Property rights in England and Wales and the applicability of Hindu law

The facts

Singh v Singh & Anor [2014] EWHC 1060 (Ch) was a dispute in a family of Sikhs, between Bal Mohinder Singh, the claimant, and his sons Jasminder Singh and Herinder Singh, over the ownership of certain properties, including Tetworth Hall and shares in a hotel group, Edwardian Group Limited (“EGL”). The case was heard by Sir William Blackburne, a retired judge of the Chancery Division.

What made the case so unusual (and engaged our interest) was the claimant’s assertion that the disputed property was a joint family asset held in accordance with the principles of the Mitakshara: the legal code written in the latter part of the 11th century CE and the basis of the orthodox system of Hindu law which prevails in most of India – and under which a Hindu (and, by extension, a Sikh) family living and eating together as a composite household may hold its property jointly:

“The beneficial interest in property of a joint Hindu (or Sikh) family, if held subject to the Mitakshara, belongs jointly to the male members of that family down to the third generation from a common male ancestor. The male members are sometimes called ‘coparceners’. The property owned by the coparceners is frequently referred to as ‘coparcenary property’” [para 2].

The case was one of extraordinary complexity. In paragraph 56 of his particulars of claim Bal Mohinder Singh pleaded that the

“… principles and customs [of the Mitakshara] provide the content of a constructive trust which governs the family property of the Singh family by virtue of the common understanding of Father, Mother and their children throughout the period when the property was being acquired that they all had beneficial interests in that property which were in accordance with those principles” [para 4].

Jasminder Singh contended that what he held in his name, including in particular Tetworth Hall and his shares in EGL, was beneficially his own and not held by him as joint family property in accordance with the Mitakshara – and that until the dispute had first arisen he had never heard of the Mitakshara, let alone understood how it operated [para 5].

Given that the point at issue was a matter of foreign law, both sides adduced (conflicting) expert evidence in their support. As a  legal theorist, the expertise and interest of Professor Werner Menski lay in the sociological role and impact of Hindu law as it affects the lives and culture of the peoples who are subject to it rather than in the day-to-day operation of the law in question.  In contrast to Professor Menski, Dr Mohan confined himself almost entirely to setting out the relevant principles of the Mitakshara and how they operated in practice. At para 82 Sir William described Dr Mohan’s knowledge of “black-letter law” as “impressive” and relevant to the enquiry which faced the court in resolving the dispute. In addition, Sir William took note of two textbooks on Hindu Law,  Mulla’s Principles of Hindu Law, now in its 21st (2010) edition of which he was provided with the 10th (1946) edition , and Mayne’s Hindu Law & Usage, 16th edition (2010).

As to the facts, Sir William pointed out that:

  • the court was not “shown a single document out of the voluminous quantity disclosed which assumed that any property that was being acquired was a joint family asset” [para 169];
  • “without exception none of the witnesses had heard of … Mitakshara … before these proceedings began or, perhaps more tellingly, could recall a single occasion when there had been any discussion of the concept of joint family property [para 170]; and
  • there were documents before the court evidencing dealings or setting out wishes that were inconsistent with any understanding by Bal Mohinder Singh (let alone any common intention between him and Jasminder) that the property was to be dealt with in accordance with Mitakshara principles [para 171].

He concluded that at no material time had there been any common understanding between the claimant and the defendants that any property acquired and legally owned by each or any of them would be subject to a common understanding that Mitakshara principles applied to it. Claim dismissed.

Comment

Singh v Singh & Anor is at the outer limits of our interests and its complexities are somewhat beyond my technical competence. But the reason for bringing to the attention of readers of this blog is a simple one, given recent media controversies about the relationship between secular and religious law. At para 82 of his judgment Sir William stated that the establishment and content of the common intention constructive trust whose existence Bal Mohinder Singh was seeking to establish

“… served as the means by which English Law would give effect to the Mitakshara principles so far as they related to the ownership and management of joint family property; in other words, it was those principles which provided the trust with its content”.

The implication of this is that there are circumstances in which the secular courts in the UK will enforce religious law as foreign law.

Sir William dismissed the claim on the facts: he concluded that there was no evidence before him to suggest that the parties had believed that the coparcenary principles of Mitakshara applied to the property in dispute. What he did not do was to suggest that those principles could not have been applied had there been evidence to the contrary. Had the parties believed that the disputed property was subject to Mitakshara principles, then there is no reason to assume that the court would not have enforced them. After all, the court had heard expert evidence from both sides as to their applicability.

We should like to thank Simon Hunter of Thirteen Old Square Chambers for bringing this case to our attention.

Cite this article as: Frank Cranmer, "Property rights in England and Wales and the applicability of Hindu law" in Law & Religion UK, 16 April 2014, https://lawandreligionuk.com/2014/04/16/property-rights-in-england-and-wales-and-the-applicability-of-hindu-law/