: 5BM74165
Hearing dates: 13th, 14th, 15th, 16th, 17th, 21st October 2008
Stephen Smith QC sitting as a Deputy Judge of the Chancery Division
Introduction
This is a dispute about two residential properties in Birmingham which has some unusual features.
The proceedings commenced in 2005 as a landlord's claim in the County Court for possession of residential premises, on the expiry of an assured shorthold tenancy by effluxion of time. They have since transmogrified into a High Court claim by the current occupant of the premises that the tenancy was a sham and the tenant was actually the beneficial owner of the premises, who had disguised himself as a tenant in order to claim housing benefit. Along the way, the claimant landlord has acknowledged that although he is the registered owner of the premises he is not their beneficial owner; the true beneficial owner (according to the landlord) has since been joined to the proceedings as the second claimant. The tenant himself denies that he is or ever was the beneficial owner of the premises; two of the tenant's children, however, do claim a beneficial interest in the premises.
All the parties are related and all appeared to be getting along well together (at least to the outside world) until two seemingly unconnected events in the last 6 years or so. The tenant and the occupant of the premises were married but separated in the latter part of 2004, the occupant alleging domestic violence against the tenant; they are now divorced. The tenant is the brother of the claimants. Although nominally the first defendant, the tenant supports his brothers' claim for possession against his former wife. If the claim is successful, three of the tenant's children who continue to live with their mother will also be evicted, one of whom is still of school age. In the event that it is found that the tenant has no beneficial interest in the premises, the premises will not form part of the tenant's estate for the purposes of the ancillary relief proceedings brought by his former wife.
The other event concerns a fourth brother, who is not a party to these proceedings. He is very dissatisfied with dealings he had with one or both of the claimants, and he has brought his own (separate) High Court proceedings against them. He also expresses disgust at the way his brothers are proceeding against his erstwhile sister-in-law and her children (his nephews and nieces).
Two of the tenant's adult children are also defendants. They were the purchasers of different premises which they acquired from the non-party brother in 2002. That brother acknowledges that although he was the registered owner of those premises, he was never the beneficial owner of them; he says the premises were beneficially owned by the tenant (in disguise again, so that he could claim housing benefit). That claim too is denied by the tenant: he says that those premises were also owned beneficially by the second claimant and his occupation of them was pursuant to a lease.
The second claimant makes claims against the tenant's adult children—his nephew and niece—in connection with an oral arrangement for the sale of the latter premises which he says he made with them in 2001. The nephew and niece accept that they purchased the premises in 2001, but they claim that the true vendor was the non-party brother as trustee for the tenant, their father, not the second claimant, their uncle, and that the latter therefore has no claims against them. Their father, however, denies that he was the vendor.
None of the members of the family has ostensibly accumulated much by way of wealth or income, apart from the second claimant. The two elder brothers have been claiming state benefits for themselves and for their families for many years: indeed, the tenant says that he has not worked since about 1981 when—aged 28 -he was made redundant from a job in Manchester, and that he has been living largely on benefits for the past 27 years.
The family is now deeply fractured, with brother making allegations against brother, husband against (now former) wife, father against child, uncle against nephew and niece, and vice versa. As if this were not enough, a number of those allegations are of criminal activity, including tax evasion, social security fraud, domestic violence, dishonesty and drug smuggling, not all of which I can avoid having to consider during the course of my ruling. All of the protagonists gave evidence at the trial.
Before I can begin to resolve the parties' disputes raised for determination in these proceedings, however, I must first set out more information about the family and its history. Most of this account is common ground; where it is not common ground and I do not expressly or impliedly reserve a finding, the account should be taken as recording my findings of fact.
The family history
The head of the family was Bashir Ahmed Mirza. Bashir was born in 1925 in Sind in undivided India. He arrived in the UK some time in about the early 1960s, having left behind in Pakistan his wife, Malkaperveena, and children. Bashir and Malkaperveena had five children, four of whom were sons: Jahanghir (now aged 55), Saleem (now aged 53), Nairn (now aged 48) and Nasir (now aged 47). Their daughter has taken no part in these proceedings. In the introductory narrative above, Jahanghir is the brother described as the tenant, and Saleem the brother who has now fallen out with his other brothers and supports the claims of Jahanghir's former wife, Tahira. The first claimant is Nasir and the second claimant Nairn.
Malkaperveena and the five children arrived in the UK from Pakistan in the late 1960s and joined Bashir, who was then working in King's Langley in Hertfordshire; the family settled in Hemel Hempstead.
In about 1971 Saleem left school and went to college in Openshaw in Greater Manchester. Whether by coincidence or not, the family moved north at about the same time and settled in Stockport. In about 1975 a property known as 2 Buller Road, Longsight, Manchester was purchased for the family to live in. The property was not purchased in Bashir's name but in Jahanghir's, then aged 22. Jahanghir says this was done because Bashir was not well and the lender of the purchase monies (who happened to be the vendor of the property) wanted Jahanghir to be the person responsible to him for the payment of the instalments of purchase price which were left outstanding on completion. Jahanghir says that Bashir paid the deposit on the purchase and as far as he was concerned the Buller Road home was his father's property.
Jahanghir first worked as a taxi driver in Manchester, and then he became a bus driver with the Greater Manchester Bus Company. Tahira arrived from Pakistan to be Jahanghir's wife in 1977, then aged 22; their first child, Shakeel, was born not long afterwards, in 1978.
Tahira speaks only Urdu and gave her evidence through an interpreter. She does not read. She appeared before me with one arm in a sling in consequence, she said, of violence directed against her in the previous week by Jahanghir, which had caused her to seek and obtain an exclusion order against him. There has been at least one previous exclusion order made against Jahanghir by the Family Proceedings Court (in 2004). Shakeel, their eldest child, said in evidence that Tahira “has been through hell” with Jahanghir.
Tahira said that the problems in her marriage were long-standing and began on her arrival in the UK (ie over 30 years ago), but as part of her culture she was obliged to stay with Jahanghir. Cultural influences also meant that Tahira did not expect to be involved in discussions about financial affairs, and she was not involved; hence it came as a considerable shock to her in 2004 to learn how the structure of those affairs might impact on her situation following her separation from Jahanghir.
Jahanghir left his employment with the Greater Manchester Bus Company in 1981, after experiencing what he described as a back problem and severe arthritis. His evidence is that he was given a redundancy payment of between £3000 and £4000, which he gave to his father. He says that he has not worked since. He has been claiming state benefits for the last 27 years and says that “all my money” has been used “to support my family, to top up my benefits”. When he left the bus company Jahanghir had two children to support; thereafter he and Tahira had four more children. Although he says he was never engaged in remunerative employment after 1981, he obviously did manage to find support for his immediate family of 8 people (including himself), until relations broke down completely in 2004.
After he had completed an OND in mechanical engineering at Openshaw Technical College, Saleem studied for an HND at Manchester Polytechnic. When he completed those studies in or about 1976 it is not clear on the evidence whether he obtained remunerative employment. If he did, there has been no suggestion that he amassed any significant wealth in the process.
Nairn, the second youngest brother, left home in 1978 to study in the vicinity of Brighton (Nairn said he studied aeronautical engineering at Sussex University, but Saleem denied this). Nairn was the son of whom Bashir was the most proud, because of his educational success. After graduating in 1981 Nairn obtained a job with British Caledonian Airways based at Gatwick Airport and purchased a house in Shoreham-on-Sea, West Sussex. Some time thereafter Nairn obtained a commercial pilot's licence and found employment in the Middle Eas...
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