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Family Law

The leading authority on all aspects of family law

19 MAR 2014

Bhura v Bhura [2014] EWHC 727 (Fam)

(Family Division, Mostyn J, 18 March 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 1 FLR 153]

Financial remedies - Enforcement - Declarations of beneficial ownership of property
The full judgment is available below.
Matrimonial proceedings took place in the USA and the wife was awarded a financial settlement. The order was registered in the High Court in this jurisdiction but the husband had failed to pay. He was given a suspended prison sentence providing he paid the debt which now amounted to £1,256,676 including interest and costs. He had failed to comply. The wife now applied for a warrant of execution and sought to locate assets in order to enforce the judgment debt.
The wife sought declarations pursuant to Part 18 of the FPR 2010 that two properties were owned by the husband despite the fact that one of the properties was held in the names of the husband, the father, the mother and brother and that the second property was held in only the brother's name. Previously the wife submitted that the husband had a 25% interest in the first property but the issue of the second property was not raised.
In applying the principles in Jones v Kernott [2011] UKSC 53, Mostyn J held that the transfer of the first property was a fair reflection of the beneficial ownership that the property was bought by the father, as an investment for the whole family but specifically to fund a pension for the husband's mother and father. The wife had not succeeded in rebutting the presumption that the TR1 was accurate.
The wife's evidence on the subject of the second property was contradictory. The judge was satisfied that the husband's brother was the sole owner and that the husband had not interest in it.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.
__________________________________________________________________
Neutral Citation Number: [2014] EWHC 727 (Fam)
Case No: FD12F00238
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/03/2014
Before :

MR JUSTICE MOSTYN
- - - - - - - - - - - - - - - - - - - - -

Between :


Smruti Dharmesh Bhura
Applicant


- and -



Dharmesh Dwarkadas Bhura

1st Respondent


Yogesh Kumar Dwarkadas Bhura

2nd Respondent


Bhanamati Dwarkadas Bhura

3rd Respondent


The Estate of Dwarkadas Ramji Bhura (Deceased)

4th Respondent

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Geoffrey Kelly (instructed by Whitworth and Green) for the applicant
Marilyn Kennedy-McGregor (instructed by YVA Solicitors) for the 2nd - 4th respondents
The first respondent appeared in person

Hearing dates: 21 - 24 October 2013 and 10-12 March 2014

- - - - - - - - - - - - - - - - - - - - -

Judgment
Mr Justice Mostyn:
[1] In this judgment I shall refer to the parties as follows:-
i) the applicant, Smruti Bhura, as "the wife";
ii) the first respondent, Dharmesh Bhura, as "the husband";
iii) the second respondent, Yogesh Bhura, who is the husband's brother, as "Yogesh";
iv) the third respondent, Bhanamati Bhura, who is the husband's mother, as "the mother"; and
v) the late Dwarkadas Bhura, who was the father of the husband and Yogesh and married up to his death to the mother, and whose estate is the fourth respondent, as "the father".
[2] By an application made under Part 18 of the FPR 2010 the wife seeks declarations that the properties 116 Mayfield Avenue, London N12 9JE ("Mayfield Avenue") and 31 Pembroke Road, London HA9 7PD ("Pembroke Road") are wholly or mainly beneficially owned by the husband, notwithstanding that (i) the legal title to Mayfield Avenue is held in the four names of the father, the mother, the husband and Yogesh, and there is a signed TR1 declaring that they hold it as tenants in common in equal shares, and (ii) the legal title to Pembroke Road is in the sole name of Yogesh.
[3] The background to this case is set out in my judgment given in proceedings under s5 of the Debtors Act 1869 between the husband and the wife on 17 December 2012 sub nom Bhura v Bhura [2012] EWHC 3633 (Fam)[1]. I would suggest that anyone reading this judgment should at this point turn to and read that earlier judgment. Shortly stated, I awarded a suspended prison sentence of 6 weeks against the husband, the term of suspension being that he should pay the American judgment debt, interest and costs in the total sum of £1,256,676 by 16:00 on 18 March 2013. I also charged the husband's interest in Mayfield Avenue with the sum of £1,256,676.
[4] The husband did not pay by the due date and the wife applied for the warrant of execution to be issued. That application came before me on 4 June 2013. The husband's father had died on 27 May 2013 and the whole family was in mourning. As an act of mercy I deferred the execution of the warrant until 1 July 2013. I also directed that any application by the wife for declaratory relief in relation to the two properties should be issued by 11 June 2013 and gave consequential case management directions, which included a direction that the final hearing should be listed with a time estimate of 4 days.
[5] On 1 July 2013 the husband duly surrendered to the tipstaff and was incarcerated in HM Prison Pentonville from where he was released three weeks later.
[6] The wife's application came before me on 21 October 2013. It became obvious early on that the time estimate was wrong. On the fourth day the case was adjourned for three more days on 10 March 2014, which were all fully used. In all I heard oral evidence from 12 witnesses and had to consider documentation filling 14 lever arch files. The inquiry has focussed on events which took place between 1989 and 2006.
[7] Normally in a case such as this the parties start on the same line. However here in terms of credit and credibility the husband starts a long way behind the wife. I have already found him to be an unscrupulous husband and a dishonest litigant. I have made clear findings (as has Judge Blum in Georgia) that with his late father's assistance he spirited a way a large amount of valuable jewellery with the intention of defeating the wife's claim for a financial remedy. I have found that the jewellery (or its value) still exists, but its whereabouts are unknown (see para 49 of my earlier judgment). I therefore have sympathy with all legitimate attempts by the wife to locate assets against which to enforce the unsatisfied judgment debt owed to her. But she can only enforce against a property beneficially owned by the husband. In determining whether property is or is not owned by the husband I must rigorously apply our law of property and must not allow my feelings of sympathy for the wife to colour the exercise (although, of course, when issues of credibility between the husband and the wife arise I will have in mind my previous finding of dishonesty against the husband).
[8] The applicable legal principles concerning a property dispute such as this are tolerably clear and have most recently been re-stated by the Supreme Court in Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776. In summary I think they are as follows.
i) If there is an express declaration of beneficial interests then that is, almost invariably, the end of the matter. Such an express declaration can only be displaced if it has been procured by fraudulent conduct. In this case it is said by the wife that the signed TR1 for Mayfield Avenue is a sham. A sham is of course a species of fraud. It involves the parties entering into a dishonest compact, i.e. a conspiracy, to express the true state of affairs falsely in the written agreement. I will analyse the law relating to sham transactions a little later.
ii) If there is no express agreement about the beneficial interests then there is likely to be (at least) a tacit understanding. This is hardly surprising as one would expect that when people enter into what may very well be the most important economic transaction in their lives - buying a home - they would have a pretty clear understanding of who owned what share of it. In determining whether there was such a tacit understanding, and if so what it was, the court will look at all the evidence holistically and will examine the whole course of the parties' conduct in relation to the property.
iii) In the rare case where the evidence does not reveal a tacit understanding about ownership the court can reach for the presumptions. An obvious presumption is that beneficial ownership is the same as legal title (see Jones v Kernott at paras 17 and 51(1)).
iv) Another is the presumption of the resulting trust. In Pettitt v Pettitt [1970] AC 777 at 824 Lord Diplock doubted that it was of much relevance in the modern era. In his view it would be "an abuse of the legal technique for ascertaining or imputing intention to apply to transactions between the post-war generation of married couples 'presumptions' which are based upon inferences of fact which an earlier generation of judges drew as to the most likely intentions of earlier generations of spouses belonging to the propertied classes of a different social era." Some commentators believe that the doctrine has a medieval origin. The principal problem with it is that that it allows the "solid tug of money" (as Woodhouse J evocatively put it (echoing George Eliot) in Hofman v Hofman [1965] NZLR 795 at 800) "to submerge any faint suggestion that other [non-financial] contributions play a valuable part in the acquisition of family assets".
v) A further presumption is the presumption of advancement but this can be regarded as being on its death-bed given that it is abolished by s199 Equality Act 2010, which is awaiting implementation.
vi) But presumptions are only presumptions. In a memorable dictum Lamm J in Mackowick v Kansas City St. J. & C.B. Ry., 196 Mo. 550, 571, 94 S.W. 256, 262 (1906) stated that "presumptions may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts".
vii) "Actual facts" are those which suggest that a result steered by a presumption is unfair. Although there are different degrees of emphasis and nuance all of the Justices in Jones v Kernott accepted that where a tacit agreement could not be found by a process of inference the court could impute to the parties a fair agreement which they never in fact made but which they should "be taken" as having made (see paras 45, 60, 72, 85(2))). Of course, as Woodhouse J pointed out, this involves a "fictional attribution of intention", but the process has a long pedigree. One only needs to remind oneself of Lord Denning MR's statement in Appleton v Appleton [1965] 1 WLR 25 at 28 to see how the wheel has turned full circle. There he said "A judge can only do what is fair and reasonable in the circumstances. Sometimes this test has been put in the cases: What term is to be implied? What would the parties have stipulated had they thought about it? That is one way of putting it. But, as they never did think about it at all, I prefer to take the simple test: What is reasonable and fair in the circumstances as they have developed, seeing that they are circumstances which no one contemplated before?" I cannot see any difference between that statement and that of Lord Wilson in para 87 where he rhetorically asked "where equity is driven to impute the common intention, how can it do so other than by search for the result which the court itself considers fair?"
[9] I revert to the law concerning sham transactions. I myself had to consider this in Kremen v Agrest [2010] EWHC 2571 (Fam), [2011] 2 FLR 478. At paras 12 I quoted from the convenient summary expressed by Munby J in A v A [2007] 2 FLR 467 at paras 32-33, 50 and 53. He in turn analysed the classic definition of a sham by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786, and the more recent exposition by Arden LJ in Hitch v Stone (Inspector of Taxes) [2001] EWCA Civ 63, [2001] STC 214. I think all this learning can be summarised (at least for my purposes) as follows:-
i) A sham means acts done or documents executed by the alleged shammers which are intended by them to give to third parties or to the court the appearance of creating between them legal rights and obligations different from the actual legal rights and obligations (if any) which they intend to create.
ii) Subject to the next point, all the shammers must hold an expressed common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a shammer affect the rights of a party whom he deceived. The test of intention is subjective. The parties must have intended to create different rights and obligations from those appearing from the relevant document, and in addition they must have intended to give a false impression of those rights and obligations to third parties.
iii) A sham transaction will still remain a sham transaction even if one of the parties to it merely went along with the shammer not either knowing or caring about what he or she was signing.
iv) The court is not restricted to the four corners of the document. It may examine external evidence. This will include the parties' explanations and circumstantial evidence, such as evidence of the subsequent conduct of the parties.
v) The fact that the act or document is uncommercial, or even artificial, does not mean that it is a sham. A distinction is to be drawn between the situation where parties make an agreement which is unfavourable to one of them, or artificial, and a situation where they intend some other arrangement to bind them.
vi) The fact that parties subsequently depart from an agreement does not necessarily mean that they never intended the agreement to be effective and binding. The proper conclusion to draw may be that they agreed to vary their agreement and that they have become bound by the agreement as varied.
vii) Because a degree of dishonesty is involved in a sham there is a very strong presumption that parties intend to be bound by the provisions of agreements into which they enter, and intend the agreements they enter into to take effect. However, this does not elevate the standard of proof, which is set at the balance of probability. Nonetheless the test is a stiff one and there is a requirement of very clear evidence given the seriousness of the allegation.
[10] Before I turn to the facts of this case I remind myself of the extent to which these two properties featured in the proceedings for a financial remedy before Judge Kristina Blum, sitting in the Superior Court of Gwinnett County, Georgia, USA, which culminated in her judgment of 31 August 2011 and in the proceedings before me under s5 of the Debtors Act 1869 which resulted in my judgment of 17 December 2012.
[11] In para 9 of her judgment Judge Blum refers to the parties having during their marriage accumulated marital property which included "two residences in the United Kingdom". In para 11 she refers to the husband having transferred Mayfield Avenue into the names of himself, his parents and his sibling. But beyond those references, almost in passing, the properties do not feature in the judgment. There is no finding concerning the present extent of the husband's interest in them and their value did not feature in the marital balance sheet on which the award was based (see para 11 of my earlier judgment). Similarly in the Debtors Act 1869 proceedings before me the wife's case was squarely that the husband had only a 25% interest in Mayfield Avenue; Pembroke Road did not feature at all - see paras 41 and 52. It is the wife's case now that she has been the victim of a conspiracy between the husband and his family concerning the ownership of these properties. It is thus surprising that this view does not seem to been expressed in the previous two sets of proceedings.
[12] I now turn to the facts of this case. In my account of them I will make the necessary factual findings in relation to matters in dispute.
[13] The husband and wife are now aged respectively 47 and 44. They civilly married on 10 October 1989 and religiously on 15 July 1990 following which they started living together at the home of the mother and father at 83, Friern Watch Avenue, North Finchley. Yogesh lived there also.
[14] The mother and father had come to this country from Kenya in 1974. The father worked in the jewellery business from his home principally as a manufacturer and repairer. He earned reasonably, certainly enough to buy his home, support his wife, bring up his children, and to make savings.
[15] On 31 October 1989, before they started living together, Mayfield Avenue was purchased in the sole name of the husband. The wife says that she contributed £4,000 towards the deposit which derived from savings made by her and the sale of her jewellery to her aunt. She also said that the husband contributed the rest of the deposit which was about £15,000 - £20,000. She said that this money derived from Veeraj Jewellers (q.v.), even though this enterprise was not founded until 1992. She asserted that the property cost £275,000. I do not accept any of this. I do not believe that the wife or the husband had any material funds in 1989. The wife says that she understood that the property was bought as their matrimonial home. I do not accept that either. It was bought as an investment property and tenants were put in it from the very start. By and large the rent covered the mortgage and other outgoings. The husband declared the rent as his in his tax return.
[16] There is no completion statement but available documents show that the father wrote a cheque to the conveyancing solicitors on 6 October 1989 in the sum of £42,865. There is a mortgage statement showing the mortgage balance of £82,929 at 6 April 1992. These figures support the evidence of the respondents that the property cost £116,000.
[17] There is no evidence at all to suggest that the deposit cheque of £42,865 did not derive from the father. I accept that the property was bought as an investment for the family as a whole and was specifically intended to furnish a pension for the mother and father when they stopped working. Of all the witnesses the one who struck me as most honest and reliable was Mr Shah, the family accountant. It was his understanding that while for the purposes of the Inland Revenue the property was the husband's it had been bought by his parents in his name. He explained to me that economically this family was unified. Thus in relation to Veeraj Jewellers, he said "this was a family business with a single kitty". So also, I find, in relation to Mayfield Avenue.
[18] In 1991 the parties' son was born. Their daughter was born in 1994.
[19] In 1992 the husband and the father entered into a lease for shop premises at 55-57 Turnpike Lane. The founded a partnership known as DR Bhura and Sons (sic). The trading name of the business was Veeraj Jewellers. It specialised in 22 carat gold pieces for the Indian community market. The husband and the father were both partners. The wife says that she and the husband from their own separate savings contributed £9,000 to the start-up costs and that they agreed between them that they were the joint owners, and that the father played only a peripheral role. I do not accept this. The documents show that the husband and father were the partners and that the wife and the mother were employees paid modest wages. Mr Shah told me that the father played the principal role in the shop. He showed me the original VAT return which discloses a VAT refund for the first period of £21,018. This would suggest initial expenditure of £140,000. The accounts from 1996 have been produced. Mr Kelly has prepared a schedule based on them. They show reasonable profits and drawings. Mr Shah said that there would have been no method or system to the drawings, as this was a unified family economically.
[20] I am completely satisfied that this was a fully functioning partnership between the father and the husband. I reject the wife's case that the father was a mere cipher, and that she was a de facto partner.
[21] In 1995 Yogesh graduated and came to work at the shop. The following year he set up his own jewellery business YK Jewellers. This had a different line to Veeraj Jewellers in that it specialised in 18 carat gold and diamond pieces which would appeal to the non-Indian market. To acquire stock jewellery of this type was bought from Hong Kong. I have seen many invoices relating to such purchases. The business was registered for VAT and Mr Shah did the VAT returns, the accounts and Yogesh's tax returns. He confirmed that it was fully functioning business. Yogesh's tax returns are available and they show reasonable, but not large, profits and drawings.
[22] The wife's case is that YK Jewellers was a front for Veeraj Jewellers established only to obtain credit card facilities in circumstances where Veeraj Jewellers had been "red-listed" for credit card infractions. However she had to accept that by reference to the purchase invoices and the accounting paperwork this had all the hallmarks of a bona fide business. I asked her if she agreed with the aphorism "if it looks like a duck, quacks like a duck and walks like a duck, it probably is a duck". She did.
[23] I do not accept the wife's case that YK Jewellers was a mere front for Veeraj Jewellers.
[24] On 26 July 1996 Yogesh married Alpa Pattni. She also came to live at 83, Friern Watch Avenue.
[25] In September 2000 the husband, the wife and their children moved to Georgia USA and established a jewellery shop in Decatur under the name Veeraj Jewellers. I described the events after that in my earlier judgment. For the purposes of the decision which I have to make it is not necessary for me to go into the issues that have raged about the funding of the matrimonial home in Georgia, or the other issues about the American business. Suffice to say that I reject the suggestion that Yogesh was involved in a fraudulent enterprise with the husband to siphon off funds from the American business by means of fake invoices which funds were routed back to the UK and used to pay off the mortgage on Mayfield Avenue and to purchase Pembroke Road. I accept Yogesh's evidence that he did not create false invoices and that the invoices from the UAE which his ex-wife Alpa thought were in his handwriting were not written by him.
[26] From the time that the husband and wife moved to America they operated their own separate economy. The American business was theirs. The husband gradually withdrew from and no longer participated in the unified family economy centred at 83, Friern Watch Avenue.
[27] In 2002 the lease on 55-57 Turnpike Lane came to an end. The father wanted to retire. The husband and wife were well settled in the USA. Yogesh wanted to embark on a new career as a teacher. Therefore both Veeraj Jewellers and YK Jewellers were closed down.
[28] On 3 September 2002 the mortgage on Mayfield Avenue was paid off in the sum of £84,433. The documents clearly show that by a cheque written by the father on Veeraj Jeweller's bank account with NatWest on 23 August 2002 the sum of £45,000 was paid to the husband's account. An equivalent sum was paid by Yogesh to the husband from his account with Barclays on 23 August 1992. That sum had been transferred to Yogesh's account a few days earlier on 16 August 2002 from an account with Egg Bank. No statements on the Egg account were produced. However Yogesh produced statements on the YK Jewellers account showing that on 6 July 2002 there was £86,134 in its bank account and that on 9 July 2002 he wrote a cheque to Egg Bank for £70,000. Alpa had a memory that she and her husband had an investment at Egg Bank.
[29] I do not know why £90,000 was sent to the husband when the mortgage was £84,433. But it does not make any odds.
[30] Looking at the payments made for the purchase of Mayfield Avenue and the redemption of its mortgage the following table can be constructed:

father

husband
Yogesh
Deposit
42,865
mortgage redemption
22,500
22,500
45,000
65,365
22,500
45,000
49.2%
16.9%
33.9%
However, in the context of the unified family economy described by Mr Shah I do not think that such precision is justified. I have no doubt that Mayfield Avenue was regarded by the father, the mother and their two sons as a jointly and equally owned family asset.
[31] On 24 September 2003 the husband transferred Mayfield Avenue into the joint names of himself, his parents and Yogesh. The TR1 states that the transferred would hold the property on trust for themselves as tenants in common in equal shares. The Form states that the transaction fell within category L, for stamp duty purposes, that is to say that the transfer was for no consideration and thus attracted no stamp duty. This is consistent with a prior understanding that it had at all times been held in the unified family economy which I have described.
[32] The wife says that this was a naked piece of asset protection by the husband done at a time when their marriage was decidedly rocky and where there were strong arguments between them. She says that it was done to defeat her claims. As against that the husband disputes that the marriage was unhappy at that time. Alpa describes the husband and wife as being blissfully happy. And it is a fact that the marriage continued for another 7 years. If the exercise was pure asset protection then it is very odd that the husband should have left himself with a 25% share.
[33] In 2008 the marriage of Yogesh and Alpa broke down. Divorce and ancillary financial remedy proceedings were commenced. On 3 July 2009 Yogesh swore a Form E. In it he declared that he owned a 25% share of Mayfield Avenue with a value of £91,200. It was his biggest asset by far (his total assets were expressed to be £147,262). If the property was in truth 100% owned beneficially by the husband it is hard to see why Yogesh would be declaring 25% of it as his in his own divorce. Alpa confirmed that she settled her financial remedy claim on the basis that this 25% share was Yogesh's asset.
[34] In Box 4.4 of the Form E, which deals with contributions, Yogesh states "my brother Dharmesh Bhura gave me my ¼ share of 116 Mayfield Avenue on 24 September 2003 on basis that it would revert on sale". This peculiar statement is the high point of Mr Kelly's case. He says it is a smoking gun. In his oral testimony Yogesh blamed his solicitors for these words but has declined to waive privilege about his discussions with them. Mr Kelly says I should draw inferences from that refusal. Mr Kelly says that the only logical meaning of those words is that the husband owned the property and that he donated 25% to Yogesh on the basis that if there was a sale of the property that share would revert to the husband. But the problem with this interpretation is that if it was a conditional gift then why was Yogesh declaring all its value as his in the property section of the Form E? On the other hand, if Yogesh actually paid off half the mortgage why did he not say so in his Form E?
[35] Alpa was shown the words and was confident that the verb "gave" meant no more than that the husband had transferred the title in 2003 (which is certainly true). In her view the reference to reversion on sale meant no more than if a party wished to sell he would offer it to the others first.
[36] Similar ambiguity arises from letters written by the husband's then solicitors on 18 March 2013 and 30 April 2013 which described the payment by the father of the deposit as a loan to the husband. If that were in fact the truth then from the time of purchase of Mayfield Avenue the beneficial interest in it would have been owned solely by the husband but with him owing a debt to his father (and to the mortgagee).
[37] In addition to the sum of £45,000 which Yogesh claims to have paid towards the mortgage on Mayfield Avenue he also claims to have contributed £30,000 to the purchase of Pembroke Road as well as £105,000 towards the purchase of another property in Kingsbury, London NW9. These three items add up to £180,000. Mr Kelly has undertaken an analysis of Yogesh's tax returns from 1996 - 2006 and has calculated that after allowing a very modest sum for living expenses the total of his after tax earnings in that decade was £154,000. Therefore he says that Yogesh cannot be telling the truth about sums which were available to him. On the other hand the bank statement for YK jewellers shows a balance of £115,120 as at 30 May 2002, shortly before the redemption of the mortgage.
[38] I agree that the matters I have recorded above at paras 34-37 do raise suspicions and doubts. But they do not alter these core facts:
i) There is no documentary evidence that the initial payment of the deposit on Mayfield Road derived from anyone other than the father. I do not accept the wife's evidence that any sums derived from her and the husband.
ii) Apart from occasionally making up a shortfall between mortgage instalments and rent there is no evidence that the husband made any other monetary contribution to Mayfield Avenue prior to the redemption of the mortgage.
iii) The documents clearly show that at the time of the redemption of the mortgage on 3 September 2002 YK Jewellers, which I have found to be a bona fide separate business, had ample funds to contribute £45,000 for that purpose.
iv) Equally, the documents clearly show that the other £45,000 was contributed by Veeraj Jewellers, which I have found was a bona fide partnership between the husband and the father.
v) Therefore, the evidence shows that the father made the principal contribution and the two sons lesser contributions.
[39] It is thus hardly surprising that they should have agreed to formalise the situation so that the father and mother owned 50% and the two sons 25% each. In my judgment the TR1 was a fair reflection of the state of affairs on the ground. After the mortgage was paid off the rent was received by the father and mother and was used to support them in retirement. But the owners declared 25% of the rent in their respective tax returns.
[40] I conclude that the wife does not come close to displacing the presumption that the TR1 is a true bill. I am satisfied that it is a genuine document which accurately records the intentions of the signatories. The wife's claim in relation to Mayfield Avenue is therefore dismissed. Her only recourse is to the husband's 25% share in it, which has already been charged in her favour by virtue of my earlier judgment and order.
[41] I now turn to Pembroke Road. This was purchased on 30 May 2006 in Yogesh's sole name. By this stage of course the husband and wife were ploughing their own furrow in the USA and the father and mother were retired.
[42] Mr Kelly's skeleton argument states that "It is the wife's case that [the husband] used matrimonial funds as a deposit and a mortgage" and "The only basis on which the wife could succeed on this part of her application is to establish that the purchase monies in truth emanated from the husband. This will have to be explored in evidence."
[43] There is available an annotated completion statement and a memorandum of a loan granted to Yogesh by the father dated 17 July 2006. In combination these documents show:-

Purchase price

264,000
Stamp duty
7,920
Land Registry fees
220
Bank fee
23
Costs
588
Further fees
599
273,350
deposit paid
(26,400)
mortgage
(122,250)
loan from father
(121,000)
paid by Yogesh on completion
3,700
[44] There is available a copy of Alpa's bank statement with HSBC dated 5 April 2006. This shows that she wrote a cheque for £30,000 to Yogesh on 9 March 2006. She told me that this money represented savings made by her and her husband. This cheque was for the deposit on Pembroke Road; the balance came from a loan from her husband's parents. Alpa was clear that Pembroke Road was an investment for her and her husband.
[45] In his Form E Yogesh declared Pembroke Road (then in negative equity to the tune of minus £23,249) to be solely his. In Box 4.3 he stated "for Pembroke Road I used £30,000 from my savings plus a loan of £121,000 from my parents". Alpa told me that in the financial remedy proceedings (which were eventually settled) she accepted that the negative equity was solely Yogesh's and that her settlement took that into account. It is hard to see why Yogesh would claim, and Alpa would accept, this debt if it was not in fact Yogesh's.
[46] In her witness statement the wife stated that she was kept completely in the dark about the funding of Pembroke Road. But in her oral evidence she said that the husband had told her that he had bought it in Yogesh's name and had used money from the American business to do so. This is a flat contradiction and casts serious doubt on her veracity.
[47] The wife relies on some evidence from her father Subhash Pattni concerning Pembroke Road which I found be unsatisfactory. Subhash Pattni stated in his witness statement that he received a telephone call from the husband's father in 2006 asking to meet him at a new house which had just been purchased. This was Pembroke Road. He went and there met the husband's father and uncle. He also said that a nephew Pravin was there. He said in his witness statement that the father said to him that he had just come back from the North of England where he had been selling stock from the closing of Veeraj Jewellers and he was thus able to raise £50,000 to pay for the house and that "the rest of the funds were coming from the USA branch of Veeraj Jewellers." The father also stated that business had been very difficult as he had had to warn Yogesh to stop swiping credit cards from "black/african men" as they would get into serious trouble.
[48] There are a number of obvious problems with this. First, by the time of this alleged conversation the property had already been purchased. Second, in contrast to his written evidence in his oral testimony Subhash Pattni stated that "£50,000 came from the sale of jewellery; he never told me where the rest of the money was coming from." This evidence is completely at variance with the documentary material. I have already stated that I am satisfied that Yogesh was not involved in creating false invoices to abstract money from the American business. Third, the two businesses Veeraj Jewellers and YK Jewellers had been closed down 4 years earlier. The father was retired and Yogesh was working as a teacher. Fourth, the credit card "red-listing" problem, according to the wife's evidence had occurred 10 years earlier.
[49] I do not accept the evidence of Subhash Pattni.
[50] It is noteworthy that Mr Kelly did not ask Yogesh a single question about Pembroke Road in cross-examination.
[51] It might be asked why Pembroke Road did not form part of the unified family economy centred at 83, Friern Watch Avenue. By 2006 the husband and wife were operating independently, and it is the husband's case that his father had lent him money to buy his home in the USA. It is reasonable to suppose that the father wanted to treat Yogesh similarly and to extend a loan to him for his own separate property investment.
[52] Be that as it may, I am completely satisfied on the evidence that Yogesh formed no common intention with either the husband or his father to share the beneficial interest in Pembroke Road with either of them. Neither would it be fair to "take him" as having such an intention notwithstanding that the father contributed a large sum by way of a loan to its purchase. The position may of course have been different vis-à-vis Alpa but that is irrelevant to the wife's claim. Accordingly the wife's claim in relation to Pembroke Road is dismissed.

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