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Ajit Investment Co. Private Ltd. and anr. Vs. K.G. Malvandkar, Sub-registrar, Bombay Suburban Division - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1957 of 1971
Judge
Reported in[1974]95ITR546(Bom)
ActsIncome Tax Act, 1961 - Sections 34 and 230A; Wealth Tax Act, 1957 - Sections 29 and 34
AppellantAjit Investment Co. Private Ltd. and anr.
RespondentK.G. Malvandkar, Sub-registrar, Bombay Suburban Division
Appellant AdvocateAnil Diwan, Adv.
Respondent AdvocateT.R. Andhyarujina, Adv.
Excerpt:
(i) direct taxation - registration - sections 34 and 230a of income tax act, 1961, sections 29 and 34 of wealth tax act, 1957 and section 17 of transfer of property act, 1882 - issues related to registration of sale deed pending until tax clearance certificate is obtained by confirming parties to said mortgage deed - no document required under section 17 should be received as evidence of any transaction affecting such property unless it has been registered. (ii) tax clearance - whether sections 34 and 230a permit registering officer to refuse registration of documents in toto if some executants produce such tax clearance certificate while other fails to do so - provision of sections 34 and 230a is more or less similar - no registering officer appointed shall register any such document.....kantawala, j. 1. the petitioners herein have filed this petition under article 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 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.....
Judgment:

Kantawala, J.

1. The petitioners herein have filed this petition under article 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 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 mortgagor 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 of 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 forth 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 documents were executed in relation to the said immovable property. On that day the said Ishwarlal Mangaldas executed a deed of release in consideration of receipt of a certain amount. On the same day the Syndicate Bank also executed a deed of reconveyance reconveying the said property to Tricumji Mirani in consideration of receipt of a certain amount. Besides the above documents two more documents were executed on the same day. Ramabai Tricumji and Chandrakant Tricumji, the fourth mortgagees, executed on that day a deed of modification and postponement of security whereby they postponed their rights in respect of the said property in favour of the petitioners. The said deed of modification and postponement of security is duly registered under the Registration Act. On the same day an Indenture of Contributory First Legal Mortgage was executed by Tricumji Mirani as mortgagor of the first part, by Ramabai Tricumji and Chandrakant Tricumji as confirming parties, of the second part and by the first petitioner as the first contributory mortgagee, and by the Indian Bank Ltd. as the second contributory mortgagee of the third part. By the said deed, Tricumji Mirani mortgaged the property therein mentioned to the petitioners to secure repayment of the sum of Rs. 3,20,000 and interest thereon as therein provided. The said Indenture of Contributory First Legal Mortgage in favour of the petitioners was lodged for registration on August 14, 1964. Tricumji Mirani during his lifetime produced a tax clearance certificate before the registering authority. However, no such tax clearance certificate was produced by the 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 other for the reliefs above set out.

2. 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 also urged by him that in determining whether in 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-Register need not confine his attention merely to the said indenture, but it is incumbent upon him to 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 Mortgage is concerned, it is incumbent upon respondent No. 1 to register the said indenture so far as the mortgagor, the said Tricumji Mirani, is concerned as tax clearance certificate is proceed by them and the question of registration of the said indenture in relation to the confirming parties fought to be kept pending until the tax clearance certificate was obtained on their behalf. Mr. Andhyarujina, on the other hand, on behalf of the respondents, contended that, having regard to the scheme and provisions of section 34 of the Wealth-tax Act, 1957, and the provisions of section 230A of the Income-tax Act, 1961, the Sub-Registrar while considering the question of registration of a document is not entitled to look into the surrounding circumstances but is bound to apply his mind only to the contents of the documents lodged for registration; that in any event the Indenture of Contributory First Legal Mortgage purported to transfer, assign, limit or extinguish the right, title and interest of the confirming parties in the mortgage property valued at more than Rs. 1 lakh and unless a tax clearance certificate, as provided in section 34 of the Wealth-tax Act, 1957, or section 230A of the Income-tax Act. of 1961, was produced it was not permissible to the registering officer to register the said indenture.

3. To determine the question arising in this petition, it is necessary to consider the scheme and provisions of several sections of the Registration Act, 1908, and the provisions of section 34 of the Wealth-tax Act, 1957, and section 230A of the Income-tax Act, 1961.

4. Section 17 of the Registration Act enumerated documents of which registration is compulsory. Section of 18 thereof enumerates documents of which registration is optional. Section 24 prescribed the time within which 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 no document shall be registered unless the persons executing such document, or their representative, 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) enquiry 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 document, denies execution or appears to be a minor or an idiot or a lunatic.

5. 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.......'

6. Section 71 of the Act provides for recording of reasons for refusal to register. Section 72 provides for an appeal to the Registrar from the orders of the Sub-Registrar refusing registration. Section 76 provides for order of refusal by Registrar. Section 77 provides for institution of a suit in case of order of refusal by Registrar.

7. Rule 44 of the Maharashtra Registration Rules, 1961, inter alia, provides that before accepting any document for registration, a registering officer may not concern himself with its validity, but he shall verify various requirements which are prescribed in the said rules. The scheme of the provisions of the Registration Act is that when a documents is presented for registration the registering officer has to consider whether or not such a document is executed by the person by whom it purports to have been executed and he has to satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the documents and as to their legal capacity to do so. Under section 35(3), as aforesaid, the registering officer has to refuse registration of a document as to the persons who deny execution thereof, as to the person who appears to him to be a minor or an idiot or to be a lunatic or to a person who is dead if his representative or assign denies execution by him. No other and further inquiry is contemplated by an on behalf of the registering officer.

8. Restrictions upon the power of a registering officer to register a document transferring an immovable property in certain cases were imposed by section 34 of the Wealth-tax Act, 1957. The section is as under :

'Where any document required to be registered under the provisions of clause(a), clause (b), 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 documents will not prejudicial affect the recovery of any existing liability under this Act.'

9. 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 documents 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 conditions 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 1954), with effect from 1st April, 1965.

10. 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 under the provisions of clause (a) to clause (e) of sub-section (1) of section 17 of the Indian Registration Act, 1908 (16 of 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 fifty thousand rupees, no registering officer appointed under that Act shall register any such documents, unless the Income-tax Officer certifies that -

(a) such person has either paid or made satisfactory provision for payment of all existing liabilities under this Act, the Excess Profits Tax Act 1940 (15 of 1940), the Business Profits Tax Act, 1947 (21 of 1947), the Indian Income-tax Act 1922 (11 of 1922), the Wealth-tax Act, 1957 (27 of 1957), the Expenditure-tax Act, 1957 (29 of 1957), and the Gift-tax Act, 1958 (18 of 1958)....; or

(b) the registration of the document will not prejudicially affect the recovery of any existing liability under any of the aforesaid Acts.

(2) The application for the certificate required under sub-section (1) shall be made by the person referred to in that sub-section and shall be in such form and shall contain such particulars as may be prescribed.

11. By this section also a ban is imposed upon the power of a registering officer to register a document unless a tax clearance certificate as provided in this section is produced from the Income-tax Officer, and if the three conditions therein laid down are fulfilled. The first condition is that the document should be required to be registered under the provisions of clauses (a) to (b) of sub-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.

12. 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 king.'

13. Even in a suit instituted under section 77 of the Registration Act the ambit of inquiry is more or less the same.

14. 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.'

15. However, when a registering officer has to consider the applicability of the provisions of section 34 of the Wealth-tax Act or section 230A of the Income-tax Act, him inquiry is not so restricted as it normally would be under the provisions of the Registration Act. By these sections, as said earlier, a fetter is imposed upon the power of a registering officer to register a document unless a tax clearance certificate, as therein provided, is produced provided the conditions precedent laid down in the said sections are attracted and are fulfilled. In both these sections the first condition precedent is that the document presented for registration is required to be registered under the provisions of certain clauses of sub-section (1) of section 17. In view of this condition, the registering officer has to decide for himself whether the document presented for registration is required to be registered under the said several clauses of section 17(1) of the Registration Act. There is nothing in the language of either of these sections to indicate that the registering officer must confine his attention to the terms of the document itself and to nothing else. A somewhat similar issue also arises for consideration by a court when an objection is taken as to admissibility of a document under section 49 of the Registration Act on the ground that the document is not registered under the said Act though required to be registered. Section 49, inter alia, provides :

'No document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall.... (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.'

16. 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 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.

17. 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 agriculture 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 modification and postponement of security executed by the confirming parties on that very day prior to the execution of the Indenture of Contributory First Legal Mortgage in favour of the petitioners. The said deed of modification and postponement of security is registered under the Registration Act. The said deed of modification and postponement of security, inter alia, provides that the fourth mortgagees (i.e., the confirming parties in the Indenture of Contributory First Legal Mortgage) agree that the fourth mortgage should be postponed to the Indenture of Contributory First Legal Mortgage of even date created in favour of the petitiners and Tricumji Mirani also agreed, declared and confirmed the postponement of security of the fourth mortgagees and priority being given to the mortgage and security of the forth mortgagees and priority being given to the mortgage and security of the petitioners under the Indenture of Contributory First Legal Mortgage. If this document is otherwise valid in law and not open to any objection, undoubtedly the necessary consequence thereof will be that the rights, if any, of the confirming parties as the fourth mortgagees would be postponed to those of the petitioners under the Indenture of Contributory First Legal mortgage. Thus even though the security created in favour of the confirming parties was of an earlier date, by reason of this document they agreed to its postponement to the rights of the petitioners under the Indenture of Contributory First Legal Mortgage. However, even though such may be the effect of the deed of modification and postponement of security executed by the confirming parties, that does not necessarily lead to the conclusion that by the Indenture of Contributory First Legal Mortgage the confirming parties have not purported to transfer, passing, 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 he 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 create 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 so 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 executed immediately before the execution of these presents) postponed their security of the said fourth mortgage under the said indenture of the forth mortgage dated December 5, 1961. If these were the only provisions in the Indenture of Contributory First Legal Mortgage, one may be in a position to urge that these provisions constitute a mere record of a past transaction. The Indenture of Contributory First Legal Mortgage, however, does not end there. Subsequently it clearly provides that :

'This indenture witnesseth that in further pursuance of the said agreement and for the consideration aforesaid they the confirming parties being the fourth mortgagees do and each of them doth hereby release, reconvey, reassure and confirm into the mortgagees..... all and singular the said pieces or parcel of land or ground..... to have and to hold the said hands, hereditaments and premises hereby granted, conveyed, confirmed and assured or intended or expressed so to be unto and to the use of the mortgagee freed and absolutely discharged for ever of and from the principal sum and interest and costs, charges, expenses and other amounts due and owing by the mortgagor to the confirming parties as such fourth mortgagees under the said indenture of fourth mortgage dated December 5, 1961, postponed as aforesaid under the said deed of modification and postponement of security hereinbefore recited and of and from all actions, claims and demands thereunder.'

18. If for any reason the deed of modification and postponement of security executed by the confirming parties is unable to 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 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.

19. 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 registering officer to refuse registration of the document in toto if some of the executants thereto produce such tax clearance certificates while the others fail to do s To put it differently, is partial registration of a document qua some of the executants permissible under the said section 34 or section 230A. The effect of the provisions of both section 34 and 230A is more or less similar. They provide where the conditions therein laid down are fulfilled 'no registering officer appointed under that Act shall register any such document' unless a tax clearance certificate as therein provided is produced. The argument of Mr. Andhyarujina on behalf of the respondents is that the provisions of the said sections 34 and 230A are merely supplementary to the functions of a registering officer under the provisions of the Registration Act; that their duties are not enlarged by any of these provisions; that the registering officer has only to see the tenor of the document and not the surrounding circumstances; that a total and complete ban is imposed on his power to register the document even if only one of the several executants thereto fails to produce such a tax clearance certificate.

20. Having regard to the well-settled canon of construction of statutes such an argument cannot be accepted. In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all case of doubtful significance, 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 passing of the statute, not in the light of subsequent events. (see Maxwell on the Interpretation of Statutes, 12 the edition, at page 199).

21. That such is proper canon of construction is reaffirmed by the Supreme Court in Budhan Singh v. Babi Bux. 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 Constructions 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 seems 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.'

22. 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 of section 35 of the earlier Registration Act of 1871. Section 35 inter alia provided :

'If all or any of the persons by whom the document purports to be executed deny its execution, or if any such person appears to be a minor, an idiot, or a lunatic, or 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.'

23. In the opinion of their Lordships :

'These words, taken literally, undoubtedly seem to require the registering officer to refuse to register a deed which purports to be executed by several persons if any one of those persons deny the execution. Such a construction, however, would cause great difficulty and injustice, which it cannot be supposed the legislature contemplated, and would be inconsistent with language and tenor of the rest of the Act; their Lordships, therefore, thought the words should be read distributively, and be construed to mean that the registering officer shall refuse to register the document quoad the persons who deny the execution of the deed, and quoad any person who appears to be a minor, an idiot, or a lunatic. There appears to be no reason for extending the clause further than this, so as to destroy the under no disability, which would be the practical effect of a refusal to register at all.'

24. Such a canon of construction of the provisions of section 35 was accepted by the legislature when the Registration Act, 1908, 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.

25. The provisions of the said section 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 Registration 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 may be presented for registration and re-different 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 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 dead. In a case where the provisions of section 35(3) are otherwise attracted and if Mr. Andhyarujina's contention be accepted the registering officer ought to refuse to register the document in toto simply because the persons specified in this section failed to produce a tax clearance certificate. It is unnecessary to multiply instances, but it is quite clear that the construction canvassed by Mr. Andhyarujina, on behalf of the respondents, was never contemplated by the legislature and is contrary to convenience, reason, justice and legal principles. In our opinion, if a document of a nature specified in the said section 34 or section 230A is executed by more than one person and if some of the persons produce tax clearance certificates and admit execution thereof, then it is not open to the registering officer to decline to register the document qua such persons simply on the ground that the other executants to the document have failed to produce such tax clearance certificates. In our opinion, both section 34 and section 230A permit a registering officer to register a document qua such of the executants who produce tax clearance certificates, as therein provided, and the question of registration qua the other executants can be kept pending till they produce such tax clearance certificates as therein required.

26. In the result, the petition is partly allowed and the rule is made absolute as under :

The writ of mandamus is issued against respondent No. 1, the Sub-Registrar, Bombay Suburban Division, Bandra, directing him to register the Indenture of Contributory First Legal Mortgage, dated August 10, 1964 (which was lodged for registration before him on August 14, 1964), qua the mortgagor, Tricumji Mirani, and to endorse thereon a certificate of registration to the effect as required by the Registration Act. Respondent No. 1 the Sub-Registrar, Bombay Suburban Division, Bandra, is directed to keep the question of registration of the said document qua the confirming parties pending until they produce such tax clearance certificates as provided by section 230A of the Income-tax Act, 1961.

27. Mr. Kotval on behalf of the petitioners does not press for costs. There will be no order as to costs.


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