Singh v Singh & Anor  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.
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.
I have to say, I read this case entirely differently, and came to quite different conclusions about it. (And, of course, having no formal qualifications in law, of course I must be right…)
I had interpreted the majority of the case to boil down to:
“If you want to prove that property is held under Mitakshara principles, and you don’t have any documentation to that effect, first you have to prove that you have a common intention constructive trust. Once you have done that, then it is possible to look at the *terms* of that trust – which may include Mitakshara terms, just as it may include any other terms that might be imagined, as long as they are not contrary to English law.”
And as far as I can see, as it applies to male family members (which was what was being argued), Mitakshara doesn’t do anything that can’t be done in English law.
(Just like a person might leave his property in his Will according to whatever principles he likes [as long as his dependants are provided for] – and just because he might leave his property according to Sharia principles it doesn’t make it any less a Will executed under entirely English law.)
In the event, the claimant did not overcome the hurdle of proving any common intent to form a constructive trust, so it wasn’t necessary to go into what the terms of that trust might have been.
There was an attempt to introduce the Mitakshara principle directly (rather than simply as the terms of a common intention constructive trust under English legal principles), but it was done too late and the judge didn’t allow it. The basis of this was that although the claimant hadn’t lived in India for decades, he was still ‘domiciled’ there for personal law purposes if he did not adopt an alternative ‘domicile-of-choice’ – i.e., adopt the personal law principles of any of his subsequent countries/regions of residence. Hence, he could argue that he was still bound by Indian Hindu Law for family law purposes – and so would his descendants unless *they* adopted a domicile-of-choice. The judge came up with several objections to this, not least that it was difficult to see how the defendants could have India as a domicile if they’d never lived there, and that the claimant’s domicile-of-birth would actually be Pakistan, not India…
However, even if this had succeeded, and the claimant had managed to establish that his domicile was India, *as I understand it*, India does not have a unified, secular family law. Family law (which would include Mitakshara) that is applied to a person depends on that person’s faith – so there’s one set of laws for Hindus, one for Muslims, and one for Christians. In effect, therefore, Hindu Family Law is Indian secular law – if you’re a Hindu.
They don’t, therefore, have the same distinction that we do in England regarding religious law and secular law (or, if you regard English law to be Church of England Christian, we apply it to everyone, regardless of their faith, so it is de facto a secular law). For instance, if you are a Muslim in England, a Sharia Court operated by a mosque can grant you a divorce in Sharia law, but you’re still married according to English law until you get a divorce through the English courts. And that applies regardless of what religion you happen to be – for instance, I believe Catholics have the opposite situation. An English court will grant a divorce to a Catholic couple without reference to their religion – but they will still be married according to the Catholic church.
Hence, in applying Indian Hindu Family Law in an English court, this would not have been the application of *religious* law (as opposed to secular law), but instead the ordinary law of India – as it would apply in India to Hindus (and Sikhs), just as if it had been a contract case where the claimant was relying on Indian contract law.
So, in summary, my interpretation of this case was;
1. This doesn’t tell us anything about whether English courts will enforce religious law of any description because what the court was being asked to do initially was decide whether or not there was a common intention constructive trust (a known principle of English secular law).
2. Even if there had been a common intention to form a constructive trust found, we don’t know how the court would have dealt with the particular requirements of Mitakshara, because it wasn’t really discussed. However, joint property ownership with beneficiaries being ‘born into’ the trust is hardly a strange concept. It’s pretty straightforward in the case of males, and I suppose even the females (if the old rules applied) could be dealt with as being beneficiaries entitled only to a money payment on marriage from the trust funds. So if you constructed it like that, it fits quite well into English trust law with no need to import exotic foreign (or religious) concepts.
3. Even if it had been decided directly on Indian law rather than via the English law constructive trust concept, because Hindu law is the only family law that applies to Hindus in India, it would be no more an application of ‘religious law’ than it would have been if a claimant had argued that French family law should apply as France was their country of domicile.
Which is only my opinion…. and if I’ve got it wrong, I’d be quite grateful if someone would point out how, as in that case my logic has obviously sprung a leak and I need to know where to apply the chewing-gum…
Thanks for that.
I think we might be approaching this from different angles that are not necessarily mutually-exclusive. The point I was trying to make, in the light of the recent shock-horror reaction to the Law Society’s guidance on how to draw up a sharia-compliant will, was that there are already circumstances in which the secular courts will take account of religious law when it is part of the circumstances which they are required to address by the facts of the case before them. Arbitrations by religious courts under the Arbitration Act 1996 are one such example: foreign laws that have a religious basis are another.
On reflection, I may have made too much of the religious aspect; and you are correct to suggest that Hindu family law is subsumed into Indian secular law because the secular law in India does not include a unified system of family law. I agonised over that issue myself while drafting the original post – but I still think that the general point is one worth making: that “religious law” is not simply anathema to the secular courts.
Do we have have a problem of definition?
The way I think of it, the fact that a law is based on a religious provision doesn’t automatically make it a religious law – otherwise most of the law we have in the UK, which we think of as ‘secular law’ – should be regarded as ‘Christian religous law’. In fact, it’s only relatively recently that judges stopped overtly applying Christian Biblical/moral principles in deciding cases, as well as the actual law.
My definition of a ‘religious law’ would be one that could only be applied to adherents of that religion, as part of the religious observance of all concerned. If it’s something that might be applied to someone outside that religion by the national courts, then it’s a secular law. Or, alternatively, from the point of view of our courts, consider what would be the outcome of the following hypothetical situation:
“It’s a case with an Indian law component, Your Honour.”
“OK, what’s the law?”
“Well, it’s this Hindu thing.”
“This is a secular court; skip the religion and tell me what the non-religious Indian law is. We can do foreign secular law, but not religious law.”
“Well, Your Honour…”
If there is a ‘secular alternative’, then what you’ve got is religious law. If there isn’t, then it’s ‘the [foreign] law’, whether based on religious principles or not.
If it’s the only law there is in that country, it’s misleading to then equate it to a religious law that exists ‘on top of’ a separate secular law, as Catholic canon law, and Sharia and Jewish law do in the UK (and are only enforceable in the courts via the provisions of the Arbitration Act 1996 or similar provisions).
As I understand it, the UK courts will only enforce ‘religious law’ at second-hand, for example, as you say, as the decision of a religious court under the Arbitration Act 1996. I have always seen this not as the UK enforcing the religious court’s decision, but rather enforcing the agreement of the parties (under UK law) to be bound by that decision. In effect, the UK court doesn’t really care what terms the arbitrators used (religious or secular) – it only cares that the parties entered into a legally binding agreement under UK law to abide by the result.
Likewise (as I see it), the Sharia Compliant Wills thing is not a matter of the UK legal system enforcing or including Sharia principles, it’s more like:
“OK, lawyers, as you all know, your client can leave his money how he likes provided he doesn’t leave his dependants destitute. However, many Muslims will choose to leave their money according to these principles, and if that’s the case you should do your best to do it right in order to avoid distress/embarrassment/litigation, hence we are supplying this helpful guidance.”
I think we could only say that the courts will ‘take account of’ religious law when they start treating it as something more weighty than the claimant’s (or deceased’s) previously expressed wishes or freely-chosen contracted terms (or, under Article 9, a UK-law mandated right to manifest their beliefs – whatever they happen to be).
After all, part of a secular court’s duties is to enforce a valid contract (or Will, or constructive trust) regardless of whether the content is secular or religious – as long as it’s legal. If a court starts deciding whether, or how, it will enforce an agreement depending on whether or not it contains terms intended to be compliant with a particular religion’s tenets, then it stops being a secular court and starts being a religious court.
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I think you’ve put your finger on it: we indeed have a problem of definition – and that’s what confuses the discussion of things like arbitrations by religious tribunals conducted under the terms of the Arbitration Act 1996 or sharia-compliant wills. Which wouldn’t matter, were it not for the fact that some of the less-informed comment on these issues verges on the hysterical.
Russell Sandberg draws a helpful distinction between “religious law” (such as the RC Codex Iuris Canonici) and “religion law” (secular law as it affects religious activity). The problems arise where the two overlap – or appear to overlap. So if the London Beth Din conducts an arbitration under the 1996 Act in accordance with Jewish law it binds the parties under the terms of secular law. To the uninstructed (and there are a lot of them about), the resulting order of the civil courts should one of the parties renege looks like a secular court enforcing religious law whereas, as you point out, what it’s doing is enforcing the agreement between the parties to be bound by the decision of the arbitrator.
In terms of the wider debate about the place of religious law in a secular society, I guess that all one can do is to keep pointing this out and trying to maintain the distinction between the religious and secular systems. But some of the press comment on (eg) the Law Society’s practice note bordered on wilful ignorance: if the authors couldn’t be bothered to dig into the facts they shouldn’t have commented – and if they were aware of the facts and still commented as they did, then they were merely being sensationalist for the sake of a good headline.