- (1.) THESE two writ petitions are filed by the mortgagor and the mortgagee respectively, for the issue of a writ of mandamus to deliver to them the deed of simple mortgage executed by the mortgagor (Padmakan Singh) in favour of the mortgagee (the Coimbatore Vasanthara Bank Ltd.) and registered on 15-5-1963.
(2.) THE circumstances that led to the filing of the writ petitions are these Smt. Padmakan Singh, the petitioner in W.P. 799 of 1963 is a permanent resident of Coimbatore. She owns the property No. 17/73 Oppanakara Street, Coimbatore. Her husband is carrying on business at Coimbatore and is assessed to income tax she applied to the Coimbatore Vasunthara Bank Ltd., 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 15-5-1963 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 15-5-1963. THE Sub-Registrar showed her a letter, in which it was alleged that the 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 mortgagee'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 affixed his signature and date to the document. Afterwards, the Sub-Registrar took the document, in order to copy the contents of the document in book No. 1 and the document was given the number P. 20/63 in book No.1 but there is no word "registered". Thereafter the Sub Registrar addressed a letter on 16-5-1963 to the District Registrar, Coimbatore, seeking his instructions, in view of the letter received by him from the income tax authorities, before taking further proceedings for the completion of the registration of the document. The District Registrar directed the Sub-Registrar not to complete registration of the document unless the mortgagor produced a certificate to the effect that she had paid all the income tax, presumably due and payable by her husband. The District Registrar Coimbatore, also wrote a letter to the mortgagor on 12-7-1963 that a declaration had been received by him under S.2(ii) of the Payment of Taxes (Transfer of Property) Act, (Act XXII of 1949) from the Income tax officer, and directed her to produce a certificate under S 3 of that Act. The District Registrar also stated that the document in question had not yet been admitted to registration. The mortgagor has stated that she is person permanently residing in India and does not propose to leave India, that as far as she is concerned she has no hesitation to pay whatever amount is due and payable by her to the Income Tax Department by way of tax, presumably meaning thereby that she is not responsible or liable to pay the amount of tax due and payable by her husband. According to the mortgagor, on 15-5-1963 there was no declaration, such as that provided in S.2 (ii) of the Payment of Taxes (Transfer of Property) Act, which prevented the registration of the document and, inasmuch as having accepted the document and having complied with all the formalities under the Registration Act, there was no choice left with the Registering officer except to comply with the other formalities under the Act and deliver the document. As far as the mortgagee Bank is concerned, their contention is that they have no knowledge of any claim of tax due and payable by the mortgagor, that the title to the property is in the name of the mortgagor, having been purchased in her name on 8-2-1960 ad that the registering officer cannot therefore raise any 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, 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 otherwise the Bank has nothing to do either with the declaration of the title to the property in as much as they have advanced money on the security of the property in the presence of the Sub Registrar.
(3.) THE contention of the Income-tax Officer seems to be that his enquiry revealed that the property belongs to the husband of the mortgagor and that the mortgagor is only a benamidar and that she has no title to the property. Her husband owes large amount of tax to the department in respect of his business, and assessment proceedings are pending and the department has taken the precaution, long before the date of registration, by informing the registering officer not to register any document purporting to effect any transfer of the house belonging to the mortgagor. All the correspondence that passed between the Income-tax Officer and the registering officer should be taken and read together and, in the context, be regarded as relative declaration under Section 2(ii) of the Act. Even otherwise, the process of registration is not complete without the endorsement "registered" on the instrument, and, before that step could be taken, the registering officer has been lawfully prohibited by a valid declaration under Section 2(ii) of the Payment of Taxes (Transfer of Property) Act 1949. The contention of the registering officers is that they are within their jurisdiction in withholding registration of the document. They contend that the document has only been accepted for registration but not actually registered. On a perusal of the pleadings, the important question that arises for consideration is, when a document can be said to be registered; in other words, what are the requirements necessary for the completion of the registration of a document. ;