Balraj Singh Binning v Davindar Binning (Court of Session) [2026] CSOH 33 (31 March 2026)

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BAILII >> Databases >> Scottish Court of Session Decisions >> Balraj Singh Binning v Davindar Binning (Court of Session) [2026] CSOH 33 (31 March 2026) URL: https://www.bailii.org/scot/cases/ScotCS/2026/2026csoh33.html Cite as: [2026] CSOH 33 [ New search ] [ Printable PDF version ] [ Help ] OUTER HOUSE, COURT OF SESSION [2026] CSOH 33 A374/24

OPINION OF LADY TAIT In the cause BALRAJ SINGH BINNING as executor of the late PARMJIT SINGH BINNING Pursuer against

DAVINDAR BINNING Defender Pursuer: Cheyne KC, Munro (sol adv); Livingstone Brown Limited Defender: Anderson; Aberdein Considine LLP 31 March 2026 Introduction [1] The issue to be determined after preliminary proof is the defender's plea of res judicata. [2] The pursuer brings this action in his capacity as executor of his late father, Parmjit Singh Binning ("the deceased"). The deceased and the defender were brothers. Their mother was Nasib Kaur Binning. [3] The pursuer as executor seeks decree for payment in the sum of £615,051 for breach of contract and separately for fraudulent misrepresentation. The pursuer avers that around March 2005 an agreement was reached between the deceased, the defender and their mother acting as the defender's attorney whereby: (i) the deceased would make payments towards the defender's outstanding tax liability and associated professional fees; (ii) the deceased would cause ownership of a heritable property in Blairingone, Dollar ("the Scottish property") to be transferred into the name of the defender; and (iii) the defender would cause ownership of a property in Chandigarh, Punjab, India ("the Indian property") to be transferred into the name of the deceased. The defender and the deceased were agreed that all three legs were mutually dependent. Elements of the agreement were reduced to writing in India on 17 May 2005. The written agreement,

entitled "Memorandum of Family Arrangement", was signed by the deceased and by Nasib Kaur Binning as the defender's attorney. [4] Further, the pursuer avers that acting in terms of the agreement (i) the deceased paid the total sum of £435,051 between 2005 and 2013 towards the defender's liabilities; and (ii) instructed transfer of the Scottish property to the defender's wife and daughter in 2007 which property was valued at £180,000. The defender did not transfer the Indian property to the deceased. [5] The deceased instituted a civil suit in India, registered on 13 December 2006 in the District Court of Chandigarh. In those proceedings (as plaintiff) he sought declarator that he was the sole owner in possession of the Indian property on the basis of a "Memorandum of Family Arrangement". On 23 December 2022 following trial, the Indian court dismissed the claims ("the 2022 Indian judgment"). An appeal by the pursuer as executor against the 2022 Indian judgment was dismissed on 27 November 2025 ("the 2025 appellate judgment"). [6] The defender denies any agreement between the deceased and the defender, whether oral or written. [7] The defender has a plea of forum non conveniens. He does not insist upon that plea. The law [8] In Primary Health Care Centres (Broadford) Ltd v Ravangave [2009] CSOH 46 , 2009 SLT 673 at [21], Lord Hodge summarised the principles of res judicata (in a

passage which has been adopted by the Inner House in Smith v Sabre Insurance Co Ltd [2013] CSIH 28, 2013 SC 569 at [20]): "They are (i) that there is a prior determination by a court of competent jurisdiction, (ii) that the decree in the prior action is pronounced in foro contentioso without fraud or collusion, (iii) that the subject matter of the two actions must be the same, (iv) that the media concludendi in the two actions must be the same, and (v) except where the earlier decree is a decree in rem , the parties to the second action must be the same as or representative of the parties to the earlier action, or have the same interest." [9] The term medium concludendi is authoritatively defined in Glasgow & South Western Railway Company v Boyd & Forrest (No 4) 1918 SC (HL) 14 at page 28: "What is a medium concludendi ? There is nothing sacrosanct in the term, and nothing difficult in the idea.... [I]t may be quite sufficient to say, negatively, that it is certainly not the mere equivalent of a plea in law; and, positively, that it signifies the reality and substance of the thing disputed between the parties." [10] The competent tribunal may be a foreign court, or a court of equal, inferior or superior jurisdiction: Carew-Reid v Lloyds Banking Group plc and Lloyds TSB Bank plc [2013] CSOH 5 at [3]; Hamilton v Dutch East India Company (1732) 3 ER 573. "The court does not take a

technical approach. Instead it looks at the parties' pleadings to ascertain the substance of the issues in dispute and asks `what was litigated and what was decided?'": ibid at [4]; Glasgow & South Western Railway Company above at page 32. The possibility of appeal to a court of higher jurisdiction does not prevent the plea of res judicata : Carew-Reid at [29]. [11] In Durkin v HSBC Bank plc [2016] CSIH 93 , 2017 SLT 125 at [9] per Lord Drummond Young: "The applicable law is well settled, and can be summarised as follows. The plea, which is found in most developed legal systems, is rooted in the public policy against repeated litigation between the same parties `on substantially the same basis' - Lord President Cooper in Grahame v Secretary of State for Scotland at 1951 S. C., p.387; 1951 S. L. T., p.321. In the same passage it is stressed that the court should not concentrate on the specific terms of the conclusions or the pleas in law, but look to `the essence and reality of the matter' and simply inquire - `What was litigated and what was decided?'. The court is not concerned with whether the first decision was right or wrong." [12] It will not avail a pursuer to raise a new action pleading different facts in support of what is, in essence, the same issue: ibid at [11]. [13] In McCluskey v Scott Wilson Scotland Ltd [2024] CSIH 26 , 2025 SC 15 at [34], the court posed two

questions: "Is this action being litigated between the same parties? If so, does the issue proceed on substantially the same basis?" Further, adding additional detail to the pursuer's pleadings does not change the essence of what was litigated: ibid at [39]. The Indian courts' judgments [14] As noted above the deceased as plaintiff in the Indian suit sought declarator that he was the sole owner in possession of the Indian property on the basis of a "Memorandum of Family Arrangement". The 2022 Indian judgment is 7/1. The plaintiff submitted that the Indian property was purchased by the parties' parents in the name of the defender (as defendant) and the Scottish property was purchased by the parties' mother. Thereafter it was submitted at page 3: "... it was orally decided to resolve the dispute amicably and peacefully by the plaintiff, the defendant and their mother jointly and in agreement with each other...in the third week of March 2005 that [the Indian property] belongs to the plaintiff and [the Scottish property] belongs to defendant... The above family arrangement was thereafter recorded in writing...on 17.05.2005" [15] The defendant denied the existence of any oral or written agreement. One of the issues to be resolved is recorded at page 27 as "Whether family settlement dated 17.05.2005 is result of fraud, misrepresentation on part of plaintiff and witnesses?" [16] In

its determination at paragraph 17, the court referred to the oral family settlement and the document containing the record of such settlement: "Main plank of the case of plaintiff is that he is owner in possession of the suit property on the basis of the alleged family settlement. The factum of alleged oral family settlement and the document containing the record of such settlement alleged to have been executed later-on is completely denied by the defendant.... This demolishes the very foundation of the plea of alleged family settlement sought to be set up by the plaintiff, for, when he was not having any vested pre-existing rights in the suit house, there was no occasion or reason for the defendant to agree to transfer the same in his favour". [17] At paragraph 27, the court notes: "The plaintiff has claimed his right over the suit property by way of stating that he helped the defendant when he had gone into bankruptcy in the year 2005. A payment of one lakh pound sterling to clear the debt of defendant plus interest charges, penalties etc. in a settlement to taxation authority plus other professional charges was also paid by him." [18] Further at paragraph 29, the court notes: "It has been pleaded by the plaintiff that in the month of March 2005 as per oral family settlement, [the Indian property] was given to the plaintiff and house situated in Scotland was given to

defendant and that oral family settlement was recorded in writing on 17.05.2005 in the presence of respectables but now defendant is not ready to perform his part of family settlement. No such respectable person was examined by plaintiff in whose presence the oral family settlement was taken place." [19] At paragraph 31, it is noted: "Further, the plaintiff has also failed to prove the alleged family settlement by cogent and convincing evidence....in order to appreciate the veracity of the transaction contained in a document it is imperative to analyse its contents, the nature and purpose sought to be achieved by its execution and the attendant facts and circumstances surrounding execution of such document." [20] At paragraph 32, it is noted: "there is nothing on record to believe the factum of alleged family settlement. Therefore, it can be safely concluded that that the plaintiff has miserably failed to prove the genesis of his claim". [21] At paragraph 34, it is noted: "Lastly, certain additional pleas have also been raised by the plaintiff in support of his alleged claim, but, he has failed to prove such plea also. In this context, he has alleged that a house property in Scotland was got transferred (sic) by the defendant in his name from their mother and that was on the basis of the alleged family settlement. However, the plaintiff has failed to prove that the said

transfer of property in Scotland was actually a part of the alleged family settlement or in lieu of the alleged agreement of transfer of the suit property in favour of the plaintiff... Moreover, there is no credit worthy evidence on record to prove that the said property situated in Scotland was transferred by the mother of the parties in favour of the defendant as a part of the alleged family settlement." [22] At paragraph 38, the court finds in favour of the defendant that the family settlement dated 17 May 2005 is the result of "fraud, misrepresentation on part of plaintiff and witnesses". [23] The first instance judgment was upheld on appeal on 27 November 2025 (7/10). The pursuer argued that the truthfulness of the alleged family settlement was established by its part performance, that is by the transfer of the Scottish property. The appeal court rejected such a contention as devoid of merit (paragraph 18). Further, the pursuer argued that the plaintiff helped the defendant by making payment of one lakh pound sterling (agreed to be £100,000) to clear the defendant's debt when bankruptcy proceedings were initiated against him. Such argument was held to be without substance at paragraph 21. Expert evidence Pursuer's expert [24] Vibhuti Vasisth's report is dated 24 January 2026 (6/13 of process). She is a dual qualified lawyer in India and Scotland. Her report addresses

Indian law on both res judicata and forum non conveniens but it was conceded by the pursuer's senior counsel that each plea falls to be determined under Scots law. [25] Ms Vasisth's evidence was that the 2022 Indian judgment arose out of a civil suit instituted by the plaintiff seeking declaratory relief and permanent injunction in respect of the Indian property. The plaintiff's case was founded on a family settlement dated 17 May 2005, pursuant to which it was claimed that ownership of the Indian property would belong exclusively to the plaintiff, while the Scottish property would belong to the defendant. The settlement was stated to have been entered into on behalf of the defendant by his mother, acting as his attorney under a general power of attorney. [26] The Indian court framed issues primarily concerning: i. entitlement to declaration of ownership over the Indian property; ii. validity and enforceability of the alleged family settlement; iii. authority of the defendant's mother to enter into such settlement on his behalf; iv. allegations of fraud and misrepresentation in the execution of the settlement; and v. entitlement to permanent injunction. [27] The Indian court, while dismissing the suit, held, inter alia , that the alleged family settlement was not proved and that the plaintiff had failed to establish any pre-existing right or lawful entitlement to the Indian

property. The reliefs of declaration and injunction were consequently denied. The court's adjudication was confined to property-related reliefs and the validity of the alleged family settlement insofar as it was relied upon to assert ownership and possession of the Indian property. No claim for recovery of money or restitution of any sums paid was sought or determined. [28] In the 2025 appellate judgment, the court reviewed the lower court's findings anent the alleged family settlement dated 17 May 2005, including the authority of the defendant's mother to act on his behalf and the plaintiff's entitlement to the Indian property. During the appeal, reference was made to the fact that the Scottish property had been transferred in 2007 into the names of the defendant's wife and daughter. This circumstance was relied upon in the Indian proceedings in support of the reliefs claimed. The appellate court noted that, for the limited purposes of the Indian proceedings, the fact that the Scottish property had been transferred did not, of itself, require the court to treat such transfer as determinative of the existence or enforceability of the alleged family settlement relied upon in support of the declaratory and injunctive relief sought. The court observed that the Indian suit did not call for a determination of the juridical basis of the Scottish transfer, and that no conclusive

inference was required to be drawn from that transfer when assessing entitlement to the property-centric relief claimed. The appeal was dismissed. The 2025 appellate judgment was confined to issues relating to property rights and injunctive relief in respect of the Indian property and did not extend to adjudication of any independent monetary or restitutionary claims. [29] Ms Vasisth concluded that references to the underlying agreement between the parties, the alleged understanding regarding a future property swap, and allegations of misrepresentation or fraud arose only insofar as they were relevant to determining entitlement to the Indian property. The Indian courts were not required to adjudicate, and did not adjudicate, any claim for recovery of money, damages or reparation, nor any issue as to whether the defender was liable to make payment of monies to the pursuer. [30] Under cross-examination, Ms Vasisth maintained that the relief sought was the matter which was directly and substantially in issue. Adjudication of title to the Indian property was the sole matter before the Indian court. The existence of the March 2005 oral agreement was not directly and substantially in issue. [31] Ms Vasisth did accept that when commenting on the 2025 appellate judgment, paragraph 10 of her report reflected her opinion on the court's decision rather than reflect the court's precise

formulation. Further, she accepted that references in the 2022 Indian judgment to any underlying agreement between the parties and any understanding regarding a future property swap were matters that were pled by the plaintiff, which were denied by defendant, and on which the court made findings that there was insufficient evidence to find the plaintiff's case proved. She also accepted that (where the court held that in considering the veracity of the transaction contained in a document it was imperative to analyse, inter alia , the nature and purpose sought to be achieved by its execution: paragraph 31) it was necessary for the court to consider the oral agreement. Defender's expert [32] Gagan Oberoi's report is dated 17 November 2025 (7/9 of process). He is an advocate practising in India. He spoke to Chandigarh civil law concerning the status, content, and scope of the Indian proceedings. [33] The factual matrix alleged by the plaintiff in the Indian proceedings was as follows: the Indian property had been purchased in the name of the defendant by a sale deed dated 23 December 1969 executed in his favour when he was a minor; the said property was purchased from the income derived from ancestral property and earnings; the parties' mother, acting as the defendant's attorney, signed the family settlement and the Indian property was given to the plaintiff and the Scottish

property was given to the defendant; the plaintiff had become the absolute owner in possession of the Indian property based on a memorandum of family settlement; the plaintiff had a pre-existing right in the property since it was purchased out of the funds and income of ancestral property; and therefore, the family settlement was binding upon the parties. [34] The 2022 Indian judgment adjudicated upon the alleged family settlement dated 17 May 2005 and held that it was forged and fabricated, having no binding effect, as it was not signed by the defendant. Moreover, the signature of the parties' mother could not confer any lawful authority to enter into such a family settlement on the defendant's behalf. The suit was dismissed. [35] The existence of the March 2005 oral agreement and that it was recorded subsequently in writing on 17 May 2005 were matters pled before the Indian court. The existence of the oral agreement was a matter that was directly and substantially in issue in the Indian proceedings. The findings on the alleged family settlement are binding and valid. [36] The 2022 Indian judgment is a final judgment on the merits, even if there is a theoretical possibility of a further appeal with permission on a point of law. It conclusively adjudicated the issue of the alleged family settlement and determined the ownership rights over the Indian property. The 2025 appellate

judgment determined the first appeal. A second appeal may lie before the Hon'ble (sic) High Court but only on a substantial question of law. Beyond that, a Special Leave Petition may be filed before the Hon'ble Supreme Court of India though the scope for interference is very limited. Discussion [37] In the present action, the pursuer pleads that there was an agreement between the deceased and the defender, whereby (i) the deceased would make payments towards the defender's outstanding tax liability and associated professional fees; (ii) the deceased would cause ownership of the Scottish property to be transferred into the name of the defender; and (iii) the defender would cause ownership of the Indian property to be transferred into the name of the deceased. The agreement is said to have been concluded initially by way of an oral agreement in March 2005 and then elements of the agreement were reduced to writing in India on 17 May 2005. The written agreement, entitled "Memorandum of Family Arrangement" was signed by the deceased and by his mother, acting under the power of attorney granted by the defender. The relevant averments are in Articles 4, 5 and 8 of condescendence. [38] It is averred that the defender has no intention of transferring the Indian property and so is in breach of contract. Separatim , the pursuer avers that the defender entered into the agreement with the

deceased fraudulently, in that he represented that he would transfer the Indian property without any genuine intention to do so. The deceased made certain payments and transferred the Scottish property in terms of the agreement and on the defender's assurance that it would be implemented in full. [39] The defender denies there was any such agreement, whether oral or written. He pleads res judicata on the basis that the existence or otherwise of the agreement which forms the central foundation of the pursuer's case has already been litigated and decided in the Indian courts. In terms of the 2022 Indian judgment, the deceased as plaintiff failed to prove his case and the defender as defendant established that the purported written agreement implementing the purported oral agreement was a fraud. An appeal by the pursuer against the 2022 Indian judgment was dismissed on 27 November 2025. [40] In terms of the res judicata principles summarised in Primary Health Care Centres (Broadford) Ltd above, the following are not in dispute: (i) the 2022 Indian judgment is a determination by a court of competent jurisdiction; (ii) the parties are the same. The plaintiff in the Indian action was the deceased. The pursuer in the present action as his executor is eadem persona cum defuncto. He pursues the deceased's interest. He pursued the appeal against the present defender in the Indian

proceedings; and (iii) the 2022 Indian judgment was pronounced in foro contentioso without fraud or collusion. [41] The 2022 Indian judgment was a final judgment on the merits. Any further appeal would be with leave on a point of law and no such appeal has been filed. [42] The principal issues in dispute are (i) subject matter and (ii) media concludendi . [43] The pursuer contends that the 2022 Indian judgment was confined to relief in respect of the Indian property. It adjudicated on the reliefs sought of declarator and ancillary injunction as opposed to repayment of sums advanced as a measure of damages for breach of contract. It determined that there was no basis for the Indian property to be transferred as the plaintiff had no pre-existing rights or rights arising from the use of joint family funds. Any claim based on a deed of family settlement was struck down because of fraud. The oral agreement was only raised by the plaintiff as an evidential adjunct to his property claim. The oral agreement was not part of the res on which the Indian judgment adjudicated. In contrast, the present action founds upon the oral agreement. It is not sought to litigate property rights. Those arise tangentially because it was agreed that the Indian property would be transferred and that agreement was not honoured. That gives rise to the pursuer's present claim. It has been pled advisedly that

elements of the oral agreement were reduced to writing. The written agreement has not been produced by the pursuer as the pursuer does not rely upon it. Were the court to sustain the defender's plea of res judicata , the pursuer would have no remedy to recover any sums on behalf of the deceased's estate in circumstances where the Indian court did not consider the core issues in Articles 4 and 8 of condescendence. The subject matter and the media concludendi of the two actions are submitted to be different. [44] The evidence of the pursuer's expert witness was that adjudication in the Indian action was confined to property-related reliefs and the validity of the alleged family settlement dated 17 May 2005 (the written agreement) insofar as it was relied upon to assert ownership and possession of the Indian property. She distinguished between the written and oral agreements. Any reference to the underlying agreement (oral agreement), the alleged understanding regarding a future property swap, and allegations of misrepresentation or fraud arose only to the extent necessary to adjudicate on title. The Indian courts were not required to adjudicate, and did not adjudicate, any claim for recovery of money, damages or reparation, nor any issue as to whether the defender was liable to make payment of monies to the pursuer. [45] Standing the terms of the Indian judgments as set out at

[14] to [21] above, I find that the circumstances of the alleged oral agreement in March 2005 were pled and put in issue before the Indian court. It was litigated before and decided by the Indian courts. The deceased as plaintiff pled the fact of the oral agreement and pled that its origin lay in the acquisition of the Indian property and the Scottish property out of joint family funds and their mother's desire to settle any future dispute. Further, the plaintiff claimed his right over the Indian property in respect that he helped the defendant when he was bankrupt and when the plaintiff paid one lakh pound sterling to clear the defendant's debt plus interest, penalties and professional charges. The 2022 Indian judgment specifically found: "Main plank of the case of plaintiff is that he is owner in possession of the suit property on the basis of the alleged family settlement. The factum of alleged oral family settlement and the document containing the record of such settlement alleged to have been executed later-on is completely denied by the defendant.... This demolishes the very foundation of the plea of alleged family settlement sought to be set up by the plaintiff, for, when he was not having any vested pre-existing rights in the suit house, there was no occasion or reason for the defendant to agree to transfer the same in his favour". [46] The pursuer's submissions and Ms

Vasisth's evidence artificially limit the plaintiff's case as pled and the scope of the Indian court judgments. Their proposed interpretation does not withstand any plain reading of the judgments. I agree with the defender's counsel that such analysis adopts a formalistic and technical approach of focussing on the relief claimed and the headline issues rather than the substance of the content of the 2022 Indian judgment. [47] I am satisfied that the subject matter of the present action is in substance the same as the subject matter of the Indian proceedings. The foundation of the pursuer's case in the present action is the existence and enforcement of a purported family agreement between the same parties and at the same time. The subject matter of the 2022 Indian judgment was a family settlement comprising the alleged oral agreement concluded in March 2005 and recorded in the deed of 17 May 2005. The Indian court has held that there was no such arrangement. Whether there was a binding agreement on the defender to transfer the Indian property has been litigated in India. The pursuer's case is that the content of the alleged agreement was such that each aspect (including transfer of the Indian property) was "mutually dependent". [48] While the pursuer highlights that the present conclusion for damages differs from the declarator of title and injunction sought in the Indian

action, the court looks to the substance and reality of what was litigated and what was decided. To plead additional payments by the deceased to the defender as in Article 9 of condescendence does not alter the substance. Similarly, the averments supporting the pursuer's second plea in law of fraudulent misrepresentation are based entirely on the alleged agreement. The media concludendi of the 2022 Indian judgment is in substance the same as in the present case. Although the present action has a different conclusion (damages) than the relief sought in India (declarator and injunction), the ground of action is in substance the same: both remedies are based on the existence of a family agreement made orally in March 2005 and implemented in writing in May 2005. The 2022 Indian judgment described these agreements as the "main plank" and the failure to prove them demolished the "very foundation" of the pursuer's case before the Indian courts (the 2022 Indian judgment, paragraph 17). What was litigated and what was decided in the Indian courts is substantially the same case as the pursuer offers to establish in the present action. The principle is that considerations of public policy will not tolerate that the same issue should be litigated repeatedly between the same parties on substantially the same basis: Durkin above at [9]. Decision [49] I therefore sustain the defender's plea of res judicata and grant decree of absolvitor. I reserve meantime the question of expenses. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotCS/2026/2026csoh33.html