TMI Blog1966 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , Coimbatore. Her husband is carrying on business at Coimbatore, and is assessed to income-tax. She applied to the Coimbatore Vasunthara Bank for a loan of Rs. 50,000 on the mortgage of her house mentioned above. As she did not desire to attend the office of the registering officer, she wrote a letter on May 15, 1963, requesting the officer, the Third Joint Sub-Registrar, Coimbatore, to go over to her residence, for the purpose of registering the document on payment of the necessary fees. The Sub-Registrar came to her residence on May 15, 1963. The Sub-Registrar showed her a letter in which it was alleged that income-tax assessment proceedings against her husband were pending, that the property which she held in her name was really benami for him, and that no document dealing with the said property should be registered. Nevertheless, the Sub-Registrar proceeded with the registration of the document. The mortgagor admitted the execution of the document. The particulars were endorsed. The money payable to the mortgagor was paid by the nortgagee's agent, in the presence of the Sub-Registrar, and an endorsement to that effect was also made on the document. The registering officer also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y question of title in the form of benami in these proceedings. They also contend that the declaration as mentioned in the Payment of Taxes (Transfer of Property) Act made by the income-tax department was received by the registering officer after the date of registration, and that on the date of registration there was no declaration as contemplated in section 2(ii) of the Act, and further the provisions relating to transactions of immovable property to defraud the revenue have nothing to do with the present transaction nor with the registration of the document. The bank also contends that the Sub-Registrar has failed to discharge the statutory duty imposed on him by the Act, that he has no discretion in the matter and no question of admitting or not admitting the document for registration arises in the present case, and that on the date of the registration of the document, the registering officer was not in possession of any declaration as such made by the Income-tax Officer nor was there any demand for arrears of tax from the mortgagor, and that any subsequent declaration made after the registration would not make the registration of the document void and illegal, and that even ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer should endorse a certificate containing the word ' registered ' together with the number and page of the book in which the document has been copied after the provisions of sections 34, 35, 58 and 59 have been complied with and he is then to sign, seal and date the certificate.... The section proceeds to say that ' the registration of the document shall thereupon be deemed complete'. " In the present case, all the formalities have been completed by the Sub-Registrar except compliance of the provisions mentioned in sections 60 and 61, namely, the endorsement of the certificate " registered " and then copying into the margin of the register book. The point for consideration is whether the mere omission to endorse the word " registered " would affect the registration of a document. The whole object of the Registration Act is to guard against fabrication of documents of title from time to time and the real purpose of registration is to check forgery and to provide good evidence of the genuineness of the written documents. Registration is mainly required for the purpose of giving notoriety to the deed and to provide a guarantee of the genuineness of the instrument. The evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a document and not the presence of the certificate under section 60 of the Act, that the subsequent formalities were mere ministerial acts and that the defects occasioned therein by the acts or omissions of the Registrar or irregularities in carrying out the duties enjoined by sections 60 and 61 would merely constitute defects of procedure for which neither the donor nor the donee was responsible. In Kishangopal v. Nathulal, a Division Bench of the then Madhya Bharat High Court observed that, where a document was registered by a Registrar after complying with the provisions of sections 58 and 59 but he failed to make an endorsement as required by section 60, the defect was a defect of procedure, which did not render the registration invalid by reason of section 87 of the Registration Act. But, in Mt. Domini Kuer v. Ramsaran Lal, a Division Bench of the Patna High Court observed, after dealing with the provisions contained in sections 34, 35, 52, 58, 60 and 61 of the Indian Registration Act, thus : " From the above provisions of the Act, therefore, we gather that the registration of a document is deemed to be complete under section 61(2) of the Act, only when the document has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance certificate. It is to be remembered that the document in question was presented to the Sub-Registrar by the mortgagor at her residence on May 15, 1963. Just then, the Sub-Registrar produced a demi-official letter, said to have been addressed to him, in which it was alleged that income-tax assessment proceedings against the mortgagor's husband were pending, that the property in question was really benami for him and that no document dealing with the said property should be registered. But the District Registrar has, in his affidavit, stated that as the parties insisted upon the acceptance of the document for registration, the Joint Sub-Registrar, on the instructions of the District Registrar, attended at the private residence of the petitioner (mortgagor) on May 15, 1963, accepted the document, recorded her admission of execution and the payment of the mortgage money on the document and kept it pending without registration, as a doubt was felt on the point whether the document could be registered or not in view of the communication of the Income-tax Officer dated December 15, 1962. It is, therefore, necessary to say somewhat in detail the part played by the income-tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1963 of Book 1). The word "registered" was not endorsed. As this is only a ministerial act and the omission to do it is only a procedural defect, the omission to make the endorsement would not invalidate the registration. I do not also think that the income-tax authorities can question the transaction as one made after the registering officer received the declaration. But learned counsel for the income-tax department would contend that the letters dated December 14, 1962, and December 15, 1962, should be treated as declaration under section 2(ii) of the Payment of Taxes (Transfer of Property) Act, 1949. If so read, they are certainly before May 15, 1963, the date of registration of the document. Under section 3 of the Payment of Taxes (Transfer of Property) Act, 1949, no registering officer can register any document purporting to transfer or assign any right, title or interest in any property unless it is certified by the Income-tax Officer of the area in which the property is situate in respect of the person whose right, title or interest in the property is to be transferred or assigned that such person is not liable to assessment or taxation, that such person has either paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate under section 3 of the Payment of Taxes (Transfer of Property) Act, 1949. The mortgagor stated in her letter dated July 25, 1963, to the Income-tax Officer that she had no valid visa with her, nor had she applied to the Reserve Bank for the transfer of any of her assets and that she was ready and willing to pay any amount that might be found due from her. It can, therefore, be seen that the income-tax authorities are only trying to seize this opportunity to collect the tax due from her husband. But I do not think they can succeed. Certainly the letters dated December 14, 1962, and December 15, 1962, can never be called or termed declaration as required by the statute. It is settled law that in a statutory declaration, all the requirements of the section should be and must be strictly complied with literally. Otherwise, it may prove fatal to the action proposed to be taken, especially in a case where property rights are involved. I am convinced that on the date of the registration of the document, namely, May 15, 1963, there was no statutory declaration prohibiting the registering officer from completing the registration. It is next contended that a writ of mandamus can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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