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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Malik v Kalyan [2010] EWCA Civ 113 (04 March 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/113.html Cite as: [2010] EWCA Civ 113 |
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ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Cowell
Case Nos: CHY07553; CHY07554
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RIMER
and
LORD JUSTICE ETHERTON
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PAPINDER MALIK |
Appellant |
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- and - |
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BHUPINDER KALYAN |
Respondent |
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Mr Philip Jones (instructed by Singh Karran & Co) for the Respondent
Hearing date: 8 December 2009
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Crown Copyright ©
Lord Justice Rimer :
Introduction
The facts found by the judge
'… real and personal estate whatsoever and wheresoever situated (including, for the avoidance of doubt, my property in India known as Kalyan Cottage, 3/60/4 GT Road Phagwara Pubjab India)'
to his trustee upon trust for sale with a power to postpone sale and directed that, subject to the payment of his debts and funeral and testamentary expenses, the residue should be held upon trust to divide the same by paying a legacy of £30,000 to Mrs Malik, legacies of £10,000 to each of Angelina, Daljit, and Carol and paying the balance between such of Mr Kalyan and Krishnan as should survive Mr Dass, and if both (as happened) then in equal shares. On the face of it, the will disposed of the house as part of his residuary estate subject to the trust for sale.
'… He [Mr Kalyan] did not move out. He did not buy a house elsewhere, as did either all or nearly all of the rest of his brothers and sisters.'
Whilst the judge did not there also find that Mr Kalyan could once have bought a house of his own, but could no longer do so, he does nevertheless appear to have held that the fact that, unlike his siblings, Mr Kalyan had not bought a house of his own was a factor either representing or contributing to the detriment he had suffered in reliance on his father's assurance as to his future ownership of the house; and in paragraph 107 the judge repeated the point that 'what happened in this case was that [Mr Kalyan] did not move out and buy a place of his own …'. Proof of detriment is an essential part of the establishment of the proprietary estoppel claim Mr Kalyan was advancing. The judge concluded that Mr Kalyan had made it good.
'100. So the question in all these cases is, is there that more without which no question of beneficial interest or trust arising in the contributor can arise? If there is more it lifts the case from out of the ordinary case of the contributor simply paying for his accommodation for so long as he chooses to remain, and I wish to make it quite clear that had it just been that [Mr Kalyan] was contributing towards the acquisition and a mere few mortgage instalments via a family pot, that would not have been sufficient, but there is very much more in this case.
101. I am inclined to accept (although only just) that separate monthly sums of £20 were paid specifically for the mortgage instalment and that it was paid to [Mr Dass]. [Mr Kalyan] was the eldest son and would be expected to do such a thing, but I have no doubt that after [Mr Dass's] retirement and redundancy it was essential for [Mr Kalyan] to make contributions, particularly because the redundancy money had been use to buy the property in India. And so even if I am wrong on the first point, I am satisfied that contributions were made from and after 1984 and until the mortgage was finally redeemed. I have no difficulty in accepting that part of the evidence.
102. Then there is the fact that [Mr Kalyan], as the eldest son, was expected to and did remain at Number 5 looking after [Mr Dass] and his wife, expecting, as [Mr Dass] said he would, to inherit the property, Number 5, after both his parents had died.
103. I am quite satisfied (as I have said) that [Mr Kalyan's] share of the outgoings of the house increased after [Mr Dass] had been made redundant, and by 1998 we can see that [Mr Kalyan] was paying, for example, all of the invoices from Sokhi Builders.
104. And then there are [Mr Dass's] statements of intention, 'it is as much yours as mine', and that Number 5 would be his, [Mr Kalyan's], so that he and his wife would still live at Number 5 after [Mr Dass's] death. And that is precisely what would have induced [Mr Kalyan] not to move out and buy a home of his own in which to live, but to look after his parents and to contribute to the mortgage instalments in order to secure the acquisition of Number 5 as a home for his parents and then for himself and his wife, for all of which [Mr Dass] (Ifind) was grateful. And I am entirely satisfied that neither [Mr Dass] nor [Mr Kalyan] ever contemplated that [Mr Kalyan] would have to leave Number 5 after [Mr Dass's] death. They contemplated the opposite, that he would stay.'
Mrs Malik's application for permission
'There is a clear line of authority from at least [Crabb v. Arun District Council [1976] Ch 179] to the present day which establishes that once the elements of proprietary estoppel are established an equity arises. The value of that equity will depend upon all the circumstances including the expectations and the detriment. The task of the court is to do justice. The most essential requirement is that there must be proportionality between the expectation and the detriment.'
Walker LJ agreed with Aldous LJ's reasons. He explained that the reference by Scarman LJ in Crabb to 'the minimum equity to do justice to the plaintiff' did not require the court to be constitutionally parsimonious but did implicitly recognise that the court must also do justice to the defendant (paragraph [48]). He made it plain that the claimant's expectations play a material part in the court's consideration of how the equity might most appropriately be satisfied.
Lord Justice Etherton :
Lord Justice Sedley :