Neutral Citation Number: [2012] EWCA Civ 1438
Case No: B2/2012/0496
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
His Honour Judge Harris QC
OLE03814
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 9th November 2012
Before :

LORD JUSTICE MUMMERY
LORD JUSTICE PATTEN
and
LORD JUSTICE TREACY
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Between :

	Nilesh Hirji Pankhania	Appellant/
Claimant	
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	Mrs Kalavanti Narendra Chandegra
(by her Litigation Friend Ronald Andrew Eagle)	Respondent/Defendant	

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Ian Lamacraft (instructed by BP Legal) for the Appellant
John Small (instructed by Josiah Hincks) for the Respondent

Hearing date : 23rd October 2012
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Judgment

Lord Justice Patten : 
1.	This is an appeal by the claimant, Nilesh Pankhania, against the dismissal of his claim for an order for the sale of a registered freehold property at 7, Cossington Street, Leicester (“the property”) and for the division of the net proceeds of sale between himself and the defendant in equal shares.  The property was purchased on 7th July 1987 for the sum of £18,500 with the assistance of a mortgage loan from the Market Harborough Building Society in the sum of £17,500.  It was transferred by the vendors into the names of the claimant and the defendant as joint tenants to be held by them as tenants in common in equal shares and the transfer (in clause 3) contains an express declaration of trust by the claimant and the defendant to that effect. 
2.	Notwithstanding this, the judge, HH Judge Charles Harris QC, held that the legal and beneficial ownership of the property resided solely with the defendant and made a declaration to that effect.  The claimant appeals against that order with the permission of Lewison LJ who noted that at no point in his judgment did the judge refer to the fact that there was an express declaration of trust setting out the parties’ respective beneficial interests and that, although the judge referred to the defendant’s submission that the transfer was a sham, it is far from clear whether he made any finding to that effect.
3.	I should say at the outset that the judge may not have been helped by the way in which the case was presented to him.  Being a Part 8 claim, there were no pleadings as such.  Agreed directions were given for disclosure and the exchange of witness statements and the case was listed for trial on 26th January 2011.  Sadly on 19th November 2010, after preparing and signing her witness statement, the defendant suffered a heart attack which caused severe brain damage.  As a consequence, the trial date was vacated and on 18th April 2011 Mrs Ranjana Kotecha, her niece, was appointed her Litigation Friend.  The action was directed to proceed as a Part 7 claim but pleadings were not ordered.  On 23rd August 2011 Mr Eagle replaced Mrs Kotecha as the defendant’s Litigation Friend and a further hearing took place.  On this occasion the claimant’s counsel invited the judge to proceed to determine the issue of beneficial ownership on a summary basis on the footing that the defendant had not indicated in her evidence any line of argument which would allow her to go behind the express declaration of trust contained in the transfer.  HH Judge Hampton declined to deal with the case in this way and instead gave the defendant permission to serve further evidence which, in the event, was served in the form of a witness statement from Mrs Kotecha.  She also ordered both sides to file skeleton arguments. 
4.	The action came on for trial before Judge Harris QC on 23rd November 2011.  The claimant’s counsel, in his skeleton argument, set out the details of the purchase and referred to the declaration of trust in the transfer.  He then explained that, notwithstanding the declaration of trust, the defendant claimed that there was an understanding between the parties at the time of purchase or within the wider family that she was to be the sole beneficial owner and that the property was to be her matrimonial home.  The claimant’s case, by contrast, was that the property had been purchased in order to provide a home for his uncle (who died on 23rd November 2003) and, subject to that, was to be an investment for the claimant and the defendant.  The principal areas of dispute therefore were whether there was an underlying agreement or understanding capable of displacing the terms of the transfer.  The skeleton then addressed the evidence relied on by the defendant but did not discuss in any further detail the circumstances in which a party to an express declaration of trust may be entitled to avoid it.
5.	Counsel for the defendant in his skeleton argument concentrated on the evidential issues about what the parties and their family intended at the time of the purchase.  His skeleton entirely ignores the existence of an express declaration of trust in the transfer but refers instead to inconsistencies on the claimant’s part in his account of what was agreed with his uncle and to the defendant’s position that the claimant was never intended to have any beneficial interest in the property.
6.	In order to put these arguments in context it is necessary to summarise very briefly what the factual dispute was.  The defendant is the claimant’s aunt.  The family (including the defendant and the claimant’s mother, her sister-in-law) came to this country from Kenya in 1967 and the claimant was born here.  In 1968 they were joined by the defendant’s brother, Harjivanbhai, who is the claimant’s uncle referred to in his evidence.  The family were all living in a rented flat at 84, Rendell Road in Leicester but later they acquired other property in the same street and the claimant came to live with his parents at 88, Rendell Road .
7.	The property at 7, Cossington Street (a neighbouring street) was identified as for sale by the claimant’s uncle.  At the time of the purchase in 1987 the claimant was 19 years old.  He says in his witness statement that most of the deposit was paid by his uncle who had wanted to purchase the property himself but was not eligible for a mortgage.  It was therefore decided that the property should be purchased by the claimant and the defendant.  He says that the long-term intention was that his uncle would eventually live in the property and that the parties would sell their interests in it to him.  But in 1989 the defendant got married in India and needed a home.  He says that he had no objection to his aunt living in the property with her husband at the time but that it was not intended to be a permanent arrangement.  Later in 2001 the defendant changed the locks, refused the claimant access, and refused to sell the house to the claimant’s uncle.  He died in 2003 and the claimant says he paid the mortgage up to that time.  Thereafter the claimant and the defendant paid the mortgage in equal shares until 2009 when the claimant issued the Part 8 proceedings seeking a sale.
8.	The defendant in her witness statement also accepts that it was her brother, the claimant’s uncle, who found the property but was not able to purchase it himself.  But her evidence is that his intention was that she should purchase it.  She says that she proceeded to do that and made a mortgage application to the building society in her sole name but was told that her income was insufficient to enable her to borrow the amount she required.  As a result, there was a discussion within the family when it was decided that the claimant would become a joint purchaser of the property so that his salary could be taken into account for the purposes of the mortgage.  She says that after the purchase was completed there was never any intention within the family that the claimant should occupy the property or treat it as his own and that the intention was that it should become her matrimonial home.  The claimant made no contribution to the deposit and the mortgage payments were made by the defendant with only occasional assistance from her brother.  She accepts that in 2005 the claimant told the building society that he wished to contribute to the mortgage payments and that he made payments between August 2005 and December 2008 amounting to £2,650.  But she says that these payments were never requested by her or discussed between them.
9.	Mrs Kotecha’s evidence largely corroborates that of her aunt but she accepted in cross-examination that her statement was based on what her aunt had told her rather than on any first-hand knowledge of her own and it adds really nothing relevant to the issues on this appeal.
10.	The judge set out the family history leading up to the purchase of the property and then said this:
“The claimant’s case is a simple one.  He is a joint tenant by virtue of the conveyance/paper title and normally the beneficial interest would follow the legal interest.  It is in those circumstances for the defendant to establish that the beneficial interest is not in accordance with the legal interest and this, he contends, she cannot do.  The defendant argues firstly that the claimant has admitted in evidence that the beneficial interest was understood by him to rest with “the family”, not with him personally.  Certainly, that the presence of the claimant’s name as joint tenant only came about as a convenient method of obtaining a mortgage, which the defendant could not have got on her own sole earnings on her own behalf.  It is said that the house was intended, if not from the very outset, then certainly very soon thereafter, as a matrimonial home for the defendant and her husband and it was never envisaged by anyone that the claimant would have any beneficial interest.  In short, the transfer in part to him as an expedient sham.  Further, the claimant has made next to no financial contribution to the acquisition or maintenance of the property.”
11.	He then went on to deal with the law:
“5. The law in this area is now largely governed by the approach in the House of Lords in Stack v Dowden [2007] UKHL 17, as reviewed in Jones v Kernott [2011] UKSC 53.  The party whose name is on the register starts (in the absence of an express declaration of trust in different terms) with the presumption or assumption of a beneficial joint tenancy, see Jones v Kernott at paragraph 17:”
“a challenge to the presumption of beneficial joint tenancy is not to be lightly embarked on… If a couple in an intimate relationship (whether married or unmarried) decide to buy a house … in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise. … even if the parties … fail to make that clear by any overt declaration or agreement. The court has often drawn attention to this. Jacob LJ did so in his dissenting judgment in this case.” Supra paragraph 19. 
But that presumption can of course be rebutted by evidence of a contrary intention, which may more readily be shown where the parties did not share their financial resources” Supra paragraph 25.
6. 	In the instant case, the parties were neither married nor living together, intimately or otherwise.  At all material times, the defendant occupied the house and the claimant never did.  There was no business relationship either.  As the years went by, the claimant got no income of any kind from the property.  There was no indication of joint enterprise at all, beyond the fact of the purchase itself. 
7. 	So the question is, can a contrary intention to joint beneficial ownership properly be inferred (not imputed see Jones supra at paragraph 26).  The inference involves looking at the facts and the behaviour of the parties to see what these indicate. 
“The primary search must always be for what the parties actually intended, to be deduced objectively from their words and their actions. If that can be discovered, then … it is not open to a court to impose a solution upon them in contradiction to those intentions, merely because the court considers it fair to do so”. Supra paragraph 46.
8.	The principles were summarised at paragraph 51.
“the common intention may impress a constructive trust upon the legal ownership”. Supra paragraph 78.
12.	Having reviewed the evidence, the judge set out his findings as follows:
“18.	In the light of the evidence, I have concluded that though the claimant acquired a legal interest in the property by the transfer, it was not accompanied by the beneficial interest for the following reasons:
a) 	The claimant agreed that the beneficial interest belonged to the family, of which he was but a fraction.
b) 	He became a joint tenant simply to enable or facilitate the defendant’s purchase of the house.  He had nothing to do with any decision to choose it or buy it and merely acceded to a request to take part in the transaction from a senior family member.
c) 	He may or may not have contributed £250 to the purchase price, (or perhaps £125), but that was a quite minimal sum in the light of the total price.  He never paid anything else save the superfluous £2,650 after 2005.
d) 	He has never asked for any income from the property.
e) 	Between at least 1989 and 2005 and probably longer, so for a minimum of sixteen years, he did nothing at all to assert or suggest that he had any entitlement to the property or in the property.
f) 	He had never sought to live in the property.
19.	These factors lead me to conclude that the intentions of the parties were at all material times that the house would be bought for the benefit and at the expense of the defendant, that insofar as it was not to be her house, which it largely or totally would be, since she was assuming the burden of paying for it, it would be a “family asset”.  That the claimant’s role was to lend his name and an account of his then income to the purchase so that the defendant could obtain the mortgage, she would not otherwise qualify for.  I am satisfied that the claimant, a good natured, non-assertive and cooperative junior member of an extended Indian family did not believe that by joining in the purchase, he personally was acquiring the benefit of joint ownership in the house.  Thus, for many years the state of affairs was undisturbed and unquestioned.  I therefore determine that the beneficial interest in the property is vested in the defendant.”
13.	The first of these findings appears to have been based upon a mis-recollection by the judge of the claimant’s evidence.  The transcript records the claimant agreeing in cross-examination that the family (rather than he) viewed itself as the beneficial owner of the property and he went on to say that his aunt had told the solicitor that she and the claimant wanted to be 50/50 owners.  But (this apart), if this was a case where the property had been transferred to the parties as joint tenants with no indication in the transfer as to the beneficial ownership then the judge’s approach could not be faulted.  The factors which he took into account would all have been relevant to a determination of what was the parties’ intention as to who should own the property beneficially and in what shares.  But that was not the issue with which the judge was faced.  For whatever reason, the parties (both of them of full age) had executed an express declaration of trust over the property in favour of themselves as tenants in common in equal shares and had therefore set out their respective beneficial entitlement as part of the purchase itself.  In these circumstances, there was no need for the imposition of a constructive or common intention trust of the kind discussed in Stack v Dowden nor any possibility of inferring one because, as Baroness Hale recognised in paragraph 4 of her speech in that case, such a declaration of trust is regarded as conclusive unless varied by subsequent agreement or affected by proprietary estoppel. 
14.	The authority she refers to in this context is the decision of this Court in Goodman v Gallant [1986] 1 FLR 513.  A couple purchased what had been the claimant’s former matrimonial home in which she believed she had enjoyed a 50% beneficial interest.  The property was conveyed to them jointly but the conveyance also contained a declaration that they held the property upon trust for sale to hold the net proceeds of sale upon trust for themselves as joint tenants: i.e. that they were to be joint tenants in equity.  The claimant severed the legal joint tenancy and sought a declaration that she owned three-quarters of the property beneficially.  Both the judge and the Court of Appeal held that the express declaration of trust governed the parties’ respective entitlement to the property.  Slade LJ (at page 517) said:
“In a case where the legal estate in property is conveyed to two or more persons as joint tenants, but neither the conveyance nor any other written document contains any express declaration of trust concerning the beneficial interests in the property (as would be required for an express declaration of this nature by virtue of s. 53(1)(b) of the Law of Property Act 1925), the way is open for persons claiming a beneficial interest in it or its proceeds of sale to rely on the doctrine of "resulting, implied or constructive trusts": see s. 53(2) of the Law of Property Act 1925. In particular, in a case such as that, a person who claims to have contributed to the purchase price of property which stands in the name of himself and another can rely on the well known presumption of equity that a person who has contributed a share of the purchase price of property is entitled to a corresponding proportionate beneficial interest in the property by way of implied or resulting trust: see, for example, Pettitt v. Pettitt [1970] A.C. 777, 813-814, per Lord Upjohn. If, however, the relevant conveyance contains an express declaration of trust which comprehensively declares the beneficial interests in the property or its proceeds of sale, there is no room for the application of the doctrine of resulting implied or constructive trusts unless and until the conveyance is set aside or rectified; until that event the declaration contained in the document speaks for itself.
We have prefaced any consideration of the decided cases with these observations because in the light of certain judicial observations we seek to make two points clear. First, in our judgment, ss. 34 to 36 of the Law of Property Act 1925 do not enable or assist a person to establish a beneficial interest in land or its proceeds of sale greater than or different in nature from the interest which he would have enjoyed if those sections had not been enacted; beyond transferring the beneficial interests of tenants in common and joint tenants from the land to its proceeds of sale, they have no effect on the nature or extent of such interests. Secondly, the many decisions which deal with the situation where the legal estate in land has been conveyed to persons as joint tenants without any declaration of the beneficial interest are, in our opinion, clearly distinguishable from cases where an express declaration of the beneficial interests has been made.”
15.	In the passage referred to from his speech in Pettitt v. Pettitt [1970] A.C. 777 (at page 813) Lord Upjohn said:
“… the beneficial ownership of the property in question must depend upon the agreement of the parties determined at the time of its acquisition. If the property in question is land there must be some lease or conveyance which shows how it was acquired. If that document declares not merely in whom the legal title is to vest but in whom the beneficial title is to vest that necessarily concludes the question of title as between the spouses for all time, and in the absence of fraud or mistake at the time of the transaction the parties cannot go behind it at any time thereafter even on death or the break-up of the marriage.”
16.	The judge’s imposition of a constructive trust in favour of the defendant was therefore impermissible unless the defendant could establish some ground upon which she was entitled to set aside the declaration of trust contained in the transfer.  He seems (in paragraph 2) to have misunderstood the significance of the transfer which not only made both claimant and defendant legal owners of the property but also spelt out their beneficial interests.  The whole of his judgment proceeds upon the footing that he had a free hand to decide what was the common intention of the parties at the relevant time but that inquiry was simply not open to him unless the defendant had established a case for setting the declaration of trust aside.
17.	A declaration of trust can be set aside for fraud, mistake or undue influence but nothing of that kind is alleged in this case.  In Wilson v Wilson [1969] 1 WLR 1470 Buckley J rectified a transfer containing a declaration of trust under which two brothers declared that they were joint tenants of the property in equity in circumstances where neither of them appreciated the effect of the declaration of the beneficial interest; appreciated that the transfer was a deed; and where they clearly intended that one brother should be the sole beneficial owner.  But there was no claim for rectification in this case and Mr Small for the defendant has not advanced a case that the transfer could be rectified so as to omit the declaration of trust.  There was no evidence at trial that it was inserted by mistake or that the parties intended to execute a transfer in materially different terms.  There is no evidence in the form of the solicitors’ file as to how the transfer came to include the declaration of trust and on whose instructions nor do we know what input (if any) the building society had with regard to the form of the transfer although it seems to me unlikely that it would have been concerned with anything beyond both parties being legal owners so that they became parties to the mortgage. 
18.	The only ground for going behind the declaration of trust which is referred to by the judge is that the transfer was a sham.  Like Lewison LJ, this reference in paragraph 2 of the judgment seems to me to be a précis of Mr Small’s submissions rather than a finding by the judge and is, I think, derived from paragraph 9 of Mr Small’s skeleton argument in the County Court in which he says:
“Thus it is submitted that the transaction with C was simply one of convenience.  So although the Property was transferred to C and D as Tenants in Common with equal shares it was never the parties’ intention that C would have any beneficial interest in the Property.”
19.	If, however, the judge intended what he said in paragraph 2 to be a finding that the declaration of trust was a sham then he was, with respect, wrong in my opinion to do so.  The evidence relied upon by the defendant to support her case on beneficial ownership was no more than that the parties (and their family) intended or agreed that she should be the beneficial owner and that her nephew should be on the title as legal owner solely in order to be a party to the mortgage.  None of that is sufficient to make the declaration of trust a sham so as to deprive it of any legal effect.
20.	The question of what constitutes a sham trust has been the subject of considerable discussion in recent years, particularly in the context of attempts to shield assets from the claims of divorced spouses or creditors.  But what is, I think, clear is that it must be shown both that the parties to the trust deed (in this case, the claimant and the defendant) never intended to create a trust and that they did intend to give that false impression to third parties or to the court.  So in Snook v London and West Riding Investments Ltd [1967] 2 QB 786, at page 802, Lord Diplock said that:
“As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a "sham," it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create.”
21.	This is now recognised as an authoritative statement of what has to be proved in order to set aside a transaction as a sham and applies as much to a trust as to any other kind of instrument: see Hitch v Stone (Inspector of Taxes) [2001] EWCA Civ 63; Shalson v Russo [2003] EWHC 1637 (Ch).
22.	None of this has any application to this case.  It is not alleged (nor did the judge find) that the parties entered into the declaration of trust in order, so to speak, to mask the true nature of their agreement from other parties.  The highest that Mr Small could put it to the judge was that the transaction was one of convenience: i.e. that the claimant only became a joint legal owner and tenant in common of the property because his participation was necessary in order to obtain a mortgage.  That, however, involved no deception on the building society or the court nor any intention to do so.  Although, as the judge found, the joint purchase was carried out to facilitate the mortgage, there is nothing to suggest that the building society was concerned about beneficial ownership.  The effect of executing the declaration of trust was therefore to make the claimant an equitable tenant in common regardless of what the parties may have subjectively intended and to estop the defendant from denying his title.  The sham principle has no application to a situation in which the highest that a party to the deed can put it is that the document does not accurately record what they intended to achieve.  Unless the conditions exist for the court to rectify the document, the parties are bound by the legal consequences of what they have signed.  It was, of course, always open to them to have executed a deed varying their beneficial interests.  But, in the absence of such a deed, the defendant has no answer to the claim. 
23.	I would therefore allow the appeal; order a sale of the property; and make a declaration that the parties are entitled to the net proceeds of sale in equal shares.
Lord Justice Mummery: 
24.	I agree that the appeal should be allowed for the reasons given by Patten LJ.
25.	In paragraph 15 of his judgment Patten LJ cites a well-known passage from the speech of Lord Upjohn in Pettit v. Pettit about the legal consequences of an express declaration of trust of the beneficial title.  42 years ago the very same passage was cited to and by Goff J in the Chancery Division in the case of Re John’s Assignment [1970] 1 WLR 955 at 958A-C.  That case was about the beneficial ownership of a leasehold house and shop assigned to a husband and wife.  The assignment, which was executed in a solicitor’s office, contained an express declaration of trust for them as beneficial joint tenants.  The husband, for whom Mr Gavin A. Lightman appeared, claimed to be the sole beneficial owner.  The express declaration of trust prevailed and the claim failed.  The judge held that the property was held in trust for them both in equal shares, the proceedings having severed the beneficial joint tenancy.  Goff J rejected MrLightman’s contention that there were grounds in that case for going behind the express declaration of trust in the assignment.  Fraud was not alleged.  A supposed “mistake” was never identified.  Rectification was not claimed.  The judge summarised the evidence and concluded that: 
“The assignment, as drawn, therefore, accords with the probable intentions and wishes of the parties at the time.” (p. 959A)   
26.	The position is similar here, except that the express declaration of trust was for the parties as tenants in common in equal shares and not as beneficial joint tenants.  There is no room for inserting a constructive trust in substitution for the express trust.  Neither fraud nor mistake are alleged.  No claim has been made at any stage for rectification of the transfer: cf Wilson v. Wilson (also cited by Patten LJ) in which the defendant was granted leave to amend a counterclaim to seek rectification of an express declaration of trust as beneficial joint tenants.  The court made a rectification order on the ground of mutual mistake followed by a declaration made that the property was held in trust for the defendant absolutely.  
27.	In the absence of a vitiating factor, such as fraud or mistake, as a ground for setting aside the express trust or as a ground for rectification of it, the court must give legal effect to the express trust declared in the transfer.  In the absence of such claims the court cannot go behind that trust.  The understanding that the property was to be the defendant’s matrimonial home, the fact that the claimant never actually lived there, and the fact that he had no involvement in the property other than lending his name to the purchase of the property for the purpose of obtaining a loan on mortgage from the Market Harborough Building Society in 1987 have never been coupled with any counterclaim by the defendant to set aside or to rectify the express trust.
28.	Finally, reliance on Stack v. Dowden and Jones v. Kernott for inferring or imputing a different trust in this and other similar cases which have recently been before this court is misplaced where there is an express declaration of trust of the beneficial title and no valid legal grounds for going behind it. 
Lord Justice Treacy: 
29.	I agree with both judgments.