Chhokar v Chhokar
|Chhokar v Chhokar|
|Court||Court of Appeal|
|Citation(s)|| FLR 313|
Chhokar v Chhokar  FLR 313 is an English land law case, concerning the meaning of actual occupation for the purpose of securing an overriding interest.
Mr and Mrs Chhokar married on 18 April 1975.
May 1977: Mr Chhokar bought 60 Clarence Street, Southall, for the purchase price of £9250 with a deposit of £700. Mrs Chhokar substantially contributed to the family fortunes to the tune of approximately £3000.
1978: There were matrimonial difficulties and they both travelled to India to visit their parents. Mr Chhokar tries to abandon her in India but Mrs Chhokar returns in November 1978, a few weeks later.
December 1978: An acquaintance of Mr Chhokar, Mr Parmar, visits the house under the guise of a potential lodger. They sign a contract of sale for the marital home for £12000 (an undervalue) and the date of completion was fixed at 12 February. This was the date on which Mrs Chhokar was scheduled to deliver their second child in hospital.
However, Mrs Chhokar did not deliver on 12 February. She delivered on 16 February and so Mr Chhokar and Mr Parmar deferred the completion of the sale to that day. Mr Parmar then put the house on the market for £18,000.When Mrs Chhokar returned, she discovered the locks had been changed. She broke in but was forced out by Mr Parmar who threatened and assaulted her. Mrs Chhokar managed to gain entry to the house again and stayed put.
The question for the court was whether Mrs Chhokar could be said to be in 'actual occupation' even though she wasn't physically present in the house at the time of the sale.
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  1 Ch 405, before continuing his judgment.
...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. . . .
The voice of the wife sings the following song: ‘I became tenant in common in equity with a 50% interest in this property, the matrimonial home, upon its acquisition. I have lived there ever since, subject to very brief periods of absence, and there I have been living with my family. I was deserted by my husband for some years but I stayed on in the matrimonial home. He has been very unsatisfactory. I had at one stage to obtain an injunction against him to stop him pestering me but we are now more reconciled. I have agreed to his returning to the home. From time to time he comes there. . . .’and, on the judge’s finding, when the case was over he might settle with her again permanently. So her song is: ‘This is the matrimonial home, I wish to continue to enjoy my rights as tenant in common in the undivided share of the house.’ She told a lot of lies in the witness-box, which naturally offended the judge because her lies made it more difficult to discover the truth and do justice. It is not unknown for persons with strong grievances to try to embroider their case by telling lies. But when the true facts emerged, there is nothing in her conduct which points to any reason at all for interfering with her continued enjoyment of her equitable rights, including the right to occupy the house, the matrimonial home, and including, if this unsatisfactory husband is willing to continue to live with her there, although he has lost the legal estate, and if she is prepared to put up with him being there, her enjoyment of the matrimonial home together with her husband.
By contrast Mr Parmar’s voice croaked with an immoral stigma. ‘Everything that he did from first to last in connection with the transaction is stamped with immoral stigma.’ The judge was wrong to make an order for sale.
Reeve J concurred.