9911796707
TMI Blog1972 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ased, 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 of Canara Industrial Banking Syndicate Ltd. (known after nationalisation as "Syndicate Bank") to secure repayment of a loan of Rs. 2,25,000 and interest thereon. On June 30, 1961, Tricumji Mirani executed a further deed in favour of Syndicate Bank to secure repayment of a sum of Rs. 82,000 and interest thereon. By a third deed of mortgage dated July 8, 1961, Tricumji Mirani executed a mortgage in favour of petitioner No. 2 to secure repayment of a sum of Rs. 2,00,000 and interest thereon as therein provided. On December 5, 1961, Tricumji Mirani executed a fourth mortgage in respect of the said immovable property in favour of his wife and son, viz., Ramabai Tricumji and Chandrakant Tricumji, to secure repayment of a sum of Rs. 1,70,000. On August 10, 1964, several document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also urged by him that in determining whether the Indenture of Contributory First Legal Mortgage purports to transfer, assign, limit or extinguish any right, title or interest of any of the confirming parties, the Sub-Registrar need not confine his attention merely to the said indenture, but it is incumbent upon him to look to all the surrounding circumstances. His submission was that so far as the confirming parties are concerned it was by the deed of modification and postponement of security executed on the same day that their rights as the fourth mortgagees were postponed to the rights of the petitioners under the said Indenture of Contributory First Legal Mortgage. Secondly, it is contended in the alternative that so far as the said Indenture of Contributory First Legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer 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 alia, provides as to what the registering officer should do when any person who has executed a document, denies execution or appears to be a minor or an idiot or a lunatic. Sub-section (3) thereof provides: "(a) if any person by whom the document purports to be executed denies its execution, or (b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead ..........." Section 71 of the Act provides for recording of reasons for refusal to register. Section 72 provides for an appeal to the Registrar f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, 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 value of such right, title or interest of the person should be more than Rs. 1 lakh. Section 34 of the Wealth-tax Act, 1957, was repealed by section 29 of the Wealth-tax (Amendment) Act, 1964 (Act No. 46 of 1964), with effect from 1st April, 1965. By the Direct Taxes Amendment Act, 1964, section 230A was introduced in the Income-tax Act, 1961, and it came into force on October 6, 1964. Its provisions are as under: " 230A. Restrictions on registration of transfers of immovable property in certain cases.-(1) Notwithstanding anything contained in any other law for the time being in force, where any document required to be registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument 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 Act the ambit of inquiry is more or less the same. In Bolla Guruvayya v. Cherukuri Venkatarathnam, the court has laid down as to what is the ambit of the duty of the court under that section: " The duty of a Registrar to whom a document which appears to have been tampered with after execution is presented for registration by the claimant, is to ascertain whether it is actually in the state in which it was executed by the parties and not to go into a roving inquiry whether the document tendered represents the substance of the agreement between the parties; and the duty of the court in which a suit is filed under section 77 of the Registration Act to have it registered after refusal by Registrar is exactly the same. " However, when a registering officer has to consider the applicability of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 court, while under the said sections 34 and 230A the deciding authority is the registering officer. Upon a true construction of the provisions of the said section 34 and section 230A the registering officer is not entitled to confine his attention to mere provisions of the document itself and to ignore all the relevant surrounding circumstances. The question then to be considered is, even if the surrounding circumstances are taken into account, does the Indenture of Contributory First Legal Mortgage executed on August 10, 1964, purport to transfer, assign, limit or extinguish the right, title or interest of any person to or in any property other than agricultural land, as provided in the said sections 34 and 230A. Strong reliance was placed by Mr. Diwan, on behalf of the petitioners, upon the deed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated 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 mortgagees of the third part and to be lodged for registration hereafter at the office of the Sub-Registrar of Assurances, Bombay, for the consideration mentioned therein and natural love and affection which the confirming parties (the wife and the son of the mortgagor) bear and have to the mortgagor, the fourth mortgagees (being the confirming parties hereto) have postponed their security of the fourth mortgage in respect of the said land, hereditaments and premises. Even in the operative part of the deed itself it is, inter alia, stated that this indenture witnesseth that in consideration of the premises the confirming parties as the fourth mortgagees declare and confirm that they have (as witnessed and recorded in the said deed of modification and postponement of security of even date herewith and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under an obligation to register the indenture. The registering officer was, therefore, right in taking the view that, having regard to the language of the Indenture of Contributory First Legal Mortgage, provisions of the said section 34 and section 230A were attracted and unless a tax clearance certificate was obtained as therein provided, a restriction was put upon him not to register the document. Lastly, the question to be considered is whether under the provisions of the said section 34 or section 230A, partial registration of a document qua some of the parties executing it is possible if they produced a tax clearance certificate as therein provided even though the other parties executing the same fail to produce such a certificate. In other words, does the said section 34 or section 230A permit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently, where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute was not the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent." A somewhat similar question arose for consideration before their Lordships of the Privy Council in Mohammad Ewaz v. Birj Lal. In that case their Lordships had occasion to construe the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 executants it may be registered, but if the executants who executed the document at a later stage do not produce tax clearance certificates it cannot be registered qua them. If regard be had to the provisions of section 35(3) of the Registration Act, it is amply clear that the legislature never intended refusal to register a document in toto simply because some of the executants thereto may not produce the tax clearance certificate, as provided by section 34 or section 230A. Under section 35(3) when execution of a document is denied by some or when the party executing it appears to be a minor, an idiot or a lunatic, or in the case of an executant who is dead and his representative or assign denies the execution, the registering officer has to refuse to register the document as to the person so denying, appearing or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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