Sohal v Suri & Anor

The key elements of the relatively uncontentious background will be examined under the following headings:

The judge made a number of findings about the factual context:

Patwant’s case was that an oral agreement had been made, in the presence of his daughter, Niki, in the margins of the centenary celebrations in Kenya, that Tony would transfer his interest in Rectory Gardens to Patwant in exchange for Patwant’s half share of Nakuru and discharge of the loan of £30,000 made by Patwant. Patwant contended that it was pursuant to that agreement that he transferred his share in Nakuru to Tony shortly thereafter. Both Niki and Patwant gave evidence that this agreement had been made in the course of conversations at Nakuru.

The executors accepted that Patwant had transferred his half interest in Nakuru to Tony but their case was that this was a pure gift since Patwant treated Tony as a son. Accordingly they denied that Tony had agreed to transfer Rectory Gardens to Patwant.

Namita’s case before the judge was that there was a conspiracy against her of whom the prime movers were Patwant’s children. The judge noted this (J 31). Namita’s case was that Patwant’s children were essentially manipulating Patwant. She did not put forward any other explanation for the claim. As counsel submitted in his closing submissions:

“… at no time prior to Tony's death was any assertion ever made of title to Rectory Gardens property by the claimant.

In my submission what we have is a story cobbled together from scraps of evidence within [Patwant’s] family. I suspect strongly, hearing what we have heard, that he would not have been the prime mover in all that at all, given his standing and his past reputation. Sometimes things happen to people in old age and he had in fact had a nasty fall and the fracture recently so that may possibly have affected him slightly. He certainly must have been very frail. However, it is much more likely that the prime movers would have been his children. We know what Bud was capable of as we have seen a clear account of it from Namita and her almost contemporaneous record of it. He is not here to give evidence. Perhaps he is a loose cannon which Pat's family did not want to see released on a court. We have of course the evidence of Makinder and she was clearly very closely involved in her father's affairs throughout the period; that is perfectly obvious. We also had the evidence of Makinder whose evidence, I suggest, is one long fabrication for the detailed reasons I have given. I suggest it is much more likely that they are prime movers behind this as a property available to them is probably worth £1/2m [is] not be dispensed with likely. There are various possibilities as to what happened. One possibility, based on Makinder’s statement at paragraph 15, is that it may have been but what really worried them was the fact that Namita was asking for an account of the rent for the property for the whole period that the property had been owned by Tony back to 1985. They knew it would be impossible to give such an account. All sorts of things would be revealed by that…”

The judge made findings as to the demeanour and credibility of the witnesses:

This is considered under the following headings:

I shall consider these points under the following headings:

The headings here are:

The judge was satisfied that Patwant had proved his claim. The crux of his reasoning is set out in the paragraphs of his judgment quoted in paragraph 12 above.

After he made his draft judgment available, counsel for the executors made submissions that the judge had omitted to address a number of points in his judgment. The judge directed written submissions. He then gave a further judgment in which he held effectively that it was unnecessary to resolve any further issues and he maintained the view which he had formed in his judgment: see paragraph 13 of the supplemental judgment set out in the Appendix to this judgment.

The judge also rejected Namita’s claim for an account for the period prior to the transfer. He held in his supplemental judgment that:

“the lack of evidence that any money was regularly paid to Kenya and any evidence that before the death of Tony any request to do so had been made, led to my rejection of the claim for any period prior to transfer.” (paragraph 15)

The appellant’s appeal is essentially against the judge’s conclusions of fact. The appellant submits that the judge’s conclusions were wrong and in addition that the judge

Inevitably the submissions for the appellant fell under more than one head and accordingly I intend to take the submissions factual topic by factual topic. In my judgment, the judge dealt with most, but not all, of the appellant’s points, and to the extent that he did so, the appellant's submissions in the main amount only to a disagreement with the judge as to the weight which he decided to give to various factors. This is not sufficient in law to overturn the judge’s judgment. I will start with the appellate approach to arguments that the judge drew the wrong conclusions from facts or failed to deal with key issues. This is the gravamen of the appellant’s case. The appellant accepted in argument that his case is not directed to the question whether the judge adequately explained his conclusion.

It is common ground that, on an appeal against a judge’s findings of fact, the appellant has in general to show that the judge was plainly wrong. It is well established that, where a finding turns on the judge’s assessment of the credibility of a witness, an appellate court will take into account that the judge had the advantage of seeing the witnesses give their oral evidence which is not available to the appellate court. It is, therefore, rare for an appellate court to overturn a judge’s finding as to a person’s credibility. Likewise, where any finding involves an evaluation of facts, an appellate court will not interfere with a finding made by the judge unless the judge’s conclusion is “outside the bounds within which reasonable disagreement is possible”. Where, however, the finding turns on matters on which the appellate court is in the same position as the judge, the appellate court in general must make up its own mind as to the correctness of the judge’s finding (see Datec Electronic Holdings v United Parcels Service [2007] 1 WLR 1325 at [46] per Lord Mance).

In this case, the appellant makes a number of challenges: he contends that the judge failed to draw certain inferences from the primary facts, that, in other respects, he drew the wrong inferences and that in drawing or not drawing inferences the judge attached the wrong weight to various matters. In my judgment, where the challenge is to an inference not drawn, or drawn, by the judge from other facts the principles are as set out above. The appellant has to show that the failure to draw the inference, or as the case may be the making of the inference, was plainly wrong. The respect which, as I have just explained, an appellate court accords to primary facts based on oral evidence, and to an evaluation of facts made by the judge, applies also to inferences drawn from such facts or evaluation. Putting the matter another way, in those circumstances, the appellant will in general have to show that the inference, which he contends should have been drawn, was one that should inevitably have been drawn, so as to entitle the appellate court to interfere. In addition, it follows from the fact that the appellate court must be satisfied that the judge is wrong that it is not enough merely to disagree with the weight which, when drawing or deciding not to draw inferences, the judge has given to some factors over others.

Further, it is in general not enough on an appeal from a judge’s findings of fact to point to the fact that there are additional findings that the judge could have made. The judge is not bound to make findings on every matter in issue in the trial. In general a judge is only obliged to make findings on key matters though in some cases it may also be appropriate to make findings on an alternative basis in case the judgment is overturned on appeal. This principle is relevant because in this case there are factual issues on which the judge did not make findings, such as the issue whether Patwant had made more than one loan of £30,000 to Tony. It is obvious that a judge could be criticised for causing excessive cost if he seeks to investigate every matter that was raised in the trial, even if it is not necessary to do so for the purposes of his decision.

I now deal with the principal matters of criticism relied on by the appellant. Mr Thomas Graham appears for the appellant, Tony’s executor, and Mr John Robson for the respondents, Patwant and Makinder. Both counsel appeared below for their respective clients. I deal with these matters under the following headings:

The appellant's case is that these letters were inconsistent with Patwant’s case. In my judgment, that is self-evident. It was not necessary for the judge expressly to state that that was so. He did not suggest that it was otherwise. However, the letters did not mean that Patwant could not make an agreement with Tony on different terms. I will now explain these points.

The February 1999 letter: Mr Graham submits that the judge failed to appreciate a key inconsistency in Patwant’s case. The offer made by Tony in February 1999 and subsequently in September 1999 was inconsistent with the agreement alleged to have been made at the centenary celebrations. On Mr Graham’s submission, the letter dated 1 February 1999 was no more than an offer to enter into an arrangement. He submits that Patwant struggled in his evidence with this fact. He wanted to establish that he had accepted this offer and he said that there had been “acceptance in the head”, which was not communicated. On Mr Graham’s submission, this evidence was nonsensical. It was a telling point against acceptance of the offer two months later. The judge overlooked the point that acceptance was contrary to Patwant's case at trial. The point that the judge made in his judgment was that it indicated that Patwant was not telling lies. He was wrong on that. It indicated that it was unlikely that there was any agreement at the centenary celebrations.

Mr Robson submits that the question was whether there was an understanding or agreement. There was no inconsistency between these letters and the agreement which Patwant said was ultimately made.

September 1999: Mr Graham submits that the judge failed to resolve key issues in dispute. Namita’s case was that Patwant indicated that he did not wish to proceed. The judge failed to rule whether in September 1999 the claimant rejected the offer three months before the alleged agreement.

In my judgment, Mr Robson is correct in his submission that there is no fundamental inconsistency. The fact (if true) that Patwant did not wish to proceed on the basis of the transaction on offer in February 1999 did not mean that he was not made a better offer at the centenary celebrations at the end of 1999/early 2000 or that he would not accept that offer. In my judgment these events do not take the appellant very far and it certainly cannot be said that the judge could only draw the inference from the rejection of Tony’s offer in September 1999 that no agreement was made three months later.

In my judgment there was an obvious inconsistency between Patwant’s pleaded case and his case at trial. But it could not be said that Patwant’s case at trial was a recent fabrication. The question of the weight to be given to the discrepancy was a matter for the judge. I will now explain these points.

Mr Graham submits that inconsistencies in Patwant’s case are apparent from his PoC. In his PoC, Patwant alleged that there had been an agreement that preceded the February 1999 letter but there was in fact no such agreement. On his submission, the judge should have drawn adverse inferences from this inconsistency. Likewise, the judge, on Mr Graham’s submission, failed to have regard to the vagueness of the arrangement set out in the PoC. The case on that earlier agreement was abandoned because acceptance was only in his mind. Notwithstanding this, the judge made a finding that there was an agreement for the exchange of properties and a discharge of the sum of £30,000 pursuant to an agreement.

Mr Robson submits that Patwant went on to plead the agreement on which he ultimately relied. The pleadings were not confused. Consideration was pleaded. Witness statements were exchanged some 18 months before the trial. They set out the position in some detail. There were no further particulars because of the witness statements. Mr Graham submits that the particulars were inadequate, but Mr Robson submits that hat point takes one nowhere.

In his oral argument, Mr Graham fairly accepted that neither this point nor the last one on the 1999 letters was a “killer” point. In my judgment, neither is a basis for contending that the judge should have drawn an inevitable inference that Patwant’s case about the agreement at the centenary celebrations was a fabrication. The judge clearly recognised that the agreement was a most unusual one and that he had to look at the circumstantial evidence most carefully. In those circumstances, Mr Graham fails on this point to show that the judge was in error. In my judgment, the judge could have taken a stronger line on the disparity between Patwant’s pleaded case and his evidence at trial. However, that was a matter for the judge. There is nothing to suggest that he has made an error that would entitle this court to interfere.

The judge expressly rejected Namita’s case that Patwant gave his share in Nakuru to Tony (J 33). Their relationship was not father and son and there was no historic record of gifts. He also held that a gift in Patwant’s favour was also unlikely as a transfer of value from the younger to the older family member was unusual. This was a question for the judge. I would therefore reject any criticism of the judge’s judgment based on this issue.

Mr Graham’s point is that the judge gave no weight to this factor. In my judgment, the judge did have regard to the element of gift in the agreement which Patwant alleged. On the other hand, he downplayed the importance of the disparity in values, holding that there was a substantial gift either way. I would accept that at first sight at least this reasoning is unconvincing. It takes no account of the fact that the transfer of value by Tony was far greater than the transfer of value by Patwant. However, the question is not what the properties were objectively worth but what value the property had to the parties. As Mr Robson submits, there was clear evidence at the trial that Tony was concerned that, when Pyara died, he might lose Nakuru and have to move out. It is clear that Nakuru was such a prestigious place to live that it might have been a terrible loss of face for Tony to have to move elsewhere. In those circumstances I do not consider that the judge was clearly wrong not to attach more weight to this point than he did.

Mr Graham criticises the judge’s approach to the demeanour of witnesses. In my judgment, the judge was not materially wrong in the way he approached demeanour for the reasons which I shall now amplify.

Mr Graham submits that the judge erred because he started with the assessment of the claimant’s witnesses from their demeanour and then cross-checked his evaluation of them against some only of the other evidence. I have dealt with this aspect of demeanour already. The judge did not fall into error by relying on demeanour in the way that he did, provided that he considered whether his assessment of demeanour was consistent with the objective evidence in this case. The judge relied on the oral testimony given by Patwant. The judge had to ask himself whether the oral evidence was inherently improbable by reference to the documentary and other evidence in the case. The judge performed that task. He made what he described as an initial assessment that Patwant was a truthful witness, then considered the other evidence in the case and then came back in the end to Patwant’s credibility. In other words the judge concluded that the other evidence in the case did not affect his view of Patwant’s credibility.

Mr Graham also criticises the judge for asking whether the witnesses had come to the court to lie. On his submission the judge should have asked what the evidence told him had happened. There is in my judgment force in this submission. In his supplemental judgment, the judge makes the point at least three times that to have accepted the appellant's case he would have to have found that Patwant was lying. He had still to be satisfied that Patwant had made out his case. However, in my judgment he did this by resolving the conflict between the parties’ cases by relying on the respondents’ demeanour and credibility as witnesses. In my judgment, as already explained, he was entitled to do this.

Mr Graham goes so far as to submit that the judge was wrong to hold that answers that Patwant had given in oral evidence which were unfavourable to himself told him that the claimant was not lying. On Mr Graham’s submission, Patwant was incapable of giving a coherent account of the agreement and was a very evasive witness. However, as I have explained, this court is reluctant to intervene where a trial judge has made an assessment of a witness in the witness box because he had the advantage of seeing the witness. I do not consider that this court can interfere with the judge’s assessment in this case. There is no contemporaneous evidence that fundamentally undermines or weakens the judge’s assessment. The same points apply to Mr Graham’s criticism of the judge’s assessment of Niki’s evidence.

Mr Graham submits that the judge failed to draw the right inference from the fact that Tony did not disclose the agreement to Namita. On his submission, the judge failed to draw the obvious conclusion, which was that there was no such transaction at all. But the answer to this point is that the judge considered it and he concluded, as he was entitled to do on the evidence, that there were matters which Tony did not disclose to Namita and that Namita was not fully informed about his affairs.

Mr Graham relies on the judge’s failure to draw inferences from Pyara’s lack of knowledge about the agreement. Pyara drew up an allocation of assets to Tony, in which Rectory Gardens appeared as Tony’s property. Pyara was oblivious of the transaction. As Patwant’s brother, Tony’s father and the person who had arranged for the purchase of Rectory Gardens, he should have been consulted about the sale of Rectory Gardens.

In my judgment, the fact that Tony did not tell his own father or that Patwant did not tell Pyara about the transfer of Patwant’s half-share to him is a slender piece of evidence given (1) the inharmonious relationship between them from time to time; and (2) the fact that Pyara would no doubt disapprove of Tony disposing of the home which he as his father had acquired for him to protect him against the risks of political instability in Kenya. Indeed that fact might have been the original reason for keeping the transfer secret and not executing a form of transfer. There was, moreover, clear evidence before the judge from the communications from Tony to Patwant that Tony on occasions told Patwant not to use the fax in Nakuru. This could only be because Tony wanted to keep some things away from other family members’ eyes. Thus, it is not a necessary inference from the fact that Pyara was not informed of the agreement that the agreement was not made and accordingly the judge cannot be criticised for not drawing that inference.

Mr Graham’s submits that Makinder’s ignorance of the transaction, even though she was closely involved in Patwant’s affairs, was another indication that there was no agreement for the exchange of properties. On his submission, it beggars belief that she would not have known about the agreement over seven years. I agree that the result is odd but again I do not see how it could be said that the judge was plainly wrong to find that the agreement was made. Makinder’s ignorance of the agreement did not inevitably mean that there could not have been an agreement between Patwant and Tony. Makinder’s evidence was not a central issue in the case. The judge recognised that this was an odd feature of the case but could make no more of this point. In my judgment, it was for him to decide what weight to give to this evidence.

Mr Graham submits that there was no documentary evidence recording the alleged agreement in writing, including no reference to it in correspondence, and that the judge wrongly drew no inferences from this fact.

In my judgment, the judge dealt with that point too (J 35). The judge clearly did not accept that the Suri family were always, as suggested, “meticulous record keepers”. In fact, Namita makes this point only about Pyara. But Pyara did not necessarily know about the agreement between Patwant and Tony: it is noticeable that he did not sign the transfer of Patwant’s share in Nakuru to Tony although there was a space for him to do so, which suggests that he was not told about it.

Mr Graham submits that the judge should have drawn adverse inferences from the fact that Patwant did not express any concern about the failure to transfer Rectory Gardens. There was some evidence that Tony said he was coming to England. However, the matter was allowed to drift. There was no evidence that any transfer was placed before Tony for signature or explanation as to why that could not be done in Kenya.

Again I do not consider that the judge can be held to be plainly wrong because he failed to draw these inferences. The inferences that Mr Graham seeks to draw are not inevitable. Patwant and Bud always had the title deeds. Patwant thought he had protection as a result of having the deeds. It was therefore open to the judge to draw other inferences, as he did.

Mr Graham submits that the judge failed to make the necessary inference from the fact that tax must, on Patwant’s case, have been paid by Tony on rental income that he did not receive. In my judgment, there is no finding to support this. The tax may have been paid out of the rental income in which case the payment of tax does not give rise to a necessary inference at all but is equivocal as to Patwant’s ownership of Rectory Gardens.

Mr Graham submits that this point indicates that the agreement relied on by Patwant was not made. The judge considered this point (J 34) but in his judgment it was not determinative. In my judgment the judge was clearly right on this. It was obviously possible that the rent account was maintained in Tony’s name (or that of Tony and Namita) because he was the legal owner of Rectory Gardens. An assurance by Patwant or Makinder that this was happening would moreover not be false. Furthermore, Tony regularly sent signed blank cheques from Kenya to Patwant and Makinder so that they could freely draw on the monies in the account: this was open to the explanation that this was done because of Patwant’s interest in the property.

Mr Graham submits that we should draw adverse inference from the fact that in May 2007 Makinder opened a new account for the rents in her own name. However, Mr Robson informs us that this was a trust account. Mr Graham ripostes there was no evidence as to the setting up of a trust account or as to the accountants’ advice. Namita was not told. Moreover, submits Mr Graham, the judge did not address these points.

In my judgment, there is nothing in this point. As I read the judge’s judgment, he clearly accepted Makinder’s evidence that the new account was set up on the accountant’s advice to ensure that the monies were kept separate, no doubt until the matters of dispute had been resolved (J 23). She did not inform Namita but, as she was acting on advice, her actions throw no light on the question whether the agreement was made.

Mr Graham relies on the 2002 emails to which I referred at paragraph 23(vi) above. Mr Graham submits that, if Patwant’s case were correct, then Tony could use or authorise the use of Rectory Gardens in the way these emails suggested. Mr Graham submits that the judge did not refer to these issues or reach the logical conclusion that there had been no such transaction as Patwant alleged.

While, at first reading, these emails suggest that Tony continued to be the owner of Rectory Gardens after the agreement with Patwant, in my judgment, this criticism of the judge is wholly inadequate as a ground of appeal. As I said above I consider that the correct interpretation of the judge’s judgment is that he considered that he could attach little weight to these documents in the light of the evidence he had heard about the traditions of the Suri family. It cannot be said that it was plainly wrong for the judge to do this.

Mr Graham submits that the judge was wrong to find that Namita was in error about this. However, the question whether a second loan was made was a collateral matter, and it is clear from the judge’s concluding paragraphs that it had no great weight. He accepted that there could simply be a mistake about dates. There were various other grounds for concluding that the agreement could have been made without Namita knowing about it. Namita accepted for instance that she was not acquainted in any detail with the arrangements for the management of Rectory Gardens in Tony’s lifetime.

The judge made no findings about what Namita contended were important admissions against interest by Patwant and Bud at this meeting. The starting point is to see what the parties said occurred. According to Namita as soon as she arrived at the house, Bud started filming her. Namita’s witness statement describes the material events at this meeting, including the admissions, as follows:

“I asked Uncle Pat for the title deeds to 9 Rectory Gardens and Phoenix life policy documents that Tony had left with him and or Bud. Uncle Pat and Makinder flatly denied all knowledge of the documents. When I reminded Uncle Pat of Tony’s offer to him in l999 to buy the property and which he had declined saying we should keep the property for our children, he became very emotional and kept reassuring me that 9 Rectory Gardens was solely Tony’s asset. He kept saying Tony had been like a son to him. At that point his daughters became very guarded in case he said more than he should have. Uncle Pat was in physical pain having suffered a fall a month after Tony’s death. The fall had caused him to fracture his leg in several places and I believe the fracture had not healed properly. Uncle Pat looked incredibly sad and started lamenting at Bud’s behaviour. Bud, upon having been verbally attacked for his behaviour by his father and sisters and told to pack his bags and leave, suddenly blurted out that Uncle Pat and Makinder were lying and the title deeds relating to 9 Rectory Gardens were safe in his possession. He also said that his family had told him to deliberately behave badly towards me so that our talks would be effectively destroyed and my future contact with Uncle Pat would stop. After sharing a tense meal, the children and I left the house. The meeting left me feeling upset and shocked by what I had witnessed.”

Patwant for his part denied that he had given Namita an assurance that Rectory Gardens belonged to Tony. Bud was not called to give evidence and so could not be asked about what he had said.

The question for this court is whether the judge’s omission to deal with this meeting constituted an omission to deal with key evidence. Mr Graham makes the following submissions. At that meeting there was an admission that ownership of Rectory Gardens was that of the deceased. Bud behaved badly and there was no challenge to that admission. There was evidence of concerted attempts to coerce the defendant into submission and a conspiracy to hide the title deeds. This was inconsistent with Patwant’s case. Namita’s evidence was the subject of cursory cross-examination by the claimant. Namita’s case was that they were trying to bully her and that an admission was made. The judge does not set out the admission or deal with it.

In my judgment, the judge took the view that what happened at the meeting was not a material matter for the purposes of his decision. By this date, Patwant had already made his claim to Rectory Gardens known to Namita: he did that in the week following the funeral at Nakuru and twice more by letter. He caused Bud to write to Namita on 25 May 2007. He himself wrote to her on 5 July 2007 in these terms so far as relevant:

“I wish to bring to your attention that:

a)

…

b)

…

c)

Earlier on he needed funds for completion of his Embakasi plot and I loaned him £30,000. As time went by he suggested I takeover the Wollaton Property for £150,000 less £30,000 (the loan) i.e. £120,0000. In the meantime he suggested that the property be taken over and as he anticipated a visit to UK he would regularise the paperwork. Unfortunately his visit did not materialise. The arrangement he had in mind was that it would be a fair exchange in settlement of his indebtedness to me with the Nakuru House and the £30,000 loan repayment.

I should therefore be grateful if you will kindly register my claim”.

Mr Graham makes the point that to describe the agreement as an “arrangement which he [Tony] had in mind” differed from the case put by Patwant to the judge, which was of course that there had been an agreement to this effect. If there had been such an agreement, Patwant would, on Mr Graham’s submission, more naturally have said that there was an agreement in 2000. In this letter, on Mr Graham’s submission, Patwant was just talking about a unilateral arrangement. Mr Graham makes a similar submission about the letter of 25 May 2007, which I summarised in paragraph 23(viii) above.

In my judgment, the judge would be in error if he had failed to deal with key evidence at the trial. What is key evidence depends on the case. Clearly it could include evidence that had to be considered in order to form a fair view of the credibility of a witness if that is in issue in these proceedings. In these proceedings, the credibility of Patwant was the key issue in these proceedings as matters turned out. Accordingly the question which has to be asked is whether the events at the meeting on 1 July 2007 were key to determining his credibility.

I am not therefore satisfied that by not making findings on the meeting of 1 July 2007 the judge failed to make key findings. The admission alleged to have been made by Patwant is not wholly clear. If Patwant made the statement attributed to him, it may have been with reference to the period before the agreement was made at the centenary celebrations. It would also have been inconsistent with the claims which he made in his letters of 25 May and 5 July 2007 for Patwant to make any admission against interest at the meeting on 1 July 2007. The difference in the formulation of the claim in those letters and his case at trial does not undermine that point. In each case he made a claim to Rectory Gardens. Moreover, the judge thought it appropriate to take into account that Patwant was not a lawyer and that his first language was Punjabi, which could account for some imprecision in his use of language.

The same applies to the admission attributed to Bud. Patwant was clearly having difficulties with his son Bud. The solicitors’ attendance note of 18 July 2007 states that at that consultation Bud was inebriated. Namita’s evidence also states that Patwant threw Bud out of the house at the meeting on 1 July 2007. What was said about the title deeds is in my judgment of little import since they were bound to be in Tony’s name and that would not of course mean that no one else had a beneficial interest in Rectory Gardens. Bud’s admission of a conspiracy between other members of his family against Namita was a matter that could have been put to the other members of the family when they gave evidence.

It would clearly have been better if the judge had explained explicitly and in terms in his judgment or his supplemental judgment why he was not dealing with the admissions alleged to have been made at this meeting. However, that error is not fundamental to the fairness of the trial and it therefore does not assist Namita to obtain an order for a retrial of this case.

I have summarised this letter in paragraph 23(xii) above. Mr Graham submits that the judge should have referred to this because the bullying to which it refers supported her case that there was a conspiracy against her. The judge did not refer to it, but as it merely sets out her evidence as to what happened at the meeting of 1 July 2007, in my judgment it adds nothing to that matter.

Mr Graham submits that there could only be one conclusion, namely that Namita’s evidence about this meeting was correct. There is an attendance note between Bud and his solicitor. The judge did not refer to this. That, submits Mr Graham, was consistent with an attitude wishing to put pressure on Namita and bullying her into submission. The judge could have found that Bud’s bad behaviour to Namita was motivated by a desire to help Patwant’s claim. The judge simply does not pursue this line of thought.

However, as I have said already, what took place at the meeting could have been sufficiently put to other witnesses for Namita to pursue this aspect of the case. In all the circumstances, the judge’s refusal to draw an adverse inference from the failure to call Bud cannot on these facts be said to be clearly wrong.

Mr Graham made an omnibus submission to the effect that the documentary evidence, that is, the 1999 letters, pleadings, 2002 emails and letters which Patwant wrote or caused to be written after Tony’s death all point one way and the judge should have drawn the inference that Patwant’s case must be wrong. I have dealt with each of these documents separately.

I must finally deal with other submissions made by Mr Graham and the judge’s rejection of the appellant's claim for an account.

Mr Graham accepted in argument that there was no inevitable inference that the transaction did not take place from any one of the individual factors on which he relied. Rather he submits that it is a question of the cumulative weight of the criticisms which he makes of the judge’s judgment. On his submission, the judge did not address the total effect of his points, which were downplayed. It necessarily follows on his submission that the judge was wrong and did not deal with the evidence in a balanced manner.

I accept that I must look at matters in the aggregate. However, when aggregated these points have to be considered according to their probative weight. I have considered in detail above what I consider their probative weight to be. In my judgment, even when the points made by Mr Graham are all put together their probative weight is not sufficient to displace the judge’s overall conclusion. They are as I said before mostly complaints about the weight which he gave to various items of evidence. It is not the function of an appeal court to disagree with a trial judge on a question of weight. They were conclusions to which he was entitled to come. Before an appeal court can interfere, it must be satisfied that the judge went beyond the latitude that is given in matters of weight. I have dealt separately with the meeting of 1 July 2007, but again, for the reasons which I have explained, in my judgment the judge’s failure to make findings as to the admissions and events at that meeting does not in my judgment amount to an error which leads to the conclusion that his judgment must be set aside.

Mr Graham submits in terms that the court should not take the judge’s supplemental judgment at face value. There was on his submission no fair consideration: there was simply a compendious assertion. He submits that the judge was perverse. For the judge merely to say that he had regard to documents is not enough. In any event, he submits that if he had gone back to the documents he would have been driven to the opposite conclusion.

In my judgment these criticisms of the judge’s supplemental judgment are excessive and unfounded. The judge clearly did consider the submissions that had been made to him and he took the trouble to set out a summary of the main points in his judgment. As I have demonstrated the judge was entitled to take the course he did in relying on demeanour cross-checked against the circumstantial evidence and to resolve the conflict of evidence by reference to demeanour if all else failed. In those circumstances the most helpful course he could take was to summarise his reasoning in the way that he did.

At the end of the hearing the court asked for submissions on what test it should apply if it found that the judge had failed to deal with any significant matter and whether the court would find assistance in the test propounded in Bond v Dunster Properties Ltd [2011] EWCA Civ 455 in the case of a delayed judgment. The appellant took the opportunity to file very substantial submissions with a file containing no less than 28 new cases. The submissions went far beyond what the court had sought. In those circumstances, while not wishing to appear ungrateful for the assistance intended to be given, I do not consider that it is appropriate in this judgment to deal with them in detail. I have taken from them some elements but I do not consider that I should spend time explaining why I have not used more of this material. In the event it has not been necessary to pursue the point on which the submissions were sought.

I do not consider that Namita has discharged the burden, which on this issue is on her, of showing that she is entitled to an account for the period prior to the transfer.

Mr Graham’s argument in respect of Namita’s alternative claim for an account is that the reasons given by the judge ((1) lack of any money paid to Kenya prior to the transfer and (2) lack of any request prior to Tony’s death: see paragraph 27 above) were insufficient in law and against the weight of Namita’s evidence. If he is right about that, then the judge was wrong in law to deny the account she sought.

Namita gave evidence on two points that were particularly relevant to the question of an account: (a) that she and Tony were content for the rents to be accumulated in England for the benefit of their children and (b) they had both made gentle enquiries to Patwant about the rent and not received satisfactory replies to their enquiries.

I would reject the argument that the judge’s conclusion was contrary to the weight of the evidence. The judge clearly accepted that, with Tony's agreement, the rents were used to pay the expenses of the property, the tax due on the rents and the supplementary pension to Patwant. The two specific matters to which he refers in paragraph 15 of the supplemental judgment are circumstantial matters which confirm this evidence. There was evidence at trial that Tony signed tax returns disclosing the income and presumably claiming a deduction for the expenses of maintaining Rectory Gardens. There is also evidence that he received accounts which would have shown him if there was any surplus to which he was entitled. The judge could in these circumstances properly infer that he agreed to the rents being used as they were used and that, if Patwant and his daughters had not been entitled to use the bank accounts as they had done, there would have been some evidence that Tony had made a request for the money before his death or he would have told Namita about the matter.

Evidence as to a mere “gentle enquiry" was in my judgment simply equivocal and not probative of who was entitled to receive the surplus rents. Namita did not adduce evidence to show that she had asked for an account prior to Tony's death. She said that she was positively assured that the rent was being paid into an account in their names and being accumulated there. The judge does not refer to that point which of course conflicted with the respondents’ evidence as to how the rentals were being used. But the judge must have had this evidence in mind when he came to his conclusion on the question of an account since he gave his judgment immediately after hearing all the evidence.

There was also the evidence which the judge accepted that in the extended family benefits were extended to those in need and did not necessarily therefore follow legal entitlement. This likewise tended to support Patwant and Makinder’s defence to the claim for an account.

For the reasons given above, I would dismiss this appeal.