England and Wales Land Registry Adjudicator

 

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

 

ORDER

 

Case Number: REF/2015/0355

 

Title Number: MX29705

 

Property: 29 Cranford Drive Hayes Middlesex UB3 4LA

 

Applicant: Balbir Kaur Basran on behalf of Baldev Kaur Basran

 

Respondent: Rajpal Singh Basran

 

 

IT IS ORDERED as follows.

 

The application of the Applicant for summary judgment by letter dated 30 October 2015 is dismissed.

 

Reasons

 

1. This decision is given without a hearing. The Applicant has consented to such a course and, this being a hearing under rule 9 of the Tribunal's Procedure Rules, I am satisfied that it is right to deal with the matter without a hearing even though the Respondent has refused to consent to this.

 

2. The question in issue is whether in 1984 the Applicant's late husband and the Respondent agreed or declared that the property which they acquired together and of which they were registered as joint proprietors in law was held by them on trust for themselves jointly or as tenants in common.

 

3. So far as material for the purposes of this application, paragraph 7 of the Applicant's Statement of Case provides that "The transfer deed dated 27 July 1984 confirms that the Property was to be held by the Deceased and the Respondent as tenants in common." The transfer in question does contain such a declaration but it is signed only by the vendor. The Applicant contends that despite not being signed by the deceased or by the Respondent this declaration is conclusive as to the trust on which the property was to be held.

 

4. There is no pleading and no evidence relied on in support of this application as to any instructions to the vendor from the purchasers' solicitors to include such a declaration. There may, of course, have been such instructions, but even if that were the case, there is no evidence as to whether the purchasers' solicitors had instructions from both purchasers, and not just the deceased, to give those instructions to the vendor.

 

5. The Applicant relies on a passage in Snell's Equity at 24-048 which reads:

 

"The trust is commonly declared on the Land Registry TR1 transfer form [i.e. the current successor to Form 19] between the transferor and the transferee who becomes the trustee. It is not essential that the transferee execute the instrument in which the trust is declared. If the declaration was inserted with consent or on the instructions of the purchasers it will probably be conclusive."

 

6. I note that there is no pleading in the Statement of Case and no evidence to which I have been referred that the declaration was inserted with that consent or on those instructions. I am unable therefore to see how this passage can assist the Applicant. I also not that the use of the word "probably" might also militate against summary disposal.

 

7. A number of cases are referred to in Snell in support of this proposition. The first case is Pink v Lawrence (1977) 36 P&CR 98 at 101. That was an appeal to the Court of Appeal following an oral hearing of a claim before a Master who, in his decision, had made no reference at all to the declaration of trust, a fact which Buckley LJ found surprising (p.100). The declaration in that case was again by the vendor and was that the purchasers held the property on trust for themselves as joint tenants, although the plaintiff was claiming that it was held on trust for himself alone. At p.l01 Buckley LJ goes on to say as to the declaration of trust that "we must proceed upon the footing first that this a declaration of trust inserted into the document at the behest of the purchasers or their solicitors; and that the legal estate was vested in the purchasers upon the trust declared in the document."

 

8. I note that that was a case in which the Master had found that both parties to the action were inaccurate at times and that he was unable to accept either story without checking it against the documents (foot of p.99). I also note that it followed a trial of the dispute in which there had been pleadings - it is stated to have been begun by writ - and in which both sides had given evidence. It is in that context that the observations of Buckley LJ must be read. It does not appear to me to obviate the need for a party to plead how the declaration of trust came to be inserted, even if that party simply relied on the presumption that it was done on instructions. Nor does it appear to me to prevent the other party from contending that he had never given any such instructions and that it was not what had been agreed with the other joint tenant. Those are issues of fact which need to be tested at an oral hearing.

 

9. So too, in Re Gorman, [1990] 1 WLR 616, a Divisional Court of the Chancery Division drew a distinction at p.621E between a declaration signed by the transferees, which was conclusive in the absence of a claim to set aside or rectify it, and the transfer document before it of which Vinelott J observed that "even though unsigned, it is still evidence of the parties' intentions of an agreement that they would be joint tenants, and in the context of this case, it is in my judgment conclusive evidence of their intention."

 

10. The context of that case appears from p.622E where Vinelott J goes on to say that "It is plain in the circumstances of this case, that the registrar [ i.e. the Chief Land Registrar in entering the restriction which was entered in the register] must have been satisfied that the declaration represented an agreement between Mr. and Mrs. Gorman, and that he could only have been so satisfied if either the original transfer had been signed by both, or if he had been informed by the solicitors who acted for Mr. and Mrs. Gorman that it reflected an agreement between them. Both were represented by the same firm of solicitors."

 

11. It is plain from this that (1) the unsigned statement is simply evidence, and (2) this case differs from Re Gorman in that the registrar did not make the entry in the register that was appropriate in the light of the apparent declaration.

 

12. Questions of making applications to set aside or rectify declarations of trust do not apply here because there is no written declaration of trust to be set aside or rectified, only a written statement as to the trusts by a third party, the vendor. It therefore appears to me that the question of the trusts on which this property is held can only be decided in the light of all the evidence and after the evidence of the Respondent, as set out in paragraph of his Statement of Case, that the intention was to hold the property as joint tenants, has been tested by cross-examination.

 

 

 

 

Dated this Thursday 28 January 2016

 

 

 

 

By Order of The Tribunal