REF/2005/0899

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

Zafar Amin Mirza

and

 

APPLICANT

 

and

 

Zulfiquar Mirza

 

RESPONDENT

 

 

Property Address: 191 The Drive, Ilford, Essex, IG1 3PL

Title Number: EGL138027

 

Before: Michelle Stevens-Hoare sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Procession House, 110 New Bridge Street, London EC4V 6JL

On: 9, 10, 11 & 12 May 2006

 

 

Applicant Representation: By Counsel

Respondent Representation: By Counsel

 

 

___________________________________________________________________________­

 

DECISION

 

 

Introduction

1.             The Respondent is the registered owner of the property known as and situated at 191 The Drive, Ilford, Essex, IG1 3PL (“the Property”). Between 28.1.97 and 19.6.01 the Property was registered in the joint names of the Respondent and the Applicant, who are brothers. The Property was registered in the Respondent’s sole name on the basis of a transfer dated 15.5.01 signed on behalf of the Applicant by the parties’ sister Tanveer Butt. Tanveer Butt signed the transfer on the basis of a power of attorney dated 30.1.01.

2.             On 22.12.04 the Applicant applied for rectification of the register to reinstate himself as a joint owner of the Property. He alleged the power of attorney was a forgery and the transfer into the Applicant’s sole name was invalid. The Respondent objected to that application and in due course it was referred to the Office of the Adjudicator.

 

 

Background

The Key Documents

3.             The transfer was dated 15.5.01. It was a transfer of the Property from the Applicant and the Respondent to the Respondent. The document was signed by the Respondent and Tanveer Butt and their signatures were witnessed by a solicitor from Cranbrook Solicitors. I have seen two copies of the transfer one is completed so as to state that the transfer was exempt from stamp duty and the other so as to state that the consideration did not exceed £60,000.

4.             The power of attorney is dated 30.1.01. It purports to be signed by the Applicant and his signature is witnessed by Mr Elahi of Mahmood & Elahi solicitors. The document purports to appoint Tanveer Butt as the Applicant’s power of attorney. The power of attorney expressly provided that:-

(i)            it was given for the duration of the Applicant’s absence from the UK;

(ii)          the attorney may receive from any potential buyer of the Property £190,000 or any other sale price agreed by the attorney being the price to be paid for the purchase of the Property and all interest which becomes due in respect of it and to give an effectual price for it;

(iii)        on receipt of the purchase price the attorney may in the Applicant’s name as the Applicant’s act and deed sign and deliver all necessary conveyances;

(iv)        generally the attorney may act to sell or transfer the Property as fully and effectually in all respects as the Applicant could act himself.

5.             Another document which has featured significantly in the case is a witness statement in the name of Tanveer Butt dated 21.10.04. That witness statement was put forward by the Applicant as Tanveer Butt’s statement having been prepared by her and was relied upon by him in support of his application to the Land Registry. The statement contains an assertion that the power of attorney was forged and that she assisted the Respondent in transferring the Property to his sole name on the basis of the forged document.

The Applicant’s Account

6.             In his statement of case the Applicant stated that on 28.1.97 the Property was purchased from the parties’ sister, Tanveer Butt and her husband. He did not indicate what the purchase price for the Property was but did state that the purchase was “funded by cash funded by a mortgage obtained in joint names…”of the parties. The Applicant also indicated that the repayments on the mortgage were “discharged by rental income received from another property owned by the family” and neither of the parties’ “paid the mortgage direct with their own funds.”

7.             The Applicant stated that he had lived at the Property for a while but then vacated. However the parties’ mother remained in the Property with the Respondent and his wife. He stated that in March 2000 he approached the Respondent with a view to an agreement that one of the brothers would pay the other out. He indicated that at that stage the Respondent did not consider the Applicant had any claim to the Property. He then indicated he was out of touch with the Respondent and his other siblings between April 2000 and October 2004.

8.             The Applicant indicated in his Statement of Case that in October 2004 he was contacted by Tanveer Butt who informed him that the Respondent had evicted the parties’ mother. It also alleged that Tanveer Butt told him at that point about the transfer of the Property into the Respondent’s sole name and that she had facilitated the forgery necessary to effect that transaction. Tanveer Butt supplied the Applicant with copies of the transfer and the power of attorney. The Applicant went on to state that Tanveer Butt “prepared a witness statement setting out the circumstances” surrounding both documents. That statement was dated 21.10.04.

9.             The Applicant alleges the Power of Attorney is a forgery being a document that he did not sign or authorise. He relied on expert handwriting evidence from Mr A Bishop. Further he relied on inaccuracies in the document such as the Property appearing as his and Tanveer Butt’s address. Further, he argued in the alternative that the power of attorney was not in any event effective to validate the transfer because he was not out of the country and the transfer as effected did not involve the receipt of money.

10.         The Applicant made an application for a unilateral notice which shortly thereafter he replaced by an application to rectify the registry. Both applications relying on Tanveer Butt’s witness statement and the documentation she had produced.

11.         The Applicant’s account was expanded upon in a number of respects in the course of witness statements and his evidence at trial. The most pertinent of those elements were:-

(i)            The Property was funded by the mortgage and an injection of capital by way of a deposit paid by the Applicant (the case was opened on the basis of a deposit of £9,000 but in the Applicant’s evidence he suggested it was a sum of around £5-6,000);

(ii)          The property which funded the repayments on the mortgage of the Property, (“Crosby Road”) was owned by his father and left to his mother, it was subsequently put in another sister’s name because the parties’ mother was facing allegations of benefit fraud but she was still entitled to the money if it were sold;

(iii)        In February 2000 he approached the Respondent and asked if he was interested in buying his share of the Property and was met with anger and a denial that he had an interest;

(iv)        The March 2000 approach by the Applicant, which I have mentioned at paragraph 7 above, was referred to in his witness statement along with an indication that the Respondent became violent on that occasion but in addition the Applicant described a January/February 2000 negotiation about the parties’ interests in the Property which resulted in an agreement that the Applicant would buy out the Respondent for £30,000;

(v)          The Applicant stated that he gave the Respondent a cheque for £30,000 strictly on the basis it would not be paid into the bank until the paper work was in place but the Applicant paid it in immediately so the Respondent cancelled it; and

(vi)        On 30.1.01, the day the power of attorney was allegedly signed he was with his accountant most of the day and until late in the evening.

 

The Respondent’s Account

12.         The Respondent’s account in his statement of case differed considerably from the Applicant’s account. The Respondent stated that he bought the Property with the assistance of a 100% mortgage. He referred to the Respondent then failing to uphold his financial commitment towards the mortgage and that as a result the Respondent never made any financial contribution to the Property. It was the Respondent’s case that he made all the repayments on the mortgage on the Property from his own funds.

13.         In February 2000 the Applicant said he approached the Respondent seeking a share of the Property. The Applicant made it clear the Respondent had no rights or claims to the Property since he had not contributed to the mortgage. The Respondent stated that he made clear his intention to pay off the mortgage within 3 years and suggested that if the Applicant wanted a share of the Property “he should settle his share of the mortgage…….which was calculated to be in the approximate sum of £30,000 at that point.” The Respondent contended it was at that point and on the basis of an agreement in that form that the cheque for £30,000 was provided. The Applicant said that he subsequently stopped that cheque.

14.         The Respondent contended that the power of attorney was genuine. He pointed to the fact it was witnessed by a solicitor who had confirmed in correspondence that the Applicant’s identity was established by reference to his passport and driving licence.

15.         The Respondent’s case was that the transfer was genuine and in accordance with the authorisation given by the Applicant. The transfer necessarily involved the redemption of the mortgage which was in joint names. The Respondent obtained a new mortgage in his sole name and redeemed the joint mortgage. Thereafter the Applicant had nothing to do with the Property and showed no interest in it until 7 years and 9 months later, just after the Respondent had cleared the mortgage on the Property.

16.         The Respondent’s oral evidence largely followed the account in his Statement of Case and Witness Statement. He expanded upon his references to £30,000 as the Applicant’s share of the mortgage or mortgage arrears by stating that whilst there were no arrears as such he had by that point paid about £30,000 in mortgage repayments and to that extent the Applicant if he wished to claim an equal share had to pay the same amount. The Respondent was cross-examined at length about the capital sum he claimed to have been able to pay from his income as a bank clerk and car dealer and additional capital paid to him by a sister to whom he had loaned a substantial sum. The manner in which his evidence emerged was unconvincing.

 

The Law

17.         Section 65 and Schedule 4 of the Land Registration Act 2002 enables the registrar to alter the register where an entry in the register has been made by mistake. An entry based on a transfer which is subsequently shown to be invalid would consist an entry made by mistake for that purpose. Where the current registered proprietor of an estate in land is in possession of the land no alteration can be made against him unless he has by fraud or lack of proper care caused or substantially contributed to the mistake or it would for any other reason be unjust for the alteration not to be made.

18.         It follows where the registered proprietor objects to an alteration in the register against his interests the registrar has no discretion to alter the register unless his actions or inaction were causative of the mistake or the continuation of the existing entry is unjust. In many instances it will be open to the party seeking the alteration to establish and enforce their interest in the property against the registered owner even if the register itself is not changed. In this instance the fact that the legal title is in the Respondents name does not on its own prevent the Applicant from establishing that the Property is held on trust by the Respondent for both himself and the Applicant.

 

The Issues

19.         In order to determine whether the Applicant’s application for rectification of the registrar should be permitted the Applicant submitted the following issues needed to be determined:-

(i)       Whether the Land Registry registered the transfer in question in breach of its procedures and whether that entitles the Applicant to reinstatement as joint owner of the Property; or

(ii)     Whether the power of attorney pursuant to which the transfer of the Property was executed on behalf of the Applicant was sufficient to authorise the execution of the transfer if it was properly executed; or

(iii)   Whether the Applicant’s signature on the power of attorney was forged.

20.         The Respondent approached the matter somewhat differently suggesting that the issues were:-

(i)            Whether the transfer was validly executed being authorised by the power of attorney; and/or

(ii)          Whether the power of attorney was valid being signed by or on the authority of the Applicant or otherwise his document; and

If the transfer was not valid, in accordance with Schedule 4 of the Land Registration Act 2002, it is necessary to consider:-

(iii)        whether the Respondent by his fraud, lack of proper care caused or substantially contributed to the error in the register; or

(iv)        whether it would for any other reason be unjust for the alteration not to be made;

in order to conclude there is any discretion to alter the register and then whether that discretion should be exercised in the Applicant’s favour.

21.         In addition the Respondent placed heavy reliance on his contention that the 21^st October witness statement of Tanveer Butt was forged by the Applicant to discredit the Applicant’s account.

22.         In the course of submissions it was accepted by the Applicant’s counsel that if the transfer was otherwise valid and binding on the Applicant the failure of the Land Registry to follow its procedures would not render the transfer invalid and would not justify the alteration of the register against a registered proprietor in possession.

23.         It is a matter of agreement that the effect of paragraph 5 of Schedule 4 to the Land Registration Act 2002 is that even if the transfer was invalid, so that the removal of the Applicant’s name from the register was in error, unless the Respondent caused or contributed to the same or it is unjust not to alter the register the Registrar had no discretion to do so. Further if the Registrar had a discretion all relevant factors should be considered in deciding whether to exercise it.

24.         Both parties accepted that even if the transfer was invalid, if the Applicant did not have any beneficial interest in the Property a rejection of the application to alter the register would not cause any injustice since the Respondent, as the sole beneficial owner in possession, would be entitled to call on the legal title of the Property to be put into his sole name in any event.

25.         In those circumstances I have concluded that the key issues I need to decide in order to determine whether there is any discretion to alter the register against the wishes of the Respondent and if there is whether I should exercise it are:-

(i)            Was the power of attorney forged and not otherwise authorised by the Respondent;

(ii)          If the power of attorney was not forged was the transfer authorised by the power of attorney;

(iii)        Did the Respondent cause or substantially contribute to the error in registering the transfer;

(iv)        Did the Applicant forge the signature of Tanveer Butt on her 21^st October witness statement;

(v)          Did the Respondent have any beneficial interest in the Property.

The Evidence

Generally

26.         In addition to hearing the evidence of both parties, I had the benefit of an agreed statement from the two experts, Mr Bishop and Mr Handy, and the oral evidence of the Respondent’s wife and a friend of the Respondent, Sameena Bashir. Although witness statements were served by the Respondent for Tanveer Butt and the mother of the parties they did not attend to give evidence. Similarly, although the Applicant served a witness statement of his accountant, Mr Waheed, he did not attend. A doctor’s letter was produced to explain Mr Waheed’s last minute absence.

 

Expert Evidence

27.         The experts agreed that both the power of attorney and the questioned witness statement of Tanveer Butt were forgeries. It is right to say that the strength of the opinions expressed differed. Mr Bishop, instructed on behalf of the Applicant, concluded there was strong evidence of forgery in both instances. Mr Handy, instructed on behalf of the Respondent, concluded there was moderate evidence in support of the conclusion reached by both experts. It should be noted that for Mr Bishop “strong evidence” lies between moderate and very strong and is the fourth level in a six level scale, so that strong and conclusive rank above it. Mr Handy on the other hand has a five level scale and moderate is his third level lying between limited and strong with only conclusive above strong.

28.         Both experts were invited to consider the suggestion that the Applicant had sought to sign the power of attorney in a manner that would appear to be a forgery. Both experts rejected that suggestion as the most likely explanation for the origin of the signature.

29.         It is to be noted that in relation to Tanveer Butt the experts agreed that there was some variation in the control samples provided. However, having regard to their respective reports they are both clear that the signature on the questioned witness statement differs from the signature in the samples that were witnessed. One instance involved Tanveer Butt’s signature being witnessed by the Applicant’s solicitor.

30.         In the peculiar circumstances of this case both parties find themselves with the difficulty that the expert evidence dealing with one document is very helpful and on the other very damaging. Counsel for both parties tried very skilfully to do the impossible. They sought to make subtle use of the helpful evidence whilst not conceding I should rely just as much on the other element of the expert evidence. I find myself unable to do that and take the view that the agreed view of the experts stands or falls as a whole.

31.         I find myself unable to conclude that I should disregard the expert evidence particularly in the face of the degree of agreement between them. It follows, in the absence of any compelling evidence to the contrary, I accept the agreed conclusion of the experts that both the power of attorney and the 21^st October Tanveer Butt witness statement were forged.

 

The Respondent

32.         The Respondent conducted this litigation as a litigant in person until just before trial. It has been a very unfortunate feature of these proceedings that the parties have made a number of very serious, usually irrelevant allegations. The Respondent has been particularly inclined to make serious allegations of dishonesty and conspiracy against the Applicant, his expert, his legal team and third parties such as the Land Registry. Those allegations in terms of their content and the manner in which he has chosen to express them do the Respondent no credit. At the start of the trial the Respondent’s Counsel made it clear none of the allegations against anyone other than the Respondent and his wife were relied upon. It is fair to say many of the allegations were patently without substance and simply served to demonstrate the Respondent’s willingness to say whatever he felt would assist his case.

33.         The Respondent’s manner was defensive and frequently avoided giving straight answers. Ms Jordan urged me to accept that the Respondent’s manner was the product of the intensity of the Respondent’s feelings and anxiety about this matter which relates to his family home. Whilst it is undoubtedly true that the Respondent is someone who responds to things with passion and intensity, the subject matter of this case is of paramount importance and the Respondent has probably become obsessed with this matter, I have concluded those are the very things that have driven him on occasion to exaggerate and even lie or manufacture documents to support his position.

34.         I found myself unable to believe a number of elements of the Respondent’s evidence. The Respondent was absolutely insistent the Applicant has never lived in the Property. However, the Applicant was able to produce a number of documents that demonstrate the Property was used as his address years ago. The Respondent alleged that he spent money on improving the Property but failed to provide any detail or any documentation in support of those allegations. He claimed to have been able to fund the repayment of the whole of the mortgage entirely from his income and additional money given to him by a sister when repaying him for money he had lent her. On his own account the Respondent was supporting his family on a bank clerk’s salary and some additional money made dealing in cars. The significance of his car dealing seems to grow as the enormity of the sums he was claiming to pay paid was brought home to him in cross-examination. The capital sums he claimed to have been able to generate were incredible and he produced no documentation to support those claims. Further, the Respondent was insistent that the witness statements produced on his behalf by those he intended to call as witnesses were their witness statements and not documents he produced or influenced.

35.         However at the same time there were a number of elements of the Respondent’s evidence that were credible and believable. Firstly, the Respondent claimed that he was given the £30,000 by the Applicant on the basis that he could pay it in immediately whilst the Applicant alleged it was agreed the Respondent would not pay it in until the formal documentation required was in place and so he stopped the cheque. It is apparent from the annotation “Refer to Drawer” on the cheque that the cheque was not cashed due to insufficient funds as the Respondent alleges rather than being countermanded by the Applicant as the Applicant claims.

36.         Further, there was a dispute between the Respondent and the Applicant over a number of letters the Applicant claimed to have sent to the Respondent in 2000. The Respondent alleged the letters were created more recently by the Applicant for the purpose of this claim. However, when the Applicant’s passport was produced for a different purpose it became apparent that the references to the Applicant’s trip to Mecca fitted with just such a trip. The Applicant does not suggest he went to Mecca every year. It follows that on his account the Respondent, with whom he has had very little contact, must have recalled when he made such a trip when manufacturing the letters years later. I am driven to the conclusion that the letters were written in 2000 and not manufactured several years later in the course of these proceedings.

 

The Applicant

37.         The Applicant is a very different character to his brother. The Applicant is the eldest brother. He is estranged from his siblings and it was clear from a number of remarks, often as asides, that the fact he does not command the respect and influence within his family that an eldest son would normal have does not sit well with him. He took every opportunity to convey how successful he was and how much he had tried to look after his family when he could. He also had a tendency to talk about anything to do with the family by reference to himself. For example, when he spoke about properties held by members of his family he talked of them as his family home. His evidence was characterised by an altogether more controlled manner which occasionally slipped into flippancy coupled with a strong desire to be seen as the successful, intelligent, generous, rightful head of the family.

38.         There were a number of elements of the Applicant’s evidence which I have concluded, sometimes as a result of external factors but often as a result of other elements of his own evidence, were not truthful. Nevertheless, as with the Respondent’s evidence there were elements of the Applicant’s evidence that had the ring of truth

39.         The Applicant claimed he provided the Respondent with the cheque for £30,000 in order to buy out the Respondent’s share in the Property. He says that the agreement was that the cheque would not be paid into the bank until the documentation was in place but the Respondent tried to cash the cheque anyway so he contacted the bank and stopped the cheque. As I have already indicated the annotation on the cheque supports the Respondent’s contention that the cheque bounced and accordingly I prefer the Applicant’s account of that aspect. There are two other elements of that part of the Applicant’s account that I am unable to believe and accordingly I prefer the Respondent’s account in relation to that whole part of story. It is curious that in his statement of case the Applicant claims that in March 2000 he suggested he buy the Respondent’s share and the Respondent denied the Applicant had any interest and yet he makes no mention of any agreement or the £30,000 cheque. Then in his witness statement the Applicant indicated that in March 2000 the Respondent was denying that the Applicant had any interest in the Property and was violent and yet shortly before he claims the Respondent was agreeing to sell his share to him for £30,000. On the basis of the Applicant’s account, the fact that the Property was always the Respondent’s family home, the remainder of the evidence and my observations as to the strength of the Respondent’s feelings about the Property I find the suggestion that the Respondent would have agreed to relinquish all claims to the Property for £30,000 inconceivable.

40.         The Applicant’s account of his contribution or non-contribution to the purchase of the Property as I have described above was littered with vague but still apparently differing and inconsistent accounts. The Applicant’s contention that he paid a deposit on the purchase of the Property simply does not stand up as credible. In his statement of case he expressly stated the mortgage was paid by the rental income from Crosby Road and neither of the parties contributed to the mortgage from their own funds. He made no mention at that point of any alleged direct contribution by him by way of deposit or otherwise. The allegation that he made a direct contribution by way of a deposit first came when his case was opened. The amount of the deposit then varied in the course of his case. Indeed when the Applicant came to give his evidence his account in that respect lacked any sense of conviction. Despite the fact he was able to produce an alleged relevant bank statement relating to mortgage payments at the last minute at no point did he produce any documentary evidence or detailed information in relation to the amount, manner of payment or source of the alleged deposit.

41.         In addition, the Applicant’s evidence about the day the power of attorney was signed served only to undermine his credibility further. The Applicant alleged that he could not have signed the power of attorney as he was in Central London seeing his accountant, Mr Waheed. He said he particularly remembered his whereabouts that day because he stayed late that night and he had left doing his tax return until the last minute. In the course of cross examination it became apparent that he regularly worked to the same time in the evenings as the time he said he worked until on that day. In addition his witness statement made it clear that it was his usual practice to leave his tax return until the last minute.

42.         As I have said above there were a number of elements of the Applicant’s evidence that seemed to me to have the ring of truth. Many of those elements do not help his case. Firstly, the Applicant alleged that the mortgage on the Property was funded by the rental income from Crosby Road. When asked about Crosby Road he indicated that that property had been owned his mother and was transferred to his sister. However, he was clear at all times that if Crosby Road were sold it was still his mother who was entitled to the proceeds. The Applicant did not suggest that the money was provided by his mother as a gift to him or as a gift to himself and his brother. Indeed he provided no evidence about what was agreed or understood between the family members about the interests in the Property and no explanation of why a property funded as he alleged should be owned beneficially at all.

43.         The Applicant confirmed the Respondent’s indication that he was not in a position to obtain the necessary mortgage on his own. Right at the end of his evidence in chief he confirmed that the Respondent did not buy the Property for himself and his family and then commented “I bought it for him”. I find that comment to have been an expression of how the Applicant perceived the acquisition of the Property by which he made his mortgage capacity and his name available to enable the purchase in both names to proceed for the benefit of the Respondent. I have no doubt, given the way the Applicant and the Respondent subsequently became estranged, the Applicant feels the Respondent has treated him very badly and not accorded him the respect and gratitude he deserves.

44.         At the end of the trial after his case had been closed the Applicant produced statements from a bank account in the name of himself and the sister in whose name Crosby Road is registered. He claimed the account was the account used to pay the mortgage on the Property. I accept that evidence. The late revelation of the existence of the account was somewhat at odds with the way his case had been run to that point in the sense that if he had an interest in the Property and was involved with it as a joint owner with the mortgage being paid out of an account in his name, it is incredible that he had no knowledge of, or had completely forgotten about, that account. What was also interesting was that he had absolutely no idea about the other sums that were debited from that account. It was clear from his evidence that whilst the account was in his name he had absolutely no involvement with its operation at all. He claimed that the money being paid in was the rental income from Crosby Road. However, he conceded it was not him that paid that money in and he could not assist any further with that aspect. The credits were irregular in both amount and frequency; not the sort of pattern that might be expected of an account receiving the rental income on one property to fund the mortgage on another. It was apparent that often money was being found after the event to cover a mortgage payment so someone was clearly monitoring the account regularly and making the necessary arrangements. Yet it is clear the Applicant had no involvement in managing the account.

 

The Respondent’s Wife

45.         Sabena Mirza, the Respondent’s wife, was absolutely adamant that she wrote her own witness statement. It is absolutely clear to me that was not the truth. The language and phraseology used in the witness statement did not match with her language and phraseology in the witness box. Further, the curious language and phraseology reflected completely that used in all the other documents produced by her husband. Sabena Mirza’s evidence had all the hallmarks of evidence that was the product of her husband’s work even if it was based to some extent on her own initial recollections. She was completely unable to remember some of the simplest things that were not foreshadowed in her statement that she really should have been able to deal with such as when her mother in law left the country.

46.         I have concluded it is not safe to rely on the evidence of Sabena Mirza at all.

 

Ms Bashir

47.         Ms Bashir was called by the Respondent to prove that the Applicant was in the Ilford area on the date the power of attorney was signed. Ms Bashir gave evidence that she knew both brothers. She was absolutely clear that she saw the Applicant on the 30.1.01 because that was the last time she physically saw him before a life changing accident she had some 3 days later. Her evidence was littered with the sort of additional detail that came out in the course of cross-examination that has the ring of truth. It was suggested that she contradicted herself when she said she last saw the Applicant about a year ago at a wedding reception having said she last saw him on 30.1.01. My understanding of her evidence, as I have indicated above, was that she simply meant that the 30.1.01 was the last time she saw him before the accident not that it was last time she had seen him at all.

 

The Absent Witnesses

48.         The non-attendance of the various absent witnesses was accompanied by adverse comment and the suggestion that it served to demonstrate that the witnesses would not have been called to tell the truth. Given the nature of the allegations and counter-allegations in this case, particularly in relation to the forgery of documents including witness statements, I am driven to the conclusion that I cannot safely place any reliance whatsoever on the written evidence of any witness who did not give oral evidence.

 

Conclusions on the Evidence

49.         Regrettably this is one of those rare occasions where I have been driven to the conclusion that both sides have lied about some key aspects of this case in the course of their evidence. This conclusion fits with, and is strengthened by, the agreement of the experts that both parties rely or have relied on false documents in seeking to make out their case. It is not possible to simply prefer the account of one party over the other’s wherever they conflict. It is apparent to me that both parties have told the truth about some things and lied about others. The only witness whose evidence I have concluded I am able to accept in its entirety is Miss Bashir.

50.         It also follows that there is nothing in the oral evidence that leads me to question the conclusions reached by the experts indeed I have concluded it fits with that evidence.

 

The Power of Attorney and the Transfer

51.         I accept the agreed expert evidence that on the balance of probabilities the power of attorney was not signed by the Applicant. In line with the experts’ opinion I reject the suggestion that he signed that document in a manner designed to make it look like a forgery if examined.

52.         Whilst the suggestion that the Applicant was in fact the author of the apparent forgery, and is therefore bound by it, is not an impossible explanation it is, on the face of it, unlikely. It is fair to say the Applicant is clearly a clever man but I cannot accept the idea that he hatched such a sophisticated plot to trap his brother into paying off the mortgage on the Property as the most likely explanation on the balance of probabilities. I do accept that the Applicant was in the Ilford area on the relevant day and has lied in his evidence in an attempt to distance himself from the document. However, I have concluded on the balance of probabilities that this lie is the result of him manufacturing evidence in the course of these proceedings with a view to strengthening his case rather than it being evidence of some complex plan hatched in 2001 to fool any tribunal or court that might have to consider the validity of the document in due course. My conclusion in that respect is strengthened by the evidence that he was prepared to manufacture evidence in the form of the Tanveer Butt witness statement with a view to supporting his case. Given my conclusion that the power of attorney was forged I also conclude that Tanveer Butt did indeed tell the Applicant about the transaction and provide him with copies of the documentation in late 2004. There is no alternative explanation as to how the Applicant became aware of the transactions and obtained copies of the crucial documents. However I have concluded that when Tanveer Butt was not prepared to go so far as providing a witness statement in which she admitted joining in a fraudulent transaction, the Applicant decided to falsify her signature on a witness statement to enable him to make the application that he believed he was entitled to make.

53.         In any event the scenario advanced by the Respondent to contend that the Applicant was behind the “forgery” does not make sense. It is the Respondent’s case that the Applicant signed the document or had it signed so that it would appear to be a forgery and then delivered it himself to Tanveer Butt in the presence of Sabena Mirza. To have taken such a course would have provided the Respondent with two potential witnesses to support an argument that however the signature came about the power of attorney was the Applicant’s document, authorised by him, represented by him to be his document and accordingly one he could not step back from.

54.         Having concluded that the power of attorney is a forgery and not one undertaken at the instigation of the Applicant himself, it follows that the transfer into the Respondent’s sole name was not valid.

55.         In those circumstances I do not have to go on to decide whether the transaction as it was effected was authorised by the power of attorney in any event. Nevertheless, in case it becomes relevant at some later point I will consider that aspect. It is now accepted by the Respondent that the Applicant was not out of the jurisdiction and accordingly on the face of the power of attorney Tanveer Butt was not authorised to act. Having decided I am unable to rely on the evidence of Sabena Mirza or the evidence of Tanveer Butt there is no evidence to support an argument that the Applicant represented that he would then be out of the jurisdiction and is therefore estopped from taking the point.

56.         The Applicant also relies on the contention that the power of attorney does not permit a transaction for no consideration. It is rightly conceded that on the authorities the power of attorney would not authorise such a transaction. However I accept Ms Jordan’s submission that whatever was stated on the documentation this was not a transaction for no consideration. There was a substantial mortgage outstanding and the Respondent paid off the joint mortgage liability by remortgaging the Property. In those circumstances, the transfer from the Applicant and Respondent as joint owners to the Respondent as sole owner was effected for a sum equivalent to the redemption figure paid.

57.         I find that the transfer completed on 15.5.01 did not effect a valid transfer of the Property into the Respondent’s name and in those circumstances the entry of the Respondent as sole legal owner on the register as a result of that transaction was a mistake.

 

The Respondent’s Role in the Documentation

58.         The experts were not invited to consider whether the Respondent was the author of the signature on the power of attorney so they are unable to give me any direct assistance in that respect. I have already set out above the reasons why I have concluded the Applicant did not cause the power of attorney to be signed.

59.         Not surprisingly there is no direct evidence that assists with how the forgery was undertaken. That said the Respondent is the only person who stood to gain by the transaction. The Respondent was clearly involved in the transaction and had possession of the power of attorney. The point is made that if he was seeking to undertake this false transaction he could have made it easier for himself by having a much simpler document. There is some force in that. However, the Respondent’s conduct in this matter, in particular his ways of expressing himself in what might be called legal documentation, demonstrate he is not man to look for the simple way to do things or indeed one for using plain English where he believes creating something that sounds more formal or legal will help. It is also clear that he has the capacity to use legalistic terminology without always having a full grasp of its meaning. On the balance of probabilities I have concluded the Respondent was the driving force behind, if not the author of, the forged power of attorney.

 

The Applicant’s Interest in the Property

60.         The Respondent was consistent throughout this case in his assertion that the Applicant made no contribution to the Property. In light of the Applicant’s concession that Crosby Road was ultimately his mother’s asset the Applicant’s statement of case and witness statement are entirely consistent with the Respondent’s case in that respect.

61.         In the course of opening and his oral evidence the Applicant’s case started to include the assertion that he paid a deposit from his own funds. Despite the fact that the Respondent has always made his case in that respect clear the Applicant made no effort to produce any documentation demonstrating he had contributed to the purchase or to produce any supporting evidence or detailed information. The fact that the Applicant couldn’t actually give clear, consistent or detailed evidence about that contribution he was claiming to have made and the fact he did not initially suggest he made any such contribution has led me to conclude he did not make any such contribution.

62.         Further neither party suggested in their statements of case or their evidence that the parties reached any agreement at any stage what their interests would be. The only hint of that is an apparent reference in the Respondent’s evidence to the concept that the Applicant had an obligation in respect of half of the mortgage. That evidence does not sit well with other statements and evidence by him to the effect that the Property was to be his. Considering the Respondent’s evidence as a whole I have concluded that is an expression of his view that was clear in the context of February 2000 discussions that if the Applicant wished to claim a share he was obliged to contribute accordingly, or put another way, if the Applicant did not proceed on the basis he was obliged to contribute he could not then claim a share. It is to be noted in this context that the Applicant has not at any point suggested he ever agreed to contribute to the mortgage. As I have already mentioned on the Applicant’s account the parties’ mother in fact contributed substantially to the funding of the Property and yet there is no suggestion that there was any gift being made by her nor agreement as to for whose benefit those contributions were made. Further there is no suggestion that the mother claims any interests for herself.

63.         I bear in mind the apparently fluid arrangements this family made in respect of Crosby Road. It is also apparent that in this family the simple fact that the legal title to a property is put in someone’s name cannot be taken as an indication that they are intended to have a beneficial interest in the property. The Crosby Road arrangements appear to have been made largely without anyone ever expressly agreeing what the arrangements or interests were. I also take account of the Applicant’s own evidence about buying the Property for the Respondent. In those circumstances I conclude that when the Property was acquired it was understood that the purpose of the purchase was to give the Respondent and his family a home and an asset and that the extended family would aim to assist him in funding that in so far as was necessary. I find that the Applicant did not in fact contribute, whether by way of deposit or mortgage, to the purchase of the Property. I have concluded the Respondent has funded the Property himself although probably with some support from his mother. In those circumstances I find there was neither express agreement nor any common understanding that the Applicant would have any beneficial interest in the Property so that there is no express trust nor any constructive trust in the Applicant’s favour. Further since the Applicant did not contribute at all to the acquisition there is no resulting trust in his favour. It follows I find the Applicant has no beneficial interest in the Property and never has had.

 

The Discretion to Alter

64.         In light of my findings I conclude that notwithstanding the fact that the Respondent is in possession of the Property I do have a discretion to alter the register. The entry was made on the basis of an invalid transfer. It was invalid because it was executed on the basis of a forged power of attorney. The Respondent contributed to that invalid transaction because he was involved in the forgery of the power of attorney and execution of the transfer knowing the Applicant was not a party to either.

65.         However, when I come to consider the exercise of the discretion, having concluded that the Applicant has no beneficial interest and the Respondent was therefore entitled as sole beneficiary in possession to call for the transfer of the Property into his own name in any event, I am driven to conclude that the alteration of the register would be a pointless exercise. Having concluded that the Applicant has no interest in the Property there is no injustice to him in being deprived of joint ownership of the legal title. Accordingly the application made to alter the register should be cancelled and the registered title of the Property will remain in the Respondent’s sole name.

 

The Costs of these Proceedings

66.         Given my conclusions in this matter about the conduct of both parties, in particular the reliance of both parties on false evidence I would be minded to make no order as to costs. Both parties have behaved badly and contributed to this case becoming unnecessarily complex, lengthy and unpleasant. I will give permission to either party to apply within 14 days for further submissions to made as to costs failing which there will be no order as to costs.

 

 

Dated this 30 June 2006

 

 

 

By Order of The Adjudicator to HM Land Registry

 

 

 

(Michelle Stevens-Hoare)