Mukerjee (Née Sen) & Anor v Sen & Ors [2013] EWHC 1997 (Ch)

[2013] EWHC 1997 (Ch)

Case No HC11C01956

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

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

Date 11/07/2013

Before

THE HONOURABLE MR JUSTICE SALES

Between

(1) Shyamali Mukerjee (née Sen)Claimants

(2) Anindya Kumar SenClaimant

(1) Aditya Kumar SenDefendants

(2) Rosy Sen (née Das)Defendant

(3) Krishna Swarup (née Sen)Defendant

Mr R. Millett QC & Mr M. Cook (instructed by Enyo Law LLP) for Claimants

Mr M. Booth QC, Mr G. Harbottle & Miss C. Scott (instructed by C.M. Atif & Co) for First Defendant

Mr S.J.F. Walsh (instructed by Blackstones Solicitors) for Second Defendant

Hearing Hearing dates: 11/4/13 – 21/5/13

Judgment

Introduction

[1]This action concerns a break-down in relations between the children of Asoke Kumar Sen (“Asoke”), a leading Indian lawyer of his generation, and the rights to ownership of assets held within the Sen family in England and the United States. There are separate proceedings on foot in India in relation to assets held there. For convenience, in this judgment I refer to the main protagonists by their forenames.

[2]Asoke was born in 1913. He received part of his education in England and was an anglophile. He became a barrister, practising principally in India but also with a practice in international law and English law. He was very successful in his profession. He was also an MP in India for about 40 years and held cabinet ministerial positions in the governments of a series of Indian Prime Ministers. It is clear that he was a forceful, very intelligent and highly impressive man. Within the Sen family, he was regarded with the utmost respect and, in effect, his word was law as the paterfamilias within a family following traditional Indian family norms and practices. Asoke died intestate in August 1996. By the time of his death, he had used his personal wealth and income to build up investment and property portfolios in India and England.

[3]Asoke married Anjana (born 1923) in 1943. Anjana was the daughter of the Chief Justice of India. Anjana died intestate in India in April 2000.

[4]Asoke and Anjana had four children: Krishna (born 1944, now Mrs Krishna Swarup, the Third Defendant), Shyamali (born 1947, now Mrs Shyamali Mukerjee, the First Claimant), Anindya (Dr Anindya Kumar Sen, born 1948, the Second Claimant) and Aditya (Aditya Kumar Sen, born 1951, the First Defendant). Aditya is married to Rosy, who is the Second Defendant. The dispute is principally between Shyamali and Anindya, on the one side, and Aditya and Rosy on the other. Krishna has been joined as a party so as to be bound by the judgment, but has adopted a position of neutrality in the proceedings and did not give evidence.

[5]Shyamali is married to Asis (Dr Asis Mukerjee). They have two sons: Anando (born 1977) and Sunando (born 1979). Anando is an opera singer, who received part of his education in England. Sunando is a dual qualified English and Indian solicitor practising in the field of corporate and infrastructure law. He also received part of his education in England. After living and being educated in England for significant periods between 1969 and 1976, Shyamali returned to India, where she and Asis now live. For a considerable period, while they were studying in England, Anando and Sunando lived at 29 Woodstock Road, Golders Green, London, a property occupied by Aditya.

[6]Having pursued a legal education in England, Krishna returned to India, where she continues to reside. Anindya qualified as a doctor and moved to the USA in 1975, where he continues to reside. Anindya is married to Trish (Patricia Sen), whom he met in the USA.

[7]Aditya studied at Delhi University then came to England to study law at Cambridge University between 1970 and 1972. He then trained and qualified as an accountant with an English accountancy firm, Whinney Murray. He then became a barrister, being called to the Bar in 1977. He has continued to practise, but after a few years the extent of his practice became very limited.

[8]Aditya has lived in England since 1970, occupying a series of properties in London purchased by Asoke or with his financial assistance: 34 Cumbrian Gardens (purchased in 1968, sold in about August 1970), then 86 Great North Way (purchased in November 1971, sold in about 1978), then 29 Woodstock Road (purchased in March 1977).

[9]Aditya married Rosy in 1991. They have two adopted children, Ashok Vikramaditya Sen (born 1993; for ease of reference, I will call him Vikramaditya, although it should be noted that he uses the name Ashok, and it has been a point of contention that other members of the Sen family have not used that name for him) and Anahita Sen (born 1997). For substantial periods of time up to about 2000, Rosy lived with both children in Kolkata in India, while Aditya continued to reside mainly in London but would spend considerable periods of time with them in India. Vikramaditya came to live with his father and go to school in England in about 2000. Aditya and Rosy would meet and spend the school holidays together with the children. Since 2003, they have all lived at 29 Woodstock Road.

[10]The move of Rosy back to England in 2003 to live full time at 29 Woodstock Road, where Anando and Sunando were residing with Aditya, led to increasing tensions and arguments about the extent to which Aditya and Rosy had to share their home with other members of the Sen family. These culminated in Sunando deciding to leave 29 Woodstock Road in 2007 to live elsewhere in London, Anando being required to leave by Aditya in 2011 and Anando bringing (though not ultimately pursuing) harassment proceedings against Aditya and Rosy.

[11]In the 1980s, Asoke made gifts of houses in India to Krishna, Shyamali and Aditya. Anindya was not given a house in India; instead, as I explain below, Asoke had assisted him with funds for the deposit on a house in the USA.

The property portfolios

[12]With effect from 1965, Asoke arranged for a partnership in India between himself, Anjana and their four children to be set up and registered, with a view to using funds from him to make investments for their benefit (“the Penn Properties Partnership” or “PPP”). A formal deed of partnership was drawn up, dated 22 July 1967, setting out in detail the rights and obligations of the partners. The PPP has made investments in shares and properties in India.

[13]Asoke managed the PPP until his death in 1996, but over time Aditya came to assume management responsibilities in relation to it alongside Asoke. His siblings were not involved in this and took little interest in what was done. From 1996, Aditya had, in effect, sole responsibility for managing the PPP and its investments. In 2010, a dispute arose between him and Shyamali and Anindya, in which they accused him of misappropriating assets and income of the PPP for his own benefit. Aditya strongly denies that he has engaged in any wrongdoing. There are legal proceedings on foot in India in relation to this dispute.

[14]Asoke wished to establish a base for himself in England, where his children could live while in England to study, as he wished them to do. So in 1968 he purchased 34 Cumbrian Gardens as a residential property for use by the family. 34 Cumbrian Gardens was purchased in the names of Anjana and another close relation, Charu Sen (“Charu”).

[15]In 1969, Asoke also purchased 1 and 5 Palace Court (together, “Palace Court” or “PC”), an apartment building in Kensington, as an investment property. Asoke purchased Palace Court in the names of Anjana, Krishna and Shyamali as joint owners. It is clear that he intended that it should be held for the benefit of Anjana and their four children. It seems that the names of Anindya and Aditya were not put on the title because they were regarded as minors at the time of the acquisition. Palace Court had sitting tenants, but over time they were bought out and the property was renovated so as to function on the basis of short term lettings of apartments, much in the manner of a hotel. Receptionists and cleaners were employed to work there, and a series of managers were appointed to run the business. The current long term manager is Mrs Zeidan.

[16]Asoke decided that the business at Palace Court should be operated as a partnership between Anjana, Krishna, Shyamali, Anindya and Aditya and that it should account for its revenues for tax purposes on that basis. For part of the time, a close family friend, Sundar Advani (“Mr Advani”) was also involved as a partner, providing some funding for the partnership and business advice. From the 1970s, the business at Palace Court was operated in this way (“the PC partnership”). Partnership accounts were drawn up year on year and tax was accounted for and paid on the basis of profit shares between the partners. Only the accounts from 1984 (subject to some gaps, where they have been lost) were available in evidence. Mr Advani died in 1990, at which time his interest in the PC partnership was liquidated and liabilities and benefits attributable to that interest were shared equally between the five remaining partners, Anjana and the four children. Anjana died in 2000, at which time her interest in the PC partnership was likewise liquidated and liabilities and benefits attributable to that interest were shared equally between the four remaining partners, her and Asoke’s four children.

[17]At first, Asoke relied on Mr Advani to assist with the overall management of the PC partnership. From the early 1970s, Aditya came to be involved as well. His siblings played no part in the management of the affairs of the PC partnership and took no interest in it, happily leaving it to their father, brother and the close family friend to look after their interests. From Mr Advani’s death in 1990, if not before, Aditya became the person with the main responsibility for overall management of the PC partnership, subject to Asoke’s direction. This made sense from the family’s point of view, because Aditya was the family member based in the United Kingdom who was well-placed to look after the family’s interests here. Krishna and Shyamali, on the other hand, were based in India and Anindya was based in the USA, and none of them had any knowledge or understanding of the affairs of the PC partnership. Asoke and Aditya did not provide them with information about its affairs; nor did they ask for any. They did not receive any payments from the PC partnership, but assumed that partnership revenues were being used in sensible ways to maintain and develop the family’s property portfolio in the United Kingdom.

[18]After Asoke’s death in 1996, Aditya continued as before, now exercising sole overall control of the PC partnership and its affairs.

[19]Krishna, Shyamali and Anindya have not received any money from the PC partnership. Aditya has taken considerable drawings from it over the years. He maintains that he was entitled to do this as a result of an agreement made with Asoke that he could take sums on account of reasonable remuneration for his management of the PC partnership. One of the areas of dispute before me is whether Aditya was entitled to take sums from the PC partnership beyond his own equal share in the profits of the partnership, and if he was whether the sums which he took were reasonable.

[20]In parallel with the investment in Palace Court, from 1981 Asoke also invested in a series of residential properties in London which were to be let out to tenants. For the most part, these were acquired in the name of Aditya. Asoke again arranged for these investments to be operated on the basis of a partnership between Anjana and their four children (the “Non-Palace Court” or “NPC” partnership). As with the PC partnership, Asoke at first relied heavily on Mr Advani for the general management of the NPC partnership, but with a significant role for Aditya. After Mr Advani’s death in 1990, Aditya had the main responsibility for the management of the NPC partnership, subject to Asoke’s direction.

[21]After Asoke’s death in 1996, Aditya continued with this responsibility, exercising sole control of the NPC partnership and its affairs.

[22]As with the PC partnership, Krishna, Shyamali and Anindya were content to leave the management of the NPC properties to Asoke, Mr Advani and Aditya, then Asoke and Aditya, and finally to Aditya alone. No financial or detailed information about the properties in the NPC portfolio was provided to Krishna, Shyamali and Anindya, and they did not ask for any.

[23]As with the PC partnership, Krishna, Shyamali and Anindya have not received any money from the NPC partnership. Aditya has taken considerable drawings from it over the years. He maintains that he was entitled to do this as a result of an agreement made with Asoke that he could take sums on account of reasonable remuneration for his management of the NPC partnership. Another of the areas of dispute before me is whether Aditya was entitled to take sums from the NPC partnership beyond his own equal share in the profits of the partnership, and if he was whether the sums which he took were reasonable.

[24]A further significant issue in relation to the NPC partnership is whether 29 Woodstock Road (in which Aditya and Rosy live as their home in London) is held on trust for the four siblings and whether the ground and first floors of the adjoining house at 27 Woodstock Road (which Aditya and Rosy also occupy as their home in London) are included within the property portfolio subject to the NPC partnership. The Claimants maintain that they are; Aditya and Rosy say that they are not, that 29 Woodstock Road is beneficially owned by Aditya as are the ground and first floors of 27 Woodstock Road.

[25]Shyamali and Anindya dispute that there ever were separate partnerships in relation to Palace Court and the NPC properties. They say that they knew nothing about such partnerships, and that the understanding in the family was that there were simply two distinct investment portfolios, i.e. one in India and one in the United Kingdom. On their understanding, the portfolio in India was held on the terms of the PPP deed while the portfolio in the United Kingdom was simply held on trust for the relevant family members (Anjana and the four children).

[26]I find that this was indeed the general understanding of Shyamali and Anindya and family members other than Asoke and Aditya. However, it is clear that Asoke set up the Palace Court business as one partnership and the residential property portfolio as a distinct NPC partnership, and arranged for them to be managed and their tax arrangements handled on that basis. Until their respective deaths, Mr Advani and Asoke reviewed the separate partnership accounts for the PC partnership and the NPC partnership and were in no doubt that that is how their affairs were organised. I think it is likely that Asoke explained to his wife and children at an early stage that the affairs of the family portfolio of properties in the United Kingdom were organised in the form of the two partnerships for tax and business reasons (much as the family portfolio in India was held by the PPP), and that they all approved that arrangement. However, apart from Aditya, they were not provided with the annual accounts and did not thereafter discuss the detail of the United Kingdom property arrangements, and the detail of the arrangements was lost sight of by them as time went by without them having to think about it. Accordingly, the Sen family members apart from Aditya and Asoke came to have the rather vague general understanding to which I have referred, that the United Kingdom portfolio was held under some sort of trust arrangement.

[27]Asoke had actual authority from each of Anjana, Krishna, Shyamali and Anindya to agree on their behalf, as he did, that they should be partners in each of those partnerships, in effect as sleeping partners playing no active role in the management of the affairs of the respective partnerships. That Asoke had such authority is clear from the facts that all the family members treated his word as law and invariably did what he told them to do; none of Anjana, Krishna, Shyamali and Anindya ever asked questions about the management of the property portfolios, although they were aware that they had interests in them; they all furnished Asoke with powers of attorney from time to time and blank pages signed by them which he had authority to use for all business purposes on their behalf; and they all left it to Asoke to manage their affairs in relation to property in the United Kingdom and in dealing with Aditya. There were probably occasional conversations between Asoke and Anjana and their children in which it was acknowledged and agreed that Asoke would manage their affairs in the United Kingdom. As explained above, I also find that all the Sen family members approved the partnership arrangements at the outset.

[28]In addition to the property and investment portfolios in India and the United Kingdom, Anindya acquired a series of properties in his own name in the USA, some as investments and some as a place for him to live. A further issue between Aditya and Anindya is whether these properties were acquired as part of a separate partnership arrangement between them (as Aditya claims – “the alleged US partnership”) or simply as properties owned outright by Anindya (as Anindya maintains).

The issues for determination

[29]The following issues fall to be determined: i) Under what arrangements was Palace Court held? Aditya maintains that it is property held under the terms of a partnership (as distinct from under a trust, as the Claimants maintain). On this issue I consider that Aditya is correct, as explained above. The further issues that arise in relation to the PC partnership are whether it was a term that Palace Court would be held as partnership property until the last partner died (“the joint lives issue”); whether there was a further term of the partnership, agreed between Aditya and Asoke on behalf of the other partners, that Aditya should be entitled to reasonable reimbursement for his services in running the PC partnership by means of taking drawings from the profits of the partnership “such sums as he should consider just and reasonable for his own use and towards his remuneration” (“the PC remuneration issue”); whether there was a further term of the partnership that all tax liabilities of the partners relating to the partnership would be paid by the partnership, including any personal tax liabilities (in particular, a charge to tax in relation to Aditya as a non-domiciled United Kingdom resident) (“the PC tax issue”); whether and to what extent Aditya made contributions to the PC partnership out of his own money and whether he is entitled to repayment of such contributions (“the PC contributions issue”); ii) Under what arrangements was the NPC portfolio held? Aditya again maintains that it is property held under the terms of a partnership, and not under a trust. On this issue I again consider that Aditya is correct. The further issues that arise in relation to the NPC partnership are whether there was a term of the partnership, agreed between Aditya and Asoke on behalf of the other partners, that Aditya should be entitled to reasonable reimbursement for his services in running the NPC partnership to be paid by the same means as in relation to the PC partnership (“the NPC remuneration issue”); whether there was a further equivalent term of the NPC partnership in relation to tax liabilities (“the NPC tax issue”); whether and to what extent Aditya made contributions to the NPC partnership out of his own money and whether he is entitled to repayment of such contributions (“the NPC contributions issue”). There is no joint lives issue in relation to the NPC partnership. In Aditya’s original Defence and Counterclaim he pleaded that the terms of the NPC partnership were the same as those for the PC partnership, which meant that he seemed to allege that a similar joint lives term had been agreed in relation to the NPC portfolio; but in the same document he included a schedule which showed that various NPC portfolio properties had been purchased and sold over the years, suggesting that no joint lives term applied in relation to the NPC portfolio. When this was pointed out by the Claimants in correspondence, Aditya amended the body of his pleading to make clear that he did not allege that there was a joint lives term in relation to the NPC partnership. The Claimants sought to make much of this in cross-examination and submissions, contending that the change in Aditya’s case on this point called in question his honesty and reliability as a witness. On this particular point, however, I find that Aditya did not set out to mislead when approving the original version of the pleading, but made a mistake as a result of the rather elliptical style of the pleading in relation to the NPC partnership; iii) Is Aditya entitled to make any other accounting adjustments to the accounts (“the accounts adjustment issue”)? iv) Do the Claimants have a claim against Aditya for their shares of the profit in the PC partnership and the NPC partnership which he has drawn down (“the profit drawings issue”)? v) Is 29 Woodstock Road held by Aditya on trust for the four siblings and to what extent does 27 Woodstock Road form part of the property portfolio governed by the NPC partnership (“the Woodstock Road issue”)? Both properties are registered in Aditya’s sole name. To the extent that they were owned beneficially by him or he had rights in relation to them, it is common ground between Aditya and Rosy that Rosy has acquired a beneficial interest in those properties as a result of agreement between them and detrimental reliance by Rosy on such agreement. As between Aditya and Rosy, there is no issue as to the extent of Rosy’s beneficial interest in the properties requiring determination by the court. As between Rosy and Aditya’s siblings, Rosy’s beneficial interest in the properties entirely depends upon Aditya being able to establish that he owns them or has relevant rights in relation to them. There is no additional issue between Rosy and Aditya’s siblings which requires determination by the court; vi) Are the PC partnership and the NPC partnership to be dissolved, and what orders should be made to give effect to such dissolution (“the partnership dissolution issue”)? vii) Does Aditya have a good claim to a beneficial share in properties held in the name of Anindya in the USA on the basis of the US partnership alleged by Aditya and denied by Anindya (“the alleged US partnership issue”)? viii) Aditya has a claim against Shyamali in relation to an agreement between them as to reimbursement of sums spent by him for the benefit of Anando and Sunando over the years, pursuant to an arrangement with Shyamali. Shyamali admits that some repayments are due, but there are disputes about the amount to be repaid. In particular, there are issues regarding sums paid by Aditya on his credit card account in circumstances in which he made a credit card linked to that account available for use by Anando during the period when Anando lived with Aditya in London. Shyamali and Anando maintain that many items for which Aditya claims reimbursement were either items of expenditure by Aditya using his credit card for his own benefit or gifts by Aditya to Anando (“the credit card issue”); and ix) Shyamali maintains a claim in relation to a set of jewellery which was kept by her mother, Anjana, in a safe deposit box in London to which Aditya held a key (“the jewellery issue”). Shyamali says that out of the three sets of jewellery which were kept in the safe deposit box, one was given to her as a gift by her father, one was given as a gift to Anjana and one was given as a gift to Krishna. Aditya, on the other hand, maintains that all the jewellery in the box remained the property of Anjana, and so falls to be divided in equal shares between her four children as part of her estate which was not distributed at the time of her death in 2000.

The witnesses

[30]Sharply contrasting evidence was given by the witnesses on either side of the dispute. The differences were so great on major issues that I consider that one side or the other must have been lying in significant parts of their evidence. In assessing the witnesses, I have borne firmly in mind that a court will be slow to make findings of dishonesty, and should only do so where clearly justified on the evidence before it and having regard to inherent probabilities: compare In re B (Children) (Care Proceedings: Standard of Proof)

[2008] UKHL 35

;

[2009] 1 AC 11

. An assessment of the honesty and credibility of Aditya as a witness is especially important in relation to the issues arising in respect of the PC partnership and the NPC partnership, because the thrust of his case in relation to those issues is that things were said by Asoke to establish the terms of those partnerships in conversation with Aditya alone, or in the presence of Mr Advani and Anjana, none of whom remain alive to confirm or deny what Aditya says. There is very little by way of documentary material (other than such accounts of the PC partnership and the NPC partnership which remain in existence) bearing on Aditya’s claims about these matters. My assessment of the facts depends to a large extent on my assessment of Aditya as a witness and on my assessment of the inherent probabilities as to how Asoke, in particular, is likely to have behaved.

[31]Asoke was a very distinguished and experienced lawyer. He was also a highly impressive man, very much in the public eye in India. It is likely that he would have conducted himself according to high standards of probity in all his dealings, and would not have done anything likely to jeopardise his good name and reputation. The evidence I heard from those who knew him well strongly tended to support this view. His children all felt great respect and love for him. He had a strong sense of the importance of family ties. It is likely that, to command such respect and love, he treated his children fairly and in a broadly equal way, seeking to minimise the scope for resentment and discord to creep into family relationships.

[32]My assessments of the witnesses of fact who gave evidence are as follows.

[33]Aditya: Aditya is an intelligent and cunning man, with good knowledge of the law and accountancy as a result of his professional qualifications in both disciplines and experience in business. I regret to say that I found Aditya to be a dishonest witness who was willing to lie in support of the various claims he has made in the proceedings. I consider that he behaved dishonestly over many years in taking very substantial sums out of the PC partnership and the NPC partnership without authority or justification, and concealing the extent of the money he took from his siblings. He relied on the unwillingness of his siblings to believe that their brother would break the ties of loyalty they felt were owed within a close-knit Indian family and then, as they grew frustrated with his failure to dissolve the partnerships after their parents had died, on their unwillingness to force matters to a head by taking a close family member to court.

[34]I emphasise the following points, which were of particular significance. In my judgment, Aditya behaved dishonestly in relation to arranging for a HM Land Registry Form 19 dated 28 November 1990 to be executed in respect of each of 1 Palace Court and 5 Palace Court, to transfer the legal title in those properties from Anjana, Krishna and Shyamali into his own sole name (“the 1990 transfer forms”), by forging the signatures appearing on those forms: see paras. [86]-[94] below.

[35]Aditya had a cavalier attitude to the truth in making statements in a number of documents. In a transfer of title document dated 18 May 1992 in relation to a property at 16 Clifton Gardens, he stated that he transferred the title “as beneficial owner”, whereas he either sold it as trustee for the NPC partnership or (on his own case) as trustee for a third party, Sundar. On his evidence (the documents were not before the court), he filed the transfer of title documents containing a similar untrue statement in relation to other properties in the NPC portfolio which were sold. An application filed on his behalf with Barnet Council in 2011 for a certificate of lawful use in relation to extension works at 27 and 29 Woodstock Road stated, falsely, that 27 Woodstock Road was “wholly owned” by Aditya, which information must in all probability have been supplied by him.

[36]Aditya was an evasive witness, whose version of events and case up to trial frequently shifted and changed in significant respects and whose evidence shifted in significant ways in the course of cross-examination. For example, at one stage Aditya’s case in relation to the PC and NPC remuneration issues was that partnership profits were to be calculated after allowing for his remuneration, but in the Defence and Counterclaim his case became that the profits were to be calculated before allowing for his remuneration; there were substantial changes in the number of hours he said he devoted to the affairs of each of the partnerships; there were shifts in the basis of calculation of his remuneration which he said was appropriate (at some points he maintained that Mrs Zeidan’s salary was an appropriate comparator, at other points when it suited him to do so he denied that); there were shifts in the way he put his claim to have a share in the alleged US partnership; in relation to the 1990 transfer forms he at first said in the early part of his cross-examination that he did not remember how they came to be executed (with forged signatures) and filed, but then later said that he had discussed the mode of signing the transfers with Asoke and appeared to suggest that Asoke was fully in agreement with what was done and indeed had directed him to do it (“So, if I had perpetrated a fraud, then both he and I were complicit in that enterprise”). On this latter point, I found both versions of his evidence incredible.

[37]I also found important parts of Aditya’s account of alleged agreements and understandings with Asoke in relation to the PC partnership and the NPC partnership incredible: see paras. [66]-[74] below. In my view, Aditya lied about this to try to cobble together a veneer of justification for the way in which he had mulcted those partnerships and defrauded his mother and siblings.

[38]I also came to the conclusion that Aditya lied about the extent of the work he said he did over the years for the PC partnership and the NPC partnership. Those lies were likewise told to try to make out a very substantial claim for remuneration in relation to the partnerships over the years. According to the case which Aditya eventually asked his accountancy expert, Mr Kakkad, to assume, he put in an average of 20 working hours a week in relation to the PC partnership between 1970 and 2013 and an average of about 10 hours a week in relation to the NPC partnership between 1981 and 2013 (the actual number of working hours for any week when he was in the United Kingdom would have been significantly more than this, since he was accustomed - particularly after marrying Rosy in 1991 - to spending long periods each year in India). But the truth is that both partnerships required very little management effort to run. Palace Court was run by a competent and effective manager and staff, and required virtually no work from Aditya for the business to keep ticking over; the PC business involved no significant strategic management at all. The business of the NPC partnership involved a very low turnover of residential properties over the decades of its operation - there was no significant effort put into any active sales and acquisition strategy in relation to the properties in the NPC portfolio. Letting agents were employed to manage the properties for the partnership. In the circumstances, Aditya’s claims about the hours he spent in managing the businesses over decades were incredible. They were also contradicted by the evidence of Anando (who lived with Aditya at 29 Woodstock Road for 11 years from 1999), who stated that Aditya appeared to do next to no work at all, and simply lived a life of leisure.

[39]Aditya also made false claims about contributions he made to the partnerships.

[40]In relation to a major conflict of evidence between Aditya and other Sen family witnesses as to whether there was discussion, after Asoke’s death in 1996, of whether the Indian and United Kingdom portfolios of property should be divided up between Anjana and the four siblings and agreement that they should be (where Aditya says that there was no such discussion and agreement, whereas Shyamali, Anindya, Asis and Trish, corroborated by Anando and Sunando, say that there was), I disbelieved Aditya. I found the evidence of the other witnesses credible and persuasive.

[41]In my assessment, Aditya asserted dishonest claims to be entitled to a share in Anindya’s property in the USA under the alleged US partnership: see paras. [137]-[142] below. It is probable that he did this to try to deter Anindya from suing him in relation to the United Kingdom partnerships.

[42]Shyamali: There were some parts of Shyamali’s evidence which I did not think were reliable. In particular, she suggested at one point in cross-examination that a form P86 questionnaire filled in by Aditya but (genuinely) signed by her on 6 January 1975, which recorded that she was staying at 86 Great North Way and that the house was owned beneficially “by my brother” (that is, in context, by Aditya), had been presented to her by Aditya in blank to sign and that he later filled in these details. I do not think that she could really remember this in such detail. Krishna signed a form P86 completed by Aditya in the same way. Both Shyamali and Krishna were in England at the time, as was Aditya. I think it is more likely that they both signed the P86 forms as filled in by Aditya, since by their signatures they were verifying the information contained in the forms. These P86 forms help to support Aditya’s case in relation to his ownership of 29 Woodstock Road.

[43]That said, however, I accept Shyamali’s evidence that in general terms 86 Great North Way then 29 Woodstock Road were, within the family, referred to as Asoke’s homes in the United Kingdom. That is unsurprising. He had paid for or helped to finance these properties and there was never any question but that he would live in them when in England. But this does not indicate that these properties were agreed to be held on trust by Aditya for family members rather than owned beneficially by himself: see paras. [60]-[63] and [78]-[81] below.

[44]Shyamali can also be criticised for changes in her case in relation to the jewellery issue in the course of correspondence and the proceedings. But in my view that was largely due to the fact that the ownership arrangements in relation to the jewellery were made orally and a long time ago, and there was little focus by Shyamali on this relatively minor part of the claim until a late stage. I found her evidence that Asoke had given her one of the sets of jewellery as a gift (albeit it was then held for safekeeping with other family jewels in Aditya’s care in England) to be credible and persuasive. On other parts of her evidence, I found Shyamali to be an honest and reliable witness. On the main points of dispute between them, I preferred her evidence to that of Aditya.

[45]Anindya: I found Anindya to be an honest, straightforward and credible witness. Although there was an obvious question-mark about Anindya’s and Shyamali’s evidence by reason of the long delay before they launched proceedings against Aditya, I found Anindya’s explanation - that for a long time he hoped that his brother would eventually do what he had promised to do in 1996, and divide up the Indian and United Kingdom portfolios as had been agreed, and that he, Anindya, had a profound unwillingness to start litigation against a sibling, until he felt provoked into doing so after becoming suspicious in 2010 about Aditya’s dealings with family property - convincing. It was corroborated by Trish’s evidence. She had pressed Anindya for years to issue proceedings against Aditya to have the family property divided up properly, but Anindya was for a long time unwilling to do so on grounds of family loyalty and love of his brother. I preferred Anindya’s evidence on points of dispute to that of Aditya.

[46]I found the other witnesses called by the Claimants (Asis, Anando, Sunando and Trish) to be honest and credible witnesses. Again, where their evidence conflicted with Aditya’s, I found their accounts to be more likely to be true.

[47]In my assessment, Rosy was an honest witness who sought to tell the truth as she saw it. The main focus of her evidence was to emphasise her firm belief that Aditya owned their family home at 29 Woodstock Road and the ground and first floors at 27 Woodstock Road and the arrangements as between her and Aditya regarding her interest in that family home. As it happens, I find that her belief on the first point is for the most part correct. As to the second, Aditya agreed with her account of the arrangements between them, so there was no issue between them. Rosy also went in some detail into the history of tension and disputes within the family, particularly in relation to herself. This involved an account of her objections to the way in which Sunando and Anando acted when they lived at 29 Woodstock Road. It is not necessary to go into this in elaborate detail for the purposes of this judgment. There was a genuine sense of grievance on both sides of the family which had grown over the years, fed by real and imagined slights on either side.

[48]One major plank in the case advanced by Aditya and Rosy does require comment. Both maintained that the true reason for the legal action by Shyamali and Anindya was ill-feeling within the family, coming to a head in relation to the dispute which eventually blew up between Anando and Aditya and Rosy. As regards their case in respect of the Claimants’ motivation for bringing the claim, Aditya and Rosy maintained that other members of the Sen family were dismissive of Vikramaditya and deliberately refused to use his proper name, Ashok (given in honour of Aditya’s father), because he was not a blood relative.

[49]I did not find Aditya’s case regarding the Claimants’ motivation for bringing proceedings against him credible. Aditya’s complaints in respect of the names used for his adopted son were greatly exaggerated. I consider that Anando and Sunando were genuinely mystified when questioned about this. So far as they were concerned, they had never made an issue about Vikramaditya’s name nor sought to treat him as anything other than a family member. For the most part, they simply used family nicknames when referring to him and to other members of the extended family. In any event, I am entirely satisfied that Shyamali and Anindya did not take the momentous step of launching legal proceedings against their brother because of any such family resentments, but did so because of a genuine belief that they had good legal claims against Aditya in respect of the PC partnership and the NPC partnership.

[50]Significant features of Rosy’s evidence were that she said that what appeared to be her signature as a witness on the 1990 transfer forms was not hers (i.e. it had been forged) and that she offered no material support for Aditya’s account of the extensive time he said he spent working week in week out on the affairs of the PC partnership and the NPC partnership in order to try to justify his claims for remuneration, when she must have been in a good position to know the facts. She did not offer any evidence to support Aditya’s case in relation to most of the other issues in the case.

[51]Aditya called other witnesses of fact. Brian Hassall is a financial adviser who came into contact with the Sen family in 1971 and became friends with Aditya. I found him to be an honest and credible witness. He arranged a mortgage for Aditya to enable him to purchase 29 Woodstock Road in his own name, using the funds borrowed by Aditya personally to cover about 80% of the purchase price (it is likely that Asoke directly or indirectly provided the rest of the funds necessary to complete the transaction and probably helped fund the mortgage repayments). The mortgage application did not suggest that Aditya was buying the property on trust or on behalf of a partnership, as would have been required if that was in fact the position. This was in marked contrast with the mortgages Mr Hassall arranged for Aditya later in relation to acquisitions of property for the NPC partnership. According to Mr Hassall’s evidence, Asoke was aware that Aditya was taking out a mortgage to buy 29 Woodstock Road for himself. Mr Hassall’s account corroborates Aditya’s evidence on this point, and is in turn consistent with the annual NPC partnership accounts which Asoke and Mr Advani reviewed each year, which never included 29 Woodstock Road as a partnership asset.

[52]Jonathan Hawkes is a tax consultant. I found him to be an honest and credible witness. He provided tax advice to Aditya in relation to the PC partnership and the NPC partnership from about 1996. Mr Hawkes’s firm prepared tax returns for Aditya, the two partnerships and the partners in the partnerships each year. All the tax returns were signed by Aditya. He signed the returns for his mother and siblings pursuant to powers of attorney given by them. In relation to the joint lives issue regarding the PC partnership, Mr Hawkes recalled that in discussion with Aditya after Anjana’s death in 2000, Mr Hawkes drew attention to the poor yield from Palace Court compared to its capital value and asked whether it might be better to sell it, but Aditya responded that it was Asoke’s intention that Palace Court should be retained in the ownership of the family and not sold during the lifetime of Asoke’s children. Mr Hawkes made the suggestion of sale of Palace Court on other occasions thereafter, always eliciting the same response from Aditya. In my assessment, however, Asoke did not agree with Aditya that there should be a formal joint lives term as part of the PC partnership, prohibiting sale of Palace Court while any of his children remained alive (see para. [72] below) . Indeed, I think Mr Hawkes’s evidence has a tendency to support that assessment. The fact that he recalled this issue being debated more than once suggests that whatever Aditya said to him about this, it was probably not to the effect that this was to be regarded as a binding rule laid down by Asoke, since otherwise it is difficult to see why Mr Hawkes returned to the subject more than once. Aditya’s statement to Mr Hawkes is consistent with the idea that Asoke had a wish that Palace Court should be retained within the family as a flagship property, without having made that a formal term of the PC partnership.

[53]John Garvey is an accountant who has acted for Aditya since about 1972. Mr Garvey does not have a professional qualification. I did not find his evidence reliable. He and Aditya are friends. Mr Garvey took over the preparation of the accounts for the PC partnership some time in the 1980s. Although he has not retained any notes from that time, his evidence was that he recalled meetings at that time at which Aditya, Asoke and Mr Advani said that Aditya could make drawings from the partnership “of amounts that were just and reasonable and on account of and towards his remuneration to which he was entitled for looking after the management of the business to which he devoted substantial time.” I did not find this evidence credible, for reasons which I explain below. I do not think that Mr Garvey could really remember this, but rather has been influenced by awareness of the position that Aditya is maintaining in these proceedings and a degree of wishful thinking and reconstruction to assist his friend. Mr Garvey’s evidence was that the same arrangements for drawings existed in relation to the NPC partnership, as discussed in about 1981. Although I have found that the same partnership terms operated, the same comments apply to Mr Garvey’s evidence about what terms were agreed for the NPC partnership.

[54]The accountancy witnesses called on each side (David Stern for the Claimants, Dilip Kakkad for Aditya) did their best to assist the court. There were not major differences of principle between them. Their evidence was helpful in analysing the financial position of the two partnerships, but the outcome of such analysis depends critically on findings of fact to be made by the Court.

[55]Experts on the law of New York were called, to deal with aspects of the alleged US partnership issue. They also both did their best to assist the court. It is unnecessary to review their evidence in this judgment, because I find on the facts that there was never any agreement that Aditya would be a partner with Anindya to own any of the properties in the USA which Anindya acquired in his own name.

The factual background to the PC partnership and the NPC partnership

[56]Asoke first acquired a property in the United Kingdom in 1968 at 34 Cumbrian Gardens. This was intended as a residence for himself and family members when in the United Kingdom. It was purchased in the names of Anjana and Charu, Asoke’s nephew. The acquisition was funded by Asoke. Shyamali and Krishna lived at 34 Cumbrian Gardens when they came to study in the United Kingdom. It was used as a residence by a range of family members and Mr Advani had a room there.

[57]Palace Court was acquired in 1969 in the names of Anjana, Krishna and Shyamali. At about the same time, the PC partnership was established to hold and manage Palace Court. Mr Advani, Asoke’s friend and trusted adviser, made a financial contribution and was included as a partner along with Anjana and Asoke’s four children.

[58]Aditya came to the United Kingdom in August 1970 to study for a law degree at Cambridge University. He completed the degree in 1972 and then read for an external LLB degree in Cambridge which he completed in 1973. Alongside this, in 1972 he began his articles in accountancy with Whinney Murray, by whom he was employed full-time, obtaining his ACA qualification in 1976. In 1976 he enrolled for the Bar examinations at the Council of Legal Education, and passed the examinations and was called to the Bar in 1977. He completed his first six months pupillage in about March 1978 and commenced practice as a barrister. He had a busy and successful practice in his early years at the Bar.

[59]In late 1970 Asoke sold 34 Cumbrian Gardens, which had become too small for the family’s needs. Aditya says that Asoke and Anjana made a gift to him of the proceeds of sale of 34 Cumbrian Gardens (about £8,000, a very large sum at the time). However, I think that it is unlikely that Asoke would have singled him out at this time for such favourable treatment among all the siblings. It is more likely that Asoke intended that the proceeds of sale should be put towards acquiring a new home in the United Kingdom for himself and the whole family. There was still a need for such a home: all of Krishna, Shyamali, Anindya and Aditya studied or worked in the United Kingdom in the early 1970s (Shyamali and Krishna lived in London and only returned to India in 1976; Anindya worked at various hospitals in the United Kingdom between 1972 and 1975 before going to the USA) and Asoke, Anjana and Mr Advani still visited regularly.

[60]A few months later, in 1971, 86 Great North Way was purchased as a replacement family home. The purchase was in the name of Charu, who took out a mortgage in relation to the property, but the transaction was again funded by Asoke (not, contrary to Aditya’s evidence, by Aditya). Nothing was written down, probably because Charu was trusted by everyone to act on Asoke’s instructions. Initially, it is likely that Asoke intended that 86 Great North Way should be held for the general benefit of the family, as 34 Cumbrian Gardens had been. However, I think that after a while, when Aditya found a job and it became clear that he was going to obtain professional qualifications and stay in the United Kingdom and could be expected to look after the family’s affairs here, Asoke decided that Aditya should have 86 Great North Way as his own property and be treated as the beneficial owner of it.

[61]In 1975, there is contemporaneous documentary evidence which corroborates Aditya’s claim that at any rate by that stage the understanding in the family was that he was the sole beneficial owner of 86 Great North Way. In late 1974, with assistance from the accountant then acting for and reporting to Asoke, Mr Advani and the PC partnership (a Mr Elia), Aditya filled out a Form P86 for each of Krishna, Shyamali and Anjana for return to the Inland Revenue, to enable them to claim certain income tax allowances in respect of the profits accruing to them under the partnership. On the forms for Krishna and Shyamali, their residence in the United Kingdom was identified as 86 Great North Way and it was stated that the house was “owned beneficially by my brother [i.e. Aditya]”. Krishna and Shyamali each personally signed those forms in early January 1975 for return to the Inland Revenue.

[62]I consider that these signed forms genuinely reflect the arrangement which by this time Asoke had put in place in relation to the ownership of 86 Great North Way, that Aditya was to have the house as his own property. There is no doubt that Asoke had actual authority from each member of the family to arrange things in this way. Aditya would not have sought to mislead anyone by filling in the forms in the way he did, since there was every chance that Asoke and Mr Advani would know about them through Mr Elia, they were to be signed personally by his sisters, and they were to be submitted to the Inland Revenue which could (in theory at least) investigate the claims made in the forms. It is particularly telling that Krishna signed her Form P86 containing this statement, since she was a trained lawyer who was then doing her articles with a leading United Kingdom law firm and would have understood very well the importance of being accurate in making her return to the Inland Revenue and the significance of the statement that Aditya was the beneficial owner of 86 Great North Way.

[63]Aditya’s evidence about his ownership of 86 Great North Way is also supported to some degree by Shyamali, who recalls that it was Aditya who initiated the decision to sell the property (because it was on a busy road and had been burgled) and buy a new house; and is further corroborated by Mr Hassall, who also recalled that it was Aditya who took the decision to sell the property and remembered a conversation with Asoke to the effect that he was glad that Aditya was going to buy a new home for himself in London (29 Woodstock Road) after selling his home at 86 Great North Way.

[64]At the outset in relation to Palace Court, Asoke relied primarily on himself and Mr Advani for strategic decisions about the management of the property, with a manager being employed to run the property day to day. Although Aditya was a student, Asoke was keen to involve him in the business and he and Mr Advani would discuss decisions with Aditya. The principal decision was to seek to buy out the interests of long term tenants at Palace Court and convert the property into flats available for short term lets, rather like a hotel. An agent was employed to assist with negotiations with tenants, and (contrary to Aditya’s account) it is likely that he carried out the bulk of the work to effect the change, since Aditya was at the time a full time student.

[65]Aditya suggested that the cost of buying out the tenants and then converting the property was met by him out of his own personal funds, as gifted to him by Asoke. I consider that this is unlikely. It is more probable that Asoke provided all the funds for this on the basis that it would enhance the value of Palace Court for the benefit of the whole partnership (just as he had bought it in the first place with his money for the benefit of all of his wife and children).

[66]According to Aditya’s evidence, in a series of conversations in the summer of 1971 with Asoke and Anjana (with Asoke acting with authority from Krishna, Shyamali and Anindya), it was agreed that Palace Court would be held for the PC partnership on terms that Aditya would oversee the management of the business and in return would be entitled to be paid a reasonable remuneration; any revenue profits of the business would be shared equally between Anjana, the four siblings and Mr Advani; any capital profits of the business would be shared equally between Anjana and the four siblings; Aditya would be entitled to draw from the partnership such sums (not limited to his share of the profits) as he should consider just and reasonable for his own use and towards his remuneration; all tax liabilities of the partners relating to the partnership including any personal tax liabilities would be paid out of partnership funds; and the properties and business would not be sold during the joint lives of Anjana and the four siblings. Aditya says that he then agreed all these terms in turn with Mr Advani on his own behalf and on behalf of Anjana and his siblings, for whom he had general authority to make such an agreement (as evidenced by the fact that they had given him power of attorney to act on their behalf in relation to their affairs in the United Kingdom).

[67]I do not believe Aditya’s evidence about agreeing these terms with Asoke, Anjana and Mr Advani. It is highly improbable that Asoke and Mr Advani would have made any such agreement. There is no written evidence of it, despite the complexity and detail of what Aditya says was agreed. The accounts for the PC partnership did not mention any such agreed terms, and reflected no provision for any remuneration liability of the partnership itself. After 1971, Aditya did not behave as one would have expected him to behave if such an agreement had been made: he kept no time records or other notes of the work he did for the partnership by reference to which he could later justify the claims for remuneration he would make.

[68]The particular reasons why I think it highly improbable that Asoke and Mr Advani would have made such an agreement with Aditya in 1971 are that(i) it was Asoke and Mr Advani (with the help of a paid manager and agent) who were doing the great bulk of the strategic management in relation to Palace Court and it was contemplated that they would continue to do so into the future;

(ii) Aditya was a full-time student with little time to devote to management of a business and it is likely that Asoke expected him to develop a professional practice either as a lawyer or accountant, which would obviously be very time-consuming (and Asoke expected him to have a healthy income from practising his profession, so would not have been particularly concerned to ensure that the PC partnership provided an income for him);

(iii) Aditya had no business experience whatever, so it is difficult to see what significant value Asoke and Mr Advani would have thought he would add to the business (and difficult to see why Mr Advani, as a partner, would have agreed to Aditya being paid remuneration when he, Mr Advani, was not and was contributing more to the management of the partnership’s affairs);

(iv) it is extremely unlikely Asoke and Mr Advani would have agreed such an open-ended arrangement for Aditya to set his own rate of remuneration (particularly since he had no experience of property management by reference to which to set such a rate and no objective criterion was proposed, and where the method by which Aditya was supposedly to take his remuneration was by dipping into the profit shares of his mother and siblings and accounting to them later, which would have been a recipe for family argument and discord);

(v) it is extremely unlikely that Asoke and Mr Advani, as experienced men of affairs, would have agreed such an open-ended arrangement without putting in place clear provision for Aditya to keep detailed and accurate records of the time spent and work done by him for the partnership, both as a matter of ordinary good business practice and to avoid family arguments later;

(vi) it is unlikely that Asoke and Mr Advani would have agreed such detailed and unusual terms without ensuring that they were recorded in writing, so that they and all other family members would have a clear record as a reference point later on;

(vii) as Anindya explained in his evidence, Asoke was a man with a strong sense of the duties owed by family members to the family, who would have expected Aditya to act as overseer of the family interests in the United Kingdom without payment along the lines suggested by Aditya (it is notable in that regard that neither Asoke nor Mr Advani took payment for their services to the partnership);

(viii) later on, Asoke did favour Aditya by giving him the house at 86 Great North Way, when it seemed clear that Aditya would be the only family member who would make his permanent home in the United Kingdom and would assume general oversight of the United Kingdom property portfolio on a long-term basis, and in that way singled Aditya out for favourable treatment compared with his siblings (since in addition he was later given a house in India, as Krishna and Shyamali also were, whereas Asoke just provided Anindya with limited financial assistance to buy his own house in the USA – so Aditya was given a house over and above what the others were given), and it seems likely that the justification Asoke had for doing this, in contrast with his usual approach to treat his children in a broadly equal way, was to reward Aditya for the limited work he had to put in to oversee the family’s property interests, which in turn suggests that there was no other arrangement agreed for Aditya to receive remuneration for that work.

[69]After 1971, Asoke and Mr Advani would review the PC partnership accounts with Aditya each year. They did not require Aditya to show them records of the work he had done or the time he had spent on the affairs of the partnership, nor did they make any record of these matters or of the remuneration which Aditya said was due to him for the year in question. It is incredible that they would have failed to do this had the agreement alleged by Aditya really been made, since it would have created a major risk (growing year by year for very many years) of serious disagreements arising within the family when finally Aditya came to account for what he had done. Nor did Asoke and Mr Advani even take care to ensure that a full set of accounts for the PC partnership from its inception was kept in a secure place, so that a check could be kept on the drawings made by Aditya over the years.

[70]I accept Shyamali’s evidence that Asoke, Mr Advani and Aditya told her in various conversations that the income from Palace Court would be used towards the upkeep and management of Palace Court (including paying off mortgages over the property), to fund the expenses associated with the residential house used by the Sen family in London and to assist with the acquisition of other investment properties in the United Kingdom (i.e. the NPC portfolio). It was never suggested to her or Anindya that Aditya would be able to draw down the profits against remuneration for himself.

[71]The PC partnership accounts from 1971 to 1983 have been lost. In fact, according to the extant accounts for the PC partnership which were available up until Mr Advani’s death in 1990 (which were probably those for the period ended 16 June 1989), Aditya was shown as not having made any major over-drawings of profit. This is difficult to square with Aditya’s case that he was entitled to draw against not just his profits but also those of the other partners to cover an accruing entitlement to significant amounts of remuneration each year. The accounts after that time, available up to Asoke’s death in 1996 (the latest probably being those for the period ended 16 June 1995, or possibly to June 1996) showed comparatively limited over-drawings of profit by Aditya (totalling £97,532 or £179,438, depending on whether the 1996 accounts are included). By far the largest over-drawings by Aditya were in the period after that (£1,218,377 or £1,136,471 in the period to 16 June 2012, depending on whether the 1996 accounts are included), when neither Asoke nor Mr Advani were there to check on what he was doing.

[72]In relation to the joint lives issue, it is highly improbable that Asoke and Mr Advani agreed with Aditya that Palace Court would be held as a partnership asset for the joint lives of all the partners. Asoke and Mr Advani were practical men of affairs, would have realised that many unforeseen events might arise during the life of the partnership to which it would have to adapt and would have wished to allow the partners flexibility in being able to react to those events, including if necessary by selling Palace Court, rather than limiting them by requiring unanimity to take action.

[73]In my judgment, it is likely that the terms agreed between Asoke (for all relevant family members) and Mr Advani at the outset of the Palace Court acquisition, and explained to Aditya a couple of years or so later, were extremely simple, and so did not need to be written down. The agreement was that the partnership members (Anjana, Krishna, Shyamali, Anindya, Aditya and Mr Advani) would have equal shares in the venture. Asoke would have been aware that this was the default position under the general law (see section 24 of the Partnership Act 1890), which probably reinforced his view that no written partnership instrument was required. There was no express or implied agreement that any partner would be entitled to be paid remuneration, and in such circumstances Aditya has no right to remuneration for services to the partnership. (It should be noted that at one stage in the pre-action correspondence, the Claimants said they accepted that Aditya is entitled to reasonable remuneration, but that was not their position at trial; they are not bound by that statement and the evidence and proper and more considered analysis supports their position at trial to the effect that Aditya is not entitled to remuneration).

[74]Eventually it was agreed, probably as a result of further discussion between Mr Advani and Asoke before he died in 1990, that his share in the partnership would simply be distributed equally between the remaining partners on his death, which is what was done. Mr Advani had no close family of his own, and seems to have regarded the Sen family as his family too.

[75]In these proceedings, Aditya has also made extravagant and untenable assertions about the amount of time he spent in working on the affairs of the PC partnership and the NPC partnership. In fact, the businesses of both partnerships largely ran themselves, and Aditya did very little work for them over the years. In the early years of the PC partnership Aditya was more or less fully occupied as a full-time student, then as an employed accountant studying for his professional qualification, then as a full-time student for the Bar and then as a barrister seeking to establish and carry on a practice: see para. [58] above. In the later period, I accept the evidence of Anando (who lived with him for a period covering some 11 years from 1999) that Aditya devoted no significant time to the affairs of the partnerships: see para. [38] above. I infer that this was the basic pattern throughout the whole period under review in these proceedings.

[76]Aditya has also made claims, which I do not believe, that various monies deriving from Asoke spent over the years on the PC partnership and for the NPC partnership were sent to Aditya as outright gifts by Asoke to him, so that those monies have to be brought into account as contributions by Aditya personally rather than as further capital contributions by Asoke for the benefit of all the partners in those partnerships. In my judgment, it is highly unlikely that Asoke intended to make such gifts to Aditya personally. That would have been out of line with what I find was his usual practice to treat all his children fairly and broadly equally. Having made generous gifts to Aditya of family homes in the United Kingdom and in India, I consider that Asoke would have seen no justification for making the further substantial gifts to Aditya which Aditya alleges he did. Asoke had set up both partnerships as vehicles to benefit the whole family, and the strong inference is that when he provided funds to be fed through for the benefit of the partnerships he intended those funds to operate as a gift for the benefit of his wife and all his children, not just for Aditya.

[77]In September 1972, Aditya purchased a café in Friern Barnet for about £21,000 in his own name, with funds provided by Asoke. Aditya wanted to try his hand at a business venture. I accept Aditya’s evidence that this funding was provided by Asoke by way of gift to Aditya. Aditya declared that he was the sole legal and beneficial owner of the café in his tax returns. He employed a manager to run the café. However, the venture was not a success, and Aditya sold it a year later at a small loss. The main significance of this episode is(a) that it is further evidence to support Aditya’s claim that he is the beneficial owner of 29 Woodstock Road, since he says the proceeds of sale of the café were eventually applied by him to help with the purchase of that house in 1977,

(b) that it further supports my view above that it would have been unlikely that Asoke thought in the early 1970s that Aditya would be devoting significant effort to managing the PC partnership, and

(c) that the extent of Asoke’s generosity to Aditya for this business venture further supports my view above that it is unlikely that Asoke would have singled Aditya out for yet further special and highly generous treatment in relation to the PC partnership.

[78]In 1977, 29 Woodstock Road was purchased in Aditya’s sole name. Although it was purchased a few months before the sale of 86 Great North Way was completed, it was understood by family members that 29 Woodstock Road was being acquired as a replacement for Aditya’s house at 86 Great North Way, and the proceeds of sale of that house were later applied to help fund the purchase of 29 Woodstock Road. Mr Hassall arranged a mortgage in Aditya’s sole name to help fund the purchase initially. 29 Woodstock Road was never included in the portfolio of properties which became assets of the NPC partnership and were reflected in the NPC partnership accounts. Asoke was well aware of this from his review of the accounts, and took no steps to record that although the house was owned in Aditya’s sole name it was nonetheless held on trust for family members. This indicates that Asoke was content that Aditya should be the beneficial owner of 29 Woodstock Road.

[79]In my view, the evidence points to the conclusion that Aditya acquired 29 Woodstock Road as sole beneficial owner and that Asoke (acting for himself and with actual authority for all the family members, who were happy to leave him to arrange all their affairs in the United Kingdom as he thought best) agreed that that was to be the position.

[80]In fairness to the Claimants and the witnesses called by them, I think that the detailed legal position in relation to 29 Woodstock Road was probably not spelled out for them at the time of its acquisition, or quickly became forgotten as time passed. I find that they genuinely came to think that it was a property held by Aditya for the benefit of all the family, since it was often referred to as Asoke’s and Anjana’s home in the United Kingdom, was regularly treated as such by Asoke when he came to the United Kingdom and Asoke expected that Aditya would unquestioningly accommodate at 29 Woodstock Road Mr Advani and any family member who wished to stay or live there, as Anando and Sunando later did between 1999 and 2011. Aditya met those expectations until relations finally broke down with Anando in 2010 and Anando was expelled from the property in 2011.

[81]In 1981, Aditya, with Mr Hassall’s help, re-mortgaged 29 Woodstock Road to generate funds to carry out extension works at the property. This was again arranged in Aditya’s sole name.

[82]Also in 1981, the first property in the NPC portfolio of residential properties was acquired. It was purchased in Aditya’s sole name, but using funds provided by Asoke. It was agreed between Aditya and Asoke that the property would be held under a separate partnership from Palace Court, the NPC partnership. The terms which Asoke (acting for Anjana, Krishna, Shyamali and Anindya) and Aditya agreed would apply in relation to the NPC partnership were essentially the same as in relation to the PC partnership, save that Mr Advani was not a partner in the NPC partnership. Again, because of the simplicity of the arrangement, it was not necessary to record them in a written document. The accounts prepared each year for the NPC partnership are consistent with this view. I reject Aditya’s evidence to the effect that the terms agreed for the NPC partnership were the same elaborate terms that he claimed were agreed for the PC partnership (with the exception of the joint lives provision). As to remuneration, by this stage Aditya had been given 29 Woodstock Road by Asoke, and it is likely that Asoke regarded this as fair recompense for Aditya’s efforts in looking after the Sen family’s assets in the United Kingdom.

[83]This pattern was followed for the acquisition of the other residential properties which from time to time constituted the NPC portfolio. Each was acquired in Aditya’s name, using funds provided by Asoke. The properties were managed by letting agents and were rented out to tenants. The business largely ran itself, with little turnover of properties and little input required from Asoke, Mr Advani and Aditya. The partnership accounts were reviewed annually by the three of them until Mr Advani’s death in 1990, then by Asoke and Aditya until Asoke’s death in 1996. After Asoke died, there was no-one who sought to supervise Aditya. His mother and siblings simply trusted to him to look after their interests. Although they received no payments from either Palace Court or the NPC properties, they assumed that any profits were being used to acquire additional NPC properties and to enhance the capital value of the Sen family properties in the United Kingdom.

[84]In about 1982, 27 Woodstock Road was acquired for the NPC partnership. Unlike 29 Woodstock Road, it was included in the NPC property portfolio. 27 Woodstock Road is a six bedroom house of three floors, located next door to 29 Woodstock Road. At first it was rented out to tenants, but later (in 1994) part of it was adapted to provide additional living space for Aditya, Rosy and their children.

[85]In 1990, Mr Advani died. By this time, Asoke was elderly and in poor health. The evidence indicated that he went into a decline after suffering a fall in 1990 at a shop in Hendon from which it took him a long time to recover. It is likely that his ability to keep a firm grip on what was happening with the PC partnership and the NPC partnership was diminishing. Mr Advani’s death and Asoke’s declining powers meant that there was a substantial reduction in the oversight to which Aditya was subject. Although Asoke retained general oversight of the affairs of the PC partnership, he was in India most of the time and would be unlikely ever to inspect the Land Register or the 1990 transfer forms.

[86]In my judgment, Aditya sought to take advantage of this situation to improve his position in relation to control of Palace Court vis-à-vis his mother and siblings by forging their signatures on the 1990 transfer forms dated 28 November 1990 (and forging Rosy’s signature on the forms as apparent witness to them having been signed by the others), to effect the transfer of the legal title to Palace Court from Anjana, Krishna and Shyamali into his own name. There was a transfer form for each of No. 1 and No. 5 Palace Court. Each form purported to have been “signed as a deed by” each of Anjana, Krishna and Shyamali, in each case “in the presence of” Rosy (who was Aditya’s fiancée at the time – they married in 1991), with what appeared to be her signature as witness against each of the other signatures. There was unchallenged expert handwriting evidence to the effect that there is strong evidence that the signatures of Shyamali and Krishna on the forms were false (that is to say, had been forged) and that the signature of Anjana was probably false. Shyamali confirmed that she had not signed the transfer forms bearing her signature and had been shocked when they came to light. Rosy’s evidence was that, contrary to appearances, she had not signed either of the transfer forms as witness of them being signed by Anjana, Krishna and Shyamali respectively. A lot of care and effort had been put into crafting facsimiles of the signatures of Anjana, Krishna, Shyamali and Rosy as they appeared on the transfer forms. They are closely similar to the actual signatures of each of those individuals which appear on other documents.

[87]Unsurprisingly, Aditya was cross-examined closely about the 1990 transfer forms by Mr Millett QC for the Claimants. I did not find his answers satisfactory or convincing.

[88]I have already referred to shifts in Aditya’s evidence in the witness box on this issue (para [36] above). The overwhelming likelihood is that the signatures appearing on the transfer forms were forged by Aditya himself: there is no other realistic candidate who would have done this. I do not believe that Aditya had forgotten that he had done this. He suggested that the reason for submitting the transfer forms was to take Palace Court out of the names of Sen family members resident in India, because new rules were due to come into force which would open the Land Register to searches, and the family were concerned about revealing assets held outside India to the Indian authorities. He said that Anjana, Krishna and Shyamali asked him to remove their names from the register because “[t]hey were concerned that if the Indian authorities got to find out about the title then this would cause them great difficulties.” He said that Asoke told him to draw up and sign the transfer forms in the way that he did, and that Asoke himself signed documents in this way in the names of other family members. I did not find any of this credible.

[89]It is true that in November 1990 a change to the rules regarding searches of the Land Register was due to come into force on 3 December 1990: the Land Registration (Open Register) Rules 1990. It is possible that this may have made it easier for the Indian authorities to search the Register, should they have decided to make an application to do so. But there is no good reason to think that Asoke or the Sen family feared investigation by the Indian authorities. Asoke was a man of probity and a high profile legal and political figure in the public eye, who would not have risked his reputation or position by arranging his or his family’s affairs in a way which was improper. Mr Walsh, who appeared as Counsel for Rosy, suggested that Asoke may have violated Indian exchange controls in removing funds from India to finance property purchases in the United Kingdom, but there was no evidence to support that suggestion. Asoke had sources of income outside India from his international legal practice and so had the ability to fund property purchases without violating Indian law. Therefore, I found Aditya’s explanation of the reason for submitting the transfer forms implausible (though it may well be the case that Aditya had the introduction of the new Rules in mind when he drew up the 1990 transfer forms and forged the signatures on them, as a matter to which he could refer in the unlikely event that Asoke found out about the transfer and challenged him about it). I accept Shyamali’s evidence that she did not ask Aditya to transfer the title to Palace Court, contrary to his claim that she did.

[90]I also did not believe Aditya’s claims that Asoke instructed him to fill in the transfer forms in the way he did and that Asoke would himself sign documents in this way when executing them under a power of attorney. The modern conventional way for a document to be signed under a power of attorney is for the person signing to sign using their own signature, adding text to state that they do so as attorney for the person who has given them that power. Aditya himself used this method when he signed a Form P86 on behalf of Anjana in January 1975 to claim income tax allowances on her behalf. Nonetheless, Mr Booth QC, for Aditya, took me to old authorities (in particular, Wilks v Back (1802) 2 East 142; 102 ER 323) which indicate that it is legitimate for an attorney to sign on behalf of their principal simply by writing the name of principal, rather than using their own signature, and pointed out that the relevant legislation at the time (section 7(1) of the Powers of Attorney Act 1971, as amended by the Law of Property (Miscellaneous Provisions) Act 1989) contemplated that this could be done.

[91]I do not find it necessary to go into the authorities in detail. Aditya did not in his evidence say that he had such old authorities or the 1971 Act in his mind; nor was any explanation offered why at other times he signed as attorney in the conventional way. The Land Registration (Open Register) Rules 1990 provided that where a transfer of title was signed on behalf of another, that should be spelled out on the face of the document; Aditya was constrained to say that although he had the new rules in mind at the time, he depended on legal advisers who did not point this out to him. Importantly, none of the authorities suggest that a proper or acceptable way to sign a document as an attorney is to forge the signature of the attorney’s principal, so that it is made to look as though the principal signed in person. I do not think that Asoke would ever have signed documents under a power of attorney in this way, nor would he have told Aditya to do so. Nor could Aditya, a barrister, have honestly thought it was acceptable to forge the name of a witness, in making a statement that the document had been executed as a deed in the presence of and witnessed by that witness (and he also did not suggest that he had any power of attorney from Rosy at the time).

[92]I find that Aditya dishonestly forged the signatures of Anjana, Krishna and Shyamali on the transfer forms, deliberately crafting them so as to make it look as though they had signed in person. To add to the false impression that they had done so, he dishonestly forged Rosy’s signature as witness three times on each document to convey the impression that she had been present when each of them signed in person.

[93]It is right to point out, as Aditya did, that the 1990 transfer forms bore a certification that they were exempt from stamp duty since they fell within category “A” in the Schedule to the Stamp Duty (Exempt Instruments) Regulations 1987. That category covers an instrument which vests property subject to a trust in the name of a new trustee, so if anyone investigated the transfer it would be clear that the transfer was not being made for Aditya to own Palace Court beneficially, but rather the previous beneficial owner (the PC partnership) would continue to be the beneficial owner. Only the legal ownership of Palace Court would have changed. So, Mr Booth submitted, Aditya had nothing to gain by submitting the transfer forms to the Land Registry and was not dishonest.

[94]In my assessment, however, although the 1990 transfer forms could not be regarded as a mechanism for Aditya to steal the beneficial ownership of Palace Court from the PC partnership, they did improve his position in relation to his mother and siblings and in relation to control of and ability to deal with Palace Court. In practical terms, absent an order of the court, the transfer of the legal title to himself gave him power to prevent a sale of the property, and hence to continue the partnership arrangement under his sole control which he found so beneficial. In my judgment, Aditya acted dishonestly in completing and filing the transfer forms to secure these advantages for himself. He could see the day approaching when Asoke would die, and his acquiring the legal title to Palace Court would (particularly when added to his control of information about the United Kingdom partnerships) strengthen his hand in the battle over the family assets which would be likely to follow Asoke’s death. In my view, he calculated that his position would be further strengthened if the transfer of legal title in Palace Court was made by transfer forms which were forged so as to give the impression that the transfer had been made with the personal knowledge and consent of Anjana, Krishna and Shyamali, apparently as witnessed by Rosy (whom Aditya probably calculated would take his side in any dispute over this major asset).

[95]In 1991, Aditya married Rosy. She was the divorced wife of a friend of the Sen family, which created a certain degree of tension within the family.

[96]In 1994, Rosy and Aditya were unhappy about the extent to which they were expected to share their home with other family members, and Aditya pressed Asoke to let Rosy and him extend the family home into the ground floor of 27 Woodstock Road. Asoke was anxious to avoid friction within the family as much as possible, and agreed to this as a measure to try to make Rosy happy (I do not accept Aditya’s suggestion that all of Anjana and his siblings were involved in agreeing to this, and I think Asoke did not explain to them precisely what he had done, so as to avoid provoking a family row about it in his declining years). Asoke said that Aditya could continue to occupy the ground floor as a home for himself and his family for as long as he wished: the substance of what was said was probably to the effect that Aditya would be entitled to treat himself as beneficial owner of the ground floor. Asoke acted with authority from the other partners in the NPC partnership, who all left it to him to deal with their affairs in the United Kingdom. In my judgment, the effect of what was done was that Asoke agreed on behalf of the other NPC partners that the ground floor of 27 Woodstock Road would be released from being held by Aditya on trust for the NPC partnership, and that thenceforth the beneficial interest in that floor would be with Aditya, who was also the legal owner.

[97]Mr Booth, for Aditya, submits that there was a common intention constructive trust, based on the agreement and Aditya’s detrimental reliance upon it by expending money on converting and refurbishing the ground floor of 27 Woodstock Road as part of his family home and bearing all expenses and outgoings in relation to it. I accept this submission. The effect of what was done, notwithstanding the absence of writing to effect the change, was that Aditya became the beneficial owner of the ground floor at 27 Woodstock Road.

[98]Aditya says that in the summer of 1994 he had meetings with Asoke and Anjana to agree what contributions Aditya had made to the NPC partnership “so that in case there was any dispute about it in the future I could say that my contributions were agreed to by my father. I was alive to the fact that disputes might arise …”. Aditya says that he got Mr Garvey to draw up an undated schedule of contributions to the NPC partnership, and that Asoke and Anjana agreed that Aditya had made £500,000 of advances to the NPC partnership and that the accounts of the NPC partnership should be read subject to these contributions, to which Aditya was entitled. He says that Asoke confirmed that the accounts for the NPC partnership ought to include credits for Aditya for £500,000 of advances in further meetings in 1995 and 1996.

[99]I do not believe this part of Aditya’s evidence. The schedule which Mr Garvey drew up simply set out figures for introduction of capital drawn from the NPC partnership accounts. It did not contain any statement that £500,000 of capital had been introduced by Aditya. The document also has manuscript annotations by Aditya, setting out calculations and figures which are impossible to follow simply by looking at the document. There is no calculation of a figure of £500,000 (though a figure of £509,000 appears at one point). The document was not signed by Asoke to acknowledge that he accepted any part of it. The document plainly did not achieve what Aditya maintained it was supposed to do, namely set out a clear acknowledgement by Asoke – which would obviate the risk of future disputes with Aditya’s siblings - that, notwithstanding an absence of reference to this on the face of the NPC partnership accounts, £500,000 of capital had been introduced by Aditya. If Aditya really had introduced capital into the NPC partnership, I have little doubt that he would have ensured that he obtained a clear and incontrovertible acknowledgement of that in writing by Asoke. The truth is that Aditya did not introduce the capital which he claims.

[100]In 1995, Asoke had conversations with family members including Anindya and Asis, expressing concern that Aditya had failed to account properly for a sum of £40,000 which Asoke had sent to him.

[101]In 1996, Asoke died. With the loss of the family’s paterfamilias, the question arose what should be done with the family assets in India and the United Kingdom. There was a major dispute on the evidence between the Claimants, who said that it was at this stage agreed between Anjana and the four siblings that the assets should be divided up between them, with the various partnerships being wound down, and Aditya, who denied that there was any such agreement.

[102]I accept the evidence of the Claimants and the witnesses who corroborated their account. I find that it was agreed shortly after Asoke’s death that the partnerships should be brought to an end and the assets divided up. It was agreed that, notwithstanding the concern which Asoke had mentioned, Aditya would be responsible for managing the family’s portfolio of properties in India and the United Kingdom pending the dissolution of the portfolio.

[103]Aditya had practical control of the partnerships and their assets, and was extracting substantial income from them. He did not wish to see them dissolved, and adopted delaying tactics, banking on the unwillingness of his siblings to take action against him. He fobbed them off with excuses which became thinner and thinner as years passed and still he did not realise and distribute the partnership assets. He had read his siblings well – they did not wish to take proceedings against him, however much they might press him to act and complain when he did not.

[104]In April 2000 Anjana died. Her estate was distributed between her children.

[105]In 2002, Aditya and Rosy extended their occupation of 27 Woodstock Road to include the first floor in addition to the ground floor (tenants continued to occupy other parts of the flat on the third floor of the building, and the rental income continued to be treated as income of the NPC partnership). Aditya’s occupation of the first floor of 27 Woodstock Road occurred well after Asoke’s death and I find that it was not agreed by Asoke, nor did Asoke agree before his death that Aditya could have the beneficial ownership of the first floor. Nor was any of this agreed by any of Aditya’s siblings, his partners in the NPC partnership. This assessment is also supported by the fact that when Aditya caused the inheritance tax return for Anjana to be drawn up after her death in 2000, it was only the ground floor of 27 Woodstock Road which was excluded from the NPC partnership assets, and not the first floor. The beneficial interest in respect of that floor therefore remains in the NPC partnership.

[106]There was then a further extended period when nothing much happened. Aditya’s siblings continued to press him to divide up the family assets and wind down the partnerships; he continued to fob them off with excuses to the effect that this was a complex matter and the time was not yet ripe to obtain good value in doing this; they did nothing to force the issue.

[107]In about July 2010, Shyamali and Anindya became concerned that Aditya had misappropriated or misused family assets in India. There are legal proceedings on foot in India in relation to this. I heard no evidence about Aditya’s conduct in India and am in no position to make any findings about it. What is clear is that Shyamali’s and Anindya’s concerns were genuine. Their patience in relation to delays regarding dissolution of the family’s property portfolio had also been exhausted.

[108]At about this time, therefore, Anindya telephoned Aditya from the USA to discuss these matters. There was an angry conversation. Aditya sought to liken his use of family funds with Anindya’s receipt of money from Asoke to help buy a property in the USA in the 1970s (see further below). I accept Anindya’s evidence that this was the first time that Aditya suggested he might have some sort of interest in property owned by Anindya in the USA.

[109]Anindya then wrote to Aditya in September 2010. In his letter he expressed sadness at the state of family relations since the death of Asoke and Anjana. He referred to issues in India which were of deep concern. He emphasised that after Asoke’s death the family had trusted Aditya to manage the estates and properties, but that over the years apprehension had grown about the lack of transparency in what he was doing. Anindya continued:

“Our last conversation was very painful to me because for some inexplicable reason, whenever I bring up the issue of settlement of the Estates, you take it as an affront and terminate any dialogue … I am posting a copy of this letter to [Shyamali] and [Krishna] as I am sure they are in agreement to an amicable dissolution of the Estates.”

He concluded by saying, “I still believe that there exists between us a sense of filial love and trust, which will prompt you to settle the Estates NOW …”.

[110]In my judgment, in context, this letter referred to the existing agreement that the family’s property portfolios should be wound down and the proceeds divided between the four siblings, and Aditya understood that. Aditya did not reply. He did not dispute that the family’s property portfolio should be divided up. Anindya sent a chasing letter on 26 October 2010 which again elicited no reply from Aditya.

[111]From October 2010 relations between Aditya and Anando (who was living at 27 and 29 Woodstock Road) became very tense.

[112]Aditya did, however, ask for a meeting of the siblings. A meeting was arranged for December 2010 in New Delhi, and Anindya flew from the USA to attend it. Aditya failed to turn up. Anindya eventually tracked him down and telephoned him. Aditya said he was too busy to meet them.

[113]Shyamali and Anindya then instructed lawyers. Their letter before claim in the English proceedings was sent on 28 March 2011. After receiving it, on 29 March 2011 Aditya sent an email to Anindya in which he said, “As far as trust assets are concerned your assets in USA are also in play.” This was sent to try to deter Anindya from taking legal action against him, by threatening to broaden the dispute to cover property owned by Anindya in the USA. I find, however, that there was never any truth in the claim by Aditya that the alleged US partnership existed.

[114]In April 2011, Aditya expelled Anando from 27 and 29 Woodstock Road. Anando started proceedings against Aditya, which were later withdrawn.

[115]The PC partnership and the NPC partnership were both partnerships at will for an undefined time, which could be brought to an end by any partner giving notice to dissolve the partnership (see sections 26 and 32(c) of the Partnership Act 1890). On 16 January 2012, the Claimants gave notice for dissolution of the partnership with immediate effect and sought a distribution of the assets to the partners.

The accounts for the PC partnership and the NPC partnership

[116]A full set of accounts for the PC partnership was not available. Only accounts from the mid-1980s were produced. In the early years individual capital accounts for the partners were recorded. From 1992, only a general capital account for the partners as a whole was recorded. There was no accounting reason for this change, and it is likely that it was instigated by Aditya to render the financial position more opaque for anyone reviewing the accounts at about the same time as he was seeking to extend his control over the affairs of the partnership following the death of Mr Advani. However, tax returns were filed for the partners which showed that the profits of the partnership were divided equally between them. The same was done in relation to the NPC partnership.

[117]I was assisted in a review of the accounts by Mr Stern and Mr Kakkad. They confirmed that for a partnership tax is payable by a partner on his share of the profits in any year, whether those profits are drawn out by him or not.

[118]The Claimants sought to suggest that if terms as to remuneration had been agreed as Aditya said they were, with his remuneration to be paid out of profits at a point when it was quantified, then that would mean that the partners had declared and paid tax on profits that they were not entitled to receive and Aditya would have defrauded the Inland Revenue by failing to pay tax on the profits which he was entitled to receive. They also suggested that he had defrauded the Inland Revenue by failing to declare and pay tax on the very substantial drawings of profits (far in excess of his own profit share) which he in fact took over the years.

[119]I do not consider that these contentions have been made out by the Claimants. On Aditya’s account (in the form it had developed into at trial), the tax treatment of the profits of the partnerships was correct, reflecting the principle that tax is paid by partners not on their drawings of profits but on their respective shares of profits. As I understood the expert evidence (particularly on the account given by Mr Kakkad), if the partnership did not have a defined obligation to pay remuneration to Aditya in any year it was not required to record a liability of the partnership itself with respect to his remuneration in the accounts; from a tax and accounting perspective, it is possible to have the sort of arrangement which Aditya asserted had been made, with an agreement between partners for one of them to be paid remuneration out of profits at a later stage in the life of the partnership (when the amount of remuneration had been properly assessed and quantified); until there was quantification of the remuneration, any over-drawings from profits by one partner would be equivalent to him borrowing from the other partners out of their entitlements to profits (which would not be taxable income in his hands, and would not reduce the taxable profits attributable to the partners on which they should pay tax); when the time came when the amount of remuneration due had been assessed or agreed, it would then be paid by a future adjustment in the profit shares of the partners (with the share of the partner to be remunerated being increased so as to have an entitlement to all the profits until such time as the obligation of the other partners to remunerate him had been met – and with the remunerated partner paying tax in relation to those profits). It might be that the partner’s previous borrowings by over-drawings from the partnership would then be repaid from those future profits. If things were arranged in this way, there would be no deception of the Inland Revenue and no incorrect payment of tax by any of the partners. Nor would any question arise of seeking to re-write the partnership accounts for past periods. Those accounts would be accurate for what they recorded; they simply would not have touched upon the borrowing and remuneration agreements between the partners themselves. I specifically asked Mr Millett to assist me with reference to evidence or law to show that this sort of arrangement, if it existed, would be incorrect in accounting terms or involve a fraud on the Inland Revenue, and he gave no good explanation why it would.

[120]The difficulty for Aditya, however, is that I consider it is highly improbable that such a complex and subtle arrangement was ever in fact made between him and Asoke, acting for Anjana and the siblings. If such an arrangement had been proposed, Asoke would have ensured that it was put into writing, would have ensured that good objective criteria for ultimate assessment of the remuneration were established and would have insisted on good records being kept by Aditya of the work he had done. It would have been in Aditya’s interest too to ensure that all these things were in place, to minimise the risk of later arguments arising. It is also highly unlikely that if Aditya really had a right to be paid remuneration, he would have allowed that right to remain uncrystallised for decades, thereby running the risk that the future profits of the partnerships might be inadequate to pay it off for a long period or at all.

[121]The Claimants sought to rely on the doctrine of settled accounts. This is a doctrine to the effect that once accounts are settled they may not usually thereafter be re-opened to be recast and re-stated (see Holgate v Shutt

(1884) 27 Ch D 111

, 115 per Lindley LJ), unless there is some compelling reason of justice why they should be (see Williamson v Barbour

(1877) 9 Ch D 529

, 532; The Pongola

(1895) 73 LT 512

; Blackett-Ord, Partnership Law, 4th ed., paras. 14.41-14.48). I do not find this doctrine to be helpful in the present case in so far as the Claimants sought to rely on it to preclude Aditya from advancing the claim which he makes for remuneration. On the explanation set out above, the partnership accounts did not purport to set out the state of account as to remuneration between Aditya and his siblings – they were simply silent about that.

[122]I do consider that the doctrine is applicable in so far as the Claimants can say that the accounts do not reflect Aditya’s case in other respects, regarding his claims to have made contributions to both partnerships (in particular, the very large contributions he says he made to the NPC partnership) or to have paid expenses on their behalf. There is no injustice to Aditya in holding him bound now by the accounts which he caused to be drawn up and reviewed at the time, especially since so many years have passed and there is an absence of clear contemporaneous documentation by reference to which it can be clearly and distinctly shown that the accounts contained an error. For similar reasons, I consider that the doctrine of laches precludes Aditya from now being entitled to recast the accounts which he caused to be drawn up and which in substance represent his account as the fiduciary managing partner of the partnerships of what has been done with the assets under his control. It would be unconscionable in all the circumstances for Aditya now to maintain a claim to re-cast the partnership accounts in the way he seeks to do: see e.g. Tottenham Hotspur FC v Princegrove Publishers Ltd

[1974] 1 WLR 113

, 122; Patel v Shah

[2005] EWCA Civ 157

[123]However, I make it clear that the principal basis on which I make rulings in relation to the affairs of the partnerships is that I do not accept Aditya’s evidence and explanations regarding the underlying facts. In particular, in relation to contributions made to each of the partnerships, in each case I find that (other than in cases where the funds were generated by the partnership businesses themselves) the contribution was made using funds provided by Asoke and that the intention was that they should be treated as contributions shared equally between the existing Sen family partners (Anjana and the four siblings). Where the immediate payor into the partnerships was Aditya using funds from Asoke, this was the arrangement; contrary to Aditya’s evidence, those funds were not personal gifts to Aditya which he then used to make contributions in his own sole interest. It is very unlikely that Aditya would have used his own money to make payments for the benefit of either partnership, at any rate without ensuring there was documentation put in place to make it crystal clear that the contribution by him was not to be treated as divided equally between the partners.

[124]It seems that at some stages money came into the NPC partnership from the profits being made by the PC partnership. The Claimants maintain a positive case to that effect, albeit they cannot be sure of the full underlying facts. This would accord with what Asoke, Aditya and Mr Advani told Shyamali might be done with the profits from Palace Court and is one reason why the Claimants never thought to question why they did not receive actual payments of profits in respect of Palace Court. To the extent that this happened, the practical effect is the same as when Asoke introduced external funds into the NPC partnership. In each case, the contributions were in equal shares between the partners either because Asoke intended that or because the funds used were those to which the NPC partners were entitled in equal shares under the PC partnership.

[125]Where Aditya has raised issues regarding payment by him of certain costs associated with the partnerships out of his own funds, it is probable that all such expenses were in fact met out of the profit stream from Palace Court.

[126]As regards the relief sought against Aditya, an inquiry into the extent to which he has misappropriated partnership funds by making drawings in excess of his profit share will need to include an assessment of the extent to which Aditya’s drawings from the PC partnership were used to make contributions to the NPC partnership. To the extent that they were, they will not have been misappropriated but rather properly applied by Aditya for the benefit of all the partners in exercise of his management authority conferred on him by the other partners in relation to both partnerships. Putting it another way, it would not be just for Shyamali, Anindya and Krishna to claim back from Aditya the full amount of his over-drawings from the PC partnership while at the same time taking their respective shares of the benefit of contributions made by him into the NPC partnership, if made using those same PC partnership profits.

[127]The main issue which divided the expert accountant witnesses in reconstructing the financial position of the partnerships is whether Anjana had drawn all her profit share by the time of her death, as Aditya maintains she did. If true, this would reduce the amount of drawings to be attributed to Aditya.

[128]In my judgment, this is another area of Aditya’s evidence which cannot be accepted. Those extant accounts which show movements on the individual capital accounts of the partners all show Anjana drawing the same as Aditya’s siblings. This was an established pattern, and there is no good evidence to show that it was departed from later on. Similarly, I do not consider it likely that Mr Advani withdrew his entire profit share, as Aditya also suggested. Mr Advani was in all probability treated in the same way as Anjana and Aditya’s siblings.

[129]I believe that with the benefit of the findings in this judgment the parties, with assistance from Mr Stern and Mr Kakkad, should be able to agree the basic financial picture concerning each partnership so as to resolve the profit drawings issue to a substantial extent. It may be that, if they cannot be agreed, there will need to be further debate about issues of interest in the light of the findings and rulings in this judgment.

[130]The figures in the partnership accounts indicate that Aditya has over-drawn more than £2 million (subject to the point in para. [126] above). I think it is fair to say that there was an increase in his over-drawings after Mr Advani’s death and Asoke’s illness in 1990, then something of an explosion in his over-drawings after Asoke’s death in 1996. There were large scale withdrawals by Aditya which were never properly justified by reference to any legal or objective standards. In my judgment, against the factual background set out in this judgment, the pattern of over-drawing by Aditya (without telling any family member about them, since after Asoke’s death there was no-one who reviewed the accounts or asked him for explanations) is a strong indication of dishonest misappropriation of funds by Aditya from the partnerships.

[131]The accounts for the NPC partnership do not reflect the very large contributions which Aditya says he personally made to that partnership. I find that the doctrine of settled accounts and the doctrine of laches apply so as to preclude him from trying to re-open these accounts to re-state them to show a personal contribution by him. I also find that in fact he made no such personal contributions.

[132]The accounts for the NPC partnership do not reflect certain lesser contributions which Aditya says he personally made to that partnership. Again, I find that the doctrine of settled accounts and the doctrine of laches apply so as to preclude him from trying to re-open these accounts to re-state them to show such personal contributions. I also find that in fact he made no such personal contributions.

[133]Mr Booth identified a series of other issues on the accounts which need to be addressed, in relation to which Aditya claims credit: i) advances to the PC partnership amounting to at least £50,000. For reasons given above, Aditya is entitled to no credit for these alleged contributions; ii) payments of accountancy fees to SRLV, tax advisers for the partnerships, in the sum of at least £45,195. By reason of the doctrines of settled accounts and laches, Aditya is not entitled to credit in respect of this. It is unclear on the evidence whether the advice given was really in relation to the partnerships, and whether the cost of any tax advice for the partnerships was in fact met by the partnerships (either directly or by reimbursing Aditya); iii) renovation and re-equipping Palace Court and payments to tenants to remove long-term tenants, in the sum of £30,000. For reasons given above, Aditya is entitled to no credit for these alleged contributions; iv) insurance premiums paid on behalf of the NPC partnership in the sum of £7,858. The position is the same as in relation to the fees paid to SRLV; v) payment of the non-domiciled tax charge for Aditya. Aditya is entitled to no credit for this.

Rulings on the issues regarding the PC partnership and the NPC partnership

[134]Arising out of this review of the facts, I summarise my rulings in relation to the two United Kingdom partnerships as follows: i) On the joint lives issue: there was no joint lives term in the PC partnership; ii) On the PC remuneration issue: there was no term of the PC partnership that Aditya would be entitled to remuneration in relation to his work for that partnership. It is common ground that a partner is not entitled to remuneration out of partnership assets unless that is agreed by the other partners. There never was agreement by the other partners (nor by Asoke on their behalf) that Aditya should be entitled to remuneration out of the partnership assets; iii) On the NPC remuneration issue: I make the same ruling as in relation to the PC remuneration issue; iv) On the PC tax issue: there was no term of the PC partnership nor any agreement that Aditya could recoup payments in respect of his personal tax liabilities out of the partnership assets; v) On the NPC tax issue: I make the same ruling as in relation to the NPC tax issue; vi) On the PC contributions issue: all contributions to the assets of the PC partnership which flowed from funds provided by Asoke, including those which passed through Aditya’s hands and were paid on by him, were intended by Asoke and agreed to be for the benefit of all the partners, and were not gifts by Asoke to Aditya which Aditya then paid as his own personal contributions to the PC partnership. There is no good evidence that Aditya made any significant contributions of his personal assets or funds to the PC partnership. Had he made such contributions, he would have taken care to ensure that a good record was kept of them, signed and acknowledged by Asoke, in order to ensure that there was no dispute about the matter (particularly after Asoke died); but no such record was ever drawn up, let alone presented to Asoke for signature; vii) On the NPC contributions issue: I make the same ruling as in relation to the NPC contributions issue; viii) Aditya filled in and filed tax returns each year for his siblings in relation to their share in the profits in the two partnerships. He says he is entitled to be paid a reasonable sum for doing this. I reject this claim. The common understanding was that this was a service he would perform for free, out of family affection and loyalty; ix) On the Woodstock Road issue: I find that Aditya owns 29 Woodstock Road beneficially (subject to any rights Rosy may have in relation to the property). 27 Woodstock Road remains an asset of the NPC partnership, save that Aditya has the beneficial ownership of the ground floor (subject, again, to Rosy’s rights); x) On the profit drawings issue and the accounts adjustment issue: see the section on the accounts at paras. [126] et seq. above.

[135]In the course of the case Aditya has made reference to the Limitation Act 1980 and the provision in section 61 of the Trustee Act 1925 which allows the court to grant relief in favour of a trustee who has acted honestly and reasonably. Neither statute provides any protection for Aditya in the circumstances as I have found them to be. Nor does the doctrine of laches prevent the Claimants from advancing the claims they do. They have struggled throughout to overcome a lack of information and various smokescreens thrown up by Aditya, and there is nothing inequitable in them having waited until 2011 to commence proceedings.

[136]As regards the partnership dissolution issue, an order will be made for the dissolution of both the PC partnership and the NPC partnership. The parties should seek to agree the terms of the order, and have liberty to apply back to court to resolve any disputes. Subject to further submissions by the parties (for example, as to whether some special arrangement should be made in favour of Aditya for him to be entitled to have the first and second floors of 27 Woodstock Road as part of his share of the partnership assets, giving them a market value to be set by an independent surveyor, since he owns the ground floor and 29 Woodstock Road), my provisional view is that the fair and practical course is for the division of assets to occur after sale of all the partnership properties.

The alleged US partnership issue

[137]Aditya’s evidence was that money provided by Asoke through Aditya to assist Anindya to buy property in the USA in the 1970s, which Aditya said totalled about $700,000, was intended to be invested into a joint venture holding property for the benefit of both Aditya and Anindya. There is no shred of contemporaneous documentary evidence to support this contention or Aditya’s claim about the amount involved. No document was drawn up to reflect any such arrangement. Anindya raised most of the purchase monies for his properties in the USA by taking out mortgages in his own name, and treated them throughout as his own property (buying and selling them at will, without reference to Aditya). No partnership or joint venture accounts were ever drawn up. Over all the years from the 1970s until the present dispute began to come to a head in 2010, Anindya did nothing in terms of sending documents or drawing up accounts which could have led Aditya to think that he acknowledged that Aditya had any rights in the US properties owned by him, and Aditya did not send any document calling on Anindya to acknowledge his interest or to account in relation to the revenues from and his dealings with the properties said to be owned by Anindya and Aditya as partners.

[138]Aditya also said that in 1994, at the same time as he says he obtained Asoke’s agreement in relation to his own contributions to the NPC partnership (see para. [98] above), he had Mr Garvey draw up a schedule of money sent by Aditya to Anindya in the USA and had a meeting with Asoke and Anindya to agree that these were contributions by Aditya to the joint venture between Aditya and Anindya to acquire properties in the USA. No copy of this document was retained by Aditya, and even on his own evidence Anindya did not sign it. Mr Garvey gave evidence that he did draw up such a schedule (he too did not retain a copy of it), but did not corroborate Aditya’s evidence that the purpose of doing this was to establish that Aditya had a share in the property owned by Anindya in the USA.

[139]I doubt that such a schedule was in fact drawn up. I think that this is an area where Mr Garvey’s recollection is not reliable. But in any event, if the object of such a document had really been to establish the extent of Aditya’s beneficial ownership of property owned at law by Anindya in the USA, I have no doubt that Aditya would have been careful to obtain Asoke’s and Anindya’s signatures on it and would have retained it. It would have been imperative for him to do so, in the absence of any other documentary evidence to support his claims. The fact that Aditya could not produce the document he says he commissioned for the purposes of agreement is a further strong indication that he was not telling the truth. I believed Anindya’s evidence that no meeting such as that alleged by Aditya ever took place.

[140]Aditya only began raising the possibility that he might have claims against Anindya’s property in the USA very late in the day, after Anindya had started to raise serious concerns about Aditya’s conduct in relation to the Indian and United Kingdom portfolios. In the general family discussions concerning division of the family property after the death of Asoke in 1996, Aditya made no suggestion that he had any claim in relation to the property owned by Anindya in the USA. The inference is that Aditya only raised such a claim later to try to increase the risk for Anindya of taking legal action against him in relation to the Indian and United Kingdom property, and did so without genuine belief that he had any such claim.

[141]I believed Anindya’s clear evidence - supported by a detailed account by Anindya of the circumstances in which he in fact acquired property in the USA which was corroborated by Trish (whom he had in fact first met when purchasing property from her in the USA) - that there was never any agreement between him and Aditya to create the alleged US partnership. Although Asoke provided Anindya with some funds to help him buy the first two properties he acquired in the USA, there was broad equity in his treatment of the children since, unlike Anindya, each of Krishna, Shyamali and Aditya were given houses in India in the 1980s (Aditya’s house there being in addition to 29 Woodstock Road which Asoke had in effect given to him). Asoke’s personal assistance to Anindya to acquire property in the USA, for Anindya’s sole benefit, was not, therefore, in any way surprising or out of keeping with Asoke’s general approach to his treatment of his children.

[142]I find that Aditya’s evidence to support his claim to a share in Anindya’s property in the USA was a pack of lies.

The credit card issue

[143]When Anando came to live with Aditya in London in 1999, Shyamali made an agreement with Aditya that he would pay various expenses for Anando and she would pay him back. Aditya, who at that stage was on good and close terms with his nephew, provided Anando with a credit card linked to Aditya’s account, for Anando’s convenience and personal use. Aditya also paid various expenses, such as the cost of singing lessons for Anando, who was training to become an opera singer.

[144]Shyamali accepts that she is obliged to repay Aditya £39,254.31 in respect of Anando’s use of the credit card and £36,417 in respect of other payments. It is unlikely that there was ever an agreement regarding payment of interest, but in my view it is just and appropriate that Shyamali should pay interest on these loans to her and Anando. There will need to be further submissions about the appropriate rate, as in relation to all questions of interest in this case.

[145]The remaining areas of dispute principally relate to Anando’s use of the credit card. He used the card extensively, including for a holiday he took in the USA, for which he incurred expenses using the card in the total sum of £3,433.26. An issue arises as to whether Aditya agreed that Anando could finance his American holiday using this credit card, as a present from Aditya to Anando. Other relatively minor issues arise regarding the division of other items appearing on the credit card statements between Aditya (i.e. expenditure incurred by himself using his own credit card linked to that account) and Anando (i.e. expenditure incurred by Anando for his own benefit, and not by way of gift from Aditya).

[146]On the first of these issues, there is a straight conflict of evidence between Anando and Aditya, with Anando’s account being corroborated to some degree by other family members. I prefer Anando’s evidence on this issue. In my judgment, he was an honest witness telling the truth about this, whereas Aditya’s evidence was generally unreliable and frequently dishonest. Although the gift of the US holiday was a very generous one, the Sen family was wealthy and could be very generous within the family circle, and in view of the very close relationship which then existed between Anando and Aditya I found it credible that this generous gift had been made by Aditya. Once relations soured between Aditya and the rest of the family, and in particular with Anando, Aditya sought to deny that a gift had been made in order to introduce a further element of counter-claim against other family members.

[147]On the second question, concerning the detailed breakdown of expenditure on the credit card account as between Aditya and Anando, I again prefer the evidence of Anando. He had taken care to go through the list of items of expenditure and he impressed me as an honest witness. Aditya’s evidence was not so precise, and he was not a reliable witness.

[148]In so far as there are other disputes regarding the extent of the repayments now due from Shyamali, I prefer Anando’s evidence to that of Aditya.

The jewellery issue

[149]There are a number of items of diamond and gold jewellery which were held in a family safe deposit box at a bank until it was opened by Aditya in October 2010. The Claimants contend that these items include one set of diamond jewellery belonging to Shyamali and one set belonging to Krishna, as well as miscellaneous items which belonged to Anjana (and which therefore fall to be divided equally between her children). The Claimants contend that the set belonging to Shyamali and the set belonging to Krishna should be delivered to them, with the value of the remaining items divided equally between the siblings. Aditya, by contrast, contends that all the jewellery belonged to Anjana and should all be divided up equally.

[150]I accept the evidence of Shyamali and Anindya on this issue. In Indian families following traditional customs items of jewellery are collected over the years with the intention that they should be passed down to female descendants and daughters-in-law. Asoke and Anjana collected jewellery over the years for this purpose. Some items were, for example, given to Trish when she married Anindya.

[151]Asoke gave one set of diamond jewellery (out of three sets which he acquired, one each for Anjana, Krishna and Shyamali) to Shyamali and one set to Krishna. On the closing submissions there is no dispute regarding the jewellery in issue. Both sides pointed to a photograph in the papers before the court: to the extent that the parties cannot agree the identity of the sets of jewellery belonging to Shyamali and Krishna, the parties have liberty to make further submissions to the court. Although one set each of jewels was given to Shyamali and Krishna outright, the arrangement from the 1970s was that all three sets would be stored in a safe deposit box in London. Aditya, Anjana and Krishna had access to the safe deposit box. I find that the ownership of the three sets of jewels was understood by all the siblings, and was from time to time mentioned in conversations between them.

Conclusion

[152]The Claimants succeed in the main part of their claims against Aditya. I find that Aditya is the sole beneficial owner of 29 Woodstock Road and the ground floor of 27 Woodstock Road. The parties should now seek to agree an order to reflect the rulings and findings in this judgment.