Case No:  HC09C01983

Neutral Citation Number: [2010] EWHC 1386 (Ch) 
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Royal Courts of Justice
Strand
London WC2A 2LL

Friday, 30 April 2010

IN THE ESTATE OF ZAFAR AHMAD
alias ZAFAR AHMED, DECEASED

BEFORE:

MR JUSTICE KITCHIN

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(1) SAEED AHMAD 
(2) NUSRAT BASHIR 
(3) RASHID AHMAD 
(4) BUSHARAT AHMAD 
Claimants
- v -

PARVEEN AKHTAR alias PARVEEN AKHTER
(administratrix of ZAFAR AHMAD, alias ZAFAR AHMED, deceased)
Defendant
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MR ADRIAN DAVIES (instructed by Southfields Solicitors) appeared on behalf of the Claimant

The Defendant did not appear and was not represented 

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JUDGMENT

MR JUSTICE KITCHIN:
  
1.	This is the trial of two issues directed to be tried by order of Master Teverson made on 21 December 2009 concerning the estate of Zafar Ahmad  (“the Deceased”), who died intestate on 13 August 2002 without children or remoter issue, or parents or remoter ascendants. 

2.	The defendant, Parveen Akhtar, is the widow of the Deceased and the administratrix of his estate.  

3.	The claimants are the surviving siblings of the Deceased. Specifically the first claimant, Saeed Ahmad, the third claimant, Rashid Ahmad, and the fourth claimant, Busharat Ahmad, are his brothers.  The second claimant, Nusrat Bashir, is his sister.  Another brother, Mahmud Ahmad, survived the Deceased but has since died intestate and without issue, so that his entire estate including his share of the Deceased’s estate falls to be divided between the claimants.

4.	The main asset of the estate is a freehold property 25 Balham Hill, London, SW12 9DX, title number SGL 320680 (“the Property”) which I am satisfied was formerly registered in the Deceased’s sole name,  

5.	Other significant assets of the estate are accounts with the Chelsea Building Society, No. 18871080, and Barclays Bank Plc, Nos. 00543810 and 8044051, all of which stood in the sole name of the Deceased at the date of his death.  

6.	The claimants say that they and the defendant are entitled to share in the Deceased’s estate pursuant to sections 46 and 47 of the Administration of Estates Act 1925.  Specifically, the defendant, as the widow of the Deceased, is entitled to the sum of £200,000 out of the estate, and to one half of the balance absolutely. The other half is held on statutory trusts for the claimants.

7.	The claimants also complain that the defendant has not delivered estate accounts despite being the administratrix of the estate, nor has she made any payment to the claimants on account of their interests in the estate.  

8.	The defendant says that she is beneficially entitled in her own right to half of all of the assets which the estate comprises.  

9.	The issues which therefore fall to be determined pursuant to Master Teverson’s order are whether the Property and the sums standing to the credit of the bank and building society accounts to which I have referred were jointly owned by the defendant and the Deceased, or were the sole property of the Deceased.

10.	The procedural background to this trial can be summarised as follows.  On 19 August 2009, Deputy Master Lloyd made an order requiring the defendant, on or before 16 September 2009, to file and serve a witness statement setting out (1) how she claimed to be entitled personally to a half share of the beneficial interest in the Property, and exhibiting thereto all documents on which she relied in support of her case, and (2) how she claimed to be entitled personally to a half share in the Deceased’s bank accounts at Barclays Bank, and the Deceased’s account with the Chelsea Building Society, again exhibiting all documents on which she relied in support of her case, and further exhibiting all statements received in respect of those three accounts in the period 13 May 2002 to 13 November 2002.  The defendant did not comply with that order.

11.	On 28 October 2009, Warren J made a series of orders.  The first was an unless order in like terms to the order made by Deputy Master Lloyd, and required the defendant to provide the evidence and disclosure by 25 November 2009, failing which she would be debarred from filing evidence and the matter would be set down for trial on the evidence of the claimants alone.  The second appointed a receiver to get in and receive the rents and profits of the Property.  The third, made under the Banker’s Books Evidence Act 1879, required Barclays Bank to allow the claimants’ solicitor to inspect and take copies of any entries in its books concerning the Deceased’s bank accounts to which I have referred and any other account he held for the period 13 May 2002 to 13 November 2002. The fourth, again made under the Banker’s Books Evidence Act 1879, was in like terms but made in respect of the Deceased’s accounts with the Chelsea Building Society. 

12.	Barclays Bank and Chelsea Building Society have both produced ledger accounts pursuant to the orders of Warren J.  Those accounts confirm that the Deceased’s accounts were indeed in his sole name.  However, despite the unless order made by Warren J, the defendant failed by the due date, or any time since, to serve any evidence or disclose any documents in accordance with it.  

13.	Accordingly, on 21 December 2009, Master Teverson ordered that the issues whether the Property and the sums standing to the credit of the Barclays Bank and Chelsea Building Society accounts were jointly owned by the defendant and the Deceased or were the sole property of the Deceased, should be tried on the evidence of the claimants alone, and gave consequential directions.  

14.	The trial has come on before me today.  The claimants have been represented by Mr Adrian Davies of counsel, instructed by Southfields Solicitors.  The defendant has not been represented and has not appeared.  In the light of the matters drawn to my attention by Mr Davies in the course of his submissions, including the facts that, as recently as two days ago, the defendant was provided with a trial bundle and told again that the trial would be taking place today, I am entirely satisfied that she has had sufficient notice of this trial, and it is therefore appropriate to proceed in her absence.

15.	As I have said, the principal asset of the estate is the Property.  It was registered in the sole name of the Deceased on 29 June 1981.  Following the death of the Deceased in 2002, the defendant obtained letters of administration and used her grant to transfer the Property into her sole name.  However, on the 15 January 2008, and upon an application made in earlier proceedings between the first claimant and the defendant, Master Teverson ordered that the Property should vest and be registered in the joint names of the first claimant and the defendant, and so it remains today. 

16.	In 2002 the Property was valued by the defendant at £450,000 in the Inland Revenue account for inheritance tax.  It is divided into a ground floor shop let to Oddbins, the wine merchant, and four flats, one of which the defendant occupies as her home, but three of which remain empty.  

17.	The defendant has not paid any part of the rents of the ground floor shop over to the claimants in the seven years from 2002 to 2009, although the defendant has apparently received rent at the rate of £17,500 a year until the appointment by Warren J of a receiver by his order of the 28 October 2009.  Since then, the receiver has collected the rents, beginning with the Christmas Day 2009 quarter.  

18.	As for the accounts with Barclays Bank and the Chelsea Building Society, these are, as I have said, accounts standing in the sole name of the Deceased, although it is possible the defendant may have been an authorised signatory on one or more of them.  As of August 2002, they were in credit in the total sum £84,237.  

19.	The relevant legal principles are well established and can be stated shortly.  First, if an intestate leaves no issue and no parent but a surviving spouse, the residuary estate after the spouse’s prior entitlement to the personal chattels and the fixed sum of £200,000 must be divided into two, as to one half in trust for the surviving husband or wife absolutely, and as to the other half, on statutory trusts for the brothers and sisters of the whole-blood of the intestate.  

20.	Second, a person who is the sole legal owner of property is prima facie the absolute beneficial owner, and anyone claiming a beneficial interest must prove that the legal owner holds the property upon trust to give effect to that interest.  

21.	Application of these principles to the facts of this case admits of only one answer: the Deceased was the sole legal owner of the Property and the sums in the accounts at Barclays Bank and the Chelsea Building Society.  The defendant has adduced no evidence and disclosed no documents to support her claim that the Deceased held these assets or any share in them on trust for her.  The burden rested on the defendant to prove her claim, and she has failed to discharge that burden.  

22.	Accordingly, the claimants are entitled to a declaration that these assets were the sole property of the Deceased.