Mrs Shanatabi Kashinath Bhusate (personally and as personal representative of the estate of Kashinath Bhusate deceased) v Dr Managala Patel (personally and as personal representative of the estate of Kashinath Bhusate deceased)

JurisdictionEngland & Wales
CourtChancery Division
JudgeChief Master Marsh
Judgment Date13 September 2018
Neutral Citation[2018] EWHC 2362 (Ch)
Docket NumberCase No: PT-2017-000167
Date13 September 2018

[2018] EWHC 2362 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS

OF ENGLAND AND WALES

PROPERTY TRUSTS AND PROBATE LIST

In the estate of Mr Kashinath Vithoba Bhusate (deceased)

And in the matter of the Inheritance (Provision for Family and Dependants) Act 1975

Rolls Building, Fetter Lane

London EC4A 1NL

Before:

Chief Master Marsh

Case No: PT-2017-000167

Between:
Mrs Shanatabi Kashinath Bhusate (personally and as personal representative of the estate of Kashinath Bhusate deceased)
Claimant
and
(1) Dr Managala Patel (personally and as personal representative of the estate of Kashinath Bhusate deceased)
(2) Mrs Jeeja Thakare
(3) Mrs Ulka Parmar
Defendants
(4) Dr Ravindra Bhusate
(5) Dr Lekha Herbert
(6) Dr Arvind Bhusate
Defendant and Part 20 Claimant

Mark Dubbery (instructed by Withers LLP) for the Claimant

Richard Wilson QC and Toby Bishop (instructed by Bolt Burdon Solicitors) for the 2 nd to 5 th Defendants

Eliza Eagling (instructed by Withers LLP) of the 6 th Defendant and Part 20 Claimant

Hearing dates: 28 and 29 June 2018

Judgment Approved

Chief Master Marsh
1

This claim relates to the estate of Mr Kashinath Vithoba Bhusate who died on 28 April 1990. I will refer to him as Mr Bhusate. His first wife (“Mrs Bhusate”) died in 1971. The 1 st to 5 th defendants are Mr Bhusate's children by his first marriage. The claimant brings this claim as Mr Bhusate's third wife. The validity of the marriage between Mr Bhusate and the claimant is put in issue but the challenge is not a matter that is of immediate relevance and, for present purposes, they can be taken to have been married. The sixth defendant is the only child of Mr Bhusate and the claimant.

2

Mr Bhusate died intestate. Letters of administration were granted to the claimant and the first defendant on 12 August 1991. The estate principally comprised a property at 62 Brookside Road, Golders Green, London NW11 (“the property”), where the claimant and Mr Bhusate lived. Despite the passage of 28 years since Mr Bhusate's death, the property still remains registered in his name. The property had been originally vested in the sole name of Mrs Bhusate. Following her death, Mr Bhusate was granted letters of administration relating to her estate. He subsequently assented the property to himself as personal representative and then assented the property to himself personally.

3

By this claim, the claimant makes three primary claims: (1) that she is now the sole beneficial owner of the property; (2) in the alternative, that she and the defendants became equitable co-owners of the property; (3) in the further alternative, she says that she is entitled, as against Mr Bhusate's estate, to her statutory legacy and a capitalised life interest, plus interest at 6% per annum since the date of Mr Bhusate's death.

4

The claimant has a secondary claim under the Inheritance (Provision for Family and Dependents) Act 1975 (“the Inheritance Act”) by which she asserts that at the date of Mr Bhusate's death he was domiciled in England and Wales and that his intestacy failed to make reasonable financial provision for her. She seeks an order for reasonable financial provision out of the estate. The Inheritance Act requires an applicant to issue a claim within six months of the grant of probate or letters of administration and the period for issuing such an application expired over 26 years ago. The claimant applies under section 4 of the Inheritance Act for permission to bring a claim out of time.

5

The 1 st defendant has not actively participated in the claim other than to serve a witness statement. The 2 nd to 5 th defendants defend the claim and they counterclaim for relief, including an order under section 50 of the Administration of Justice Act 1985 for the removal of the claimant and first defendant as administrators of Mr Bhustate's estate and for orders concerning Mrs Bhusate's estate.

6

The sixth defendant does not oppose his mother's claim but says that, if his mother's claim fails, he will by his counterclaim and Part 20 claim against the 1 st to 5 th defendants ask the court to declare that the property is beneficially owned by the claimant and himself, either by dint of a common intention constructive trust or by the operation of proprietary estoppel. In the further alternative, he seeks an order for an account against the 1 st to 5 th defendants relating to the expenditure he has incurred in maintaining the property.

7

Pursuant to their application notice, the 2 nd to 5 th defendants apply for orders:

“2. That the Court strike out paragraphs 7, 15 to 19 of the Claimant's details of claim and paragraphs 5 to 8 of the 6 th Defendant's Defence and Counterclaim pursuant to CPR 3.3(2)(a) because they disclose no reasonable grounds for bringing a claim. Further and in the alternative that the 2 nd to 5 th Defendants have summary judgment on the issues therein pursuant to CPR 24.2 because the Claimant and the 6 th Defendant have no real prospect of success on the issue and there is no other reason why the issues should be disposed of at trial.

3. That the 2 nd to 5 th Defendants have summary judgment on the issues of:

a. the removal of the claimant and the 1 st Defendant as personal representatives;

b. the grant of administration of their mother's estate;

c. a declaration that their father's estate holds the Property on trust for their father's estate and their mother's estate.

4. That the Court determine the Claimant's application to extend time pursuant to section 4 of the [Inheritance Act] as a preliminary issue.”

8

It was agreed at the hearing that the court would not determine the claimant's application to extend time under section 4 of the Inheritance Act until after this judgment has been handed down because her claims in relation to the property have the potential to affect the outcome of that application.

9

The test for an application to strike out a statement of case under CPR 3.4(2)(a) need hardly be stated. The 2nd to 5 th defendants must satisfy the court that the Part 8 claim form does not show reasonable grounds for bringing the claim; put in simpler terms, they must show that the claim is bound to fail. Sometimes, a respondent to an application to strike out a statement of case will apply to amend the statement of case to cure possible defects. Where this happens, the court will normally consider both applications together to form a view about whether the claim, or defence, is bound to fail with the case put at its highest. In this case, the claimant and the 6 th defendant stand by their claims in their original form. However, the court may decline to strike out a claim, even if it considers on the current state of the law it is bound to fail, if it can fairly be said that the legal basis of the claim is in an area of developing jurisprudence and the strength of the claim ought to be tested against facts found at a trial: see Richards (t/a Colin Richards & Co) v Hughes [2004] P.N.L.R. 706 per Peter Gibson LJ at [22])

10

Under CPR 24.2, the applicants must show that the claim has no real prospect of success and that there is no compelling reason why the claim should be tried. The jurisprudence relating to CPR Part 20.2 is well-established. A convenient summary of the principles can be found in the judgment of Lewison J (as he then was) in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch) (approved by the Court of Appeal in A C Ward & Son v Caitlin (Five) Limited [2009] EWCA (Civ) 1098). It is unnecessary for me to set out those principles in this judgment although, where necessary, I will refer to them in the course of discussing the issues that arise for determination.

11

There is some overlap between the court's powers under CPR 3.4(2)(a) and CPR 24.2. In the case of the former, the focus is on the statement of case and the court will normally assume the respondent will be able to establish the facts that are pleaded. Under the first limb of CPR 24.2, the court is entitled to evaluate the respondent's case in a broader manner, provided it avoids conducting a mini-trial. The threshold for success on a strike out is considerably higher than on an application for summary judgment. That a claim is bound to fail is much harder to establish than that it has no real prospect of succeeding.

12

I would add an observation in relation to an application for summary judgment brought by a defendant to a Part 8 claim. Part 8 requires the claimant to provide the evidence that is relied upon with the claim. Although there may be cases in which a claimant will be permitted to file supplementary evidence, the court has the claimant's complete case. It is a reasonable starting point for the court that the claimant's case has been put at its highest and, unless the claimant is able to point to material evidence that has not been brought forward, there is no reason to consider what further evidence might be available.

13

It is mandatory to bring a claim under the Inheritance Act using a Part 8 claim form and the claimant was right to proceed in that way, despite seeking wider relief that might more naturally have been claimed using the Part 7 claim procedure. The Part 8 claim form is accompanied by a document entitled “details of claim”. Rule 8.2 requires the claimants to state (amongst other things):

“(b) (i) the question which the claimant wants the court to decide or

(ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy;”

14

Rule 8.5(1) requires a claimant to file any written evidence he or she intends to rely at the same time as filing the claim. Thus, the claimant's case should be complete at the point of issue.

15

The requirements of Rule 16.4 do not apply to a Part 8 claim form because particulars of claim do not have to be served. However, it is an essential premise of any claim that the defendant must be...

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