REF/2008/1681

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

JATINDER SINGH BIRDI

(as executor of the estate of Sant Nahar Singh deceased)

 

APPLICANT

 

and

 

(1)JAGDISH SINGH DHILLON

(2) JASWINDER SINGH

(3) MANJIT SINGH BHOGAL

(as Trustees of Asthan Baba Ke Trust)

 

RESPONDENTS

 

Property Address: Land lying to the north east of Park Lane, Snitterfield

Title Number: WK337042

 

 

Before: Mr Michael Michell Deputy Adjudicator to HM Land Registry

 

Sitting at: Victory House, Kingsway, London

 

 

 

Applicant Representation: In person

Respondent Representation: Manjit Singh Bhogal of Bhogal & Co. Solicitors

 

 

 

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

RESTRICTION –APPLICATION TO REMOVE RESTRICTION – WHETHER LAND HELD ON CHARITABLE TRUST- WHETHER RESPONDENT TRUSTEES HAD SUFFICIENT INTEREST TO MAINTAIN THE RESTRICTION

 

Cases referred to

 

Re Manses, Attorney-General v. Lucas [1905] 1 Ch 68

 

 

 

1. The registered proprietor of title number WK337042 is the late Sant Nahar Singh. The Applicant, Mr Birdi is the personal representative of the late Sant Nahar Singh who died in September 2007. The Respondents are the trustees of the Asthan Baba Ke Trust, a registered charity. On 15^th April 2008 the Respondents registered restrictions in Form A and Form II in the proprietorship register of title number WK337042. The basis of the application was that the congregation of the Asthan Baba Ke Trust had provided the capital monies for the purchase of the land and that there was a constructive trust in favour of the Respondents. The Applicant applied on 4^th August 2008 for cancellation of the restrictions on the basis that they were entered without reasonable cause and that the land within the title was not held on trust for the Respondents. The Respondents objected and the matter was referred to the Adjudicator to HM Land Registry for determination.

 

2. The late Sant Nahar Singh was revered during his lifetime as a saint within the Sikh religion. He was invited to come to the United Kingdom in 1988 to preach the teachings of the Sikh faith. He attracted a number of followers, who with him formed the idea of establishing a Sikh temple or “gurdwara”. They adopted the name “Baba Ke” (which appears to mean at least as a rough translation) “Followers of God” both for themselves and for the intended gurdwara. The group of followers who followed the preaching of Sant Nahar Singh were referred to in the proceedings as the “sanghat”, a word which was translated before me as “the congregation”. Some of the followers identified an area of land comprising approximately 192 acres with a farmhouse and farm buildings called Claydons Farm, at Stratford-upon-Avon as a site for the gurdwara. They raised monies to fund the purchase and Claydons Farm was purchased for £450,000, of which £400,000 was raised on mortgage from Lloyds Bank. A trust was established by a declaration of trust dated 29 August 1988 to hold Claydons Farm for the charitable purposes set out in the declaration. The trustees who signed the declaration of trust were Gurdev Singh Dhillon, Amritpal Singh Virdi and Davinder Singh Virdee. The names of three others, namely Sant Nahar Singh, His Honour Judge Mota Singh QC and Beant Singh appeared typed in the declaration of trust as trustees but their names were crossed through in manuscript and they did not sign the declaration. Planning permission could not be obtained for a gurdwara on the site and the trustees fell out amongst themselves as to what should happen to Claydons Farm. As a result, in 1989 proceedings were commenced in the Chancery Division of the High Court. With the authority of an order of the court, the trustees sold Claydons Farm in January 1990 for £660,000. However, members of the Baba Ke congregation continued to use Claydons Farm for religious purposes after the transfer while they looked for alternative premises. The proceedings in the Chancery Division continued until 10 July 1992 when the High Court directed a scheme under which the funds of the Baba Ke Trust were split equally between two new trusts, the Baba Ke Number 1 Trust and the Baba Ke Number 2 Trust.

 

3. In September 1990 Mr GS Dhillon found Redhill Farm at Snitterfield, near Stratford upon Avon. His wife, Balbir Khaur Dhillon with other followers of Sant Nahar Singh had been looking for a new site for a gurdwara. After Sant Nahar Singh had looked at the site together with Mr and Mrs Dhillon, Jagdish Singh Dhillon and Manjit Singh Bhogal the decision was taken to buy the land. Contracts were exchanged on 3^rd October 1990 for the purchase of Red Hill Farm between the vendor, Reflexrule Ltd. and Sant Nahar Singh as purchaser. The purchase price was £85,000 of which £10,000 was to be paid as a deposit at the date of the contract. The contractual date for completion was 31^st October 1990. A completion statement prepared by Glaisyers, solicitors acting for the purchaser, shows that the sum required to complete was £76,585.40. The Respondents’ case is that the completion monies were funded as follows

(a). as to £27,500 from an account opened in the name of Sant Nahar Singh at National Westminster Bank (being account number 89496116): the Respondents say that the monies in this account were monies raised by the followers in order to purchase Red Hill Farm;

(b) as to £15,000 provided by Dharam Singh Mankoo;

( c).as to £15,834 provided on loan by Balkar Singh; and

(d). as to the balance of £18,251.40 provided on loan by Gurmeet Singh Jandu..

 

4. As to the National Westminster Bank account, Manjit Singh Bhogal opened this account with Mr GS Dhillon in the name of Sant Nahar Singh. In August 1990 Mr Sehmi had made an appeal from the stage at a religious festival for donations to be made for the purchase of Redhill Farm as the site for a gurdwara. The National Westminster Bank account was opened to hold the money raised by the appeal. There were further fund raising efforts, including Sant Nahar Singh, Mr GS Dhillon and Manjit Singh Bhogal visiting the homes of followers to ask them individually to make a donation.

 

5. I heard no evidence from Sarban Singh but Manjit Singh Bhogal gave some evidence as to how he came to give money. Sant Nahar Singh, Harvinder Singh Dhillon and Manjit Singh Bhogal visited Sarban Singh at his home in late September 1990 and Sant Nahar Singh asked him to make a donation towards the purchase. Sarban Singh gave a blank personal cheque and invited Sant Nahar Singh to insert the figure. This cheque was used to pay the deposit of £10,000.

 

6. Balkar Singh gave evidence that he provided money and as to how he came to provide it. He produced a statement of mortgage account from Tipton and Coseley Building Society showing that on 26 October 1990 there was a debit balance on his account of £15,930. Balkar Singh said that Sant Nahar Singh invited some close followers to the farmhouse at Claydons Farm and there asked them if they would arrange a private loan so that the sanghat could buy Redhill Farm. Balkar Singh said that he and Gurmeet Singh Jandu agreed to raise a loan with a view to the purchase of the land. Balkar Singh borrowed £15,834. Gurmeet Singh Jandu gave evidence that he was asked by Sant Nahar Singh to lend money to the congregation for the purchase of Redhill Farm. He provided a blank cheque to Sant Nahar Singh because he believed the land would be used as the site for a gurdwara. Gurmeet Singh Jandu said that he was paid back £10,000 by GS Dhillon about a month after he gave the cheque.

 

7. Dharam Singh Mankoo did not give evidence. However, Balkar Singh gave evidence that he offered to help Dharam Singh Mankoo to get a loan of money to be used towards the purchase of Redhill Farm. He went with Dharam Singh Mankoo to Barclays Bank at Burton-on-Trent to arrange the loan. A banker’s draft for £15,000 was drawn and taken to Sant Nahar Singh. Balkar Singh said that the land was purchased for the one reason only and that was to develop a gurdwara on the land.

 

8. The money loaned by Balkar Singh and Dharam Singh Mankoo was subsequently repaid to them in instalments. Mr GS Dhillon and Balbir Kaur Dhillon managed the money in the National Westminster Bank account. Balbir Kaur Dhillon organised the repayments to Dharam Singh Mankoo and Mr GS Dhillon organised the repayments to Balkar Singh. Balbir Kaur Dhillon produced a notebook in which the payments to Balkar Singh and Dharam Singh Mankoo were recorded. The repayments were made out of money raised by way of donations from members of the sanghat and through religious programmes.

 

9. Mr Birdi produced letters from three individuals addressed to Mr T. Fillimore at Alsters Kelley, a firm of solicitors in Leamington Spa, in which the writers said that they had given money for the purchase of Redhill Farm. One was a letter from Mr P.S. Paddan who wrote that he gave £20,000 to Sant Nahar Singh “for him to personally acquire land on the A46 Warwick Road Snitterfield”. Redhill Farm is on the A46 at Snitterfield. Sarwan Singh Birdi wrote that he gave £1,000 to Sant Nahar Singh personally in 1990 to acquire land “to the North East of Park Lane, Snitterfield”. Redhill Farm was to the north east of Park Lane Snitterfield. Makhan Singh Sohi wrote that he gave £3,100 to Sant Nahar Singh “for him to individually acquire land on the A46 Warwick Road, Snitterfield”. All three wrote that the land was used by Sant Nahar Singh to hold an annual festival to commemorate his grandfather, Sant Nand Singh. None of the three gave evidence and there was no documentary evidence showing any payments by them.

 

10. Red Hill Farm was transferred into the sole name of Sant Nahar Singh and the transfer was registered on 25 June 1991. A number of witnesses gave evidence as to why the land was transferred into the name of Sant Nahar Singh. The High Court litigation concerning the original Baba Ke trust was then still continuing. Jagdish Singh Dhillon, Jaswinder Singh, and Manjit Singh Bhogal said that the land could not be bought by the Baba Ke trust because it would then be affected by the litigation and so it was decided to buy the land in the name of Sant Nahar Singh because he was a respected holy man. Balbir Kaur Dhillon said the land was purchased in the name of Sant Nahar Singh because he was a figurehead within the community who could be very much trusted. Balkar Singh said that the congregation felt that it was necessary because of the ongoing litigation and that it was “safe” to purchase the land in the name of Sant Nahar Singh because he was well respected.

 

11. There was evidence from several witnesses that Sant Nahar Singh spoke to them about the congregation buying the land. Balkar Singh said that Sant Nahar Singh asked him to obtain a loan so that the congregation could buy Redhill Farm. Swaran Singh Sehmi said that in September 1990 he visited Sant Nahar Singh at Claydon’s Farm and Sant Nahar Singh told him that the congregation wanted to buy a new site known as Redhill Farm as a site for a gurdwara.

 

12. On 27^th September 1993 Mr Bhogal visited the offices of the Charity Commission and met an officer of the Commission, Mrs Erica Philips. Mrs Philips wrote to him on 4 October 1993 referring to the meeting on 27^th September 1993 and to a letter from Mr Bhogal , pointing out that the Baba Ke Trust Number 2 was already registered and stating

Unfortunately the draft Declaration of Trust that you have submitted is lacking a Schedule of Property, so I am unable to determine whether the “Farm” referred to in the document and also referred to by you in our conversation and in your letter, is the same farm referred to in the Governing Documents of the registered Charity.

I therefore need this information regarding the farm as it is certainly likely that the activities of this organisation are already established by the Governing Documents of the registered Charity….”.

I was not shown a copy of Mr Bhogal’s letter referred to by Mrs Phillips.

 

13. On 21^st October 2003, Sant Nahar Singh, Manjit Singh Bhogal and another man met Mrs Erica Philips, an officer of the Charity Commission. They discussed the proposed new trust and a draft trust deed. Following the meeting, Mrs Philips wrote to Manjit Singh Bhogal proposing various amendments to the draft trust deed. In that letter, Mrs Philips stated that Mr Bhogal had advised her that the Farm referred to in the proposed Asthan Babe Ke Trust’s draft deed was not Claydons Farm but Redhill Farm. She also pointed out that the schedule to the trust deed was missing and must be added and included within the body of the deed or else the deed would be executed “in vacuo”. Mrs Philips enclosed with her letter a form on which application for registration could be made.

 

14. On 22 October 1993 Sant Nahar Singh, and the Respondents Jagdish Singh Dhillon and Manjit Singh Bhogal signed a document entitled “Declaration of Trust”. Manjit Singh Bhogal was referred to in the Declaration of Trust as “Manjit Singh”. The parties were referred to in the Declaration as “the Trustees”. The document contains the following recitals

“The Trustees are the Trustees appointed for the purpose of the Asthan Babe-Ke Trust (hereinafter called “The Trust” an association established for the Charitable Purpose hereinafter appearing”

and

“The land as specified in the Schedule hereto are to be registered at Her Majesty’s Land Registry in the names of the Trustees for the purposes of the Trust”.

The operative parts of the Declaration include the following

“the Trustees hereby agree and declare that the Trustees do and will henceforth stand possessed of the said property Upon with and subject to the Charitable Trusts Powers and Provisions following (that is to say)

1. In this Deed “the Trust Fund” shall mean and include the aforesaid and buildings and all other land and buildings and investments and cash and other property from time to time held for the purposes of the Trust Upon the Trusts of this Deed.”

There was no schedule with the copy of the Declaration of Trust in the trial bundle and I was informed by the solicitor for the Respondents that there is no schedule with the signed original of the Declaration of Trust in their custody. However, the copy of the declaration of trust sent to Mr Bhogal by the Charity Commission on 3^rd August 2009 includes a schedule setting out particulars of some land at Soho Hill, Hockley ( a plot in three adjacent parcels). That was land that Sant Nahar Singh’s followers were as at October 1993 buying or attempting to buy but had not yet bought. Sant Nahar Singh signed on 1^st November 1993 an application to open a loan account for £105,000 for the purchase of land at Soho Hill Hockley. The Charity Commission confirmed in a letter dated 21^st April 2010 to Mr Birdi that the version of the Declaration of Trust held by the Charity Commission has one schedule and that the schedule specifies only the land at Soho Hill, Hockley.

 

15. The form of application for registration of the Asthan Baba Ke trust as a charity was then filled in. The printed form contained two alternative forms of declaration with a box beside each and an instruction to tick only one of the boxes. The first option states

“I confirm that the copy of the charity’s governing document sent to the Commissioners on … is a true copy of the governing document as executed /incorporated/adopted”

The date “27^th SEPT 93” was entered in manuscript in this declaration. The second option states

“I enclose a copy of the governing document including any amendments and confirm that it is a true copy of the governing document as executed/incorporated/ adopted”

The box beside this option was ticked. Sant Nahar Singh signed the form on behalf of the trustees and the form was dated 25^th October 1993. The address of all the trustees was given as “Baba Ke Stratford-upon-Avon Warwickshire CV37 9PQ”. The post code is the post code of Redhill Farm.

 

16. There was no evidence in any of the witness statements as to what schedule was attached to the Declaration of Trust when it was signed by Sant Nahar Singh. Jagdish Singh Dhillon did not give any relevant evidence. He did not say anything about this in his witness statement and he was not asked in his oral evidence what schedule was attached to the Declaration of Trust. Mr Bhogal said nothing on the point in his witness statement. However, in his oral evidence he said that he witnessed Sant Nahar Singh execute the Declaration of Trust on 22^nd October 2003 and that at the time Sant Nahar Singh signed, there was a schedule attached to the Declaration of Trust with a plan showing Red Hill Farm edged in red and a description of Red Hill Farm and the registered title number

 

17. Mr Bhogal said that he then on 25 October 2003 attended the Capital Taxes Office at Birmingham and had the Declaration of Trust stamped. On 26^th October 1993 Manjit Singh Bhogal wrote to Mrs Philips on paper headed “Asthan Babe Ke”. He wrote as follows

“I have forwarded you the schedule of the property which we shall be purchasing. I shall post to you the original schedule together with that of Redhill Farm, on which we are carrying out our activities.”

He added a postscript as follows, “Enclosed is also the particulars”. It was not apparent from the evidence what the “particulars” enclosed were. The “property which we shall be purchasing” was the land at Soho Hill Hockley. The Asthan Babe Ke trust was then registered.

 

18. Mr Bhogal was unable to explain why he did not send the schedule containing the description of Red Hill Farm to Mrs Phillips with his letter dated 26^th October 1993 if such a schedule was attached to the Declaration of Trust as signed. Mr Bhogal made enquiries of the Charity Commission to see if they had copies of his letter dated 26^th October 2010 and its enclosures. He was told that they do not have any copies. The Charity Commission stated in its letter to Mr Birdi dated 21^st April 2010 that the Commission’s Asthan Baba Ke charity registration file was destroyed five years after registration; it therefore does not have copies of the correspondence with Mr Bhogal.

 

The Contentions of the Parties

19. The Applicant’s case was that the Property was the personal property of the late Sant Nahar Singh and is now vested in his personal representatives, unimpressed with any trust. The Respondents’ case as pleaded in their original Statement of Case was that Red Hill Farm was purchased for charitable purposes and that it was held by Sant Nahar Singh for “the benefit of the Asthan Baba Ke Trust, the Baba Ke congregation and the wider Sikh community”. The Respondents served an Amended Statement of Case with permission given by me at the hearing. The Applicant did not oppose the granting of permission to the Respondents to rely on the Amended Statement of Case. By that Amended Statement of Case the Respondents contended that Sant Nahar Singh held the Property on trust for the benefit of the Asthan Baba Ke Trust.

 

Funding of the Purchase

20. I am satisfied on the evidence that the purchase was funded in the way alleged by the Respondents. I accept the evidence called by the Respondents as to the manner of funding the purchase. The persons who wrote the letters produced by Mr Paddan were not called to give evidence and so their evidence could not be tested. Ultimately, in cross-examination Mr Birdi accepted that the purchase had been funded in the way the Respondents alleged, as noted in manuscript on a copy of the completion statement.

 

21. I am also satisfied that the purchase was funded with monies provided for the specific purpose of the purchase of land for use as the site for a gurdwara. The evidence is clear and unchallenged. The weight of the evidence is entirely contrary to Mr Birdi’s assertion that the land was purchased from gifts of money for the personal benefit of Sant Nahar Singh. Those who gave or lent money and were called to give evidence were clear that the money was given and loaned for the purpose of purchasing land for use as the site for a gurdwara.

 

Trust of Red Hill Farm

22. A gift of money to be used for the provision of a place for religious worship is a gift for charitable purposes. It was so held in Re Manses, Attorney-General v. Lucas [1905] 1 Ch 68 ( see at p. 73) in the case of a gift for the provision of a church, chapel, or meeting house of any particular Christian denomination. The same must apply in the case of a gift for the provision of a place of worship for members of the Sikh faith. As Red Hill Farm was purchased with monies provided for the charitable purpose of purchasing land for use as the site for a gurdwara, it was held when purchased by Sant Nahar Singh by him on charitable trust for use as a site for a gurdwara.

 

23. The question then arises whether Sant Nahar Singh declared that he held Redhill Farm on trust for the trustees of the Asthan Baba Ke Trust to be held on the trusts of the Asthan Baba Ke Trust. A declaration of trust of land has to be manifested and proved by writing under section 53(1)(b) of the Law of Property Act 1925. The Respondents rely on the Declaration of Trust of the Asthan Baba Ke Trust made on 22nd October 1993. The operative words of declaration are as follows

“the Trustees hereby agree and declare that the Trustees do and will henceforth stand possessed of the said property Upon with and subject to the Charitable Trusts and Powers and Provisions Following …”.

To identify what is “the said property” it is necessary to look at the recitals. The words of the second recital are

“The land as specified in the Schedule hereto are to be registered at Her Majesty’s Land Registry in the names of the Trustees for the purpose of the Trust”.

The third recital states

“Further land and also cash investments and chattels may from time to time donated to the Trustees upon with and subject to the said Trusts Powers and provisions”.

The “said property” which the Trustees named in the Declaration of Trust declare themselves as holding on the trust is therefore the land specified in the schedule to the Declaration of Trust. The Declaration of Trust can only be a declaration by Sant Nahar Singh that he held Red Hill Farm on the trusts declared by the Declaration of Trust if at the time the Declaration was signed by Sant Nahar Singh there was a schedule incorporated into the Declaration of Trust specifying Red Hill Farm.

 

24. There was at the hearing clear oral evidence from Manjit Singh Bhogal that the Redhill Farm schedule was attached to the Declaration of Trust when it was signed. I should state that I formed a favourable impression of Mr Bhogal as a witness. He appeared to me to be a careful and honest witness. It is clear that Mrs Phillips of the Charity Commission was told at the meeting on 21^st October 1993 that Redhill Farm was the farm referred to in the draft deed. That being the case and Mr Bhogal having been told by Mrs Phillips that the schedule must be added to the Declaration of Trust, it is more likely than not that Mr Bhogal would have attached a schedule as he was told he must. I do not have an explanation as to why Mr Bhogal did not send the Redhill Farm schedule with his letter dated 26^th October 1993 and it is not helpful to speculate. There may be many explanations but the true reason is now lost in time. Notwithstanding Mr Bhogal’s not enclosing the Redhill Farm schedule with his letter dated 25^th October 1993, I accept Mr Bhogal’s evidence that a schedule specifying Redhill Farm was attached to the declaration of trust when it was signed by Sant Nahar Singh. That being the case, the signing of the declaration of trust by Sant Nahar Singh was a declaration by him that he held Redhill Farm on trust to transfer it to the trustees of the Asthan Baba Ke trust to be held by them on the trusts declared by the Declaration of Trust signed on 22 October 1993.

22. I do not know why Sant Nahar Singh did not transfer Redhill Farm to the trustees of the Asthan Baba Ke Trust in his lifetime. He may simply have not got around to executing the necessary transfer or he may have come to feel that he wanted to retain control of the land himself. This does not alter the effect of Sant Nahar Singh having signed the Declaration of Trust on 22^nd October 1993.

 

Conclusion

23. I find that the late Sant Nahar Singh held Red Hill Farm at the date of his death on the trusts declared by the Declaration of Trust dated 22^nd October 1993. The Respondents, as the trustees of the trust declared by the Declaration of Trust at the date of the application to HM Land Registry are entitled to maintain the restriction registered by them against the title to Red Hill Farm. Accordingly, I shall direct the Chief Land Registrar to cancel the application of the Applicant to cancel the restriction.

 

24. My preliminary view is that I should make no order as to the costs of the proceedings. The Respondents have succeeded on an argument that was not raised by them in their statement of case or in their amended statement of case. A great deal of time in preparing for the hearing and at the hearing was taken up by evidence called by the Respondents as to activities on and in relation to the land after the Declaration of Trust was made. That evidence was irrelevant to the findings I have made. Any party who wishes to submit that

some different order should be made as to costs, must serve written submissions on the Adjudicator and on the other party by 5pm on 6^th September 2010.

 

 

 

 

DATED this 23rd day of August 2010

 

 

 

 

 

 

 

BY ORDER OF THE ADJUDICATOR