Chhoaker v Chhoaker

Facts

Mrs Chhokar was in hospital and undergoing child birth with Mr Chhokar’s second child in February 1979, when he sold 60 Clarence Street, Southall to Mr Parmar. It was in his name, but she had given money for its purchase and maintenance. He had already tried to abandon her in October 1978 on a trip to India but she had managed to return on her own, a few weeks after him. The buyer, who knew of the situation, tried to scare her away by smashing the windows and assaulting her. But she stayed put with her two children.

Judgement

High Court

Ewbank J ordered that Mr Parmar held the property on trust for himself and Mrs Chhokar in equal shares, and that it be sold in 9 months. Till then, she should pay him a rent of £8 a week. She appealed, arguing she should stay rent free until a sale.

Court of Appeal

The Court of Appeal held the purpose of the trust was to give Mrs Chhokar and her children a home. There was no reason for an order for sale, having regard to the interest of third parties. Because Mr Parmar stepped into Mr Chhokar’s shoes, it would be inequitable for her to have to pay an occupational rent, but he should be entitled to credit for paying off the mortgage. Accordingly, she and Mr Parmar held the house as tenants in common in equity in equal shares. Cumming-Bruce LJ remarked that for the question about whether an order for sale should be made, the bankruptcy case law was relevant. He first referred to Goff LJ in Re Holliday [1981] 1 Ch 405, before continuing his judgment.[1]

“
I laid down the relevant principle where there is a bankruptcy in Re Turner (A Bankrupt) [1974] 1 WLR 1556 at p. 1558C: “In my judgment, the guiding principle in the exercise of the court’s discretion is not whether the trustee or the wife is being reasonable but, in all the circumstances of the case, whose voice in equity ought to prevail. . . .”

...and I would apply that test to this case. So we have to decide, having regard to all the circumstances, including the fact that there are young children and that the debtor was made bankrupt on his own petition, whose voice, that of the trustee seeking to realize the debtor’s share for the benefit of his creditors or that of the wife seeking to preserve a home for herself and the children, ought in equity to prevail. . . . Nevertheless, there is a discretion. . . .

Comments

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