AJIT INVESTMENT CO PVT LTD Vs. K G MALVADKAR
LAWS(BOM)-1972-6-1
HIGH COURT OF BOMBAY
Decided on June 29,1972

AJIT INVESTMENT CO.PVT.LTD. Appellant
VERSUS
K.G.MALVADKAR Respondents

JUDGEMENT

- (1.) THE petitioners herein have filed this petition under Articles 226 and 227 of the Constitution praying for 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 Exh. 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 Miran, since deceased, was at all material times the owner of an immovable property known as 'mirani Nagar', situate at 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 Rupees 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 Rupees 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 documents were executed in relation to the said immovable property. On that day 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 this 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 interst 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 others 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, Exh. B. , in favour of the petitioners. He submitted that so far as 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 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 tot he 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 said Tricumji Mirani is concerned as tax clearance certificate is produced by him and the question of registration of the said Indenture in relation to the confirming parties ought to be kept penning 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 230-A 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 document lodged for registration; that in any event the Engage 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 lac and unless a tax clearance certificate as provided in Section 34 of the Wealth Tax Act, 1957, or Section 230-A of the Income-tax Act, 1961, was produced it was not permissible to the registering officer to register the said Indenture.
(3.) TO determine the questions 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 230-A of the Income-tax Act, 1961.;


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