BAILII_CASE_PROPERTY

BAILII Citation Number: [1983] EWCA Civ 7

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr. Justice Ewbank)

Royal Courts of Justice Tuesday

1st November 1983

B e f o r e:

LORD JUSTICE CUMMING-BRUCE

and
MR. JUSTICE REEVE
____________________

Between:

Appellant
KULDIP KAUR CHHOKAR (Petitioner)
and
HARBHAJAN SINGH CHHOKAR (Respondent)
and
Responded
TARSEM LAL PARMAR (Third Party)

____________________

MR. RICHARD M. SLOWE (instructed by Messrs R.M. Crossman & Co., Middlesex)
appeared for the Appellant/Petitioner.
MR. JONATHAN S. BROCK (instructed by Messrs Daniel P. Debidin & Co.) appeared on
behalf of the Respondent/Third Party.
The Respondent did not appear and was not represented.

____________________

HTML VERSION OF JUDGMENT

____________________

Crown Copyright

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LORD JUSTICE CUMMING-BRUCE: This is an appeal from part of the order made
by Mr. Justice Ewbank on 24th January this year, when it was ordered, amongst other
things, that the petitioner (i) do pay the third party, Parmar, rent at the rate of S8 per week
for the occupation of 60 Clarence Street, Southall, Middlesex, and (ii) that the property be
sold nine months from the date of the order. The orders sought by the appellant on the
appeal are that it be declared that the petitioner, Mrs. Chhokar, be entitled to remain at 60
Clarence Street rent free until sale and, by amendment of the original notice of appeal, that
there should be no order for sale.

The respondent has issued a cross-appeal against that part of the order of the learned judge
whereby it was ordered by declaration that the Second Respondent hold the property known
as 60 Clarence Street, Southall, Middlesex upon trust for sale on behalf of himself and the
petitioner in equal shares"; for an order that in substitution of that order it may be ordered
"that the Second Respondent hold the property .... on trust for sale on behalf of himself and
the petitioner in equal shares subject to a deduction in favour of the Second Respondent
from the proceeds of sale .... in the sum of 8,595.01" upon the sale of the property in
respect of the discharge of the mortgage and costs thereafter in February 1979.

The proceedings which came before Mr. Justice Ewbank were two petitions for judicial
separation by the wife. The first was a petition under section 1(2)(b) of the Matrimonial
Causes Act. The second started life as a petition for divorce under section 1(2)(d) which
was subsequently amended to pray for judicial separation. There was also an application
before the judge under section 17 of the Married Womens Property Act in relation to the
former matrimonial home at 60 Clarence Street, Southall, Middlesex.

The wife made an application under s.37 of the Matrimonial Causes Act to set aside the
conveyance whereby the first respondent (the husband) conveyed to the second respondent,
Parmar, the legal interest and beneficial interest so far as it was feasible, in respect of 60
Clarence Street, Southall. There were no proceedings formally filed or pleaded by way of
an application under s.30 of the Law of Property Act 1975 but, as the judge stated in his
judgment, by consent he was asked to deal with such matters as might arise under s.30 of
the Law of Property Act if the section became relevant in the proceedings, as indeed it did.

The facts were found by the learned judge in a careful judgment in which he had to make
findings of fact upon an analysis of conflicting evidence, much of which was untrue or
untrustworthy. The judge's findings of fact are not challenged in these proceedings and I
find it unnecessary in this judgment to repeat the judge's findings of fact. I incorporate in
this judgment the findings made by the judge beginning at page 2D of the transcript of the
judgment and continuing to page 8A thereof.

The judge's conclusion was expressed in these words:

"The conclusion that I draw from these transactions is that Mr. Parmar was ready
to buy this house from the husband at an under-value knowing the husband's
purpose. I find that Mr. Parmar was not bona fide as a purchaser. I impute to him
notice of the husband's intention to defeat any claim by his wife. Accordingly, the

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 conveyance to Mr. Parmar is a reviewable disposition under section 37 of the
Matrimonial Causes Act 1973."

When the learned judge came in his judgment to deal with the question whether the
conveyance be avoided, he decided that it was not appropriate, having regard to the terms
of the statute, to make such an order. As the learned judge said:

"I can only consider setting it aside if I am satisfied that if it were set aside financial
relief or different financial relief would be granted to the applicant. If the parties
are living together, if there has been a resumption of cohabitation, then even if the
wife is technically able to obtain a judicial separation, there would seem to me to
be no ground for financial relief being granted. Accordingly, in those
circumstances, there would be no ground for setting aside the conveyance."

The judge proceeded to make his findings of fact relating to the history of resumption of
cohabitation and he came to the conclusion that there was an actual resumption of
cohabitation between the husband the wife in the summer of 1982. The husband had been
staying from time to time with his wife and was still doing so and probably after this case
there would be a full resumption of cohabitation again. So the judge concluded that the
petition had been amended from divorce to judicial separation because divorce was not
required. A judicial separation was required in order to hang the application to set aside the
conveyance to Mr. Parmar. Upon the two petitions the learned judge, on the second petition
for judicial separation, decided to grant a decree for the reasons that he stated and there is
no appeal from that decision. The learned judge, for the reasons that he stated, refused to
make an order under s.37 setting aside the conveyance and there is no appeal against that
part of his decisions.

This appeal concerns the judge's two orders (i) to make an order for sale, postponing the
sale for a matter of a few months and (ii) to order that the wife should pay an occupation
rent to the second respondent for a period beginning with the date when the second
respondent acquired his interest in the property. The first issue on this appeal was whether
the judge was right in ordering a sale of the property.

The judge dealt fairly briefly with his reasons for an order for sale, but the ratio is, in my
view, to be collected from the passage in 13 D of his judgment when the learned judge
said:

"The house is now thought to be worth about 25,000 and I would have thought it
quite wrong that the result of this case should be that Mr. Parmar should provide
the husband and wife, free of charge, with a house of that value as their future
home."

When he came to expressing his decision, he said:

"The question then arises whether I should order a sale of the property and a
division of the proceeds between the wife and Mr. Parmar or whether I should allow

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 the wife to continue to occupy the property at a rent to be determined. This in the
normal circumstances would be decided in the Chancery Division under section 30
of the Law of Property Act 1925. As I have mentioned, I have been asked to deal
with it.

Having regard to all the circumstances, I think this is a case where the house ought to be
sold in due course and Mr. Parmar ought to receive his interest."

He gave the wife nine month's continued occupation; thereafter the house had to be sold.

I take this opportunity of stating how greatly the hearing of the appeal has been facilitated
by the submission to the court of the appellant's skeleton argument drafted by Mr. Slowe
and by the respondent's skeleton argument drafted by Mr. Brock. These skeleton arguments
have had the result of refining the submissions, clarifying them and making it easy readily
to grasp the difference between the parties on their submissions on the law.

The first point on which Mr. Slowe relies is that 60 Clarence Street was purchased as a
matrimonial home and was held in trust and, for the reasons explained by Lord Justice
Ormrod in the Court of Appeal in the Williams & Glyn case, the trust had to be expressed
as a trust under the Law of Property Act. But the object of this trust was quite clearly to
provide a matrimonial home for the parties and any family that they might have and though
the form of a trust for sale includes power to postpone the sale, it expressly contemplates
the sale of the property. As has been quite clearly established in the case law relating to
trusts for sale of matrimonial homes, the court looks beyond the express trust to hold the
property on trust for sale with power to postpone the sale and looks to the underlying object
of the trust and, when faced with an application under s.30, considers all the circumstances
and has regard to the question whether an order for sale would have the effect of frustrating
the objects of the trust, underlying the trust at the date that it was made.

Here, when the trust came into existence, it was a trust, the underlying purpose of which,
was to provide a matrimonial or family home for the husband and wife and their family.
There has never been any variation of that trust in spite of the attempts by the husband in
conjunction with his accomplice, the second respondent, to destroy the wife's interests by
executing a fraud secretly behind her back. What matters is that the original trust remains
in being and, as the objects of the trust have never been varied, when one considers the
situation at the date when the s.30 proceedings came before the learned judge, in spite of
the fact that it is plain that for a long period of time the husband, by various devious and
deceitful devices, was doing his utmost to abandon his wife and to destroy any prospect
she might have for financial relief against him, by the date of the hearing before the judge
the whole situation had changed because there had been intermittent resumptions of
cohabitation, culminating in the situation which I have already described when the judge
found as a fact that there was an actual resumption of cohabitation between the husband
and wife in the summer of 1982, that he had been staying from time to time with the wife
and is still doing so, and probably after this case there will be a full resumption of
cohabitation. On those findings, however unsatisfactory the behaviour of the husband has
been over a long period of years, by the summer of 1982 the objects of the trust were being

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fulfilled in that the property was being occupied by the wife who had agreed that her
husband should live there with her, there having been a partial and probable future
resumption of cohabitation. In that situation an order for sale would clearly frustrate the
underlying object of the trust as originally devised, which has never been varied save
insofar as the inter-meddling of Mr. Parmar when he conspired with the husband to destroy
the wife's interest has had any effect.

What then is the situation in law? On behalf of the appellant it is submitted that here is a
matrimonial home held in trust for sale. The wife had a right of occupation which, on the
judge's findings, was an overriding interest of which the second respondent had notice. It
is submitted that the property should only be sold, either with her consent or on an
application under s.30 and that the authorities establish, on a s.30 application relating to a
matrimonial home, that the court can only order a sale or refuse it, but it should not be sold
if the purpose is still capable of subsisting.

We have had the advantage of considering the authorities cited before us beginning with
Williams & Glyn's Bank in the Court of Appeal and their Lordships' House, then Bull v.
Bull [1955] 1 QB 234., re Evers' Trust [1980] 1 WLR 1327, Buchanan-Wollaston [1939]
Ch.738, Jones v. Jones [1977] 2 All E.R. 231, Bedson v. Bedson [1965] 2 QB 666, and
Williams v. Williams. We were also referred to Jones v. Challenger [1961] 1 QB and the
two reports of Dennis v. McDonald at first instance and the Court of Appeal.

At first it looked as if the area of conflict between the parties would make it necessary to
examine with great care and in some detail the authorities cited to us by Mr. Slowe to be
considered critically in the light of Re Holliday [1981] Ch.405, but as it turned out the
conflict between the parties on the law is narrower than first appeared and I am satisfied
that the correct proposition in relation to a trust for sale of a house in which the beneficial
interests are held for the purpose of occupying a matrimonial home can be simply
summarised. Though it is putting it, in my view, too high to claim as Mr. Slowe has claimed
that there are inflexible rules in this area, it is established by the authorities that where the
trust for sale is for a matrimonial home, the court does have regard to the underlying
purpose of the trust and will not, unless there are unusual circumstances or some special
consideration, order a sale if the effect thereof will be to prevent the beneficiaries or one
of them from occupying the home as a matrimonial and/or family home. Where there are
children of the family they are not themselves beneficiaries under the trust but the existence
of the children is a factor to be taken into account and, as a matter of common sense, the
arrangements made by the court should take proper account of the need of the children for
accommodation. I do not think, for the purposes of this case, it is necessary to declare the
law more elaborately than that. Where there are third party interests the situation is this:
those interests have to be considered and in the way in which Lord Justice Goff put it in
the Holliday case, the court has to consider the voice of each of the parties and give proper
weight to what those voices say. In a case where the third party is a trustee in bankruptcy,
he is representing innocent creditors and the court will usually pay great regard to the voice
of a trustee in bankruptcy when considering whether justice to the creditors demands an
immediate or postponed sale; and in spite of the strong merits of the trustee in bankruptcy
in the Holliday case, it is to be observed that the order of the court was that, having heard

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the voice of the trustee but having consideration to the family situation of the wife and her
need to provide accommodation for the children, the sale should be postponed for five
years in order to enable her to make proper arrangements during those years for herself and
the children.

The conflict between the parties to this appeal was not so much upon the law, although
they both took what I would regard as rather too extreme positions, but the submission of
Mr. Brock, for the respondent, was that this was not a matrimonial or quasi matrimonial
case because the second respondent was a stranger to the marriage. The way in which Mr.
Brock put it in his skeleton argument was that "This trust took effect in 1979 when the
Respondent purchased the premises. The sole purpose of the trust is to preserve the
appellant's beneficial interest in the equity and will be satisfied by a realisation of the asset
upon sale. The purpose of this trust is not to provide a home for life for Mr. and/ or Mrs.
Chhokar and their children."

There are two difficulties about the propositions therein set out. Mr. Brock began by
submitting that this was not a matrimonial or quasi matrimonial case. Certainly it is true
that the scoundrel Parmar had no matrimonial privity with Mrs. Chhokar but the transaction
which he sought to accomplish in collusion with the husband was a transaction in which
he was trying, as he knew, to acquire a matrimonial home occupied actually at the time by
the wife who was living there with the children; and if he had paused to inquire (and there
is nothing to suggest that Mr. Parmar is embarrassed by excessive naivety in business
affairs) he would have realised, and I have no doubt did realise, that Mrs. Chhokar had
beneficial interests which a court of equity would respect. So, on the facts, Mr. Brock did
not establish his proposition that this was not a matrimonial or quasi matrimonial case
because it was a case about a trust in respect of a matrimonial home.

His next proposition was that the respondent was a stranger to the marriage. That is a half
truth. It is more accurate to say that Mr. Parmar was a willing accomplice of the husband
in an attempt to acquire the whole of the legal and equitable interests in the matrimonial
home to the prejudice of the wife's overriding interest as tenant in common in equity, with
a 50% beneficial interest in the property. The adventure was one in which Mr. Parmar
sought to obtain the wife's interest in the matrimonial home by a secret and fraudulent
transaction behind her back. Having, as he thought, succeeded in this monstrous fraud, he
proceeded twice to evict her and then to vandalise the house in order to make it
uninhabitable so that she would be unable to go back to live there. Those observations fall
to be made in order to complete the half truth that Mr. Parmar was a stranger to the
marriage. He was not in any sense a partner to the marriage, but what he did was to try, by
contrivance and fraud, to intermeddle in the wife's interests in the matrimonial home,
fortunately frustrated by the determination of the wife.

The learned judge was clearly concerned about the circumstances of the amendment of the
wife's petition for divorce when she deleted the prayer for dissolution and by amendment
prayed for judicial separation. The judge rightly, if I may respectfully say so, observed that
this was only a machinery in order to have matrimonial proceedings pending on which to
hang her application under s.37 of the Matrimonial Causes Act 1973.

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Having regard to the history of the marriage and the overwhelming evidence of the
ruthlessness of the husband in his attempts to rid himself of his wife, first by trying to leave
her in India where he had managed to take her on the promise of a short holiday, and then
by the adventure which he engaged upon with his accomplice, Mr. Parmar, when he tried
to put her in a position in which she would be evicted from the matrimonial home, I do not
share any feelings which the judge may have felt that there was anything in any way
improper about the decision of the wife, upon the advice of her advisers, to deal with the
situation that had arisen when the husband, who was resuming intermittent cohabitation
with the wife, by deleting the prayer for dissolution and substituting the prayer for judicial
separation. That enabled the court to consider her application under s.37.

In respect of her s.37 application, two observations fall to be made. The first is that the
judge held that, prior to the resumption of cohabitation, it might well have been that she
would have obtained an order setting aside the conveyance under s.37, and it was only the
evidence of the beginnings of cohabitation which led the judge to the conclusion that there
was no longer room for the submission that her financial interests were being prejudiced
and therefore all the statutory ingredients requisite for an order under s.37 ceased to exist.
But, having said that, when one returns to consider the situation under s.30 of the Law of
Property Act, the matter is rather simple. Here is a trust for sale of the matrimonial home.
In spite of a chequered matrimonial history the wife has succeeded in continuing actual
occupation of the matrimonial home and was, at the time when the case came before the
judge, intermittently resuming cohabitation with her husband, with a probability that that
cohabitation would be resumed fully. Therefore, the underlying objects of the trust were
subsisting and so the next question is whether there are any special reasons, having regard
to that fact and to the fact that this was a trust for the purchase of a matrimonial home, for
making an order for sale having regard to the interests of third parties?

Mr. Brock rightly relied upon the line of authority in the bankruptcy cases culminating in
re Holliday [1981] 1 Ch. 405, but, as appears from the judgment of Lord Justice Goff in
that case, quoting what he said in In re Turner (A Bankrupt) [1974] 1 WLR 1556, 1558 -

"In my judgment, the guiding principle in the exercise of the court's discretion is
not whether the trustee or the wife is being reasonable but, in all the circumstances,
of the case, whose voice in equity ought to prevail .... " -

(and the learned Lord Justice proceeded:

"and I would apply that test to this case. So we have to decide having regard to all
the circumstances, including the fact that there are young children and that the
debtor was made bankrupt on his own petition, whose voice, that of the trustee
seeking to realise the debtor's share for the benefit of his creditors or that of the
wife seeking to preserve a home for herself and the children, ought in equity to
prevail. .... Nevertheless, there is a discretion."

Taking that approach I ask the question, considering the conflicting interests of the
petitioner on the one hand and the second respondent on the other, whose voice ought to

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prevail in equity? The voice of the wife sings the following song: "I became tenant in
common in equity with a 50% interest in this property, the matrimonial home, upon its
acquisition. I have lived there ever since, subject to very brief periods of absence, and there
I have been living, with my family. I was deserted by my husband for some years but I
stayed on in the matrimonial home. He has been very unsatisfactory. I had at one stage to
obtain an injunction against him to stop him pestering me but we are now more reconciled.
I have agreed to his returning to the home. From time to time he comes there", and on the
judge's finding when the case was over he might settle with her again permanently. So her
song is "this is the matrimonial home, I wish to continue to enjoy my rights as tenant in
common in the undivided share of the house". She told a lot of lies in the witness-box,
which naturally offended the learned judge because her lies made it more difficult to
discover the truth and do justice. It is not unknown for persons with strong grievances to
try to embroider their case by telling lies. But, when the true facts emerged, there is nothing
in her conduct which points to any reason at all for interfering with her continued
enjoyment of her equitable rights, including the right to occupy the house, the matrimonial
home, and including, if this unsatisfactory husband is willing to continue to live with her
there although he has lost the legal estate and if she is prepared to put up with him being
there, her enjoyment of the matrimonial home together with her husband.

The other voice is the voice of Mr. Parmar who tried, and might well have succeeded, in
acquiring the legal estate and the whole of the beneficial interests of husband and wife for
the sum of 512,700 pursuant to the fraudulent conspiracy which he embarked upon with
the husband to try to achieve that end while the wife was incapacitated in hospital and
unable to object. It was because he was hoping to obtain the freehold unencumbered with
vacant possession and expected thereafter to make a quick profit on resale at something
nearer the market value that he was prepared to buy it some thousands of pounds below the
market value, which could only make sense if he succeeded in preventing the wife from
establishing her overriding interest. Everything that he did from first to last in connection
with the transaction is stamped with immoral stigma. The transaction itself was fraudulent.
When he found that the wife, the tenant in common in equity, was trying to retain her
interests he unlawfully evicted her. When she re-established herself in the house he sent
thugs to evict her again and then so to vandalise the house as to make it impracticable for
her to re-occupy it or, at any rate, to discourage her from doing so. It is not easy to find
language which with becoming moderation describes the moral turpitude of every step
taken by Mr. Parmar throughout this transaction and so when one comes, as a judge in
equity, to decide whose voice should prevail, I would hold that this is a case in which there
is no problem for a court of equity to consider. It is manifestly obvious that the voice of
the innocent tenant in common in equity should prevail over the voice of the scoundrel
who, as an accomplice of the first respondent, attempted by fraud and diverse devices to
frustrate and destroy the wife's overriding interest.

It is submitted by Mr. Brock, very properly, that this court should not interfere with the
discretion and the decision of the learned judge under s.30 unless it is shown that on
Wednesbury principles he left some relevant factor out of account, or paid attention to
irrelevant factors, or alternatively, if it can be shown, that the judge was clearly wrong in

8
the weighing exercise that he undertook. That brings me to the only passage in the judge's
judgment which indicates his ratio when he said (and I have already quoted it):

"The house is now thought to be worth about E25,000 and I would have thought it
quite wrong that the result of this case should be that Mr. Parmar should provide
the husband and wife, free of charge, with a house of that value as their future
home."

It is conceded by Mr. Brock, as I understand it, that if the husband had never left home it
really would not be possible to argue on behalf of Parmar that there was any ground for an
order for the sale of the house, thus terminating the wife's occupation of the matrimonial
home. The judge was strongly affected by the fact of the return of the husband, because
what seemed to the judge quite wrong was that Parmar should provide the husband and the
wife, free of charge, with a house as their future home. But, when I am considering the
situation of the wife, I am quite unable to see any reason for holding that there is anything
wrong in her continuing to occupy the house, her matrimonial home whereof she is tenant
in common in equity, for as long as she wishes to enjoy it. The intermeddling of Mr. Parmar
and the different crooked deceptions that he undertook, cannot afford, to my mind, any
reason for thinking that it is wrong that the intermeddler should allow the wife to continue
to enjoy her beneficial interests. The fact that she is prepared at present to allow her
husband to return and live there does not seem to me a relevant matter when considering
whether it is right that Parmar should allow her to continue to occupy the house. The judge
also used the words "free of charge". I shall come to that in a moment.

Therefore, with respect to the learned judge and recognizing his great experience, I would
hold that the reason that he has given for the order that he has made is a reason which this
court should be ready to interfere with because it is a reason which, on the authorities, in
my view, is wrong. The judge did not ask himself the question in the way in which it is
posed by Lord Justice Goff in the Holliday case that he listen to both voices and see which
voice should prevail. Had the judge posed the question in that way, in my view he would
have been bound to come to the conclusion that the voice of the innocent wife, the tenant
in common in equity, should prevail over the scoundrel who sought unsuccessfully to
destroy her interests.

What are the reasons for sympathy with Mr. Parmar? He paid 12,700, an under-value of
some 5,000, whereby he thought he was going to succeed in obtaining the unencumbered
freehold in the property by frustrating through deceit the overriding interests of the wife.
But he was caught and he did not succeed. Is there any room for crocodile tears because
his unlawful enterprise did not succeed? I can see no room for giving him anything more
than the court in an unreported case gave to the money lender who had rights over a debtor.
The proceedings are recorded in a play of Shakespeare!

I would hold that the judge was wrong to make an order for sale.

It is quite unpredictable as to what the future holds for the petitioner or the first respondent.
She may reasonably wish to enjoy her beneficial interests in the matrimonial home, in

9
consortium with her husband or otherwise, for the rest of her life, and she may very well
be entitled so to do. It may be that some circumstance may arise which might justify Mr.
Parmar in investing further money in legal proceedings by way of a further application
under s.30 of the Law of Property Act. It may be that in many years ahead he may decide
to launch on that venture, but this is not a case of an order for sale and a postponement of
sale. I have no hesitation in moving that there should be no order for sale.

So I come to the next question. Ought she to pay occupational rent? We have been referred
to the authorities about that, but again I would hold that the proposition submitted by Mr.
Slowe is putting it a little bit too high. But what are the circumstances which would justify
occupational rent on the facts of this case? The petitioner is a tenant in common in equity,
and is innocently occupying the house. She has not sought to exclude her husband at
present, though she had to at one time, but it is not a question of rent for him. Why should
she pay an occupation rent to Parmar?

As I see it, Parmar stands for this purpose in the shoes of the original holder of the legal
interest in the house and he, succeeding to Mr. Chhokar's rights, is now in equity a tenant
in common of the property with the wife.

Mr. Brock submits that he has a right in law to occupy the property, but he goes on in the
next breath to concede that it is a right that cannot be exercised because he succeeded to
the rights of the husband in the matrimonial home. Mr. Parmar is a married man himself
and no court would allow him to try to occupy the matrimonial home in common with Mrs.
Chhokar (and for all I know Mrs. Parmar might have something to say about it too, if he
tried to do so). But, for this purpose, he stands in the shoes of the first trustee and I have
been unable to find anything in the authorities which should lead the court to hold that it
would be fair, which I regard as the test, to require the petitioner to pay occupation rent to
Parmar by way of payment for her occupation of the matrimonial home.

I would vary the judge's order by saying that the order that she pay an occupation rent to
Parmar should be wholly deleted, but with one qualification. There was a period of time in
which the petitioner had a tenant, Mrs.Sangha who was paying her rent for one room. She
was there for a considerable period of time and the parties have agreed that half the rent
which she had received from that tenant was the sum of 585 and I would hold that, having
regard to Parmar's interest, there is no moral reason for depriving him of his right to that
585. I would move that an order be made that the petitioner pay to Parmar, by way of
account of rents received, the sum of 585 being half the rent received from the tenant,
Mrs. Sangha. That half share falls to be deducted from the damages ordered to be paid by
the judge by Parmar to the petitioner in respect of his torts as found in the judgment against
which there was no appeal. Simple arithmetic can be done which will establish the sum
due from Parmar to the petitioner in respect of that order for damages.

That brings me to the final question which arises on the cross-appeal. The judge made a
declaration that the two tenants in common in equity hold beneficial interests in equal
shares. He did not refer to the mortgage. The mortgage has in fact been paid off by Mr.
Chhokar with money he received from Parmar when he and Parmar were trying to achieve

10
their fraud upon the wife, but I accept the submission of Mr. Brock that you have to look
at the trust as it was at the date of the formation of the trust, and at the date of the formation
of the trust on the way in which the judge has found the facts, the two tenants in common
had beneficial interests in equal shares in the property, subject to the mortgage. But the
mortgage has now been paid off and it does not seem to me to matter, in spite of the
submission made by Mr. Slowe that the machinery for paying it off was that Mr. Chhokar
paid it off instead of Parmar paying it off himself, which could easily have been done. It
seems to me that the fair result is, that in order to carry out the terms of the trust, the
declaration should be that the tenants in common in equity hold beneficial interests in equal
shares but that upon sale of the property Mr. Parmar is entitled to credit, because he has
procured the payment off of the mortgage in the sum of 8,895.01, and upon the sale, when
account is taken of the proceeds of sale, he should be entitled to credit for paying off the
mortgage. I would move accordingly.

MR. JUSTICE REEVE: I agree. I would only add one word of my own because we are
differing from the learned judge in regard to three parts of the order which he made.

We in this court have had the inestimable benefit of hearing full legal argument from both
sides in regard to all the points in dispute. We have been informed at the Bar that such legal
submissions as were made in the court below were cursory in the extreme. The judge,
therefore, arrived at his decision without any, or any sufficient, assistance from counsel as
to the relevant legal considerations. From the very careful judgment which he delivered, I
am left with the impression that he would almost certainly have decided the various points
otherwise had he had addressed to him the legal arguments which have assisted this court.

Appeal allowed with costs. Cross appeal allowed with costs. Legal aid taxation

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