Thandi v (1) Sands (2) Appleyard (trustees in bankruptcy of Tarlochan Singh)  EWHC 2378 (Ch);  BPIR 3
(Chancery Division, HHJ David Cooke, 14 July
Demonstrating sufficiency of intention when
proving the existence of a common intention constructive trust.
The Applicant’s son, Mr Tarlochan Singh (‘TS’),
had been the registered proprietor of a number of properties. The properties
had been purchased between 1980 and 2003. Following TS’s bankruptcy in 2011,
the Applicant (‘CST’) asserted that his son, TS, held the properties for him on
a bare trust, relying on either his having provided the purchase money or on a
deed of trust dated 2003. He claimed that the deed regularised and evidenced
the existing trust. He therefore claimed that the properties had never formed
part of the bankruptcy estate and sought their transfer to him from the
respondent trustees in bankruptcy (‘the Trustees’).
CST therefore applied for an order that the
properties held by his son be transferred to him, on the basis that he was
their sole beneficial owner.
The question for the court was whether in the
absence of supportive contemporaneous evidence, CST was able to demonstrate
sufficient intention to establish a common intention constructive trust.
The court held, dismissing
the application, that the starting point was that the beneficial interest
followed the legal interest. The onus was on the person asserting that it was
otherwise to prove it. The court had to identify the parties’ actual intention
and on the evidence before the court there was nothing to suggest that the
parties intended that the properties be held under a common intention
constructive trust. The court therefore found that the beneficial interest in
the properties remained with the son.