Fahwad Ahmad Esmaili v Saghia Kauser Zubairi

Cases referred to: Snook v London and West Riding Investments Ltd [1967] 2 QB 786 Vickers v Jackson [2011] EWCA Civ 725 ; [2011] 3 EGLR 65 Fernandes & Fernandes v Cliveden Finance Ltd [2016] UKFTT 325 (PC) in Chopra & Ors v Katrin Properties Ltd & Anor [2022] EWHC 2728 (Ch) Ebanks v Salcombe Road Ltd [2025] UKFTT 924 (PC) Suhitharan v Iwaskiewicz [2025] UKUT 144 (LC) INTRODUCTION

1. The Applicant seeks to have two charges re-registered, or otherwise protected, over a residential property owned by the Respondent. His case is that in 2011 and 2012 the Respondent and her husband entered into two loan agreements, by which he lent a substantial sum of money. The Respondent denies having any involvement with the alleged agreements and seeks to pin the blame on her husband, from whom she is now estranged and who is believed to be currently serving a prison sentence in Sweden. She says that, upon discovering the registration of the two charges after her husband’s arrest, she took action to have them removed. In these proceedings, the Applicant argues that the Tribunal should re-instate them.

2. At the hearing, the Applicant was represented by Mr Dubin, while the Respondent was represented by Mr Otchie. The Tribunal is grateful to both counsel for their extremely helpful written and oral submissions.

3. I will attempt to deal with all the key points in this decision (bearing in mind the Practice Direction on reasons for decisions issued by the Senior President of Tribunals), but the parties can be assured that I have considered all of the points raised, in the written and oral evidence and in the written and oral submissions, when reaching this decision.

4. For reasons that I will explain more fully below, I accept the Respondent’s evidence that she did not sign either charge and was not aware of them until some time later. The first charge was, however, entered into by her husband at a time that they jointly owned the property. It was therefore effective to create an equitable mortgage over his beneficial interest in the property, which continued to be effective once that beneficial interest was transferred to the Respondent for no consideration. This means that there is a mistake on the register in relation to the 2011 charge, but not the 2012 charge. I have decided that, in all of the circumstances of this case, it would be unjust if the register was not altered to reflect the 2011 charge. While I have great sympathy for the Respondent’s position, I do not think that there are exceptional circumstances which would justify not making that alteration. BACKGROUND AND THE PARTIES’ POSITIONS

5. The Respondent is currently the sole registered proprietor of the freehold interest in the property, but prior to 2012 she was a joint proprietor with her husband, Mr Mohammed Aaqab Zubairi.

6. The Respondent’s husband did not play any part in these proceedings, but he is still a central figure in the dispute. He seems to have at some point adopted the name Nadim Ahmed Zubairi, which was effectively his brother’s names in a different order. His brother gave evidence to the Tribunal and said that he was happy to be referred to by his first name. I will therefore refer to the Respondent’s husband as Mr Zubairi, and to her brother-in-law as Ahmed. No disrespect is intended by the informal approach to identifying Ahmed, and the Tribunal is grateful to him for agreeing to be referred to in this way.

7. The Respondent and Mr Zubairi had four children together. The youngest was born in December 2011. Their relationship has, however, broken down and she is now estranged from him. There is evidence that he was found guilty in Sweden of financial crimes relating to VAT, seemingly a missing trader fraud (sometimes known as a carousel fraud) and was sentenced in 2023 to a term of imprisonment of around eight years. The Respondent’s case is that Mr Zubairi’s fraudulent activities have extended to arranging for her signature to be forged on important documents. I was provided with a report of his sentencing which identified the term as seven years and eleven months, and reports of his appeal which say that it was eight years. Although his appeal was partly successful, there is no suggestion in that material that it altered the sentence in any way.

8. The Applicant in this case relies on two deeds presented in Form CH1. The first is dated 30 th November 2011 and purports to be executed as a deed by Mr Zubairi and the Respondent. They are identified as the borrowers, with the Applicant being the lender. Panel 7 of the form sets out that the borrowers charged the subject property by way of legal mortgage as security for the payment of the sums detailed in panel 9. In that panel, additional provisions are set out as follows. “The Borrowers are to pay the Lender the sum of one hundred fifty thousand pounds (£150,000) within two months from the date of this Legal Charge together with interest at the rate of 2% per month.”

9. At panel 8, the borrowers applied to have a restriction entered in the proprietorship register.

10. The Respondent says that she knew nothing about this document and did not sign it. Her signature was purportedly witnessed by a Capil Bhanji. Before moving on to the second Form CH1, there is an important document which the Respondent says that she did sign.

11. This is a Form TR1, dated 15 th November 2012, by which Mr Zubairi and the Respondent transferred the subject property from their joint names into her sole name. Panel 8 of that form indicates that the transfer was not for money or anything that had a monetary value. The Respondent was registered as sole proprietor with effect from 16 th November 2012.

12. The second Form CH1 relied on by the Applicant followed on soon after that TR1. It is dated 28 th November 2012 and again purports to be executed as a deed by Mr Zubairi and the Respondent. In all material respects it is in the same terms as the earlier CH1, save that the additional provisions in panel 9 identify the loan sum as being £300,000, with repayment to be made in six months.

13. The Respondent’s position on this document is much the same as her stance on the 2011 charge: she says that she had nothing to do with it and did not sign it. The apparent witness to her signature was Charles Ewan, a solicitor.

14. The 2011 charge was registered with effect from 28 th November 2012, the same date that the 2012 charge is said to have been signed. It is not clear whether or not this is a coincidence. The 2012 charge was not registered until 14 th July 2020.

15. The Respondent’s position is that she first found out about the two charges in October 2022, following Mr Zubairi’s arrest and search warrants being carried out at the subject property and another address that she was then living in. She applied to have the charges removed. No objection was received by HM Land Registry from the Applicant and so the Respondent’s application was actioned. The Applicant then applied to have a unilateral notice entered and for the subject property’s title to be altered to reinstate the charges. The Respondent objected to that application and the matter was referred to this Tribunal. LEGAL FRAMEWORK

16. The Applicant has applied to have a unilateral notice entered. That is one of the two types of notice which can be entered under Land Registration Act 2002 . The nature and effect of notices is set out in s.32. “(1) A notice is an entry in the register in respect of the burden of an interest affecting a registered estate or charge. “(2) The entry of a notice is to be made in relation to the registered estate or charge affected by the interest concerned. “(3) The fact that an interest is the subject of a notice does not necessarily mean that the interest is valid, but does mean that the priority of the interest, if valid, is protected for the purposes of sections 29 and 30.”

17. The Applicant applies alternatively for alteration of the register to reinstate the cancelled charges.

18. Alteration is dealt with by Sch.4 of the 2002 Act . Paragraph 5 provides that the registrar may alter the register for the purpose of correcting a mistake or bringing the register up to date (amongst other reasons). Schedule 4 is given effect by s.65.

19. In Suhitharan v Iwaskiewicz [2025] UKUT 144 (LC) , the Upper Tribunal emphasised the importance in rectification cases of identifying precisely what the mistake to be corrected is, recognising that sometimes there may be two (or even more) mistakes.

20. The power under para.5 to alter the register is constrained by para.6 where it would amount to rectification. Paragraph 1 provides that alteration is treated as rectification where it involves the correction of a mistake and prejudicially affects the title of a registered proprietor.

21. Sub-paragraphs (2) and (3) of para.6 are relevant here. “(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to land in his possession unless— (a) he 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. “(3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.”

22. In determining whether a registered proprietor is in possession of land, s.131 provides that possession by a tenant is to be treated as possession by their landlord.

23. The Respondent contends that the alleged loan agreements are shams, relying on the classic definition of a sham in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 : “acts done or documents executed by the parties to the ‘sham’ which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create”, per Diplock LJ at p.802D.

24. His Lordship continued at p.802E-F to say that “for acts or documents to be a ‘sham,’ with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a ‘shammer’ affect the rights of a party whom he deceived.”

25. The Respondent relied on the Court of Appeal’s decision in Vickers v Jackson [2011] EWCA Civ 725 ; [2011] 3 EGLR 65 . In that case, the trial judge had found that a charge agreed between the parties was a sham intended to deceive one party’s creditors. The Court of Appeal dismissed an appeal against this decision, holding that the party claiming the benefit of the charge had to show not only that he had that benefit but also that there was money owing to him under the charge.

26. A forged mortgage is generally of no effect in relation to the person whose signature has been forged. If the property is jointly owned and one owner does sign while the other owner’s signature is forged, the consequence is that an equitable charge is created in relation to the interest of the joint owner who did sign, severing the beneficial joint tenancy if necessary: see Fisher and Lightwood’s Law of Mortgages ( 15 th ed.), paras 23.43 to 23.44; Megarry & Wade: The Law of Real Property (10 th ed.), paras.12-039 to 12-040. I discussed a similar point in more detail in Ebanks v Salcombe Road Ltd [2025] UKFTT 924 (PC), at [380]-[395].

27. Returning to the 2002 Act , it is well-known that s.29 provides that where a registrable disposition of a registered estate is made for valuable consideration, completion of that disposition by registration has the effect of postponing to the interest under that dispositor any unregistered interest (subject to certain exceptions).

28. Finally, in terms of the applicable legal framework, it is important to recognise that in determining disputes of fact, the Tribunal applies the civil standard of proof, i.e. the balance of probabilities, or whether something is more likely than not. I explained the approach taken by the Tribunal to evaluating witness evidence in Ebanks v Salcombe Road Ltd [2025] UKFTT 924 (PC), at [67]-[86]. I intend to adopt the same approach here, without needing to repeat everything said in those passages. EVIDENCE

29. In this case, the Tribunal had evidence from six different sources, made up of one expert report and five witnesses who attended for cross-examination. In the following paragraphs, I will make some preliminary observations about each of those witnesses.

30. First, expert handwriting evidence had been provided in a written report from Mrs Thorndycraft-Pope. In her report, she concluded that there was a high probability that the alleged signatures of the Applicant on the two charge documents were her actual signatures. She was not called to give oral evidence, but the Respondent had submitted a detailed list of written questions which Mrs Thorndycraft-Pope had answered.

31. As is normal, the expert had, quite rightly, drawn attention to the practical constraints operating on the exercise that she had been asked to undertake. She addressed these in her report and her answers to supplemental questions. In her original report she pointed out that there were “limitations in the methods” that forensic document examiners were able to employ and that they could only offer opinions that were restricted by the available evidence. She also pointed out that her conclusion on probability of authorship was reduced because she had only been able to inspect copies, rather than originals. In her answers to supplemental questions she indicated that she did not think that her findings would be altered by examination of the original documents, unless those showed some tremor or hesitation in the penlifts. She said that it was “highly unlikely that another person is the author”.

32. I have no reason to doubt the quality of the expert’s work, but ultimately, it is a matter for the Tribunal to determine whether the other evidence which it can evaluate points to a different conclusion despite the “high probability” opinion expressed by the expert.

33. Secondly, the Applicant had provided a witness statement and gave oral evidence. Although his witness statement is lengthy, running to 45 paragraphs, much of it amounts to commentary or speculation. It was apparent from his oral evidence that the factual evidence that he could give was of a relatively narrow compass as he had never met the Respondent before the first day of the hearing and plainly not witnessed the signing of the two CH1s.

34. The Respondent’s case involved a full-frontal attack on the Applicant’s credibility. In my judgment, this attack was misconceived and based on extraordinarily slender foundations. For instance, she relied on the fact that she had no links with Sweden, but both the Applicant and Mr Zubairi did. In my view that was a hopeless attempt to contrive some other connection between the Applicant and Mr Zubairi. Sweden is a large country with a population of over 10 million people. There is nothing suspicious in the two of them having unconnected associations with that country. The Respondent came nowhere close to making out any argument based on innuendo that somehow the fact that both the Applicant and Mr Zubairi had some connection to Sweden meant that the two of them had been in cahoots. This whole line of argument was very weak and should not have ever been advanced.

35. The Respondent also raised concerns about the Applicant’s health and, in particular, his memory. I do not consider that there was any substance in this. I acknowledge that his evidence was at times a little vague on details, but much of what he was being asked about had taken place 13 or 14 years before the hearing. Some lack of recall of specific details is unsurprising in those circumstances.

36. It seemed to me that the Respondent was on firmer ground in noting the lack of documentary evidence to support the Applicant’s case. He had not been able to produce written agreements that were said to go with each CH1. There was no evidence, such as bank statements, showing any money being paid to the Respondent or Mr Zubairi. There was surprisingly little correspondence suggesting that payment had been chased once the loans became due for repayment. All that was before the Tribunal was an incomplete letter from his solicitors in 2015, which mis-stated the terms of the loans when compared with the information set out on each CH1, and which even the Applicant called into question in his oral evidence, telling the Tribunal that he doubted the validity of it and did not know who had written in.

37. I will return to some of these factors in the next section of this decision. I can say now though that despite the gaps in the supporting evidence, my view of the Applicant was that he was an honest witness doing his best to assist the Tribunal.

38. Thirdly, the Tribunal heard from the Respondent herself. She stood firm in her evidence that she had not had any involvement in signing the two CH1s or any dealings the Applicant at all. She explained that the property had been owned by her and Mr Zubairi but that it was transferred into her sole name because she had contributed most of the money for the purchase and mortgage. She said that she would not have gone to see solicitors for advice about a loan or to sign documents because she was busy working. In addition, at the time of the 2011 charge she was heavily pregnant and at the time of the later 2012 charge she would go home after work to look after her young child.

39. She also explained to the Tribunal that she moved out of the property in 2019 and lived at a different address from then until earlier this year, when she moved back to the property. While she had been living elsewhere, she had rented out the property to a tenant. She was sure that her tenant had passed on all post received at the property.

40. The Respondent’s evidence was that she discovered the existence of the charges when she became aware that her husband had been arrested and search warrants were being executed. For some reason, which was never fully explained, this prompted her to make enquiries about the property, following which she found out that charges had been registered against her title, so she then applied to have them removed.

41. The Respondent’s evidence was not entirely satisfactory. In various respects, her evidence was vague about some details. As with the Applicant, that is unsurprising given the passage of time, although it must be noted that she was also at times rather hazy on details of the sequence of events since 2022, when the Tribunal would ordinarily expect her memory to be fresher and so for her recall of specific details to be better. Furthermore, it became apparent that her witness statements did not accurately reflect her own evidence in that in at least one respect her statements used a word that she did not understand and so it was not a word that she would use.

42. Despite those points, my view of the Respondent was that, much like the Applicant, she was essentially an honest witness doing her best to assist the Tribunal. I agree with Mr Dubin’s astute observation that she had clearly been treated very badly in the circumstances and was doing her best to maintain her dignity.

43. Fourthly, the Tribunal heard from the Respondent’s niece, Naila Tabasum. I did not find her evidence of any assistance in resolving disputes of fact in this case. She was prone to giving lengthy answers that did not engage with the questions that she was being asked and was consistently unable to distinguish between what she actually knew and what she thought was correct but was not within her own knowledge. For instance, at one point in her evidence she said that the Applicant got all the post sent to her at the property when it was let out, because she would get messages from the tenant and go to pick it up. Miss Tabasum agreed that she herself never saw such a message from the tenant and never saw the Applicant go to collect post. As such, her evidence on this, and other points, was no more than speculation. She also attempted to criticise the expert handwriting evidence, but did not have appropriate skills or experience to do so, and ended up getting the details wrong.

44. In her witness statement, she had said that the Applicant “would never have signed any legal documents without showing me first and even asking me to accompany her to the Solicitor’s offices”. This was demonstrably untrue because the Applicant did sign the documents for the transfer into her sole name without showing them to Miss Tabasum. In cross-examination, Miss Tabasum explained that this was because the Applicant would have known what a Form TR1 was. I do not accept that this sits at all well with the position as clearly set out in her witness statement. In closing submissions on behalf of the Respondent it was accepted that this part of Miss Tabasum’s witness statement was not “technically” accurate. I do not agree with that description insofar as it attempts to downplay the inaccuracy in her witness statement. In my judgment, this part of her witness statement was simply wrong. I am left with very little confidence in Miss Tabasum’s evidence and do not think that it can safely be relied on as a basis for any findings of fact in this case.

45. Fifthly, the Tribunal heard evidence from Mr Ahmed Zubairi, the Respondent’s brother-in-law. As I have already indicated, he told the Tribunal that he was happy to be referred to as Ahmed. Ahmed’s written statement was not particularly useful, as it only consisted of hearsay evidence reporting what Mr Hassan (whose evidence I shall discuss below) had told him. His oral evidence was, however, of more assistance in resolving the difficult factual issues in this case. I consider Ahmed to have been an essentially honest witness, doing his best to assist the Tribunal despite clearly finding some aspects of his evidence very difficult. Although there might be a concern that his evidence could have been tainted by an understandable wish to support his sister-in-law (who is also his cousin), he did not shy away from giving evidence that supported part of the Applicant’s case in some respects, which I will return in the next section of this decision.

46. Sixthly, the Tribunal heard evidence from Shoaib-Ul Hassan. He said that he had been an employee of Mr Zubairi and that he could “confirm” that in 2012 Mr Zubairi took a female wearing an Islamic face covering to pretend to be the Applicant and sign a CH1 form at Charles Ewan solicitors. While that might be thought to suggest that this was something that Mr Hassan had witness himself, he explained that he had overheard it when he was driving Mr Zubairi and another man around. Although Mr Hassan used to drive Mr Zubairi around, he did not take him and any woman to a solicitor’s office. He could only give evidence on what he had heard. Mr Hassan’s evidence was extremely vague. He could give very little detail about dates, places, or the precise contents of conversations. I will consider the significance and credibility of his evidence in the following section of this judgment. DISCUSSION & ANALYSIS

47. In my view, there are two separate questions that need to be answered in relation to each of the 2011 and 2012 charges. First, were they validly executed by the Respondent? Secondly, did they secure genuine lending? These questions could also probably be addressed in a different sequence, but this is a convenient order in which to take them which reflects the focus of the parties’ evidence and arguments.

48. The Applicant, understandably, relies on the two CH1 forms as appearing to have been signed personally by the Respondent in the presence of a witness. His position is supported by the expert evidence saying that there is a high probability that both documents were signed by the Respondent. There are also contemporaneous letters from two different solicitors saying that they had advised the Respondent on the transactions, and her signature on the second charge was supposedly witnessed by one of the solicitors.

49. The main key points of evidence in favour of the Respondent having signed the two charges are the expert handwriting evidence and the documents demonstrating the involvement of solicitors.

50. As I have already indicated, I have no reason to doubt the quality of Mrs Thorndycraft-Pope’s examination or analysis. The accuracy of her work is supported by her correct identification of two other signatures as being the product of the Respondent having initially understood (incorrectly) that they were also under challenge. Not knowing that the Respondent accepted that she was responsible for those two signatures, Mrs Thorndycraft-Pope was able to correctly identify her as the author. This shows that her methods can work.

51. The nature of expert handwriting evidence though is that it is no more than an opinion as to probability. While a handwriting report can be an extremely important and useful piece of evidence, it is important to remember that the Tribunal needs to make a finding of fact based on all of the evidence that is made available. The expert report in this case is simply one piece of that evidence, although it must be recognised as a very significant part of the evidential picture.

52. So far as the solicitors are concerned, their involvement is shown by three documents.

53. First, there is a letter dated 21 st November 2011 from Mahesh Patel at Stenfield Solicitors. This was addressed to the Applicant. It read as follows. “I am writing to confirm that I have today met with Mrs Saghira Kauser Zubairi and have advised her on her rights and obligations under the terms of the proposed loan agreement between you, her and her husband. “I confirm that I have also advised Mrs Zubairi of the consequences of agreeing to secure the loan by way of a Legal Charge over her property jointly owned with her husband, and the consequences for her if the loan was not repaid as set out in the proposed agreement. “I can confirm that Mrs Zubairi fully understood the advice given to her and confirmed that she was happy to enter into the proposed agreement.”

54. It does not appear that this solicitor was involved with the actual signing of the CH1, as that was witnessed by Capil Bhanji, who is said to be an associate of Mr Zubairi.

55. Secondly, there was a similar letter from Charles Ewan of Ewan & Co, dated 28 th November 2012. That included the following text. “We write to advise and confirm that we have given Independent Legal Advice in relation to the Loan Agreement dated 28 th November 2012 in relation to a Loan of £300,000.00 on the above-mentioned property and her Consent in registering a Legal Charge against the said property in respect of the Loan. We have gone through the Terms & Conditions with our Client and on this basis our Client has signed the same.”

56. Thirdly, the signatures on the CH1 of the same date are said to have been witnessed by Charles Ewan.

57. The Respondent sought to criticise the solicitors involved by referring to material that was said to call into question their competence or integrity.

58. So far as Mahesh Patel was concerned, there was no foundation for this exercise whatsoever. It seemed to be based on a sanction issued in 2021 against the firm that he worked for. There was nothing in that to suggest any wrongdoing on his part.

59. So far as Charles Ewan was concerned, the Respondent referred the Tribunal to two Solicitors Disciplinary Tribunal decisions, dated 20 th May 2010 and 19 th December 2022. The first disciplinary decision does not assist with the resolution of the factual issues that I need to determine in this case. The allegations, which Mr Ewan admitted before that Tribunal, concerned a failure to keep and provide accounting records and bank reconciliations. While these were clearly significant and serious breaches of his duties as a solicitor, they do not provide any meaningful guide to evaluating whether he would have failed to carry out adequate identity checks or even agreed to knowingly witness a forged signature. So far as the second disciplinary decision is concerned, the findings made by that Tribunal against Mr Ewan concerned a very different type of conduct which occurred from approximately August 2017 onwards. It is therefore of extremely limited relevance in these proceedings as it does not help form any view about Mr Ewan’s likely practices in a different context several years earlier.

60. The Respondent also drew attention to a warning published by the Solicitors Regulation Authority in April 2020, stating that an email and letter had been sent to third parties, falsely claiming to be from Charles Ewan of Ewan & Co Solicitors. Regrettably, the Solicitors Regulation Authority is frequently called on to publish similar warnings about many firms of solicitors, which are now published and collated at https://guidance.sra.org.uk/consumers/scam-alerts/. Four such warnings were published on the first day of this hearing. There is no possible basis on which the Tribunal can infer any sort of wrongdoing or lack of care on Mr Ewan’s part from a warning about a scam misusing his name.

61. I did draw the parties’ attention to the Ebanks case in which I had been faced with allegations that Mr Ewan had witnessed forged signatures (and in which my attention had been drawn to the decision in Chopra & Ors v Katrin Properties Ltd & Anor [2022] EWHC 2728 (Ch) , in which there had also been allegations that signatures purportedly witnessed by Mr Ewan were forged, albeit those allegations were, indirectly, made by the same person who in the Ebanks case was insisting that all signatures were genuine). In that case, I did not hear any evidence from Mr Ewan. I decided, for detailed reasons given in that decision, that I could not be satisfied that some documents apparently witnessed by Mr Ewan had been signed by the person who had purportedly signed them. I was not in a position, nor was it necessary for the resolution of that case, to make further findings about Mr Ewan’s involvement in the signing of those documents, although I direct that a copy of my decision was to be sent to the Solicitors Regulation Authority and the Information Commissioner’s Office for those bodies to consider whether they wished to take any action against Mr Ewan.

62. I also referred to the decision of Judge Tozer in Fernandes & Fernandes v Cliveden Finance Ltd [2016] UKFTT 325 (PC). In that case, the learned judge decided that a contract and transfer had not been signed by the Applicants, who had been the registered proprietors of the relevant property. The signatures had been witnessed by Charles Ewan. Again, no evidence was heard from him and so no findings were made about his role. The learned judge recorded that the conveyancing file included poor quality copies of passports bearing the names of the registered proprietors, which were different to the identity documents relied on by them in those proceedings.

63. While I raised these cases with the parties, I do not consider that they assist in resolving the question of the identity of the person who signed the 2012 charge with the Respondent’s signature. Neither Judge Tozer nor I heard any evidence from Mr Ewan in those cases and so the extent of the factual findings was necessarily limited. In my view, the correct principled approach is to decide the issues in this case based on the evidence put forward in this case, recognising though that again this means there is no evidence from Mr Ewan himself.

64. There was no witness statement or oral evidence from either solicitor. Neither party sought a witness summons. There was some suggestion from the Respondent that the Applicant should have done this, but it was also open to her to ask for a summons and, given the seriousness of the allegations that she made against them in their absence, it is arguable that she should have done so. It is fair to note though that such limited enquiries as had been carried out had been conducted on behalf of the Respondent. While I understand that Mr Ewan has now retired, it was not suggested that there was any reason why could not have attended to give evidence if a witness summons had been issued. In the end though, the Tribunal is left to determine this on the evidence that was available, in circumstances where either party could have attempted to produce the solicitors as witnesses.

65. I therefore did not find the attacks on the two solicitors to be of any assistance in determining the key factual issues. Far more useful, in my view, was the witness evidence that the Tribunal was able to hear and evaluate.

66. In assessing that evidence, I bear in mind that there were two purported charges and that they should not necessarily be thought of as standing or falling together. It is quite possible to imagine scenarios where the Respondent signed the first but not the second, and equally that she could have signed the second charge but not the earlier one.

67. Having said that, the evidence that was relied on as showing that Mr Zubairi had taken an imposter to sign the second charge was also of some relevance to the issue of the first charge for two key reasons. First, if Mr Zubairi was capable of arranging such a deceit for the second charge, it makes the possibility of him having done something similarly untoward a year earlier rather more likely. Secondly, Mr Hassan’s oral evidence about the woman in a face covering tended to incriminate Capil Bhanji, the very person who is said to have witnessed the Respondent’s signature the previous year. If he was involved in the arrangements in 2012, this again makes the possibility of him also having been involved in some sort of deceitful arrangement in 2011 more likely.

68. Just because there is evidence that Mr Zubairi has been convicted of other crimes, it does not necessarily follow that he was involved in dishonest conduct in relation to either the 2011 or 2012 charge, but it is my view that the insight that this evidence gives as to his character means that what would otherwise be an unlikely and improbable act of deception is rather less unlikely in this case than it would seem in the ordinary course of events.

69. In assessing Mr Hassan’s evidence, it is obviously significant that his account was rather vague as to details. It also seems to me that it is significant that there does not really seem to be much scope for a finding that he was mistaken or had otherwise misunderstood what he heard. Either he is making it up, or Mr Zubairi and Mr Bhanji did indeed discuss taking a woman wearing a face covering to a solicitor called Charles.

70. The available evidence did not suggest that Mr Hassan would have any reason to make up this story or to lie to the Tribunal in his witness evidence. Although his account is light on details, I am satisfied on the balance of probabilities that he did hear Mr Zubairi and Mr Bhanji discussing taking a woman wearing a face covering to sign documents at a solicitor’s office. I am satisfied on the balance of probabilities that the only reason for the discussion to take place is that this is precisely what Mr Zubairi and Mr Bhanji were planning. I am further satisfied that this discussion related to what became the 2012 charge, because Mr Hassan heard them talking about Charles, which is likely to mean Charles Ewan, and the timings that he gave were, although a little rough, more consistent with this being in 2012 than in 2011.

71. While Mr Hassan did not actually witness the Mr Zubairi going to see Mr Ewan with a woman who he was pretending was the Respondent, I am satisfied, having reflected on this very carefully, that Mr Zubairi not only discussed this plan, but also carried it out. This is consistent with Mr Hassan’s oral evidence that Mr Zubairi told him that the problem had been resolved, or words to that effect.

72. This is also consistent with the Respondent’s evidence and, in particular, her time sheets. I recognise that these do not exclude entirely the possibility of her having attended one of Mr Ewan’s offices, but the hours that she was working and her situation as the mother of a very young child all make it far more unlikely that she would have gone to the effort of visiting a solicitor in relation to a loan.

73. Furthermore, while I do not attach any weight in this regard to witness demeanour, it seemed to me that the Respondent’s denials of any involvement with these loans was heartfelt and genuine.

74. Although the expert handwriting evidence points the other way, as I have already said the expert’s opinion is not definitive. The Respondent herself said that her signature was a simple one. I do not think that it is trespassing into the expert’s area of expertise to say that I agree with the Respondent on this point. The Tribunal inevitably sees many different types of signatures and the Respondent’s signature can fairly be characterised as one of the less complex types. It is therefore my view that it is not improbable that someone else could have produced her signature on demand, even under the watchful eye of a solicitor.

75. I also accept the Respondent’s evidence that her identity documents would have been fairly readily available for her husband to use, so that Mr Zubairi would have been able to produce them to Mr Ewan when he went to one of his offices with the imposter.

76. Mr Hassan’s hearsay evidence only goes directly to the validity of the 2012 signature, and the Applicant rightly makes the point that there is no allegation of impersonation in respect of the 2011 charge, but a noticeable feature of Mr Hassan’s oral evidence was that he had heard Mr Zubairi discussing the issue with Mr Bhanji. In those circumstances, I do not think it is a great leap of logic to say that this rather calls into question the value of Mr Bhanji’s confirmatory signature as a witness to the 2011 charge. While I have considered carefully the possibility that the Respondent may have signed the earlier charge even though I have found that she did not sign the later one, I am just about satisfied on the balance of probabilities that she was not involved at all with the 2011 charge. I do not think that I need to go further than this and express a view on quite how her signature was forged on that document, particularly when I have not heard any evidence from Mr Bhanji, although I think that Mr Dubin put in well in his closing submissions when he said that the Tribunal could probably infer that Mr Bhanji was not a friend of legal niceties. It suffices to say that I accept that the Respondent did not sign it and that Mr Zubairi must therefore have taken steps in a dishonest manner to have a signature purporting to be that of his wife placed on this document.

77. That still leaves the letter from Mahesh Patel, saying that they had given advice on the proposed loan to the Respondent. While the Respondent’s evidence about her working pattern does not mean that it would have been impossible for her to go to a solicitor and receive advice about this loan, it is my view that this is extremely unlikely, bearing in mind that she gave birth to her youngest child very soon after the first CH1 was apparently signed by her. I have no reason to doubt Mahesh Patel’s integrity and I therefore consider that they must have given advice on the proposed loan to someone . I am not able to say who that person was, but I am satisfied that it was not the Respondent. In my view, the most likely explanation is that it was a situation engineered in some way by Mr Zubairi. This was perhaps not as daring as the plan the following year of taking an imposter to Charles Ewan’s office to pretend to be, and sign a document as, his wife, but I am satisfied on the balance of probabilities that Mr Zubairi found a way to make it appear that his wife had been given legal advice on the proposed loan without her being given such advice.

78. I have therefore found that neither charge was validly executed by the Respondent. It appears to be common ground that Mr Zubairi did sign both CH1s. The next question is whether he did so in order to provide security for genuine lending.

79. There are evidential gaps in the Applicant’s case on this point. He has not been able to produce the original loan agreements. He has no paperwork demonstrating money being paid under the loan agreements. He is also faced with the very curious letter from his solicitors in 2015, which manages to get nearly every detail about the loans wrong.

80. I am nonetheless satisfied on the balance of probabilities that the Applicant did advance the sums of £150,000 and £300,000 to Mr Zubairi. Although Mr Otchie submitted forcefully that the Applicant could not prove that there had been a genuine loan to anyone, I reject that argument. The Respondent accepted that it was possible that her husband would have got money from the Applicant and kept it for himself. Ahmed’s evidence was that he had not asked his brother whether he took out the loans because he had no doubt that he did. Mr Hassan’s oral evidence was that Mr Zubairi wanted to borrow some money. The Applicant’s clear evidence, which I accept on the balance of probabilities, was that he did transfer money pursuant to each loan agreement.

81. This is also supported by the involvement of the two solicitors. While I have found that neither Mahesh Patel or Charles Ewan met the Respondent, and so could not offer her advice on the loans, the fact that in both instances the Applicant, through his solicitors, required confirmatory certificates to show that advice had been given to Mr Zubairi’s spouse strongly suggests that, at least from the Applicant’s perspective, these were genuine loans and so the lender needed know that the important requirement of independent advice had been met. Furthermore, although the Applicant no longer has any other written agreements, it is noticeable that both solicitors mention a loan agreement in their letters, suggesting that they had seen copies of such an agreement.

82. The Respondent also points to the apparent lack of any real attempt to enforce the loan agreements, which she argues suggests that they are not genuine.

83. There is the slightly puzzling letter in 2015, which does suggest an intention to enforce the loan, but contains numerous errors. The Applicant said in cross-examination that he had not seen this letter before and doubted the validity of it. I therefore do not take it into account as demonstrating a willingness to enforce the two loans. I do not think though that this helps the Respondent the other way and shows that the loans were not genuine. Although it remains surprising that the letter contained some fairly basic errors, that does not seem to me to be necessarily indicative of some sort of sham arrangement. Indeed, it can be said that if the 2015 letter was all part of a pretence to create the appearance of a loan then one might expect rather more care to be taken in getting the details right.

84. Despite the lack of any other correspondence demanding repayment, it is important to remember here that the Applicant is not an institutional lender. He described Mr Zubairi as a friend, although not a “good friend”. In the circumstances, it is not necessarily surprising if he had stayed his hand from any formal steps to seek repayment. His oral evidence, which I accept, was that he had had discussions with Mr Zubairi over the years and been assured that payment would be forthcoming. While other lenders would no doubt have done more, I am satisfied that the Applicant did want to see his loans repaid and that he had provided genuine lending to Mr Zubairi.

85. I therefore do not accept the Respondent’s suggestion that the agreements in this case were shams. I do not really understand how the Respondent could ever have made this suggestion. It was entirely unsupported by evidence and no logical reason was ever put forward as to why either the Applicant or Mr Zubairi would participate in such a sham.

86. During the course of his evidence, the Applicant quite clearly stated that he would not seek to recover any interest on the loans, explaining that it was against his principles. I do not consider that this meant, as the Respondent then submitted, that the loans were not genuine, or that there was no meeting of minds. I accept the Applicant’s evidence that he did not want to include provision for interest but was told that he had to and so he did. He therefore signed documents referring to interest on the loans. The advice that he was given may have been odd, but that is what he was told. At the very least, it is what he understood to be the position and so he entered into agreements dealing with interest, even though that was not what he would have preferred. This does not call the validity of the agreements into question. People frequently agree to arrangements that are not on their ideal terms.

87. I have therefore concluded that the Respondent is correct that she did not sign either the 2011 or the 2012 charge. I have also concluded that the Applicant has proved to the satisfaction of this Tribunal that loan agreements were entered into with Mr Zubairi and the Applicant did advance loans to him.

88. The Respondent’s reliance on Vickers v Jackson only gets her so far because it was accepted on her behalf in closing submissions that if, as I conclude, there was lending to Mr Zubairi then there could be an effective agreement against his interest in the property. That is clearly established from the passages of Fisher and Lightwood and Megarry & Wade that I referred to above, and the authorities cited in those works. Mr Otchie submitted that the loans were not enforceable because there was a fraud, but that argument is irreconcilable with the existing case law.

89. At this stage, the transfer of the property from Mr Zubairi and the Respondent into the Respondent’s sole name becomes significant. It was submitted, rather faintly, on behalf of the Applicant that the Tribunal might conclude that Mr Zubairi’s interest was transferred by him to the Respondent to defeat enforcement of the loans, and that this might vitiate the transfer to her or render it voidable, such that it could be argued that the registration of the transfer to her was a mistake. I do not accept that it is open to the Applicant to run that argument in these proceedings, as there is no application for rectification in respect of that registration and this would be entirely contrary to the Tribunal’s order of 21 st October 2024 and, in particular, paragraph 4 of Judge Bastin’s reasons for that order.

90. I therefore proceed on the basis that the transfer to the Respondent remains undisturbed. This has the consequence, as Mr Dubin realistically and properly accepted, that the forgery of her signature on the 2012 charge document affected the Applicant but did not affect the Respondent’s interest in the property (Mr Zubairi no longer having any beneficial interest in the property by that stage). The 2012 charge can therefore be put to one side for the moment.

91. The position is different for the 2011 charge, because the transfer to the Respondent was for nil consideration. Accordingly, she does not get the benefit of the protection given to a disponee by s.29 and she was bound by the 2011 charge insofar as it extended to what had been Mr Zubairi’s share of the beneficial interest.

92. The Applicant submits that the 2011 charge could now simply be registered in the normal way. Although there is a superficial attraction to that course of action, I am not presently persuaded that it is correct. There is a danger of rendering various aspects of the legislative scheme for alterations rather pointless if someone could simply apply repeatedly in exactly the same way for an entry of some sort that had already been removed. Of course, in this case, the removal was a mistake, but Sch.4, 2002 Act, is designed to deal with mistakes. He also made this argument in relation to the 2012 charge but that falls away in light of the findings above.

93. In written submissions, the Applicant argued that the charges “must be registered, applying paragraph 8 of Schedule 2”. In my judgment, that it is to look at this the wrong way round. The significance of Sch.2, para.8, which s.27 gives effect to, is that it sets out the registration requirements that need to be complied with in order for a disposition to be completed by registration so that it operates in law. It does not mandate HM Land Registry to do anything, but is instead directed at what needs to be done by a disponee who wants a disposition to be effective. In the present case, HM Land Registry has, in any event, treated the application for alteration as having day list priority and so it seems to me that the Tribunal should consider that first.

94. When dealing with the application under Sch.4 for alteration, I do not think that it can be characterised as being alteration for the purposes of bringing the register up to date (and thus avoiding the additional hurdles that stand in the way of rectification), because that does not seem a particularly natural way of describing reversing the removal of the 2011 charge. As I understood the oral submissions, it appeared to be suggested that an alteration for the purpose of bringing the register up to date could still need to satisfy the requirements of para.6(2). If that was the submission, I do not think that it can be right. Para.6(2) only applies where rectification is concerned (see para.6(1)), and it is only rectification if there is a mistake (see para.1(a)).

95. That brings us to the question of rectification under Sch.4. The Applicant accepted that the Respondent should be treated as a proprietor in possession because the property was occupied by her tenant at the time of the application.

96. I do not accept that it could be said that the Respondent had caused or substantially contributed to the mistake through her lack of proper care. The first step is to identify the relevant mistake. The Applicant submitted that this was the removal of the relevant entries from the title. It seems to me that this is correct in relation to the first charge. It was, quite rightly, not suggested that there was any fraud on her part. The removal of the second charge was not a mistake. To the extent that there was any mistake it was in the registration of that charge in the first place.

97. The grounds of lack of care advanced by the Applicant were, however, primarily targeted at the procedure leading up to the first charge being registered. It was submitted that she had a general lack of awareness of Mr Zubairi’s business. To the extent that this is right, I fail to see how this can be categorised as “lack of care”, but even it was it did not cause or contribute to the mistake of removing the charge. It was also suggested that she was careless about not paying attention to documents that she was signing, but this complaint falls away based on my factual findings. It is pointed out that she failed to keep HM Land Registry informed of her new contact details when she moved out (after, somewhat oddly, the address of the registered proprietor was changed to be a postal box for the Applicant). It seems to me that the only difference that this might have made is that she might have found out about the registration of the 2012 charge earlier than she did, but this does not appear to show any lack of care on her part in having the 2011 charge removed. There was some suggestion in the Respondent’s closing submissions that the Applicant may have been responsible for this, but that serious allegation was not put to him in cross-examination. From considering the historic office copy entries, it seems that the address for the registered proprietor was changed at the same time as the 2011 charge was registered, but it is quite possible that this was a result of an administrative error by HM Land Registry at the time. There was no evidence that the Applicant was at fault and I certainly cannot make any finding against him when he was not questioned about this.

98. The high point of the Applicant’s case on this issue was that the Respondent acted rashly in making her application without taking legal advice. In my view, on the facts of this particular case, that would be setting the bar too high. I also do not think that it can necessarily be said, as Mr Dubin submitted, that if she had taken advice then she would have been told to apply for a notice stating that the security for any charge was limited to the extent of Mr Zubairi’s former beneficial interest in the property. I also rather doubt that the Applicant would have accepted or agreed with that.

99. I do, however, agree with the Applicant that it would be unjust for any other reason for the alteration not to be made. The first point to note is that the Applicant was otherwise entitled to the benefit of the charge taking effect over the beneficial interest in the property that was previously owned by Mr Zubairi. In my view, this is a point of limited weight because in almost any rectification case where para.6 is concerned there will be someone who ought to be entitled to some benefit but for the mistake that has been made.

100. It seems to me in this case that the Tribunal is faced, as the Respondent submitted, with balancing the competing injustices as both the Applicant and the Respondent are victims of Mr Zubairi’s conduct. In my judgment, it is significant that as a result of the sequence of events, the Applicant is prevented from relying on the charge for the larger loan. The best case for him in this scenario is some security for the smaller loan. The Applicant considered that he had bargained for security for £450,000 (plus, potentially, interest). He has already been deprived of security for £300,000. It is highly relevant, in my view, that the best that he can now obtain on his application for rectification is security for one-third of the total sum loaned.

101. In closing submissions, Mr Dubin suggested that the Applicant might wish to revise his stance on interest if he was put in the position where could only enforce the first loan. While I recognise that Mr Dubin was, quite properly, seeking to protect his client’s interests as his client was not present at that point to confirm instructions one way or the other, I cannot agree with him on this point. Having heard the Applicant give evidence, my assessment of him was that he was very clear concerning interest. I do not think that he is a man whose beliefs and principles are malleable depending on the circumstances and possible benefit to him. He struck me as someone who would stand by his beliefs, irrespective of any negative consequences that he might suffer. I therefore acknowledge and record here the Applicant’s waiver of his entitlement to any interest.

102. It seems to me that the Applicant’s waiver of any entitlement to interest on the two loans is another relevant factor when considering whether or not it would be unjust for the alteration that he seeks not to be made. I bear in mind that, as a consequence, he is only seeking security for the principal sum and not the unpaid interest.

103. Against that, there are weighty factors in the Respondent’s favour. She is also a victim of fraud. She has gained no benefit at all from these loans. If the Tribunal allows the application, even if only in part, she will still be faced with being liable for a substantial loan taken out fraudulently by her estranged husband. The property is her family home, even if she had moved away for a few years. She is not wealthy, whereas the Applicant is said to be.

104. The difficult and invidious task for this Tribunal is to weigh all of these competing factors in the balance and attempt to arrive at the least unjust solution. Taking all of the relevant matters into account, it is my view that it would be unjust to refuse alteration in the Applicant’s favour in circumstances where he has been deprived of the security that he bargained for in relation to the majority of the amount loaned and the Tribunal is now only concerned with the first loan of £150,000. I recognise that there is a significant degree of injustice towards the Respondent in that result. She is an unwitting victim, now faced with responsibility for a substantial part of a fraudster’s debts. I do not reach this decision lightly and do so without any enthusiasm, because I realise that this has most unwelcome consequences for her. I consider though that the balance of the respective injustices comes down in favour of the result that I have indicated, so that the loss caused by Mr Zubairi’s deception is spread out, rather than concentrated on just one of the two innocent parties. Even then, the effect of this decision is that it is the Applicant who bears the brunt of the loss because he has no security for the larger loan.

105. The Respondent argues that there are exceptional circumstances which justify not making the alteration sought. It is pointed out again on her behalf that the property is a family home, she is an unwitting victim, and the Applicant is wealthy. I do not consider that any of the factors are exceptional, whether taken individually or collectively. They are all relevant to the question of balancing the competing levels of injustice, but having considered that question above, I am afraid that I am unable to identify anything exceptional about the circumstances of this case which would justify not making the alteration sought by the Applicant in relation to the 2011 charge.

106. The alternative argument advanced by the Applicant was that he should be entitled to a unilateral notice. Mr Dubin pointed out that s.32(3) expressly provides that the entry of a unilateral notice does not mean that it is valid and so if the Tribunal had concerns about the validity of either charge, those concerns could perhaps be assuaged by the entry of a notice on the basis that this would not necessarily require any finding that the claimed interests were valid.

107. I rather doubt that this is a correct approach. The Tribunal has to make a direction dealing with the referred matter, based on the evidence heard and findings made. It seems unsatisfactory as a matter of principle for the Tribunal to give a direction that would mean that the essential underlying issue remains unresolved. Once the question of whether a notice should be in place is before the Tribunal, it seems to me that this will ordinarily require the Tribunal to make findings about the validity of the claimed interest. Where a notice to protect an interest is recorded on the register as a result of a direction given by this Tribunal to the Chief Land Registrar, the natural inference would be that the interest has the imprimatur of the Tribunal and has been decided to be valid. I leave aside here the possibility of a case where the validity of that interest was being resolved in some other way in some other forum but for whatever reason (perhaps the urgency of a potential sale), the Tribunal proceedings had not been stayed pending a decision of that other forum.

108. I do not think it is necessary to say much more in this case because I have decided that the Applicant is entitled to registration of the 2011 charge, and so has no need for a unilateral notice in respect of that loan, and that the 2012 charge is, effectively, not enforceable against the Respondent and the subject property, so there is no interest which could support a unilateral notice. CONCLUSION

109. For the reasons given above, the Chief Land Registrar will be directed to give effect to the application to alter the register insofar as it relates to the 2011 charge, and otherwise cancelled.

110. The Applicant has been successful in these proceedings, but only in relation to the 2011 charge. The Respondent has successfully defeated the 2012 charge. My preliminary view is that this may be a case where each party should bear their own costs. The order that accompanies this decision will allow both parties to make written submissions on liability for costs, including the basis for a costs assessment if any order is made, in light of that provisional view. Dated this 21 st October 2025 Judge Robert Brown By Order of The Tribunal