PADMAKAN SINGH Vs. THIRD JOINT SUB REGISTRAR

JUDGEMENT

(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".

(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.