Bindra v Chopra [2008] EWHC 1715 (Ch)

Neutral Citation Number: [2008]EWHC 1715 (Ch)

Case No HC05C01726

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21 st July 2008

Before

Mr Justice Etherton

Between

Angela BindraClaimant

Jennifer Margaret ChopraDefendant

Mr Mark Warwick (instructed by Rochman Landau) for Claimant

Ms Josephine Hayes (instructed by Hugh Cartwright & Amin) for Defendant

Hearing Hearing dates: 16-20 June 2008

Approved Judgment

Introduction

[1]These proceedings began in March 2005 as possession proceedings in the Watford County Court in respect of 80 Ridge Lane, Watford (“Ridge Lane”). They were transferred to the Chancery Division by order of Deputy District Judge Apple dated 3 May 2005. The claim for possession has been overtaken by events. Ridge Lane was sold with vacant possession on 12 February 2008 for £480,000.00. The net proceeds of sale of £341,846.22 have been transferred to an interest bearing account pending the outcome of these proceedings.

[2]The dispute turns on whether the Defendant, Jennifer Margaret Chopra (“Jennifer”), in her personal capacity or as the sole executrix of the estate of her deceased husband, Akash Kumar Chopra (“Akash”), had any beneficial interest in Ridge Lane prior to its sale, and is now entitled to any share in the net proceeds of its sale; and also, by a counterclaim, whether Akash’s estate (“the Estate”) has any right to an inquiry and account in respect of the net proceeds of sale of another property, 43 Melrose Place, Watford (“Melrose Place”).

[3]The Claimant, Angela Bindra (“Angela”) was the sister of Akash. She and Akash were the joint legal owners of Ridge Lane until Akash’s death on 20 September 2004.

[4]Akash lived at Ridge Lane as his home, and Jennifer moved in with him in 1995. Jennifer married Akash on 8 September 2001. Jennifer is, in the events which have happened, the sole beneficiary under Akash’s will dated 26 July 2004 (“the Will”). Jennifer was granted probate of Akash’s Will on 28 August 2007. The Estate was sworn at nil value.

[5]Ridge Lane was transferred to Akash and Angela on 19 August 1988, and they were duly registered as proprietors on 16 September 1988. The transfer (“the Ridge Lane Transfer”) specified that Ridge Lane was transferred to them as tenants in common upon the trusts of a deed of the same date. Angela claims that, on the terms of that trust deed (“the Ridge Lane Trust Deed”), she became solely beneficially entitled to Ridge Lane on Akash’s death.

[6]Angela claims mesne profits from Jennifer as a trespasser at Ridge Lane following a letter from Angela’s solicitors terminating Jennifer’s licence to remain there after Akash’s death.

[7]Jennifer claims that, on the true interpretation of the Ridge Lane Trust Deed, or, alternatively by virtue of the Estate’s right to rectification of the Trust Deed, the Estate was entitled to a 75% beneficial interest in Ridge Lane and is now entitled to 75% of the net proceeds of its sale. Alternatively, Jennifer claims that, having regard to her own direct and indirect financial contributions while living at Ridge Lane with Akash, she was entitled in her own right to a beneficial interest in Ridge Lane by virtue of a constructive trust, or proprietary estoppel, or under s.37 of the Matrimonial Proceedings and Property Act 1970 (“MPPA”), and is now entitled to a corresponding interest in the net proceeds of its sale.

[8]Angela claims that, if Jennifer was entitled to occupy Ridge Lane after Akash’s death by virtue of a beneficial interest in that property in Jennifer’s own right or in right of the Estate, Jennifer is nevertheless liable to pay Angela an amount in respect of her occupation.

[9]Melrose Place was transferred to Akash and Angela on 30 April 1991, and they were registered as proprietors on 14 May 1991. Melrose Place was sold on 29 October 2001. The net proceeds of sale of £87,015.82, were remitted to their joint account at Abbey National plc (“Abbey National”). Jennifer claims that Angela misappropriated the net proceeds of sale, and failed to account to Akash for his proper share of them. She counterclaims for an inquiry and account as to the Estate’s share of the proceeds of sale, and an order for payment of what should be found due to the Estate. Angela claims that the net proceeds of sale were used to meet outstanding bills for which Akash was wholly or jointly liable, and to reimburse Angela for debts that she had settled on Akash’s behalf. She also claims that Melrose Place and its net proceeds of sale were held on trust for herself as to 75%, and for Akash as to 25%. Jennifer claims that Angela and Akash were equal beneficial owners.

Evidence

[10]Witness statements were made, on behalf of Angela, by Angela herself; John Letts, the solicitor who acted on the purchase of Ridge Lane and Melrose Place; Sean Tickell, the solicitor who acted on the sale of Melrose Place; Lee Risby, who was formerly employed by Akash and Angela; Ellis Goldberg, a friend and business acquaintance of Akash and Angela; Heyma Vij, Akash's niece; and Shakuntla Chopra, the mother of Akash and Angela.

[11]Oral evidence was given by all of them, other than Akash’s mother, who was not required to attend for cross examination and whose witness statement was admitted as hearsay with consent.

[12]Witness statements were made, on behalf of Jennifer, by Jennifer herself; and Peter Dawson, Hugh Edmiston, Joseph Shearer, Peter Thomas, and Julian Franklin, all of whom were acquaintances or friends and business associates of Akash.

[13]Oral evidence was given by Jennifer, Mr Dawson and Mr Edmiston. Mr Shearer, Mr Thomas and Mr Franklin were not required to attend for cross examination, and their written witness statements were admitted as hearsay with consent,

[14]Dr Audrey Giles, a handwriting expert, wrote a report dated 10 February 2006, on the instructions of Jennifer’s solicitors, on the authenticity of the signature of Akash on various documents. She was not required by Angela to attend for cross examination. The Ridge Lane Trust Deed Interpretation

[15]The Ridge Lane Trust Deed is, on any footing, a most unusual and unhappily drafted document. It recites(1) the transfer on the same date of Ridge Lane to Akash and Angela for £231,000.00;

(2) a legal charge of the same date by Akash and Angela in favour of National Westminster Home Loans Ltd (“NWHL”) for £160,000.00 borrowed by Akash and Angela from NWHL;

(3) the provision towards the purchase price of £72,169.00 by Akash and £2,108.00 by Angela; and

(4) that:

“It has been agreed by Akash and Angela that they shall hold the property jointly as trustees for sale with power to postpone sale and that they shall hold the proceeds of such sale upon trust for themselves as tenants in common.”

[16]Paragraphs 1 to 5 of the operative part of the Ridge Lane Trust Deed are as follows: 1. Akash and Angela shall hold the property on trust to sell the same with power to postpone sale unless and until one or both of the parties hereto or persons claiming under him or her or them shall deliver such notice as is hereinafter provided they shall hold the net proceeds of sale (after deducting thereout the balance of any money due under the said legal charge and the costs incurred in selling the property) on trust for themselves as tenants in common in the proportions hereinafter mentioned. 2. Akash shall be entitled to £72,169.00 of the said net proceeds of sale and Angela shall be entitled to £2108.00 of the net proceeds of sale. 3. Out of the remaining balance of the net proceeds of sale Akash shall be entitled to seventy five per cent and Angela shall be entitled to the remaining twenty five per cent. 4. Upon the death before sale of either Akash or Angela the trustees shall hold the property upon trust for the survivor of Akash or Angela who shall thereupon be entitled to the whole proceeds of sale absolutely. 5. Any party hereto or those claiming under him or them may give to the trustees notice in writing requiring the trustees to sell the said property and thereupon the trustees shall use their best endeavours to effect a sale of the said property so soon as circumstance admit.

[17]It is clear that words have been mistakenly omitted from clauses 1 and 5. Words such as “and upon the sale of the property” need to be read into clause 1 after the words “hereinafter provided”. The words “or her or” must be read into clause 5 after the words “under him” in the first line.

[18]On immediate impression, the Ridge Lane Trust Deed appears to provide that, subject to repayment of their initial cash contributions, Akash and Angela were absolutely beneficially entitled under a trust for sale of Ridge Lane as tenants in common in the proportions 75/25. The provision in clause 4 entitling the survivor of them to the entire proceeds of sale absolutely upon the death of the other prior to sale is said by Ms Josephine Hayes, counsel for Jennifer, to be inconsistent with, and repugnant to, the earlier provision for beneficial entitlement in the proportions 75/25. She submits, alternatively, that clause 4 is in the nature of a testamentary disposition, which was not valid because the Ridge Lane Trust Deed was only witnessed by a single person and so failed to comply with the formalities of the Wills Act 1837.

[19]Ms Hayes emphasised that one of the fundamental rules of equity is that restraints on absolute interests are, with few exceptions, regarded as impermissible. She referred to Re Dugdale [1888] 38 Ch. D 176. The facts of that case were that a testatrix gave real and person estate on trust for her third son, James his heirs and assigns; but, if James “should do, execute, commit or suffer any act, deed or thing whatsoever, whereby or by reason or in consequence whereof, or if by operation of law, he would be deprived of the personal beneficial enjoyment of the said premises in his lifetime, then and in such case the trust hereinbefore contained for [his] benefit shall absolutely cease and shall determine, and the estates, hereditaments money and premises hereinbefore limited in trust for him” should go and be held in trust for his wife, or, if no wife then living, then for his children equally. On an originating summons taken out by James, after the death of his mother, and while he was unmarried, Kay J held that James took an absolute interest under the gift, and that the attempted executory gift over was void for repugnancy. Kay J said, at p. 182: “If a testator, after giving an estate in fee simple to A, were to declare that such estate should not be subject to the bankruptcy laws, that would clearly be inoperative. I apprehend that this is the test. An incident of the estate given which cannot be taken away, or prevented by the donor cannot be taken away indirectly by a condition which would cause the estate to revert to the donor or by a conditional limitation or executory devise which would cause it to shift to another person. …. must declare that [James] is entitled to an equitable estate in fee simple in the real property and to an absolute interest in the personalty given to him, and that the attempted executory gift over is void.

[20]In Re Brown

[1953] 1 Ch. 39

Harman J considered a testator’s bequest of his business to his wife for life with remainder to his four sons in equal shares. He devised the freehold properties, on which his business was carried on, to his trustees in trust for his wife for life, and after her death, on his youngest son turning 21, for all the sons then living in equal shares as tenants in common. By clause 6 of his will the testator declared that, if any of his sons - “shall execute any assurance... whereby... the share of my business properties... hereinbefore devised or bequeathed to him would or might become vested in... any person or persons other than a brother or brothers of such son then I direct that the share of such son in my business properties... shall be held by my trustees...” on certain discretionary trusts for the son and his wife and children.

[21]Harman J held that, the permitted alienees being a small and diminishing class, the clause constituted in substance a general prohibition on alienation, and was accordingly void and not binding on the devisees. At p.43 Harman J said:

“The point is a very narrow one, and it is whether a restriction on alienation appended to an absolute devise of real estate is good or no. The instinct of any equity lawyer is, to start with, to say that all restraints on absolute interests which tend to negative the rights attached to those interests are abhorred by the law and disallowed. That is a general rule cited by Jarman (8 ed., Vol. 2, p. 1477): “A power of alienation is necessarily and inseparably incidental to an estate in fee.”

The view at the outset is that anything which seeks to deprive the feoffee (so to call him) of his rights is void, but there is no doubt that some degree of restriction may be put upon him. Under the old law, for instance, a prohibition against assigning in mortmain might be imposed, because that was a thing which the law did not allow; but the early cases lay down that it is not permissible by indirect means to do that which you could not do directly. One must not, in substance, prevent a person from alienating, although in form he is left with a chance so to do. One may not, therefore, restrict his right of alienation to one person or choose some undischarged bankrupt and say that he may alienate to him. That is, in substance, although not in form, an absolute bar; as illustrated in Muschamp v Bluet”

[22]Ms Hayes’ case is that, having declared clearly (in the Ridge Lane Transfer and recital 4 and clauses 1 and 3 of the Ridge Lane Trust Deed) that Akash and Angela were to hold the Ridge Lane on trust for sale and the proceeds of sale as tenants in common in the proportions 75/25, clause 4 was, in the words of Kay J in Re Dugdale “a conditional limitation or executory devise which would cause [the absolute beneficial interest in common] to shift to another person.”

[23]Ms Hayes also referred me to Re White (1987) 38 DLR (4th) 631. That case concerned a deed of settlement made by the deceased and her two sisters. The deed had two schedules: the property in schedule 1 was held jointly by the deceased and her sister Frances; and the property in schedule 2 was held jointly by the deceased and her sister Sarah. Under the deed the deceased and Sarah were to receive the income from both sets of property during their joint lives and the life of the survivor, and then the properties were to become the property of Frances, On the death of the deceased all property not included in schedule 1 which was jointly owned by the deceased and Frances was to be sold and the proceeds used to pay certain gifts. The balance, if any, was to go to Frances. The deceased made no other provision for the property not included in schedule 1 which was jointly owned by her and Frances. The deceased made a will in 1922 by which she revoked all previous wills. The administrator of the deceased’s estate brought an application to interpret the provision in the deed respecting the property jointly owned by the deceased and Frances not included in schedule 1. It was held by Oyen J that the provision was testamentary in nature, and was revoked by the deceased’s will. He observed that the deed said nothing about what was to be done with the income of the property not included in schedule 1 which was held jointly by the deceased and Frances, nor what rights either of them had to dispose of the property during their lifetime. He said, at p. 634:

“Since the properties to which this provision applied could not be identified until the death of [the deceased] and because the parties made no provision regarding such properties until the disposition of the capital on the death of [the deceased], I find this provision in the deed was intended to operate only after the death of [the deceased] and was a testamentary disposition.”

[24]Similarly, Ms Hayes observed, the Ridge Lane Trust Deed contains no provision as to the income from Ridge Lane or its proceeds of sale pending the death of either Akash or Angela or earlier sale. Expressed a different way, the operative provisions of the Ridge Lane Trust Deed do not provide expressly for interests in succession, that it to say life interests followed by interests in remainder. On the face of the document, it appears to be dealing merely with capital.

[25]Mr Warwick, counsel for Angela, takes the position that those arguments are far too technical and artificial. He referred me to the statement in para 20-09 of Snell’s Equity (31st ed.) that, in general, “equity permitted great freedom in the creation of trusts and in the disposition of interests arising under trusts.” He also emphasised the well-known policy that the courts should attempt to give an instrument a meaning which will preserve it, rather than destroy it: see Langston v Langston (1834) 2 Cl & Fin 194, 243, 244 (Lord Brougham L.C.); Lewison on The Interpretation of Contracts (2007 ed.). So far as concerns the question whether clause 4 of the Ridge Lane Trust Deed is a testamentary disposition, Mr Warwick emphasised that, unlike the provisions of the Ridge Lane Trust Deed, it is an essential characteristic of a will that, at all times until death, it can be revoked or varied: see Williams on Wills (9th ed.) at para 1.2.

[26]Mr Warwick submitted that clause 4 of the Ridge Lane Trust Deed is no more a testamentary disposition than, for example, the nomination of a beneficiary under an occupational pension scheme pursuant to scheme rules which provide that, on the death of a member of the scheme, payment will be made to the person or persons who the member has nominated: see, for example, Baird v Baird

[1990] 2 AC 548

. In that case, Lord Oliver, delivering the judgment of the Privy Council, said at pp. 556-557:

“It is not, however, the case that every revocable instrument which creates interests taking effect on the death of the person executing the instrument is necessarily a will. The most obvious example of such a revocable but non-testamentary instrument is the exercise of a revocable power of appointment under a settlement inter vivos. Essentially, a pension scheme of the type with which this appeal is concerned is no different from any other inter vivos declaration of trust or settlement containing provisions for the destination of the trust fund after the death of the principal beneficiary. By becoming party to the scheme, each employee constitutes himself both a beneficiary and (quoad his contributions to the trust fund from which the benefits are payable) a settlor. He retains no proprietary interest in his contributions but receives instead such rights, including the right to appoint interests in the fund to take effect on the occurrence of specified contingencies, as the trusts of the fund confer upon him. So far as revocability is concerned, it is, of course, axiomatic that an essential characteristic of a will is that, during the lifetime of the testator, it is a mere declaration of his present intention and may be freely revoked or altered. It does not follow that every document intended to operate on death and containing a power of revocation is necessarily testamentary in character. But, in any event, in the instant case, the nomination lacks the essential character of being freely revocable. It can be made and it can be revoked and altered only with the consent of the management committee. At the stage, therefore, when a member’s nomination has been accepted and approved by the management committee, there comes immediately into being a trust in favour of the nominated beneficiary, but defeasible only in two events, the first of which is the revocation of the nomination. That is a matter which does not lie within the member’s sole control and can be effected only with the approval of the management committee, so that the document lacks an essential characteristic of a truly ambulatory disposition. The other method of termination is by leaving the company’s employment so that the “death-in-employment benefit” never takes effect at all. But in that event the member’s entitlement is to something quite different and distinct from that which would have been the entitlement of his estate under article VIII in default of nomination on his death without leaving a surviving widow.”

[27]In Re Danish Bacon Co. Ltd Staff Pension Fund Trusts

[1971] 1 WLR 248

, 256, another pension scheme case, Megarry J observed that a nomination operates by force of the provision of the rules of the pension scheme and not as a testamentary disposition; and that, although the nomination has certain testamentary characteristics, those did not suffice to make it testamentary.

[28]Although the point which I am presently considering may appear to be a purely technical one, it marks the interface between a number of policy considerations. First, as Mr Warwick rightly observed, the approach of the courts is to try to give effect to each and every part of an agreement or instrument freely negotiated and entered into between parties, rather than, as in this case Ms Hayes contends, to reject outright part of it as having no legal effect. Second, as Mr Warwick also submitted, the courts have emphasised the desirability that co-purchasers of land should enter into a contemporaneous trust deed expressly stating the extent and nature of their respective beneficial interests in the property. This would avoid costly and lengthy litigation, of which Stack v Dowden

[2007] UKHL 17

[2007] 2 AC 432

is an important recent example. On the other hand, third, the policy of the law is and always has been to strike down conditions on the outright transfer of property, whether by gift or otherwise, which preclude the transferee from disposing of the property as an absolute owner, including provisions preventing alienation of the property or providing that, in certain circumstances, it should pass back to the transferor or to a third party. Finally, fourth, there is a policy that gifts intended to be of a truly testamentary nature, taking effect only on death, should be subject to the stringent requirements of the Wills Act. In truth, the real concern and complaint of Jennifer in the present case is that, whether through lack of proper advice, or understanding or awareness of clause 4 of the Ridge Lane Trust Deed, Akash never appreciated that clause 4 interfered with his ability to leave his interest in Ridge Lane to whoever he wished on his death, including a future wife with whom he was in loving relationship at the date of his death and to whom he wished to leave all his property by his will.

[29]Notwithstanding the excellent arguments of Ms Hayes, I have reached the conclusion that it is possible to, and I should, interpret the Ridge Lane Trust Deed in a manner which gives effect to, rather than results in the wholesale rejection of, clause 4. In approaching the proper interpretation of the Ridge Lane Trust Deed, the intention of the parties is to be ascertained having regard to their actual language in the light of the relevant factual background. What I cannot do, in interpreting the Ridge Lane Trust Deed, is to speculate whether Akash was well advised or not, or whether, with or without that advice, he was in fact aware of, and understood, the meaning and effect of the provisions of the Ridge Lane Trust Deed or as to his subjective intentions.

[30]First, it is to be noted that the word “absolutely” appears only in the description of the rights of Akash and Angela under clause 4, and not under any prior provisions describing their interests as tenants in common.

[31]Second, there is no legal or conceptual difficulty about a tenancy in common of Ridge Lane and its income during the joint lives of Akash and Angela or until sale of the property before the death of either of them.

[32]Ms Hayes submitted that, to interpret the Ridge Lane Trust Deed as conferring an interest for life in Ridge Lane and its income during the joint lives of Akash and Angela or until earlier sale would be too radical an interference with the express language of that document. It is, of course, true that this interpretation would be to state what is not expressly stated in that way, but it is not inconsistent with the express provisions.

[33]Third, on that interpretation of the Ridge Lane Trust Deed, the sale of Ridge Lane during the joint lives of Akash and Angela would have a significant dispositive effect. It would terminate the joint lives tenancy in common and cross-remainders, and would result in an immediate absolute beneficial entitlement of Akash and Angela to capital as tenants in common in the proportions 75/25.

[34]It might be said that such an interpretation and result sit oddly with the doctrine of conversion that prevailed at the time the Ridge Lane Trust Deed was executed. Under that doctrine, from the date on which the trust for sale was created, the land was considered in equity not land but money: See, e.g., Re Richerson

[1892] 1 Ch. 379

. It could be argued, therefore, that it cannot have been the intention of Angela and Akash that the very sale of Ridge Lane would have effect as a limitation on the life interests and remainders over when, under the doctrine of conversion, equity already presupposed the sale had taken place and the trust property was the proceeds of sale.

[35]That seems to me, nevertheless, an unduly technical approach, and it is fair to say that Ms Hayes did not place any real weight on the doctrine of conversion. The doctrine was abolished by s.3 of the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”) for the majority of existing trusts for sale, including the trust for sale of Ridge Lane: see also TOLATA schedule 2 para 3, which amended s.34 of the Law of Property Act 1925 so that dispositions to tenants in common are not on trust for sale but on trusts of the land. The rationale for the former doctrine of conversion was that it would be wrong for the precise moment of carrying out the duty of selling to determine whether the rights of the beneficiaries were realty or personality: Re Richardson at p.383. That, however, is quite different from the question whether Akash and Angela might reasonably and properly have provided for one set of trusts to apply if there was not a sale of Ridge Lane in their joint lifetimes, and another to apply if such a sale took place.

[36]Ms Hayes submitted that an interpretation which gave effect to clause 4 of the Ridge Lane Trust Deed would be an impermissible restriction on alienation, and, in particular, would fail to give effect to the words “or persons claiming under him or her or them” in clause 1 and the words “all those claiming under him or them” in clause 5 of the Ridge Lane Trust Deed. I do not agree. Akash and Angela were free to transfer or deal with their interests during their joint lives, prior to sale. Their interests were, of course, limited since, on death before sale, their interest would pass to the survivor. Nevertheless, until that event, they and their successors would be entitled to their respective proportionate shares of any income and profits of Ridge Lane, and could give notice requiring the sale of the property.

[37]Fourth, on that interpretation of the Ridge Lane Trust Deed, no question arises of clause 4 being invalid and ineffective as a testamentary disposition. Clause 4 merely provides, in a conventional way, for cross remainders after termination of a life interest. Further, as is the whole point of Angela’s case, the provisions of clause 4 were, for the same reason, never testamentary because they were never revocable by either Angela or Akash during their joint lives.

[38]For all those reasons, I hold that clause 4 of the Ridge Lane Trust Deed was not, and is not, legally invalid, and it operated according to its terms.

Rectification

[39]Jennifer claims that, if clause 4 of the Ridge Lane Trust Deed was valid and effective, it was included in that document by common mistake of Akash and Angela, and the Trust Deed ought to be rectified by deleting the clause.

[40]The legal principles applicable to a claim for rectification of this kind are clear and are not in dispute. The burden of establishing the claim to rectification lies on Jennifer. The standard of proof is the civil standard of balance of probabilities, but the evidence must be convincing in order to rebut the likelihood that a written document, especially where prepared by legal advisors, correctly records the intentions of the parties. Jennifer must show that there was a continuing common intention on the part of Akash and Angela that the Ridge Lane Trust Deed should not contain the provisions in clause 4. There must also have been some outward expression of that prior accord; see generally Thomas Bates and Son Ltd v Wyndham’s (Lingerie) Limited

[1981] 1 WLR 505

; and more recently Chartbrook Ltd v Persimmon Homes Ltd

[2002] EWCA Civ. 183

at [133] to [136] (Lawrence Collins LJ).

[41]In order to understand the basis of Jennifer’s claim to rectification, and to adjudicate upon it, it is necessary to set out in some detail the background to the execution of the Ridge Lane Trust Deed.

[42]In October 1982 Akash married Kanchan. They were divorced in November 1986. The divorce was bitter. That is relied upon by Angela as a critical part of the background.

[43]On 14 September 1987 Akash and Angela completed the purchase of a house at 101 Langley Way, Watford (“Langley Way”). The conveyance stated that the property was held on the trusts of a trust deed of the same date made between Angela and Akash. That deed (“the Langley Way Trust Deed”) was, in all material respects, in the same terms as the later Ridge Lane Trust Deed. The solicitor acting for Akash and Angela on the purchase was John Letts, the sole proprietor of Letts & Co. Mr Letts was already professionally acquainted with Akash. Mr Letts’ evidence was that he understood from Akash that the divorce had been difficult, and Akash had expressed, on a number of occasions, concern that his wife should have no rights of recourse to him or his property at any later date. Mr Letts’ evidence was that, even at the time of the purchase of Langley Way, there were still difficulties over property arising from the divorce of Akash and Kanchan, and further court proceedings were anticipated.

[44]In para 10 of his witness statement, Mr Letts sets out in detail his recollection of the circumstances in which the survivorship provisions, which in due course became clause 4 of the Ridge Lane Trust Deed, were first suggested in connection with the purchase of Langley Way; “10. At some date between 24 August and 1 September 1987, and I do recall that it was late afternoon, that is to say after 5.15pm because my secretary had left, Akash telephoned me to discuss the Trust Deed. It was a conversation which I still remember because the content was unusual. I explained to Akash that usually a Trust Deed would contain the respective shares of each of the property owners and that those shares would belong to that owner and transfer in accordance with any Wills which they may leave if there was a death before the property was sold. He asked me whether his ex wife would be able to make any claim on his estate if he pre-deceased her? I told him that such claims could always be made, and there was nothing that one could put in a Will to defeat such claims. They would all be dealt with on their merits. He pointed out that both he and his sister were investing in this property, and that the intention was that only they should benefit from any increase in value, and there would be value because their lives were being insured under a joint policy. He asked whether a Trust Deed could be prepared stipulating that interests were held for each other in the event of a death so that the property did not fall within the estate? I told him that as joint tenants, there was an immediate assumption of the title passing to the survivor on the first death irrespective of the contents of the Will. We discussed to what extent this might be achievable through a trust arrangement bearing in mind that he was trying to take advantage of both tenancy in common during his lifetime which would then convert to a joint tenancy immediately at his death. I had never actually prepared a Trust Deed which contained both a tenancy in common and a joint tenancy provision, but I told him that I could see no immediate legal reason why in theory this could not be achieved if that was what both parties wanted. He gave me clear verbal instructions that this was something he wanted as it, on paper, achieved his objectives, and if it worked then so well and good.”

[45]Mr Letts did not make any attendance note of that telephone conversation. In cross-examination, however, he said he remembered it well.

[46]Mr Letts’ evidence was that clause 4 of the Langley Way Trust Deed was, accordingly, prepared by him to give effect to Akash’s instructions and wishes. The draft Deed was forwarded to Akash under cover of a letter of 1 September 1987 for Akash and Angela to read. The Langley Way Trust Deed was returned, duly executed, under cover of a hand written letter from Akash dated 5 September 1982, together with a cheque for £14,890.80 for the balance of the completion money.

[47]Langley Way did not prove suitable for the purposes of Akash and Angela, who had been hoping to renovate and extend it. An extension was not, however, practical. They decided to sell it. Mr Letts acted on the sale, which was completed on 29 February 1988. Mr Letts transferred the net proceeds of sale to a joint account in the names of Akash and Angela with Kent Reliance Building Society.

[48]Akash and Angela found an alternative property in Ridge Lane. Mr Letts also acted on the purchase of that property. On 14 July 1988 Mr Letts wrote to Akash and Angela, referred to certain aspects of the purchase, and stated that he needed instructions as to their respective interests in Ridge Lane “to be recorded in a draft deed as before”.

[49]Akash and Angela sent by fax a joint letter to Mr Letts dated 19 July 1988 stating:

“Further to your comments regards to the share agreement with my sister with respect to the joint ownership of the property 80 Ridge Lane, Watford. I would like to be done this in the following way and this is with the consent of my sister and countersigned below. The net receipt of monies or valuation of the property should be dealt in the following manner. Cash contributions from each person should be deducted and then the residual amount be divided 75% 25% between myself and Angela respectively. I hope this now will allow you to make the necessary adjustments.”

I hope this now will allow you to make the necessary adjustments.”

[50]Mr Letts gave the following evidence in his witness statement about a telephone conversation with Akash concerning the provisions of the Ridge Lane Trust Deed during the morning of the 19 July 1988:

“18... On the 19th July 1988 as can be seen from my telephone record book ... I spoke to Akash for six minutes at 11.20 am. I have no note of that conversation but I have no doubts that the contents of the Trust Deed were discussed. He on his and his sisters behalf instructed me that he required the Trust Deed to be in exactly the same form as before to include the same provisions in case of death but with different percentages. The original reasons for the Trust Deed still applied, his divorce had been finalised less than a year before. He would have advised me of the percentages -but it is my normal or usual practice to require changes in percentages to be confirmed to me in writing by the parties so that I was sure there were no disputes.”

[51]Mr Letts made no attendance note of that conversation. In cross-examination he accepted that he could not actually remember the conversation.

[52]The contract for the purchase of Ridge Lane was made on 20 July 1988 for a purchase price of £231,000.00.

[53]Mr Letts has produced from his files a draft declaration of trust prepared for other clients of his, on which he wrote by hand amendments to adapt it to the purchase of Ridge Lane, including what became clauses 3, 4 and 5 of the Ridge Lane Trust Deed.

[54]The draft Ridge Lane Trust Deed was then sent by Mr Letts to Akash and Angela under cover of a letter dated 8 August 1988, together with the Ridge Lane Transfer and legal charge, without further explanation of its terms.

[55]Akash sent back the Ridge Lane Trust Deed, together with the Ridge Lane Transfer and the legal charge, all duly signed, under cover of a letter of 11 August 1988.

[56]Completion, and in particular execution of the Ridge Lane Transfer and the Ridge Lane Trust Deed, took place on 19 August 1988.

[57]Jennifer relies on a series of matters in support of her claim for rectification. She points out that the faxed letter signed by Akash and Angela dated 19 July 1988, specifying their respective shares as 75% and 25%, says nothing about survivorship.

[58]She also places emphasis on the references in that letter to “valuation of the property” in the sentence:

“The net receipt of monies or valuation of the property should be dealt in the following manner”

. Mr Warwick accepted that this showed a common intention that the unequal shares specified should be the entitlements irrespective of whether Ridge Lane was sold.

[59]Jennifer submitted that the letter was a contemporaneous documentary record of the common intention of Akash and Angela as at 19 July 1988, and that, by contrast, there was no contemporaneous documentary record (except the Ridge Lane Trust Deed itself) of Akash and Angela having a common intention that the deed should contain a survivorship clause.

[60]Jennifer also relies on Angela’s Form E affidavit sworn on 8 December 2000 in connection with ancillary relief in Angela’s subsequent divorce proceedings (“ the Form E”). In the Form E Angela said that she had a 10% interest in Ridge Lane, without any mention of her right to the entire beneficial interest on the death of Akash before sale.

[61]In January 2003 Akash consulted Matthew Arnold & Baldwin (“MAB”), solicitors, in connection with the registration on behalf of Angela of a caution on the title of Ridge Lane earlier that month and the sale of Melrose Place. MAB wrote a letter of advice to Akash dated 28 January 2003. Jennifer relies on the fact that the letter nowhere refers to the provisions of clause 4 of the Ridge Lane Trust Deed or the need for Akash to procure the sale of Ridge Lane before his death in order to ensure that Angela would not acquire his beneficial interest in that property.

[62]Jennifer mentioned in her evidence that from September 2004 Akash was negotiating with a property developer, Martin Grant Homes Limited, but nothing was said in the correspondence about survivorship.

[63]Jennifer’s evidence was that Akash always confirmed to her that for the rest of her life she would be financially secure and that she should consider Ridge Lane as her home, and that it would always be so. She said that Akash always told her that Angela owned 25% of Ridge Lane, and never mentioned any provision for Angela to acquire the entire interest in it. Jennifer said that, on the contrary, Akash would talk about her, Jennifer, inheriting from him.

[64]Jennifer said that she never knew about the existence of any trust deeds, and no copy of the Ridge Lane Trust Deed was found in Ridge Lane on Akash’s death. She believes that, if Akash had had a copy of the Ridge Lane Trust Deed, he would have shown it to her. The only time she became aware of its contents was when, after Akash’s death, she received a copy of it from her solicitor, who in turn obtained it from Letts & Co.

[65]Mr Edmiston’s evidence was that on two occasions Akash told him that he had made provision for Jennifer if anything should happen to him; and, on the second occasion, he specifically indicated that the house at Ridge Lane and its contents would go to Jennifer.

[66]Mr Thomas’s evidence was that Akash told him, or gave him the impression, that Jennifer would have Ridge Lane. Similar evidence was given by Mr Dawson.

[67]Mr Franklin’s evidence was also that Akash expressed to him Akash’s intention that Ridge Lane was to go to Jennifer on his death.

[68]In my judgment, the matters relied upon by Jennifer fall far short of what is required to discharge the burden of establishing a continuing common intention on the part of both Akash and Angela that the Ridge Lane Trust Deed should not contain the provisions in clause 4.

[69]Although Mr Letts did not have any attendance note of the conversation he said he had with Akash in relation to Langley Way between 24 August and 1 September 1987, mentioned in paragraph 10 of his witness statement, his evidence in relation to that conversation was not undermined in cross examination and is consistent with the unusual and tailor-made provisions in clause 4 of the Ridge Lane Trust Deed.

[70]Mr Lett’s evidence was supported by that of Angela, who said in her first witness statement that, because Akash had gone through a particularly bitter and difficult divorce which cost him a most substantial amount of money, Akash and she discussed in advance a way to protect the properties so that in future another person or spouse would not have any rights to what they considered (Chopra) family property; and that they agreed they would organise their affairs in such a way that, if one of them was to die, the property would remain solely within the family.

[71]Angela’s evidence was that, at the time of the purchase of Langley Way in 1987, Akash and she were living with their mother at 75 Queen’s Road, Watford (“Queen’s Road”). That property was partly residential and, on the ground floor, retail and offices. Akash had moved there from his marital home, and Angela from university. Angela’s evidence was that Langley Way was purchased with the intention that it would become a family home because their mother’s property was small. She also gave evidence that she understood that her mother had loaned Akash money as a deposit on Akash’s former home in Buckinghamshire, and so when those monies were used towards a deposit on Langley Way, that was to be treated as the repayment of the loan to her mother since the new house was to be the family home. Angela explained, in cross examination, that she was using the expression “family home” in an Asian sense as a place where the family could come and stay and feel comfortable.

[72]Angela’s evidence was that Langley Way proved unsuitable since it could not be extended, and so Ridge Lane was purchased as an alternative. She thought that Ridge Lane would be an ideal family home as there were 8 siblings and their children who would be visiting regularly.

[73]Akash’s niece, Hayma Vij also gave evidence that Akash and Angela wanted a large family house, where members of the family could come together, and that was what Ridge Lane was intended to be.

[74]Further, in 1995, which was the year Jennifer moved into Ridge Lane to live with Akash, Angela paid £20,000 to Jennifer’s son, Daniel, as a deposit on a house. Angela’s evidence was that Akash and Angela agreed that, in recognition of that payment, Jennifer was to understand that she had no entitlement or claim to any share in Ridge Lane for either herself or her sons. Jennifer's evidence was that Akash told her that he paid the £20,000, but the documentary evidence at the trial shows that it was, in fact, paid out of Angela’s account.

[75]The letter from Akash and Angela to Letts & Co dated 19 July 1988 must be seen in the context of a response to the letter from Mr Letts dated 14 July 1988. The letter from Mr Letts specifically requested instructions as to the respective interests in Ridge Lane “to be recorded in a draft deed as before”. The response in the letter from Akash and Angela dated 19 July 1988, in which they expressed the hope that the instructions as to a 75/25 division “will now allow you to make the necessary adjustments” supports Angela’s case that the parties had well in mind that the trust deed for Ridge Lane would be the same as the Langley Way Trust Deed with adjustments merely to reflect the amount of the cash contributions of each of them and the division of the “residual amount”.

[76]Nor do I consider that any inference can be drawn in favour of the claim for rectification from the reference to “valuation of the property” in the letter of 19 July 1998. If the valuation was, for example, for the purchase of the interest of the other prior to the sale of the property, that would be perfectly consistent with clause 4.

[77]I do not consider that it would be safe to draw any significant conclusions from the description of Angela’s interest in Ridge Lane in the Form E. On any footing, Angela’s interest was more than the 10% specified in that document. Further, I would not necessarily have expected a reference to the survivorship provisions in clause 4 since it would have been difficult and highly speculative to value Angela’s conditional entitlement under that clause, particularly bearing in mind Akash’s relatively young age at that time.

[78]Taking the evidence as a whole, therefore, there seems to me substantial and cogent evidence that clause 4 of the Langley Way Trust Deed was the result of agreement between Akash and Angela and instructions given to Mr Letts, and that both Angela and Akash intended the Ridge Lane Trust Deed to contain similar provisions to the Langley Way Trust Deed, including, in particular, clause 4.

[79]Above all, I am not at all satisfied, to the requisite standard of proof, that Angela herself never intended clause 4 of the Ridge Lane Trust Deed to be inserted.

[80]I must emphasise, again, that the question I am now determining does not rest on whether or not any advice given by Mr Letts to Akash about clause 4 of the Langley Way Trust Deed and the Ridge Lane Trust Deed was full and appropriate. Clause 4 would not have precluded any application during Akash's lifetime by a past or future wife, on or following divorce, for financial provision having regard to his interest in Ridge Lane (the value of which could be realised on sale); on the other hand, it did preclude for all time the ability of Akash to leave his interest in Ridge Lane, which he intended to occupy as his home, to any future wife who should be living there with him in a loving relationship on his death. For those reasons, clause 4 seems to be a peculiar provision, but it has not been suggested on behalf of Jennifer that is relevant to the claim for rectification.

Severance of Joint Tenancy by Charging Order

[81]Until the commencement of the trial, or shortly before, Jennifer’s legal advisors were under the impression that Angela was contending that the Ridge Lane Trust Deed provided for a joint tenancy rather than a tenancy in common. It was in that context that Jennifer intended to argue that any such joint tenancy was severed by a charging order made in favour of National Westminster Bank (“NatWest”) in support of a judgment against Akash in April 1995 for £30,000 and interest and costs.

[82]In the event, Angela has not contended for a joint tenancy, and so the issue of severance does not arise.

Jennifer’s claim to an interest by contributions

[83]Jennifer claims that she has made direct and indirect substantial contributions in money or money’s worth to Ridge Lane and that she is entitled in consequence to a beneficial interest in Ridge Lane.

[84]As I have said, Jennifer moved into Ridge Lane in 1995, before her marriage to Akash in December 2001. In her first witness statement, she explained that Akash was paying the mortgage on Ridge Lane, and was also using his money to set up a business called “Biosys” and for his other family businesses. Jennifer said that she therefore had to find a job, and began working in November 1995 as a receptionist to pay for daily living expenses, including “bills, shopping, food, cleaners etc, also toiletries and clothes for Akash”. She said that her financial contributions to expenses enabled Akash to pay the mortgage on Ridge Lane. In paragraphs 18 to 19 of her first witness statement Jennifer described works of repair and improvement carried out to Ridge Lane and the contribution she made to them.

[85]Her case, on this aspect, was set out as follows in her Defence:

“26. During their relationship, from about November 1995 the Defendant worked as a receptionist earning about £875.00 per month net, rising to about £937 per month net. 27. During the relationship of the Defendant and the Deceased, the Defendant made financial contributions to the household finances: she bought all the food for the household, most of the Deceased’s clothes, a washing machine and replacement, a dishwasher, kettles, linen, furnishings, cutlery, a lawn mower, garden plants, light fittings, and petrol for travel. Further she bore the cost of running a car used for outings and holidays. The Defendant paid any bills which came in during the Deceased’s frequent absences on general charitable work. The Defendant thereby assisted the deceased to pay the mortgage instalments relating to the Property. 28. In about 1998 the Defendant and the Deceased together purchased new flooring for the Property and installed it at the property themselves. The Claimant was aware of this work since she expressed liking for the new flooring, and thereafter the Deceased purchased similar flooring for the Claimant’s matrimonial home in Kenton, which the Deceased and Defendant jointly installed there. 29. In about 2001 the Deceased and the Defendant jointly paid for improvements to the Property consisting of double glazing, windows, a new front door, and new utility room door and windows carried out by Outlook Windows & Joinery Limited at a cost of £11,435.00. 30. Further the Defendant has carried out and/or paid for or contributed to the following items of repair and maintenance of the Property: 1. New vinyl flooring in the utility room, downstairs cloakroom and bathroom. 2. Oiled the parquet floor 3. Painted kitchen/utility room three times 4. Decorated hall, stairs, landing, bathroom ceiling 5. Decorated two bedrooms and added fitted cupboard 6. Repairs to slipped room tiles 7. Repairs to drain 8. Lopped trees and renovated and maintained garden 9. Installed new washbasin taps and new shower mixer 10. Painted bottom of house wall at back with waterproof pain 11. Cleaned gutters 12. Replaced broken fence and creosoted all fence panels every other year. 31. The Defendant did the said work and made the said payments in the belief that if the deceased predeceased her, she would inherit his share in the Property. The said belief was based on the Deceased having always said to her and to friends that she would always be provided for and never want, that the house was more hers than his, and if he should die all that was his was hers, and that the house was hers. He repeatedly told the Defendant that her money box was large, due to wealth inherited from him. 33. By virtue of section 37 of the Matrimonial Proceedings and Property Act 1970 and by reason of her substantial contributions in money or money’s worth to the improvement of the Property in which or in the proceeds of sale of which her husband had a beneficial interest, the Defendant has acquired a share or an enlarged share, as the case may be, in that beneficial interest to such an extent as shall seem just. ”

Constructive trust —

[86]The first way in which Jennifer puts this part of her case is on the basis of a common intention constructive trust, as expounded by the House of Lords in Stack v Dowden . There is some debate about the principles underlying the decision of the majority in that case. In broad terms, where co-habitants have been living together in a property as a couple, one of them may apply to the court to declare that he or she has an interest or a larger interest in the property by virtue of the common intention of the parties, such common intention to be determined by a “holistic approach”, undertaking a survey of the whole course of dealing between the parties and taking account of all conduct which throws light on the question what shares were intended. In the words of Baroness Hale, at para [60]: “The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect of the property in light of their whole course of conduct in relation to it”.

[87]There is, however, a fundamental difficulty in the application of the common intention constructive trust to Jennifer’s claim. The common intention must be the intention of all the legal owners. Angela’s intention is clearly set out in the Ridge Lane Trust Deed. There is generally simply no evidential basis for saying that Angela, who never lived in Ridge Lane or ever intended to do so, had any intention, actual or inferred or imputed, that Jennifer would have a beneficial interest in Ridge Lane, let alone one which would endure beyond the limitation of Akash’s own beneficial interest under clause 4 of the Ridge Lane Trust Deed. On the contrary, there was evidence at the trial that Angela herself paid the mortgage on Ridge Lane between about 1988 and 2000, MPPA

[88]The next way in which Jennifer advanced this aspect of her case was under MPPA s.37. That section is in the following terms:

“It is hereby declared that where a husband or wife contributes in money or money’s worth to the improvement of real or personal property in which or in the proceeds of sale of which either or both of them has or have a beneficial interest, the husband or wife so contributing shall, if the contribution is of a substantial nature and subject to any agreement between them to the contrary express or implied, be treated as having then acquired by virtue of his or her contribution a share or an enlarged share, as the case may be, in that beneficial interest of such an extent as may have been then agreed or, in default of such agreement, as may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of the husband or wife arises (whether in proceedings between them or in any other proceedings).”

[89]The claim under MPPA s.37 faces insuperable difficulties.

[90]The section only applies to improvements. It was common ground between counsel that the only relevant works of improvement were the installation of new vinyl flooring, and the installation of double glazing, a new front door, a new utility room door and windows. Jennifer’s evidence was that the vinyl flooring was installed in about 1998 at a cost of approximately £80.00. Her evidence was that the other improvements I have mentioned were carried out in about 2001 at a cost of £11,435.00, to which she contributed half in cash. There is no other evidence in support of her cash contribution. In fact, the evidence shows, and I find, that those works were carried out in two parts and for considerably less than that amount: one part in about July 1996 at a total cost of £5,200.00, and the remainder in about January or very early February 2001 at a cost of £1,000.00. Angela’s evidence, in cross examination, was that she paid the £5,200.00. It is certainly clear from the documentary evidence that at least £1,000.00 of the July 1996 works was paid out of Angela’s account.

[91]No point was taken by Mr Warwick that those improvements were carried out and paid for before Jennifer’s marriage to Akash in September 2001.

[92]Bearing in mind the clear documentary evidence that Angela paid at least £1,000.00 of the cost of the 1996 improvements, I find that it is probable that, at most, Jennifer contributed some £2,600.00 in cash towards the cost of the improvements. The house was purchased for £231,000 in 1988 and the evidence discloses that by October 2001 it had a value well in excess of £400,000.00. In my judgment, even ignoring the absence of any evidence as to the extent to which the improvements increased the value of the house, the contribution of some £2,600.00 over a period some 9 years of occupation by Jennifer prior to Akash’s death, at a time when the value of the property ranged between £231,000,00 and in excess of £400,000.00, was not of such a substantial nature as to entitle Jennifer to a share of the equity in Ridge Lane.

[93]There is, in any event, a further difficulty with the claim under MPPA s.37. That section provides for the acquisition, by virtue of the claimant’s contribution, of a share or an enlarged share, as the case may be, in the other spouse’s beneficial interest. Under the Ridge Lane Trust Deed, Akash’s interest passed to Angela on his death before sale of the property. In the events which occurred (namely Akash’s death before sale), Akash’s interest was only a life interest. Accordingly, any interest acquired by Angela under the MPPA would itself only have endured during Akash’s life.

Proprietary estoppel

[94]Jennifer, relying on the doctrine of proprietary estoppel, contends that the court should declare that she had a 75% interest in Ridge Lane, and now has a similar interest in the net proceeds of its sale, by virtue of her taking employment and her contribution to household expenses and improvements in the expectation and belief, encouraged by Akash, that he was entitled to a 75% beneficial interest in Ridge Lane which she would acquire on his death and she was helping him to pay the mortgage. Jennifer contends that Angela is bound by the proprietary estoppel since Akash is properly to be viewed as having been her agent in relation to the representations Akash made, and since she was Akash’s successor in title to his beneficial interest.

[95]In my judgment, there is no basis whatever for the claim to a proprietary estoppel. There is no evidence that Angela had any knowledge of any such encouragement by Akash. Further, I can see no legal basis for the contention that, in giving any such encouragement, Akash was acting as Angela’s agent. Nor can I see any legal basis for the contention that, on becoming entitled to the entire beneficial interest in Ridge Lane on Akash’s death under the terms of the Ridge Lane Trust Deed, Angela was legally tarred with Akash’s conduct towards Jennifer. Angela’s entitlement to the entire beneficial interest was not the result of any transfer or voluntary act of Akash, but, independently of him, by virtue of the provisions of the Ridge Lane Trust Deed, under which Akash, in the events which occurred, only ever had a limited interest.

[96]Finally, I do not consider that Jennifer has made out a sufficient case for proprietary estoppel on the facts. Her own evidence was that, on moving into Ridge Lane with her son, she thought it right to support herself and that it was correct for her to contribute to the home, irrespective of any representations made by Akash about what would happen on his death.

Mesne Profits

[97]It follows that Jennifer’s occupation of Ridge Lane after 5 March 2005, when her licence to occupy was terminated by letter from Angela’s then solicitors, was as a trespasser, for which Angela is entitled to recover damages. Those damages are, in the absence of any special features, to be calculated on the basis of the ordinary letting value of the property.

The proceeds of sale of Melrose Place

[98]Jennifer’s counterclaim seeks an inquiry into the amount of the proceeds of sale of Melrose Place to which the Estate is entitled, and payment of what is found due on that inquiry, with interest.

[99]It is common ground that none of the proceeds of sale of Melrose Place were paid to Akash. Angela’s case is that the sale took place with the knowledge and full involvement of Akash, and the proceeds of sale, or at least his share of them, were expended by Angela to meet outstanding bills for which he was solely or jointly liable, and to reimburse her for debts that she had settled on his behalf.

[100]The principal thrust of Mr Warwick’s submissions on this aspect of the case was that, since Akash was fully aware of and involved in the sale of Melrose Place, the obvious inference is that he fully intended and understood that his share of the proceeds of sale would be applied in meeting his indebtedness to Angela and third parties.

[101]In support of those submissions, Mr Warwick emphasised the poor state of Akash’s financial affairs by the time Melrose Place was sold. He pointed out that Akash’s finances had already deteriorated by the middle of the 1990s. On 25 April 1995 NatWest obtained judgment against Akash for £30,000, together with interest and costs, which in due course led to a charging order in respect of his interest in Ridge Lane. In paragraph 14 of her first witness statement Jennifer herself said that Akash had his last salary payment from his family companies in February 2001, and he then used his savings along with her salary until he derived an income from Biosys in January 2002. Angela’s evidence was that between 1999 and 2000 Akash, without her knowledge, liquidated their jointly owned shares and premium bonds to invest in Biosys. She referred to his “insatiable desire” for investment in Biosys. She also said that she learned that Akash had been trying to convince their mother to transfer Queen’s Road to him. She referred to “Akash’s increasing desperation for money”, and said that she understood that he borrowed money regularly from their other sisters. She also referred to, and relies on, Akash’s involvement in, or responsibility for, court proceedings in relation to the family company, Netway 2000 Ltd (“Netway”). She claims that Akash was responsible for costs in excess of £50,000.00 arising in connection with those proceedings. In her first witness statement she said that, at the time of the sale of Melrose Place, Akash fully accepted that he would receive no monetary benefit from Melrose Place as a result of his lack of investment in it and the money he owed her.

[102]Mr Sean Tickell, in sole practice as a solicitor at Avenue Road, London, N6, was instructed to act on the sale of Melrose Place for £145,000.00 at the end of August 2001. His evidence is that he had not previously acted for Angela or Akash, but an existing client of his, Mr Goldberg, telephoned him to ask if he would be interested in acting on the sale of the property. He continued, in his witness statement, that, to the best of his recollection, he spoke to Akash, and was then subsequently telephoned by Angela who instructed him to deal with the sale of the property. He has no attendance note of that, or indeed any, telephone conversation with Akash. His evidence is that he required certain documents from them, including a copy of their respective passports, for identification. He said, in paragraph 7 of his witness statement, that he spoke to both Angela and Akash on the telephone and received instructions from each of them, from which it was clear that they were passing information to one another. It is clear that in due course he was provided with a copy of Akash’s passport. In his witness statement he said that, towards exchange of contracts, there was an issue concerning water penetration of Melrose Place, and a £500.00 reduction in the purchase price was negotiated. He said that, for that aspect of the transaction, he dealt almost exclusively with Akash. He repeated that in cross examination. He said that he was also asked by Akash to speak to other members of Akash’s family to give conveyancing quotations. He said that, following exchange of contracts for the sale of Melrose Place, he spoke to Angela and Akash, both of whom separately advised him that they had a joint account, and he was instructed by them to pay the net proceeds of sale into that joint account. He confirmed that it was the same male person he spoke to in all his telephone conversations. In re-examination he said that he did not believe the voice was that of Mr Goldberg, which was distinctively transatlantic and sounded very different to the voice on the telephone.

[103]Mr Goldberg’s evidence, in cross examination, was that Akash asked for his advice on the sale of Melrose Place, and that he personally never instructed Mr Tickell to do anything with the property.

[104]Lee Risby was employed by Akash and Angela to work in one of their family companies, Computer Principles Limited, as an account administrator from January 1994 to 2002. Her evidence, in her witness statement, was that she maintained all their accounts for the many companies and business ventures and their personal finances. She said that Akash and Angela often disclosed information about their personal finances to her, and she was a signatory on almost all of the bank accounts. She accepted the position of company secretary to all the companies. In her oral evidence she said that she was based 5 days a week at Queen’s Road. That property contained open plan offices, and she was therefore sitting close to Angela and Akash. In her witness statement she said that, when Melrose Place was sold, Akash as well as Angela asked her to fax and post paperwork to the solicitor and were at all times fully aware of the transaction. She recalled that, even when Akash was abroad, he spoke to Angela often for updates. In cross examination, she said that Akash passed her things about Melrose Place, although she did not look at the paperwork. She would merely be passed the documents to copy them. She said that Akash was fully aware of the sale of Melrose Place and spoke to her about it. She also said, in her witness statement, that towards the end of her employment she knew that Akash was desperate for money and that he was trying to extract money from all the members of his family.

[105]Heyma Vij said, in her witness statement, that it was common knowledge that Akash was desperate for money, and she knew that Akash borrowed a substantial amount of money from her mother. She confirmed, in cross examination, that her father and mother had made considerable loans to Akash, and that he had substantial debt and was trying to raise money. She also referred, in her witness statement, to the fact that it came to light that Akash was attempting to re-mortgage Queen’s Road.

[106]Angela also relies on an undated email taken from Akash’s computer after his death. The email was to Akash’s older sister, Vijay. The material part of the email is as follows: “Angela, as you know has, and is still having a tough time but I feel that in selling the house in Melrose Place, will allow some flexibility to her in resolving outstanding issues. Her work isn’t brilliant and I pray that things will start to pick up. ….. ….. Myself, I am having a tough time in so much that i am trying to stay focussed on the development I had started a long time ago in Biosys. I have not had any income for the last 8 months and am now at the last bit of moneys that I had save up. Jennifer, works and contributes to the household expenditures. I feel I want to keep focused for three more months and if I am not able to realise successes then I will take up a job of some description and call it a day”.

[107]Mr Warwick submitted, having regard to the evidence of Akash’s financial circumstances at the time, including his tax return for 2001/2, the contents of the undated email to which I have referred, and the evidence of the witnesses, that the undated email was sent about the time of the sale of Melrose Place. It follows, Mr Warwick submitted, that the words in it - “I feel that in selling the house in Melrose Place will allow some flexibility” - show that he was fully aware of the sale at the time.

[108]Mr Warwick also relied on documents produced for Akash by Solomon Lloyd Associates in October 2001 to advise Akash in connection with his financial affairs, and, in particular, the absence of any reference in them to Melrose Place, Mr Warwick submitted that such absence is explained by the fact that Akash knew that Melrose Place had by then been sold.

[109]Finally, Mr Warwick emphasised that there was no evidence that Akash protested about the sale of Melrose Place or the distribution of the proceeds of sale until January 2003, and that his reaction at that time seems to have been triggered by Angela’s entering the caution against the title of Ridge Lane.

[110]Notwithstanding those powerful submissions from Mr Warwick and that evidence, I find as a fact that it is probable that, while Akash may have known in general terms of the desire and intention of Angela to place Melrose Place on the market, he was unaware of, and did not participate in, the actual contract for sale and transfer of that property, and was not aware of and did not authorise the distribution of the proceeds of sale.

[111]There are many very curious features of the sale of Melrose Place. The expert opinion evidence of Dr Giles was that there is strong support for the view that the signature purporting to be that of Akash on the Seller’s Property Information Form, the Fixtures, Fittings and Contents Form and the transfer deed in respect of the sale of Melrose Place was not the signature of Akash but an attempt to simulate his genuine signature. She also concluded that the signature of Akash on the letter dated 31 August 2001, purportedly from Angela and Akash to Mr Tickell, in which formal instructions were given to Mr Tickell to deal with the sale of Melrose Place, and stating that a copy of Akash’s passport was enclosed, was suspect. She concluded that there was more support for the view that Akash’s signature on that letter was a simulation than that it was genuine, albeit the evidence in that regard was only weak and the support for that conclusion was only limited.

[112]No expert evidence to contradict the findings of Dr Giles was adduced on behalf of Angela, and Dr Giles was not required by Angela to attend for cross examination. Angela’s own evidence was that the conclusions of Dr Giles may be correct, but Angela’s explanation, if those conclusions were correct, was that she had an arrangement with Akash under which they would sign for each other. Apart from her oral statement to that effect in cross examination, and the documents which were the subject of Dr Giles’ conclusions, there was no other evidence at the trial of any such arrangement.

[113]Dr Giles’ conclusions were expressed on a qualitative scale, which, in relation to a positive conclusion as to the simulation of a signature, ranged from “conclusive evidence” to “weak evidence”. She emphasised that the conclusions which she drew from her examination of the documents in the present case has been limited by the fact that she examined only copies of the questioned documents and they did not show all the details of the original signatures. For those reasons, and in any event as a matter of principle, Dr Giles’ conclusions cannot be accepted as correct merely because no contrary expert evidence was adduced on behalf of Angela, and Dr Giles was not required to attend for cross examination.

[114]I conclude, however, in the light of all the evidence, that the signatures which purport to be the signatures of Akash on the letter to Mr Tickell dated 31 August 2001, the Seller’s Property Information Form, and the transfer deed relating to the sale of Melrose Place were not his genuine signature but were forgeries.

[115]In that connection, I take into account the following further evidence,

[116]As I have said, the first approach to Mr Tickell appears to have come through Mr Goldberg, who was in a personal relationship with Angela. It further appears, in particular from a letter dated 31 August 2001 from Mr Tickell to Angela and Akash, that Mr Tickell believed Akash to be on holiday at that time. Jennifer’s evidence, however, contradicted that, pointing out that this was precisely the time of the marriage of Akash to Jennifer. I would expect Jennifer to have remembered with some precision the circumstance leading up to her marriage of 8 September 2001.

[117]The estate agents acting on the sale, Proffitt Sc Holt, sent a letter dated 28 August 2001 to Mr Tickell enclosing a memorandum with particulars of the proposed sale. They stated in that memorandum that Mr Goldberg was the vendor. On the same date they sent a letter to Mr Goldberg referring to “the proposed sale of your property”, and making observations in relation to the sale which were clearly on the assumption that he was the vendor. Mr Goldberg’s evidence is that his only involvement in the sale of Melrose Place was to suggest that Mr Tickell act as the solicitor on the sale and to negotiate a reduction in the commission of Proffitt Sc Holt. It is clear, however, that Proffitt & Holt always regarded Mr Goldberg as the vendor since they addressed the invoice for their fee, and an amended invoice, to Mr Goldberg. Further it is to be noted that the first part of the narrative on that invoice was: “On your instructions, attending the above property, advising or to value and taking the necessary details to prepare illustrative sales particulars”.

[118]Mr Goldberg said, in cross examination, that he did not know why the invoice and the amended invoice had been addressed to him, other than that it was negligence on the part of the estate agents.

[119]Mr Goldberg was certainly involved on at least one occasion after the initial instruction to Mr Tickell since Mr Goldberg was the sole witness to the signatures on the transfer of Melrose Place. His evidence in relation to his conduct on that occasion was not satisfactory. In cross examination he said initially that he recalled the occasion. He subsequently said that he could not say whether he saw Akash sign, but he would not have witnessed the signature if Akash had not been there. Taking into account all the evidence, including that evidence, I find that Mr Goldberg did not witness Akash signing the transfer, and that the probability is that Akash was never there at all on the occasion when his signature was purportedly added to the document.

[120]Evidence was given by Jennifer, Mr Franklin, Mr Edmiston, Mr Dawson and Mr Shearer that Akash told each of them that Melrose Place had been sold without his knowledge or consent. Mr Franklin, Mr Shearer and Mr Dawson also gave evidence that Akash told them that he had not sought to deal with that issue through legal channels initially due to his relationship with his sister and the consequences for the family.

[121]As I have said, Akash consulted MAB in January 2003 in connection with, among other things, the sale of Melrose Place. MAB have produced from their files a document, which appears to have been made by Akash for the purpose of instructing them, in which he stated that the sale of the property by Angela entailed “contract irregularities” and that the proceeds of sale should have “netted” him about £45,000.00, which had never been passed to him. The letter of advice from MAB to Akash dated 28 January 2003 is consistent with instructions by Akash that the sale of Melrose Place by Angela was unauthorised by him, and that he was unaware of the sale, and that the proceeds of sale were applied in a manner not known or authorised by him.

[122]As I have said, completion of the sale took place on 29 October 2001 for the purchase price of £144,450.00, and, after deduction of the outstanding mortgage loan, fees and expenses, the net amount of £87,015.82 was remitted to a joint account of Akash and Angela with Abbey National. Following the death of Akash, that account was subsequently changed into the sole name of Angela. No evidence has been given of the precise persons to whom the money was transferred out of that joint account, or the precise indebtedness (if any) in satisfaction of which each transfer of money was applied.

[123]In her first witness statement Angela said that in around 1999/2000 Akash incurred a large bill for legal expenses of more than £50,000.00 in relation to business matters, and that she was forced to sell Melrose Place to pay that and other outstanding bills. The reference to legal expenses was to two legal bills rendered by Anderson Legal addressed to both Akash and Angela. One such bill dated 23 February 2001 was for £24,308.33, and the second dated 14 May 2001 was for £28,301.64. Both bills were expressed to be in the matter of “Akash Chopra - Petition to Companies Court”. It is not clear from the evidence on which date or dates those bills were paid, and out of which account or accounts. Angela’s evidence is that those fees were properly the responsibility of Akash alone, and he agreed to be responsible for them. The evidence, however, in support of that contention was extremely unsatisfactory. Angela’s case is that those fees arose in connection with proceedings concerning one of the family companies, but in which Akash was neither a shareholder nor a director. It appears that Akash was not a party to the proceedings. It further appears that no order for costs was ever made against Akash’s in those proceedings, and that the proceedings resulted in a compromise, which did not include an express obligation on Akash to pay costs. The documentary evidence contradicts Angela’s evidence that Akash agreed to be responsible for those costs and bills: in particular, an email from Akash to Angela sent on 4 February 2003.

[124]The question of the propriety of the sale of Melrose Place was also raised in that email, in which Akash mentioned his intention “to bring forward all the contract sale details regarding the sale of Melrose Place”. The counterclaim for an inquiry and account in respect of the proceeds of sale of Melrose Place was made in April 2005. In the circumstances, I do not consider the delay in the application for the inquiry and account such as to bar the right to relief.

[125]Accordingly, I direct that there be an inquiry and account as sought by Jennifer, and that the amount found due to the Estate on the taking of the account be paid.

[126]At the very end of the trial, Mr Warwick raised an issue as to the extent of the beneficial interest of Akash in Melrose Place. As I have said, that property was transferred to Angela and Akash jointly, and there was no deed of trust in respect of it.

[127]In the course of his closing remarks Mr Warwick submitted that I should find that Akash had a beneficial interest of ownership of 25% in Melrose Place, on the basis of a statement made by Jennifer in the course of her oral evidence that this is what she was told by Akash.

[128]Angela’s evidence was that she paid the deposit on Melrose Place. A balance of £14,942.37 due on completion of the purchase, after allowance for the deposit and the mortgage advance, was also paid by Angela under cover of a handwritten letter of 25 April 2001, in which she referred to the property as “my house”.

[129]She also said, in her third witness statement, that Akash and she purchased Melrose Place with the intention that it would be her pension.

[130]On the other hand, Angela said in the Form E that she was the joint owner of Melrose Place, and that she purchased the property with Akash prior to her marriage.

[131]In the undated statement of Akash found in the files of MAB to which I have referred earlier, he said that 10% of the proceeds of Melrose Place would be his. On the other hand, he said in the same undated statement that he should have received half of the net proceeds of sale amounting to about £45,000.00.

[132]Angela’s evidence was that she paid the mortgage instalments and the expenses in respect of Melrose Place, but it also appears that she received the entire rent from the property.

[133]Finally, on the day before completion of the purchase of Melrose Place, Mr Letts sent Angela a draft trust deed, which expressly provided for a division of the beneficial interest as to 75% to her and 25% to Akash, but that was never executed.

[134]In my judgment, taking the evidence as a whole, Angela has not rebutted the presumption that, as joint legal owners, she and Akash were equally entitled to the beneficial interest. Ignoring any such presumption, she has not established, on a balance of probabilities, that she was beneficially entitled to more that 50% of Melrose Place and its proceeds of sale. The inquiry and account must, therefore, be conducted on that basis.