REF/ 2015/851

 

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

 

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

 

 

 

BETWEEN

RAM SINGH DHIMAN

APPLICANT

 

And

 

KALDEEP SINGH DHIMAN

 

 

RESPONDENT

 

Property Address:  46 Abbots Road, Southall UB1 1HT

Title Number: MX158522

 

 

 

Judge Stephanie Tozer

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

 

KEYWORDS – Rectification – Alleged forgery

 

 

Introduction

 

1.      This is a sad family dispute, concerning a property known as 46 Abbots Road, in Southall (“the Property”).   The Property is registered under title number MX158522.  Since July 1990, the registered proprietor has been Kaldeep Singh Dhiman, whom I shall call “Kaldeep”.  Kaldeep is the Respondent in these proceedings. 

 

2.      It is common ground that the property was purchased in 1965 by Kaldeep’s father, Ram Singh Dhiman, who I shall call “Ram”.  Ram is the Applicant in these proceedings.   Ram alleges that Kaldeep forged his (Ram’s) signature on a transfer in form TR1 dated 5 July 1990 (“the Transfer”).   The Transfer suggests on its face that Kaldeep paid £75,000 in consideration of the Transfer, but it is common ground that such a payment was not in fact made.  

 

3.      The essential question for me to decide is whether Ram did or did not sign the Transfer. 

 

4.      At a hearing on 12 and 13 April 2016, at which both parties were represented by experienced Counsel and solicitors, I heard evidence from the parties, a number of other family members and friends, and hand-writing experts called by each of the parties.  Having heard that evidence, and read the written closing submissions submitted by Counsel on each side, I find that the following events occurred.

 

The Facts

 

5.      Ram married his wife, Charan, in the Punjab in or about 1951. 

 

6.      In 1963, Ram came to England for the first time. At this stage, had 3 children: a daughter Simran, a son Makhan, who was then 8 or 9, and Kaldeep, who was then 4 or 5.  Charan stayed in India with the children. 

 

7.      Ram returned to India in, I think, 1965 because Makhan was ill.   He then brought Charan, Makhan and Kaldeep to England, leaving the eldest child, Simran, in India, as she had recently got married.

 

8.      In May 1965, Ram purchased the Property.  The family thereafter lived in the Property.  In 1966, another daughter, Nirmal, was born.  In 1977, Makhan married, and his wife, Inderjeet, moved in too. 

9.      Makhan and his wife had a child shortly afterwards.  There were now 5 adults (Ram, Charan, Makhan, Inderjeet and Kaldeep) and 2 children (Nirmal and Makhan’s baby) living in the Property, which is a 3 bedroomed terraced house.   

 

10.  Ram and Charan discussed the idea of buying a house for Makhan and his family. 

 

Purchase of no 37

 

11.  In April 1980, there was an auction at which a house known as 37 Abbotts Road (“no 37”), which was opposite or very close to the Property, was up for sale.  It was common ground that someone in the family attended the auction and bid £25,000 for no 37, and that bid was successful.  Kaldeep said that he went to the auction with his father and the bid was made in his name.  Makhan and Ram said that they went to the auction, with the Johal family.  After the evidence had concluded, additional documents came to light about this, including a memorandum of sale in Kaldeep’s name.  For this, and other reasons, I prefer the evidence of Kaldeep on this point.  I accordingly find that he attended the auction with his father, and that his name was initially recorded as the purchaser, and that Makhan did not attend the auction.   However, I do not accept that Kaldeep did not know at this stage that the purpose of purchasing this house was to provide a home for Makhan and his family.  There would have been no reason not to tell him this, and had he thought about why his father wanted no 37 to be purchased he would surely have worked it out.   

 

12.  Kaldeep explained that they had to complete the purchase within a month.  At the time, Kaldeep was in the last year of a 5 year course at a further education establishment.  His tuition fees were paid by the local authority, and he also received a maintenance grant of £1,000 per annum, for each of the 5 years that he was a student.  He was of course still living at the Property, the family home, so did not need to spend this money.   That £5,000 was therefore available.  Kaldeep said that his father had savings of a further £7,500, and that his father borrowed the remaining £12,500 from a family friend, Banta Singh.  All this I accept.  I also accept that Kaldeep never considered that he had a share in no 37 by reason of “his” grant money being used, and never asked for the money back.  I suspect that Kaldeep did not even view the money as “his” – it was after all to be used for his maintenance during his studies and his parents had been maintaining him because he still lived in the family home.  

 

13.  But, Banta Singh needed to be repaid.  At some point, perhaps before completion, perhaps after, it was therefore agreed that Makhan (who was working) would obtain a mortgage for £12,500.  The property was put into Makhan’s name, and he did obtain this mortgage, and then service it.  I therefore find that the purchase of no 37 was funded as follows: Ram put in £12,500, including the £5,000 from Kaldeep’s maintenance grant, and the other £12,500 was raised by Makhan mortgaging the house to Abbey National. 

 

 

Subsequent Events

 

14.  Kaldeep married in July 1981.  His wife moved into the Property.  2 children followed.  Nirmal moved out, when she herself married, in 1985, so thereafter Kaldeep and his family and Ram and Charan lived together at the Property. 

 

15.  The mortgage on the Property was discharged in or about 1987.   

 

 

The Transfer

 

16.  Charan says that in June or July 1990, she and Ram discussed transferring the Property to Kaldeep’s name.  

 

17.  Kaldeep says that he was told about this at that time too, and that his father indicated that he would get solicitors to draw up the necessary paperwork.  He said all banks and solicitors in Southall have staff who speak Punjabi so it would not have been a problem for Ram to do so.  He says that he (Kaldeep) was not involved in going to the solicitors at all – but that it was agreed that he would discharge the fees, so that is why the completion statement (which was dated 5 July 1990) was addressed by Hill Lawson to him.

 

18.  Kaldeep says that Ram went and got the Transfer from Hill Lawson, which was only a few minutes from the Property, and that it was signed on 5 July 1990, and Ram’s signature was witnessed by Shirley Perera.  Kaldeep says that he was also present and saw this occur.  Charan says that she was there too, though no-one else says she was.  Although Ram’s Counsel attempts to make something of this, I am not persuaded that this suggests that the entire event did not occur.  She might well have been there, but since she did not play any active role in what took place, no-one else can remember that she was.  Kaldeep, Shirley and Charan all agree that it was signed at the dining room table.  No detail about this alleged meeting was provided in the evidence, for example what time of day it took place.  Mr Perera could not recall whether he had been phoned just before or the day before to come round.  The lack of detail did not help to persuade me that the witnesses were recounting an event they could recall, rather than sticking to a script they had learned.  However, I bear in mind that Ram’s Counsel had the opportunity to try to trip them up by asking them about the details to see whether they gave consistent answers, but elected not to do so.  The witnesses might have been able to give consistent answers if they had been asked, but they might not have done.  I cannot therefore draw any conclusions about that.   

 

19.  I was also not able to understand why, on Kaldeep’s case, Ram brought the Transfer home at all – he could simply have signed it at Hill Lawson, rather than bringing it home, calling Mr Perera round and then taking it back the next day.  It is possible that Kaldeep is wrong about Ram collecting it, and it had in fact been posted to Ram for signature. 

 

20.  But, it seems to me far more likely that Kaldeep instructed Hill Lawson, Kaldeep collected the documents and brought them home, and Kaldeep called his friend Shirley Perrera to witness the signature.  Given the allegation that is being levelled against him, it is, in my view understandable, that Kaldeep was reluctant to admit that he had played so active a role in organising the transfer.    

 

21.  I set out below my findings as to whether Ram did execute the Transfer. 

 

22.  The documents show that on 9 July 1990, Barclays Bank plc drew a cheque for the sum owing on the completion statement (which was the stamp duty and fees), and someone took this to Hill Lawson on that date.  

 

23.  On 25 September 1990, Hill Lawson wrote to Kaldeep advising him that registration in his sole name had been completed, and asking him if he wanted to collect the Land Certificate or if they should post it to him.  Someone attended at Hill Lawson the next day and collected it.  Hill Lawson obtained a signed receipt (which indicated that the documents were being collected on behalf of Kaldeep) for it.  The signature appears to be Ram’s.  I find that it was Ram who collected the documents.  There was no need for Kaldeep to arrange for someone to pretend to be Ram and collect the documents rather than having them posted to him as Hill Lawson had offered. 

 

Subsequent Events

 

 

24.  In 1995, the mortgage of no 37 was paid off, by a lump sum of over £12,000.  There was a dispute between Charan and Makhan as to whether this was paid for by Ram and Charan or Makhan.  Ram’s Counsel complained in his closing submissions that no questions were put to Makhan in cross-examination in respect of the mortgage on no 37.  But, my note of his evidence includes the following: “I paid for mortgage – paid from savings”, so it seems to me that he was asked something about how the mortgage was paid off.  Strictly I do not need to decide this, but on the basis of the material before me, it seems more likely to me that Ram and Charan paid it.  Charan struck me as an honest witness, with good recall of key events, even if she was sometimes mistaken about details.  On the other hand, Makhan’s evidence about important matters, like the purchase of his own home, was wrong. 

 

25.  Kaldeep and his family emigrated to Canada in 1999.  Ram’s Counsel suggested that Kaldeep would not have emigrated if the Property had been transferred to him, not least because he would have felt a moral obligation to remain there with his parents.  But Kaldeep and his family did come back 5 years later, precisely because the health of his parents was failing, and in the interim his wife had had long trips to London to look after his parents when necessary.  So, it would be equally possible to argue that the fact that Kaldeep and his family returned is evidence that he did feel under a moral obligation, and suggests that the transfer had in fact happened as he asserts.  In fact, it seems to me that Kaldeep and his family might have felt free to emigrate when their parents’ health was relatively good, and a moral obligation to return when it was not, regardless of whether any transfer of the Property had occurred.  I do not therefore get much assistance from this series of events.

 

26.  At some point before they emigrated, Ram had given Kaldeep £100,000.  There was a dispute as to whether this was intended as a gift or a loan.  Having heard the evidence I consider it more likely that it was a gift.  The impression I had was that, at least then, the family viewed family money as just that.  There was an expectation that the younger generation would look after the elder in their old age, and so Ram and Charan would happily give their children money if they had it to give, and if the children needed it. 

 

27.  Ram and Charan stayed in the Property while Kaldeep and his family were in Canada.  They had a number of health problems.  They complained to Kaldeep that they no one was looking after them, so, as I have already indicated, Kaldeep and his family returned from Canada in 2004, and resumed living in the Property, with Ram and Charan. 

 

28.  I accept that it was commonly understood within the family that no 37 was Makhan’s house and no 46 was or would be Kaldeep’s house.  I do not, however, feel able to accept that Ram ever told anyone that he had already executed a transfer of the house to Kaldeep.  Nobody gave detailed evidence about any particular occasion on which this had been said. 

 

Autumn 2014

 

29.  In September 2014, Makhan caused a Land Registry search to be carried out in relation to the Property. Ram’s evidence was that he did so because Ram had asked him to check whether the Property was indeed in Kaldeep’s name as he was suggesting.  He said that he was shocked to discover that it was.   

 

30.  But, Ram did not, at this stage, complain to anyone of a forgery.  He did, however, start demanding repayment of the £100,000.   It is difficult to see why this should have been linked, but it may be that Makhan persuaded him that it was unfair that Kaldeep should have had a property in Abbotts Road AND £100,000 to invest in Canada, when he (Makhan) had only been given a property in Abbotts Road. 

 

31.  At the end of October 2015, Kaldeep received a letter purporting to be from a Sikh militant organisation threatening that if he did not pay the money back within 15 days, he would not be in a position to read subsequent notices.  Both Ram and Makhan denied that they had organised for this letter to be sent, and I do not make any findings as to whether either or both of them did. 

 

32.  Kaldeep did not pay the money back within 15 days.  There was no evidence that any reprisals in fact occurred.

 

Events in December 2014

 

33.  However, by 1 December 2014, it appears to have been agreed that Kaldeep would repay the money, by 2 cheques addressed to Makhan.   On 1 December 2014, Kaldeep prepared a document for his brother to sign. It was an agreement that if Kaldeep (or his wife) died within 7 years, Makhan and not the estate would pay any IHT arising.  Kaldeep explained that he did this because he thought that it would appear that he was making a gift of the money to Makhan and he did not want to risk that IHT would be payable by his estate in respect of it.  It was suggested that he was trying to hide the true nature of the transaction and that this showed him to be the type of person who would forge a signature on a transfer – but I do not accept this.  It seems to me that, in so far as one can derive anything from it, it rather shows that Kaldeep was not prone to forgery.   If he were, why would he not simply have created this document (and others to support his story) too?

 

34.  Two cheques of £50,000 each made out to Makhan were drawn on 2 December.  I find that on 2 December 2014, there was a conversation between Kaldeep and Ram, in which Kaldeep handed over the cheques to Ram, and asked Ram to make sure that Makhan signed the document before handing over any cheques to him.  

 

35.  Makhan did not sign the document as Kaldeep had requested.  Ram gave the cheques to Makhan.  The first one was cashed the very same day.  The second cleared on 5 December. 

 

36.  Ram left the Property on 5 December 2014.  He says that he did this because Kaldeep threatened him with a knife at his throat, if he did not sign another document which Kaldeep had drafted.  This document was an acknowledgment that he had shared his estate out equally and the sons could not claim against each other or his estate.  It is common ground that Kaldeep asked Ram to sign such a document.  But Kaldeep says that he did not threaten him with a knife at his throat, or at all, and I accept that.  Ram’s account was that he was threatened, but managed to persuade Kaldeep to let him go by saying that he would get Makhan to sign it first.  I find that implausible, because if a person is so determined to secure a signature on a document that they pull a knife on their father, they are hardly likely to be knocked off their course by such a suggestion.  It would have been far more likely that Kaldeep would have insisted that the father sign first, and then would himself have taken the document to Makhan for signature.  Furthermore, the evidence was that Ram left the Property at around 12.30pm, while Kaldeep was at work.  And, there is some evidence that Ram had planned to leave on 4 December, for it appears that by 5 December he had already set up mail forwarding.  And finally, although Ram later suggested to the police that he had reported this assault on 6 December 2015, there was no record on the police computer of a report prior to 15 January 2016. The police indicated that it was inconceivable that it would not have been logged if such a complaint had been made.  The fact that Ram did not complain to the police at the time provides further, albeit limited, support for the view that this event did not take place.  I therefore reject Ram’s account about this.   

 

37.  Why he left the Property, leaving behind his wife of nearly 70 years, is something of a mystery.  As matters stand, Ram lives with Makhan at no 37, and Charan lives with Kaldeep at the Property.  Ram had had his £100,000 back, as he had requested, before he left.  Perhaps they had had a further row because he had not got Makhan to sign the paper about the inheritance tax; or perhaps he took umbrage at being asked to sign the additional document about his estate.  I do not know.  I cannot draw any conclusions as to why he left. 

 

38.  However, I do wish to make clear that although I have rejected Ram’s account about the knife threat, that does not mean that I reject his account in its entirety.  I accept that there can be all sorts of reasons why witnesses lie, including seeking to make their genuine evidence more plausible and in order to avoid embarrassment.  As Peter Smith J said in EPI Environmental Technologies Inc and Another v Symphony Plastic Technologies Plc and Another (Practice Note) [2004] EWHC 2945 (Ch); [2005] 1 W.L.R. 345, at 74:

 

“(i) First, it is essential to evaluate a witness's performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence. (ii) Second, witnesses can regularly lie. However, lies themselves do not mean necessarily that the entirety of that witness's evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.”

 

39.  Kaldeep was arrested on 15 January 2015 following Ram’s complaint to the police on that day.  He was detained overnight, and was interviewed.  The notes from the interviews were provided to me.  Ram’s Counsel sought to suggest that it was clear from what he then said, and from the content of the document that he had asked his father to sign, that he was wrong about the dispute about the Property not being raised until after Ram left the Property.  But, I do not accept that.  By the time he was arrested, the dispute about the Property had been raised, in terms, by the men who visited the Property from the temple on 27 December 2014.  And, I can quite see that, even before then, Kaldeep might have anticipated a problem about the Property, given that his father had just demanded that he repay £100,000 which he, Kaldeep, had rightly understood was intended, at the time it was given, as a gift.  I found Kaldeep’s evidence that Ram had not raised any issue about the Property until after he left credible, and I accept it.    

 

Events in December 2015

 

40.  The Applicant called a witness, a Mr Pritpul Chaggar, who asserted that he had listened in to a conversation between Ram, Charan and Nirmal at no 37 (via Makhan’s mobile phone).  He suggested that during this conversation, Charan and Nirmal indicated that Kaldeep was prepared to apologize for the forgery, and to offer £300,000 towards the purchase of a new house for Ram and that if Ram did not accept, they would make false statements in support of Kaldeep.  Charan and Nirmal both denied that any such conversation took place.   I accept their evidence on this point, and reject the evidence of Mr Chaggar.  Mr Chaggar took no contemporaneous notes, nor did he record the conversation – although he works in IT security, and had recorded a separate conversation (when he attended at the Property with the police) on his mobile phone.  I do accept that it is likely that Charan and Nirmal might have tried to end the dispute by talking to both Kaldeep and Ram, but that does not take me any further in terms of deciding the key issue. 

 

The Expert Evidence

 

41.  In addition to the factual witnesses I heard, I heard from Mr Adam Brand, a graphologist, and Mr Michael Ansell, a forensic scientist.  Both of these gentlemen made clear that it was not possible for them to draw firm conclusions since they had only been supplied with copy documents (so many of the tests that they might otherwise have undertaken could not be done).    Neither of them considered that there was firm evidence that Ram did or did not sign the Transfer.  Mr Brand’s view was that there was slightly more evidence that Ram had not signed the Transfer; Mr Ansell felt there was slightly more evidence that Ram had done so.  Mr Brand also said that he thought the Hill Lawson receipt dated 26 September 1990 was not signed by Ram.  Mr Ansell felt it was. 

 

42.  As I have indicated, neither expert felt that it was possible to be sure about the position.  As they both noted, they had just one poor copy of a contemporaneous known signature (on Ram’s passport).  There were some similarities and some differences between the signature on the transfer and this signature (and later signatures). 

 

43.  I bear in mind also that Ram told me that he was “not a literate person”.  As both experts said, signatures do vary, depending on a whole host of factors, such as writing materials, the formality of the document being signed, posture and so forth.   Given the small sample of known signatures, the unavailability of the original and the fact that neither expert was able to go further than express a view on the balance of probabilities, I do not consider that I can draw any conclusion from the expert evidence as to whether Ram did or did not sign the Transfer.   What I mean by this is that although, as between the 2 experts, I preferred Mr Brand’s evidence, I do not consider that that he was sufficiently certain in his conclusions that I should give much weight to that evidence, as compared with the factual evidence. 

 

Conclusions

 

44.  Having considered the factual evidence carefully, I find that Ram did sign the transfer, for the following reasons:

 

(1)   Ram is an elderly, ill gentleman.  Although I had no medical evidence about his condition, it was evident to me from seeing him give his evidence that he was, on occasion, confused.   Having heard his evidence, I formed the strong impression that he could not, himself, be sure that he had not signed the Transfer, but he had persuaded himself that he had not done so, because he had received Mr Brand’s report (which initially said it was “highly probable” that he had not). 

(2)   The fact that Ram did not, initially, complain of any forgery when he learned in September 2014 that the Property had been transferred to Kaldeep’s name suggests that, at least at that time, he thought he had done so.  

(3)   Ram might well have thought it wise to transfer the Property to Kaldeep so as to avoid any future IHT liability.  I bear in mind that when Kaldeep and Ram attended the auction to buy no 37, the documents were put into Kaldeep’s name initially rather than his own.  To me, this indicates that Ram was aware that it was wise to put some of the family assets into the names of his children.   It is clear that it was, at least initially, treated as a family asset because the rent paid by Mr Perrera for living there was paid to Ram.  Further, it is clear that Kaldeep was aware of IHT later (because he sought to get Makhan to sign the document about it when he paid him the £100,000).  It is likely that if Kaldeep was aware of it, it is something that he would have discussed with his father.  

(4)   Mr Perrera attended to give evidence as to the witnessing of the signature on the Transfer.  It was not suggested to him that he had any motive to lie to me (although I do bear in mind that he has been a friend of Kaldeep’s for many years).  As Mr Hill-Smith says, it would have been easy for him to stay away if he was not comfortable giving evidence.

(5)   Makhan’s evidence about how no 37 came to be bought was wrong.  The initial purchase monies were provided by Ram (and included Kaldeep’s grant monies), and Ram and Charan paid off the mortgage on no 37 after they had transferred the Property to Kaldeep.  Makhan was also wrong that no-one lived at no 37, paying rent to Ram, before he and his family moved in.  

 

 

45.  I will therefore direct the Chief Land Registrar to cancel this application.  That means that Kaldeep will remain the registered proprietor of the Property. 

 

 

Dated this 6^th day of May 2016

 

 

 

By Order of The Tribunal