TMI Blog1972 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under articles 226 and 227 of the Constitution praying for a writ of mandamus against respondent No. 1 directing him to register under the provisions of the Indian Registration Act the Indenture of Contributory First Legal Mortgage dated August 10, 1964, copy whereof is at exhibit B to the petition, and to endorse thereon the certificate of registration as required by the said Act. It is alternatively prayed that a writ of mandamus be issued directing respondent No. 1 to register the said mortgage deed qua the mortgagor and to keep the registration of the said deed pending, until the tax clearance certificate is obtained by the confirming parties to the said mortgage deed, viz., Ramabai Tricumji Mirani and Chandrakant Tricumji Mirani. One Tricumji Mirani, since deceased, was at all material times the owner of an immovable property known as "Mirani Nagar", situate at Mulund, Bombay. On or about June 19, 1956, Tricumji Mirani created an equitable mortgage on the said property in favour of Ishwarlal Mangaldas to secure repayment of a loan advanced by him and interest thereon. On October 14, 1960, Tricumji Mirani created a second mortgage on the said immovable property in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirming parties, Ramabai Tricumji and Chandrakant Tricumji. The first respondent has declined to register this Indenture of Contributory First Legal Mortgage in favour of the petitioners by reason of the failure on the part of the confirming parties to produce a tax clearance certificate. On April 22, 1971, the petitioners filed a petition for a writ of mandamus against respondent No. 1, who is the Sub-Registrar, Bombay Suburban Division, Bandra, and others for the reliefs above set out. Mr. Diwan on behalf of the petitioners contended that it is clearly incumbent upon respondent No. 1 to register the Indenture of Contributory First Legal Mortgage, dated August 10, 1964, exhibit B, in favour of the petitioners. He submitted that so far as the said Tricumji Mirani is concerned a tax clearance certificate is produced, while so far as the confirming parties are concerned the said indenture does not purport to transfer, assign, limit or extinguish their right, title or interest to or in the said property referred to in the document; that respondent No. 1 erroneously insisted upon a tax clearance certificate being produced so far as the confirming parties are concerned. It was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act enumerates documents of which registration is compulsory. Section 18 thereof enumerates documents of which registration is optional. Section 24 prescribes the time within which a document executed by several persons at different times ought to be presented for registration and re-registration. The scope of inquiry to be conducted before registration by the registering officer is prescribed in sections 34 and 35 thereof. Section 34, inter alia, provides that no document shall be registered unless the persons executing such document, or their representatives, assigns or agents appear before the registering officer within the time allowed for presentation. Such appearance may be simultaneous or at different times. Sub-section (3) thereof provides that the registering officer shall thereupon, (a) enquire whether or not such document was executed by the person by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. Section 35, inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , clause (c) or clause (e) of sub-section (1) of section 17 of the Indian Registration Act, 1908, purports to transfer, assign, limit or extinguish the right, title or interest of any person to or in any property other than agricultural land valued at more than one lakh of rupees, no registering officer appointed under that Act shall register any such document, unless the Wealth-tax Officer certifies that- (a) such person has either paid or made satisfactory provision for the payment of all existing liabilities under this Act, or (b) the registration of the document will not prejudicially affect the recovery of any existing liability under this Act." By this section a ban is put upon the power of a registering officer to register a document unless a certificate is produced from the Wealth-tax Officer as therein provided, if the three conditions therein prescribed are fulfilled. The first condition is that the document presented for registration must be required to be registered under the provisions of clause (a) or clause (b) or clause (c) or clause (e) of sub-section (1) of section 17 of the Registration Act. The second condition is that the document must purport to transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) of section 17 of the Registration Act. The second condition is that the document purports to transfer, assign, limit or extinguish the right, title or interest of any person to or in any property other than agricultural land. The third condition is that the valuation of such right, title or interest should be more than Rs. 50,000. This section starts with a non-obstante clause and its provisions override the provisions of every other law. The ambit of inquiry under sections 34 and 35 of the Registration Act is not the same as that either under section 34 of the Wealth-tax Act or under section 230A of the Income-tax Act. Under sections 34 and 35 of the Registration Act, the registering officer is primarily concerned with the question of the identity of the person executing the document and the fact of an admission regarding execution thereof by him and with their legal capacity to do so. As pointed out in Ramaswamy Ayyar v. Thirupathi Naik: " The criterion for purposes of registration is what is expressed on the face of the document, not what incidents may be annexed by custom to a grant of the kind." Even in a suit instituted under section 77 of the Registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or conferring such power, unless it has been registered." It is well-settled that while considering the validity of such an objection the court has not merely to look at the document itself but to all the relevant surrounding circumstances. In Deb Dutt Seal v. Raman Lal Phumra, the question to be considered by the Supreme Court was whether the parties intended to create a charge by execution of the document in question or was it merely a record of the transaction which had already been concluded and under which rights and liabilities had already been created. While deciding that question the Supreme Court did not restrict its attention to the language of the document itself but took into account all the relevant surrounding circumstances and took the view that the letter on its true interpretation and in the surrounding circumstances merely recorded a past transaction and did not intend to create any mortgage. So far as this condition is concerned, the language of section 49 of the Registration Act and that of section 34 of the Wealth-tax Act and section 230A of the Income-tax Act is more or less similar. Under section 49 of the Registration Act the deciding authority is the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not necessarily lead to the conclusion that by the Indenture of Contributory First Legal Mortgage the confirming parties have not purported to transfer, assign, limit or extinguish the right, title or interest to or in the property, as contemplated by the said section 34 or section 230A. What is the effect of the Indenture of Contributory First Legal Mortgage has to be determined upon the proper construction of its provisions. In the recital of the Indenture of Contributory First Legal Mortgage, it is, inter alia, stated that the mortgagor, i.e., Tricumji Mirani, assured the mortgagees, i.e., the petitioners, that he would procure the confirming parties to agree to postpone the security of the fourth mortgagees under the indenture of the fourth mortgage dated December 8, 1961, to the security created under the present Indenture of Contributory First Legal Mortgage. There is a further specific recital to the effect that by the deed of modification postponing the fourth mortgage of even date and also executed immediately before these presents and made between the fourth mortgagees (being the confirming parties hereto) of the first part, the mortgagor of the second part and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o achieve the result for which it was intended it will be open to the petitioners as mortgagees to contend that in any event by reason of this provision if the document is duly registered, the rights of the confirming parties as fourth mortgagees are postponed to those of the petitioners under the Indenture of Contributory First Legal Mortgage. What section 34 merely requires is that the document should purport to transfer, assign, limit or extinguish the right, title or interest of any person to or in any property as therein specified. Normally the word "purport" connotes profess or is intended to seem. The operative part of the above referred to Indenture of Contributory First Legal Mortgage not merely purports to assign, limit or extinguish the right, but in fact operates to do the same. Thus, even if surrounding circumstances are taken into account by reason of the specific and express provision of the Indenture of Contributory First Legal Mortgage, the registering officer was entitled to contend that unless a tax clearance certificate as contemplated by section 34 of the Wealth-tax Act or section 230A of the Income-tax Act was produced by the confirming parties, he was not und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignificance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available. Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. The question of inconvenience or unreasonableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent events, (See Maxwell on the Interpretation of Statutes, 12th edition, at page 199). That such is a proper canon of construction is reaffirmed by the Supreme Court in Budhan Singh v. Babi Bux. The law was thus enunciated by the Supreme Court : "...... it is proper to assume that the law-makers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Constrictions that the entire legislative process is influenced by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 908, was enacted and in the provisions of section 35(3) thereof the registering officer is directed to refuse to register the document as to the person so denying, appearing or dead. The provisions of the said sections 34 and 230A cannot be interpreted in an isolated manner. Even though they are enacted in taxing statutes they are germane to the law relating to registration of documents. The provisions have to be construed in consonance with the scheme, objects and provisions of the Regisiration Act. There is enough indication in the provisions of the Registration Act, 1908, to suggest that it is possible for the registering officer to register a document qua some of the executants, though it may not be registered qua the rest. For illustration, reference may be made to section 24 of the Act. Under that section where there are several persons executing a document at different times, such a document may be presented for registration and re-registration within four months from the date of each execution. Under these provisions if the executants who earlier executed the document produce a tax clearance certificate, as contemplated by the said section 34 or section 230A qua such exec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
