Khan & Ors v Khan [2025] EWCA Civ 1436

Judgment date: 18 November 2025

https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/1436

Asplin, Nugee and Miles LJJ. The Court of Appeal dismissed the defendant’s appeal against the High Court’s findings that the claimants had beneficial interests in properties belonging to the family. The appeal raised issues relating to acquisition constructive trusts and the sufficiency of written evidence for an express trust under s 53(1)(b) Law of Property Act 1925 (‘LPA’).

Background

The appeal was brought by the defendant, Muhammed Khan, the eldest son of Fatima Khan and Abdul Mubin Khan, deceased in 2008. The respondents/claimants were their five remaining children: two sons (Ahmed and Sarwar) and three daughters (Shalima, Farhana and Jennifer).

The claim concerned the beneficial interests of the siblings in four properties (‘the Properties’). The title of these properties had been owned by different members of the family at different times, transfers of freehold and grants of leasehold interests taking place among them for no consideration. At the time of the trial, the freeholds of three properties were in Ahmed’s name, with valuable leaseholds held by Muhammed; the freehold of the fourth property was in Muhammed’s name, let to a company in which he holds an interest.

The trial judge, Saira Salimi, sitting as a Deputy High Court Judge, found that:

• One of the properties, 7 Essex Grove, was held in an express trust for the daughters, or alternatively as a De Bruyne-type trust, or in the further alternative a common intention constructive trust.
• The remaining three properties were found to be held in constructive trusts for the three sons, or alternatively a common intention constructive trust.

The appeal

Miles LJ, with whom Asplin and Nugee LJJ agreed, categorised the eight grounds of appeal under four headings: the declaration of trust over 7 Essex Grove (grounds 1 and 2); the De Bruyne-type acquisition constructive trusts (3 and 4); common intention constructive trusts (5 and 6); and the judge’s consequential orders (7 and 8).

The express trust

An email dated 12 October 2013 from the defendant stating ‘I want Essex Grove out of my name by 2014. This belongs to the three sisters as clearly stated’ was held by the judge to sufficiently satisfy the requirements of s 53(1)(b) LPA. The email, ending with the defendant’s name, constituted signed writing. The words manifested the trust.

These findings fell under the first two grounds of appeal: (1) the judge was wrong to conclude there was an express trust or that such a trust would be proved by the email; and (2) the judge failed to make adequate findings as to the terms and intentions of the father when establishing a trust.

Miles LJ, with whom Asplin and Nugee LJJ agreed, held that the email was sufficient to manifest the trust under s 53(1)(b); the writing does not need ‘to set out the terms of the trust in full’, only ‘sufficient evidence of the beneficiaries and existence of a trust’ to be found; [101]. As the email was dated after the father’s death, it was not necessary to refer to his now-extinguished interest in order to manifest the trust. The email was capable of being either a declaration or evidence of an earlier trust arising from conduct and common intention.

The acquisition constructive trusts

The trial judge found that within the family there had been an understanding that the defendant acquired the relevant freehold and leasehold interests in these properties for the benefit of his father for life, and the sons collectively thereafter. Accordingly, any assertion of sole ownership would be unconscionable. These trusts were treated as De Bruyne-type trusts, meaning detrimental reliance was not required (although present for one of the two claimant sons).

The grounds for appeal were that the judge was wrong to decide these were De Bruyne-type trusts, as such trusts have a basis in fraud.

The Court of Appeal confirmed, following discussion along the lineage of authorities from Rochefoucauld v Boustead [1897] 1 Ch 196, that it is a fraud in equity to deny a trust knowingly and claim the land as one’s own. It was confirmed that this does not therefore require actual fraud, as fraud at equity is wider and includes unconscionable conduct. Miles LJ highlights the distinction between trusts of this kind and common intention constructive trusts, as explained in Archibald v Alexander [2020] EWHC 1621 (Ch), qualifying only that transfer of property need not be gratuitous to be held in an acquisition constructive trust.

Common intention constructive trusts

The trial judge held that, as a final alternative, there were common intention constructive trusts over all the properties. In all instances, only one of the putative beneficiaries had demonstrated detrimental reliance on the facts. The defendant’s appeal asserted that this was not sufficient to justify a common intention constructive trust over the entire beneficial interest. Miles LJ stated that no examination of the question as to whether detrimental reliance by one gives rise to a trust for all was necessary as it was not material to the case.

Judge’s consequential orders

The Court of Appeal found that the judge acted within her discretionary and case management powers when making consequential orders, rejecting the final grounds of appeal.