PROPERTY CHAMBER

FIRST - TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

IN the matter of a reference from hm land registry

LAND Registration act 2002

 

REF/2014/0142

 

BETWEEN

MOHAMMED RASHID

 

APPLICANT

and

 

 

FARAKH RASHID

RESPONDENT

 

 

 

Property Address: 40 Henley Street, Birmingham B11 1JA

 

Title Number: WM311810

 

Before: Dr Anthony Verduyn sitting as Judge of the Property Chamber of the First-tier Tribunal

 

Sitting at: Centre City House, 7 Hill St, Birmingham B5 4UA

 

On: 26 ^th - 27 ^th October 2015

 

 

Applicant's representative: Mr Neil Chawla, Counsel

 

Respondent's representative: Mr Michael Paget, Counsel

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

Keywords: Rectification under Section 65 and Schedule 4 of the Land Registration Act 2002; forgery of transfer; subsequent gift; delay in making application and prejudice to the Respondent; relief granted - costs

 

Introduction

1.       This reference to the First-tier Tribunal concerns legal title to a residential property known as 40 Henley Street, Birmingham B11 1JA, with registered title number WM311810 (" the Property"). It is currently registered in the name of Mr Farakh Rashid (" the Respondent"), but Mr Mohammed Rashid (" the Applicant"), seeks rectification and to have the Property put back into his name. He had been the registered proprietor for a period between 20 ^th November 1985 and 18 ^th May 1989 and he claims that his title was only lost when he was abroad and through the forgery of his signature by or at the behest of his namesake, the father of the Respondent in 1989. To reduce confusion, in this decision reference to " Mr Mohammed Rashid" will always be to the father of the Respondent, and the Applicant will always be referred to by his party status in the proceedings. Mr Mohammed Rashid transferred the Property to his son, the Respondent, by way of gift and the Respondent was registered as freehold proprietor with title absolute on 1 ^st November 1990.

2.       The procedural history of this reference has not been straightforward. An initial application by the Applicant was made on 22 ^nd May 2012 for a unilateral notice to protect "a right in equity to apply to rectify the register". The notice was registered on 6 ^th June 2012. The underlying merits of the notice were untested and on 12 ^th September 2013 the Applicant applied in Form AP1 to rectify the register by substituting himself for the Respondent as registered proprietor of the Property. By reason of the application undergoing initial investigation by the Land Registry, notice was not served on the Respondent until a letter dated 7 ^th August 2013 was issued. Formal objection was made by letter dated 23 ^rd September 2013. The matter was referred to the First-tier Tribunal in February 2014 and was first listed for trial on 6 ^th and 7 ^th November 2014. Due to problems with a translator, that hearing was abandoned and a fresh trial was required. There followed difficulties with re-listing and the trail was eventually held on 26 ^th and 27 ^th October 2015. This decision was then delayed as the parties were given time to make additional representations in writing regarding the apparent delay in the making of the rectification application in the period since 1989. The time for such written submissions was extended to take account of the case of Parshall v Hackney [2013] EWCA Civ 240; [2013] Ch 568, which had previously been overlooked, and also to take account of apparent difficulties in contacting the representatives of the parties (especially the Respondent). There was then a delay in February and March 2016 whilst the Tribunal took time to consider what is a complicated case; made especially difficult by the long passage of time between the relevant events (starting in 1981 and largely concluding in 1990) and trial.

Matters of Law

3.       The reference to the Tribunal is one of rectification of the registered title to the Property under Section 65 and Schedule 4 of the Land Registration Act 2002 (" the 2002 Act"). This is a matter of rectification, rather than mere alteration, because the application is for the correction of an alleged mistake in the register and prejudicially affects the title of the Respondent. The mistake asserted is the registration of title to the Property in the name of Mr Mohammed Rashid on 18 ^th May 1989, rather than the transfer by way of gift to the Respondent registered 1 ^st November 1990. The latter, however, is derivative from the former, and the application does not fail merely because the latter was not also mistaken. This point was settled in the case of Gold Harp Properties Limited v Macleod [2014] EWCA Civ 1094; [2015] 1 WLR 1249 and the contrary was not contended before me. The power of the Tribunal to order rectification is none-the-less still limited in cases where the registered proprietor is in possession. Whilst the Applicant does not formally accept that the Respondent has demonstrated he is in possession of the Property, the evidence is that it has been treated as an investment property in his hands and has been rented out. It follows that, by virtue of Section 131(2)(a) of the 2002 Act, the Respondent is to be treated as a proprietor in possession of the Property. Consequently, for rectification to be ordered without the Respondent's consent, it is required to be demonstrated under paragraph 6(2) of Schedule 4 to the 2002 Act that:

"(a) [the Respondent] has by fraud or lack of proper care caused or substantially contributed to the mistake, or

(b) it would for any other reason be unjust for the alteration not to be made".

In respect of (a) the Applicant in the Skeleton Argument for the original trial again emphasised the comparison with Gold Harp, which involved a collusive transfer from father to son. Indeed, the Property was gifted by Mr Mohammed Rashid to his son about 5 months after registration to him. Again, there was no suggestion by the Respondent that he was sufficiently distant from the alleged mistake to distinguish Gold Harp, and the evidence was very much that the Respondent was well aware of the circumstances of the transfer of the Property to his father before it was gifted to him. Indeed, his case is that his father's involvement with the Property was wholly to facilitate the provision to him of it as an investment opportunity. The Applicant also advances his case under (b), which requires a balancing exercise on the part of the Tribunal.

4.       The Tribunal raised the issue of delay whilst the Property was in the possession of the Respondent. The law relating to adverse possession is not of assistance to the Respondent in these circumstances, for the reasons set out by the Court of Appeal in the case of Parshall, and the Respondent understandably did not seek to argue that the Tribunal was not bound by that case. The Respondent did, however contend that delay could amount to an "exceptional circumstance", which would justify the refusal to make an Order under paragraph 6(3) of Schedule 4 to the 2002 Act. Both parties cited Gold Harp on this point at paragraph 104 of the judgment of Underhill L.J.:

"As to the delay, the Claimants had issued proceedings in August 2011 but it is correct that they only very belatedly pleaded a claim for rectification of the Register. But it is not axiomatic that delay in advancing such a claim constitutes an exceptional circumstance which would justify not making an order that the Court would otherwise be obliged to make. On the contrary, it seems to me that it would be very unlikely to do so unless the delay had given rise to some substantial identifiable prejudice. No such prejudice was alleged. In those circumstances, while ideally the Judge should have dealt with the point, however briefly, I do not believe that his failure to do so renders his decision wrong."

5.       The Applicant relied on the general tenor of the paragraph that delay is not an exceptional circumstance in isolation, and the Respondent referred to the additional question of prejudice. The Respondent developed this point, by referring to the case of Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch), essentially a case concerning rectification of a registered title plan:

"36 ... Although [the Adjudicator - now the Tribunal judge] had decided that the Council had a paper title to the disputed strip, the Fallons had built over it in circumstances where it was at least arguable (and in his view rather more than arguable) that the Council would not in practice be able to recover the land if it sought to do so. As I understand it what he contemplated was that if the Council sought an injunction preventing the Fallons from continuing to trespass and requiring them to remove their garage, wall and paving so far as built over the boundary, it might be met by either of two defences: (i) that there was a proprietary estoppel which prevented the Council from complaining of the trespass at all; or (ii) that an injunction should be refused as a matter of discretion, leaving the Council to a remedy in damages ... One way or another therefore, the Council might fail in any attempt to recover the land, and the Fallons might be left in undisturbed occupation of it. The Council would then have a paper title but one which could not be enforced against the Fallons.

37 What then would be the purpose of altering the register? Given that it would not actually change the title to any of the land; and that the only purpose of altering a general boundary to show it in a different place is to make the register more accurate, in what sense would it be more accurate to alter this boundary? It would then accord with the Council's paper title but not with the practical position on the ground. In effect if the Fallons can resist any claim to recover the land by the Council, the Council's paper title becomes a purely nominal or theoretical one, and the Fallons will have a de facto right to stay on the land. What is more, since an estoppel ensures for the benefit of successors, no doubt a purchaser from them would succeed to their rights. This would give the Fallons a sort of de facto title (and so long as they remained in possession a possessory title which, as the Adjudicator said, might in due course ripen into one which barred the Council's paper title under the Limitation Acts). This is what I consider the Adjudicator was referring to when he referred (in paragraph 73 of the Decision) to the "possibility, if not likelihood, that all or some of [the Fallons' development] would remain and be effectively owned by the Fallons." In these circumstances moving the boundary to show the Fallons as not having any rights to the disputed land would not achieve anything useful at all: it would not be "more accurate" except in the limited sense of according with the paper title; it would not accord with the practical reality on the ground and would, as the Adjudicator said, be "wholly unhelpful" and "would not lead to greater clarity but only to confusion."

38 In my judgment the Adjudicator was right, or at any rate entitled, to regard these considerations as relevant to the exercise of his discretion..."

6.       To make good an argument on this basis requires a finding that there had been prejudice arising from the delay ( Gold Harp above) or detriment sufficient to make out an estoppel ( Fallon). It appears that delay on its own is insufficient as a matter of law, no matter how long it continues, unless perhaps in gives rise to a claim of adverse possession (which does not arise in this case following Parshall). No prejudice arising from the delay is identified by the Respondent or found - see below at paragraph 30. It seems to me that delay may be a factor if ultimate relief were an injunction against trespass (as in Fallon), but in this case ultimate relief would be an order for possession on the strength of the rectified registered title, and this would not be barred absent adverse possession.

7.       It follows that the reference turns on the proof as a matter of fact of a mistake in the original registration of Mr Mohammed Rashid, and whether the Respondent can be impugned for fraud or lack of proper care causing or substantially contributing to the mistake, or it would for any other reason by unjust for the alteration not to be made. In short, the reference is very fact specific.

Factual Matters

8.       In this reference the facts are very hard to determine, not just because of the many and extensive disputes between the parties, but also because neither side appears to have maintained a consistent approach to the interests asserted in the Property. It follows that there is not open to the Tribunal a simple acceptance of one party's case against the other. I will start, therefore, by setting out a chronology based on contemporary documentary evidence (with trial bundle references) and undisputed facts:

23 March 1982 Transfer executed of the Property from Mohammed Ajaib to Mohammed Akram [G20]

23 August 1982 Transfer executed of the Property from Mohammed Akram to Mr Mohammed Rashid [G20]

1982 Applicant goes into occupation of the Property

1983 Applicant obtains grant from Birmingham City Council for extensive renovation of the Property. Applicant housed elsewhere by Council whilst works completed. At least £8,000 is spent and the Applicant contributed 10% of this

28 February 1984 Registered title shows Mohammed Shabir registered as proprietor [C43]

20 November 1985 Applicant registered as proprietor of the Property [C43]

9 April 1987 Mr Mohammed Rashid applies to register a caution against the Property as "beneficial owner" [C13-C14]

2 April 1988 Police interview with Applicant in which he states he owns the Property [C73] in partnership or jointly with Mr Mohammed Rashid, each contributing £2,500 of the purchase price [C76]

3 November 1988 Applicant objects to caution [C17]

30 November 1988 Mr Mohammed Rashid provides witness statement to the Land Registry stating he purchased the Property in Summer 1981 for £5,500, and allowed the Applicant to live there. He states that registration to a third party has now been rectified and that he is beneficial owner [C19-C20]

17 March 1989 Date stamp in passport that Applicant states shows he entered Pakistan [added to bundle and discussed below]

30 March 1989 Affidavit given in England in name of Applicant in which he states he paid one-third of purchase price of Property and Mr Mohammed Rashid paid two-thirds. He states that upon receipt of £8,000 he will give vacant possession and sign the transfer of the Property to Mr Mohammed Rashid. Applicant denies his signature on this document [D6]

31 March 1989 Statutory Declaration in the name of the Applicant in which he states he was a licensee at the Property and will transfer it to Mr Mohammed Rashid on 31 March 1989 and will give vacant possession no later than 30 September 1989. He requests registration in name of Mr Mohammed Rashid. Applicant denies his signature on this document [D4]

13 April 1989 General power of attorney given by the Applicant to Mr Mohammed Rashid. Applicant denies his signature on this document [D4]

13 April 1989 Statutory Declaration in the name of the Applicant in which he states he held the Property as nominee and on trust for Mr Mohammed Rashid and that Mr Mohammed Rashid paid all the purchase price. The Applicant is now transferring the Property back to Mr Mohammed Rashid and will give immediate vacant possession. He requests registration in name of Mr Mohammed Rashid. Applicant denies his signature on this document [D5]

13 April 1989 Transfer from Applicant to Mr Mohammed Rashid in consideration of "the agreement of the Transferor to transfer the property formerly held by the Transferee. As trustee" (the last two words in manuscript). Applicant denies his signature on this document [D1-D2]

18 May 1989 Mr Mohammed Rashid registered as proprietor of the Property [C44]

30 June 1989 Date stamp in passport that Applicant states shows he left Pakistan [added to bundle and discussed below]

25 October 1989 Transfer of Property from Mr Mohammed Rashid to Respondent as gift [G17]

1 November 1990 Registration of Respondent [G17]

9.       At the trial of this matter I heard oral evidence from the Applicant, the Respondent, Mr Mohammed Rashid and Mr Abid Hussain (a witness to the statutory declaration and power of attorney dated 13 ^th April 1989, when he was known as Habad Hussain). I also read in the trial bundle the expert handwriting reports on the disputed signatures provided by Ms Margaret Webb for the Applicant dated 31 ^st May 2013 and Ms Kate Strzelczyk for the Respondent dated 24 ^th October 2014. Neither were called to be cross-examined, no doubt because they fundamentally agree: Ms Webb concluded that the signatures on the two statutory declarations, and the transfer of 13 ^th April 1989, on the balance of probabilities are not those of the Applicant. Ms Strzelczyk considered these same three to be forged and the signatures on the affidavit of 20 ^th March 1989 and the general power of attorney on 13 ^th April 1989 (which Ms Webb had not been asked to consider). She also considered that there was "some moderate evidence" for a common authorship of the forged signatures.

10.   The Applicant's case before me was as follows: He was from the same village in Pakistan as Mr Mohammed Rashid and they knew each other well. He moved to England in the 1960s and his family was allowed to join him from 1980. He was looking for a family home. Mr Mohammed Rashid assisted him in finding a property in Birmingham and he paid him £5,000 for it in about 1982. The Applicant and his family lived at Mr Mohammed Rashid's house for a few weeks prior to moving into the Property. The transfer into the Applicant's name was delayed by the seller for a few years, but in 1983 he had obtained a renovation grant eventually totalling about £11,000 and he paid the 10% required to release the funds. He did not take seriously Mr Mohammed Rashid's claim to an interest in the Property and they fell out when a caution was registered in 1987. His wife fell ill and he took her back to Pakistan in 1989, but during his absence Mr Mohammed Rashid had his signature forged and the Property was transferred from the Applicant's name. Mr Mohammed Rashid telephoned to tell him that he was not to return to the Property. When he returned to England later in that year he dared not return to the Property in case trouble arose and he was deemed to be in breach of a suspended sentence. The police told him title to the Property was a civil matter, but a solicitor he approached said he had insufficient evidence to support a claim. After months in a hostel, Birmingham City Council rehoused him and his family. In 2011 his father died and in sorting out his father's papers in Pakistan various of the forged documents were found. The Applicant may well have given them to him without realising their significance as he neither spoke nor read English and was illiterate in Urdu also. The documents, however, prompted him to go to his current solicitors in England and pursue this claim.

11.   The Applicant was taxed in cross-examination over why he had provided his passport to demonstrate his absence abroad at the time the disputed documents were executed so late in these proceedings, in photocopy form only and then with only some of the pages. He had given in chief a lengthy explanation of how a copy existed, in part only, in Pakistan, where it was used in support of a transaction. He effectively said he chanced upon the copy only a few weeks ago. He was unshaken by the cross-examination, largely explaining matters by saying that the Passport Office had retained the original and the copy was partial because that is what the lawyer happened to duplicate at the time of the transaction for which it was needed.

12.   The Applicant was less satisfactory in explaining how he came to tell the police in 1988 that he had paid half of the price for the Property and Mr Mohammed Rashid the other half. The interview was the result of a drugs raid on the Property and he did not dispute that he said what was recorded: he could hardly do otherwise, since he had it translated to him and he signed the transcript. The Applicant said, however, that he had lied to the police about the money for the purchase. He now said he saved money from working since he came to England in 1964. He also mentioned an insurance claim after a burglary.

13.   Given his assertion of illiteracy in English and Urdu, the Applicant was pressed on how the documents he now says were forged, including the statutory declarations, were discovered by him in 2011. He explained that his late father was also illiterate and kept all documents for them both in a suitcase. On his death, as the eldest son, he had deal with matters in Pakistan and had the assistance of the better educated Mr Mohammed Sajit. He offered no explanation for why the documents concerned had ended up in Pakistan, but observed that he had not been aware of them before discovering them in his father's papers in 2011, so he could offer no explanation in the circumstances.

14.   In respect of his inaction on his brief return to England in 1989, and final return in 1990, he explained as already set out, that he had been told by Mr Mohammed Rashid by telephone that the Property was now in his name. The Applicant was then brushed off by the police, and a solicitor he visited on a free consultation was not interested without documentary proof for his contentions. The Applicant said that Mr Mohammed Rashid had made it clear to him that he had all the papers necessary for what he had done, and he described himself when challenged about this as "scared" to dispute this. He was told by the solicitor he visited that possession of keys for the Property was insufficient. He dared not go to the Property as he was subject to a suspended sentence and feared trouble. As a result, he was in no position to press matters or, it seems, seek Legal Aid for further investigation. He lost the possessions he left in the Property. All these points he maintained in cross-examination. He also denied receipt of £1,000 for his interest in the Property, once his share was valued at £12,000 and rent free occupation was deducted. He denied he was in the country when the documents were all signed and asserted their forgery.

15.   The Respondent then gave evidence but was substantially dependent on his father's word to explain what happened in the 1980s, when he was still young. He asserts that the parties are related through their grandparents, which along with friendship explains why Mr Mohammed Rashid was so willing to help the Applicant in the early 1980s. He states that Mr Mohammed Rashid negotiated the purchase of the Property for £5,500 specifically as an investment for the Respondent and his siblings, but allowed the Applicant to move in to the Property to relieve crowding in their shared home. This was an informal arrangement.

16.   In explanation of how the Applicant became registered proprietor, the Respondent in his Statement of Case states:

"the Applicant was taken to a meeting with Mr Smith and my father and because my father was having problems with Mr Ajaib signing over and forwarding the transfer deed to the property passed off the Applicant as himself as he thought that as the Applicant by this time was living in the property this would have more mileage in ensuring the deeds that were being withheld by Mr Ajaib would be more quickly transmitted to Mr Smith as Mr Ajaib believed that my father was living in the property rather than this being an investment property for him. Consequently it was arranged that the Applicant would be passed off as being my father so far as the solicitor and Mr Ajaib was concerned as they happened to share the same name in any event. Mr Smith agreed to act for the Applicant believing this was my father."

Despite the apparent instruction of a solicitor, the Respondent states Mr Mohammed Rashid paid cash direct to Mr Ajaid and without taking a receipt. Matters did not complete until 1985; long after payment by Mr Mohammed Rashid and occupation by the Respondent. The caution was placed on the Property when the Applicant refused to transfer it to Mr Mohammed Rashid, but the Respondent states that the Applicant did not object to this (notwithstanding clear documentary evidence to the contrary).

17.   Dealing with events in 1989, the Respondent stated that the Applicant wanted half the Property's value of £24,000. This was agreed, then Mr Mohammed Rashid a few weeks later wanted account to be taken on the Applicant's rent free occupation since 1982, leading to payment of £1,000 only. This was paid on receipt of the Statutory Declaration of 31 ^st March 1989 from the Applicant. The Respondent stated Mr Mohammed Rashid recalled the Applicant signing the Statutory Declaration as licensee, and the transfer and Power of Attorney on 13 ^th April 1989; the latter being used so that Mr Mohammed Rashid could instruct solicitors in the transaction. Indeed, his case is that all the documents are genuine that have the signature of the Applicant. The handing over of the police interview transcript is said to demonstrate that the parties remained close after the caution had been registered and Mr Mohammed Rashid remained a trusted advisor of the Applicant and others in the community.

18.   In cross-examination, the Respondent confirmed that the primary source of his information was his father; especially for the details of the purchase, as he was not involved in this himself. The Respondent did enlarge on the detailed statement of case, though, in saying that he had witnessed money changing hands between his father, Mr Mohammed Rashid, and the Applicant for vacant possession. He could not remember the amount, but it was in the region of £1,000. It was handed over at his home and when a Statutory Declaration was signed by the Applicant.

19.   Mr Mohammed Rashid then gave evidence. He lives with the Respondent. His statement details the valuation of the Property in 1989 at £24,000 and the Applicant's half share of £12,000. He states he had £4,000 in cash and needed to borrow £8,000 by way of a personal loan from Sardar Raja Razaq (since deceased) of Coventry. Mr Razaq wanted proof that the money would be paid in respect of the Property, hence the sums appearing in the Affidavit of 30 ^th March 1989. He stated that he knew the description of contributions to the purchase price in that document was false, but did not take the point and he "had no interest in the veracity of this document". Less than two weeks later, though, he took issue with the rent free occupation and the Applicant agreed to receive only £1,000.

20.   In cross-examination Mr Mohammed Rashid was taxed on the contents of a letter, written on his behalf by Cottams Solicitors Limited, dated 20 ^th August 2012, where it was stated that the Property was put in the Applicant's name in 1985 "because [Mr Mohammed Rashid] thought that the property may have more value with a tenant in the property having the freehold in his name as [the Applicant] then occupied this property as a tenant upon its purchase." Mr Mohammed Rashid accepted that the Applicant was not a tenant paying rent, but there free of charge. He could not explain the absence of mention of the Affidavit of 30 ^th March 1989 or the £1,000 paid to the Applicant, stating he gave Mr Cottam instructions and it was up to him what he put in his letter.

21.   Mr Mohammed Rashid proceeded to disavow the Respondent's statement of case in respect of the Applicant pretending to be Mr Mohammed Rashid before the solicitor, Mr Smith. He also agreed with the Applicant, that he had contributed nothing towards the renovation and the Applicant paid the 10% contribution. In respect of the Affidavit suggesting the Property was held in unequal shares, he observed this was not his document and it was not his responsibility to get the facts in it correct. His sole interest was to obtain the £8,000 which, he states, the Applicant and he collected together two weeks later. When the Applicant came for his full £12,000, which he demanded, Mr Mohammed Rashid refused to give it to him on the basis of rent free occupation and he took £1,000 after signing the Statutory Declaration which was dated 31 ^st March 1989. He insisted all documents were signed by the Applicant, and explained that they were drafted somewhat informally to save on solicitor's charges. He had one witness attending to attest to the signatures and had tried to have Mr Khan attend (and for which a witness summons was obtained), but he was now refusing to get involved as he was in a difficult position between the parties.

22.   In re-examination, Mr Mohammed Rashid suggested that the reason for putting the Property in the Applicant's name was because Mr Ajaid would otherwise exploit the situation to get possession. He suggested that the Applicant wanted a reward for his part in doing this, hence claimed an interest in the Property.

23.   Mr Abid Hussain was called and confirmed his statement that he had "no specific recollection of these documents [the Statutory Declaration and Power of Attorney dated 13 ^th April 1989] or the circumstances in which they may have been signed", but he had signed them in the form of his name before he changed it by deed poll. In chief he then said he recalled the presence of the Applicant and Mr Mohammed Rashid when he signed, albeit events took 5 to 10 minutes many years ago. Unsurprisingly, he was pressed as to his recollection in cross-examination, but he said he merely did not recall the background circumstances. He added that Mr Mohammed Yasin Khan was also present.

24.   It can be appreciated that little is agreed between the parties, and the cases presented are not consistent even within themselves. The Applicant asserts he paid £5,000 for the Property to Mr Mohammed Rashid, but he was plainly willing to tell the police he had only paid half that sum. Mr Mohammed Rashid says he paid £5,500 for the Property, but disputes the circumstances of the registration in the name of the Applicant advanced by his own son the Respondent (who said he relied upon what Mr Mohammed Rashid had said) and denied the tenancy set out in the letter from Cottams Solicitors on 20 ^th August 2012 (even though this can only have been drafted on instructions and the detail in the letter is notable). Whilst plainly against this background of contradictory statements, it is necessary to make findings only with considerable caution, it seems to me that the following is made out on the balance of probabilities.

25.   I consider it immaterial whether the Applicant and Mr Mohammed Rashid were related or merely from the same village and friends. The evidence is that Mr Mohammed Rashid was a man valued for his advice and assistance, and on very good terms with the Applicant. I do, however, consider it more likely than not that they were distantly related.

26.   I see no reason to disbelieve the Applicant that he turned to Mr Mohammed Rashid to assist when he needed housing, and on balance I consider it more likely than not that this extended to Mr Mohammed Rashid assisting in finding the Property. I do not, however, consider that it is at all likely that Mr Mohammed Rashid would have housed the Applicant for nothing for the period 2002 to 2009. This appears to me inconsistent with the character of Mr Mohammed Rashid who, on his own case borrowed and then retained £8,000 on the strength of an Affidavit he knew to be false in its content, and considered it appropriate then to reduce the payment to the Applicant from £12,000 to £1,000. Whilst I will reject that these precise circumstances arose, for reasons I will set out below, the fact that he was willing to assert them, suggests to me that such rent free occupation, even by a distant relative, would not have been acceptable to Mr Mohammed Rashid for any significant period of time, let alone seven years. The circumstances of occupation without payment of rent or licence fee clearly supports the Applicant's case.

27.   In the police interview, when the Applicant was trying to explain away how he could afford to buy a house for £5,000 in 1982, I note that he still asserted that he paid half the price of the Property. I accept that he was under pressure and knew that he needed to explain where his money for the house came from in the circumstances of allegations relating to drugs, but if he had really contributed nothing towards the purchase of the Property, I consider it likely he would have said so then. Indeed, the inaccurate terms of his statement to the police (by which I mean any understatement of his own interest in the Property) may explain why the Applicant provided Mr Mohammed Rashid with a copy of his statement at the time, since it forewarned of what he had said. The provision of the statement may also suggest that the Applicant and Mr Mohammed Rashid were on good terms notwithstanding the caution recently placed on the Property, but it is unclear to me when the Applicant discovered the caution and it was not long afterwards that it was disputed by him. In any event, whilst it seems to me that the police interview supports a finding of an initial payment from the Applicant without necessarily resolving whether that was some or all of the asking price, the treatment of the renovation grant suggests that the Property was entirely the Applicant's: there is no dispute that the Applicant paid 10% of the cost of renovation to obtain a grant to renovate the Property. He says that more than the original £8,000 intended was spent, and gives a total of £11,000. I see no reason to doubt his evidence on this point. The laying out of the grant and contribution on the Property by the Applicant not only suggest that he was substantially the owner of the Property at the time, but the absence of any payment by Mr Mohammed Rashid suggests that he had no interest therein at all. Consequently, on the question whether Mr Mohammed Rashid contributed to the purchase of the Property, on the balance of probabilities and despite the Applicant's statement to the police, I consider that he did not.

28.   Another reason for preferring the Applicant's evidence to that of the Respondent is the implausibility of Mr Mohammed Rashid's description of events in 1989. I cannot disregard the expert evidence that all five key signatures (the Affidavit, the Statutory Declarations, the Power of Attorney and the Transfer) were forged and did not correspond to the various sample signatures of the Applicant. This was reasonably obvious even to the untrained eye. There is no evidence to contradict the statement of the Applicant that he is illiterate and nothing to suggest he ever varied his signature, such as it was. The copy passport evidence I find supports the Applicant's longstanding case that he was absent abroad at the time that the documents were signed. Whilst it appears unsatisfactory that a partial copy has appeared late in these proceedings, I accept the evidence of the Applicant that the pages do relate to his passport and are properly copied from it. The alternative, that this was a fabrication from more than one passport where a third party happened to be in Pakistan at the relevant time, appears to me improbable. I accordingly reject the evidence of the Respondent that he witnessed £1,000 change hands between Mr Mohammed Rashid and the Applicant at or about the end of March 1989. It does not even fit with Mr Mohammed Rashid's oral evidence, that the Applicant wanted the full £12,000 and the £8,000 loan was collected two weeks after the Affidavit was made (hence just before the transfer). I consider it more likely at this remove of time that the Respondent has either not told the truth in respect of this recollection or reconstructed it after the event and during this dispute. I also reject the evidence of Mr Abid Hussain: he flatly contradicted the terms of his own statement and embellished his evidence (such as it was). At no point did he explain how he knew who the Applicant was at the time of signing. I find, on the balance of probabilities, that the Applicant was, as he says, abroad when the documents were executed and his signatures were therefore forgeries. The most likely reason for this to be done was that the Applicant was the true owner of the Property.

29.   This still leaves the curious circumstances of how the Applicant came to be in possession of documents he now relies upon to challenge the title first acquired by Mr Mohammed Rashid. On balance, I accept the Applicant's description of events immediately following the forging of his signature: I consider that Mr Mohammed Rashid probably did telephone him and warn him that the Property was no longer his. I consider that then, as now, Mr Mohammed Rashid considers he has some entitlement to the Property through finding it for the Applicant and assisting in him securing registration against a seller who was reluctant to complete the transaction and delayed it for years. Perhaps he did consider it half his, which may have some support from the documents I find that Mr Mohammed Rashid had drawn up to support his case, and which were rapidly and progressively drafted in his favour. The Applicant and Mr Mohammed Rashid had been in dispute since the caution was challenged and it seems to me plausible that Mr Mohammed Rashid would assert his triumph and wish to keep the Applicant from returning now that he was indefinitely in Pakistan. I also note that Mr Mohammed Rashid may have felt he enjoyed a considerable advantage in having produced the documents and felt that their existence, demonstrated by sending them to Pakistan, would strengthen his position. On balance I find that the Applicant, if he saw the documents at all, did not appreciate their importance. On his return to England, the Applicant's description of being brushed off by police on the basis this was a civil matter and a solicitor on the basis there were no documents in corroboration, to be believable and to be an unlikely invention. The dismissal of the possession of keys is similarly plausible. Indeed, it is hard to see what would have prompted the Applicant to his current action, but the late discovery of the documents required to support his case. By reason of my finding that the Applicant lied to the police concerning the purchase of the Property, I have to treat his oral evidence with considerable caution, but in the context of his forged signatures and passport evidence, I consider it is open to me to accept his evidence on these events.

30.   In the circumstances, I conclude that the registration of Mr Mohammed Rashid on 18 ^th May 1989 was a mistake. Although the Respondent is now the registered proprietor and I find to be in possession of the Property, I consider that he cannot be dissociated from the fraudulent forgery of the Applicant's signature on key documents, including the transfer. He has fully associated himself with the actions of his father including by his joining in the story about the payment of £1,000 in cash to the Applicant, which I find to be untrue. At the least, he has by lack of proper care caused or contributed to the mistake by his acceptance of registration in his own name. Even if I were wrong so to conclude, I consider that the circumstances are such that it would be unjust for the alteration not to be made, given the involvement of the Respondent with his father in this matter and the manifest injustice of the Applicant being deprived by forgery of the Property he bought and had renovated. I also find that there are no exceptional circumstances justifying not making an order: there has been delay in making the rectification application, but only delay and nothing prejudicial to the Respondent. This is not sufficient to refuse relief to the Applicant, especially where I have found that the beneficial interest reposed entirely with the Applicant (a key matter in dispute). Indeed, the delay was not the fault of the Applicant who, I find, sought to pursue his rights immediately on his return to England in 1990, but found that the absence of documents stymied him. Those documents came into the possession of his father, but with them both being illiterate in English this disadvantage cannot properly be prayed in aid by the Respondent, especially when known at least to Mr Mohammed Rashid.

31.   In all the circumstances, therefore, I will direct that the Chief Registrar give effect to the Applicant's application and the registered title be rectified to record the Applicant as registered proprietor of the Property.

32.   In respect of costs, these should usually follow the event, meaning that the costs of Applicant should be paid by the Respondent (unless some appropriate offer was made prior to this decision being given, which seems highly unlikely given the nature of the material placed before me). The Applicant should accordingly provide a schedule of those costs to the Tribunal and the Respondent within 21 days, and the Respondent should provide any objection to the award of costs or the items comprising costs to the Tribunal and the Applicant's solicitors within 21 days thereafter. Any reply to the Respondent's submissions should be made to the Tribunal and copied to the Respondent within 7 days thereafter. The decision on costs will then be made on the papers.

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ORDER

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Upon the trial of this Reference

 

And upon hearing Counsel for the Applicant and Counsel for the Respondent

 

The Chief Land Registrar is directed to give effect to the Application made by the Applicant for rectification of the Register and dated 12 ^th September 2013 by reinstating him as registered proprietor of 40 Henley Street, Birmingham B11 1JA, registered title number WM311810, in substitution for the Respondent.

 

Dated this 31 ^st March 2016

 

 

 

 

By Order of The Judge of the Property Chamber of the First-Tier Tribunal