Keshwara v Keshwala, Court of Appeal - Civil Division, March 17, 2004,  EWCA Civ 295
|Resolution Date:||March 17, 2004|
|Issuing Organization:||Civil Division|
|Actores:||Keshwara v Keshwala|
Case No: B2/2002/1100 CCRTFNeutral Citation Number:  EWCA Civ 295IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM NORTHAMPTON COUNTY COURTHis Hon. Judge Mayor Q.C.Royal Courts of JusticeStrand, London, WC2A 2LLWednesday 17th March 2004Before :THE RT. HON. LORD JUSTICE WARD THE RT. HON.LORD JUSTICE JONATHAN PARKERandTHE RT. HON. LORD JUSTICE KEENE- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - -Mr Iyer (instructed by R.W. Hemmings) for the AppellantMiss Lakin (instructed by Chetty & Patel) for the Respondent- - - - - - - - - - - - - - - - - - - - -JudgmentLord Justice Ward :1. His Hon. Judge Mayor Q.C. began his judgment on 7th May 2002 saying:- ``Unhappily this litigation arises from a dispute between members of the same family and it is therefore to be regretted since people who formerly lived in harmony have now got to the stage of airing their disputes, no doubt expensively, before a court of law. ... The dispute is over the beneficial ownership of a property at 49 Navestock Crescent, Woodford Green, in London and the claimant and defendant are respectively the eldest and one of the younger sons of the last owners of that property, namely their parents.''2. I echo the judge's unhappiness. When I gave permission to appeal I urged alternative dispute resolution. The parties did go to the mediator but they could not settle their differences. So in the region of £65,000 has been spent in perpetuating a family feud over a property valued two years ago at only £85,000. What a sad waste of money. What a sorry family feud. What a frustrating use of four days in the County Court and one day in the Court of Appeal.3. Common ground is hard to find. All we know for certain is that on 5th March 1990 the London Borough of Redbridge granted a long lease of the property to the parties' parents in consideration of £20,400. As the lease was originally drafted the claimant was named as one of the lessees. The sparse conveyancing file reveals that the Council offered to sell the property, a council house, to the three parties for £42,500 but subject to a discount of 52%. The judge said that the names of parents and son appeared on the rent book at the time but we are told that he was in error in that regard. The son was not a tenant. His participation in the purchase was, however, vital to the exercise of the right to buy. Although it emerged late in the trial that the parents had monies in India in blocked accounts, they had no substantial capital in this country and were in receipt of income support and probably housing benefit at the time. The claimant may have been joined partly in the expectation that he could join in the borrowing of monies from the Building Society. That plan floundered partly because he had already borrowed money on a property he owned in the Midlands. Partly it may have been appreciated that the parents could continue to have mortgage interest paid from their state benefits. Whatever the reason, the deal was done on the basis that the price of £20,400 would be paid as to £10,900 in cash and as to £9,500 by way of a mortgage granted by the Building Society on an interest only basis. The Building Society's conditions are not in the mortgage file. We do not know to what extent, if any, their offer was dependent upon the son taking out a collateral policy of endowment assurance on his life to provide the sum of £9,000 ten years thence. The claimant said it was agreed that he would pay the insurance premiums. The judge found the parents were paying them.4. The central controversy in the court below related to the payment of the cash element of £10,900. The claimant's pleaded case was that he agreed with his parents that he would provide that sum together with a further £268.80 for legal and other costs and that:-``The property would be owned by the claimant's parents on trust for the claimant, and when the claimant's parents died, the property would go to the claimant absolutely.''He sought a declaration accordingly and it seems almost as an afterthought that he claimed in the alternative that the property should be held on a trust for sale in such shares as the court should determine.5. The parents are no longer here to throw light on those arrangements. Father died on 23rd June 1994 and mother on 31st October 1997. By her last Will and Testament the mother revoked her earlier disposition of the property to her three sons and now she devised it to the defendant only.6. The defendant's case was that the claimant advanced the monies not with the intention of acquiring an interest in the property but by way of loan to his parents. Moreover his case was that the monies were not the claimant's monies but rather family funds, it being averred that:-``He had no money or savings at all at the time and he had not been in employment for any considerable period during the period 1983 and 1990. The defendant, claimant and their parents lived at that time as an extended family. Any funds that had been saved as a unit would be handed over to the claimant for safekeeping in his capacity as the eldest son of the family.''7. The judge held:-``Although I am very far from rejecting as an invention the contention that these represented some sort of family fund, when I look in the fog of insubstantial evidence for reliable markers as to the way in which the court's judgment should go, I observe as the starting point the sure ground that the accounts were held in the claimant's own name, and necessarily arrive at the conclusion that there is no evidence which on a balance of probabilities enables me to reach with even the required degree of certainty in a civil court that he held those funds for anyone else.''8. Nevertheless his central conclusion was that:-``... The contribution of £11,168.80 made by the claimant towards his parents' purchase of their home from the council in early 1990 was made as a loan to assist them with the purchase, and not with the intention on either his or his parents' part then or at any other time that he should...
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