ORDER
Bhagabati Prasad Banerjee, J.
1. In this writ petition a pure question of law has been raised. The question that calls for consideration by the Court is whether in respect of sale of property by execution of a registered document, the confirming party, namely, the respondent 3 who originally entered into an agreementwith the respondents 4 and 5 whereby the respondents 4 and 5 agreed to sell the property either to the respondent 3 or to his nominee, was required to produce an Income-tax Clearance Certificate under Section 230A of the Income-tax Act before the Registrar of Assurance as a condition before the registration of the sale deed by which the owners of the property namely, the Respondents 4 and 5 transferred the property to the petitioner.
2. The fact of this case in short is t hat the Respondents 4 and 5 were the owners of the premises No. 15, Raja Santosh Road Calcutta and on 14th Nov. 1986 the Respondents 4 and 5 agreed to sell for valuable consideration the rear portion of the said premises measuring about 10 cottahs of land to the Respondent 3, or his nominee as the case may be and received a sum of Rs. 10 lakhs as earnest money. The said agreement for sale was filed before the Income-tax Authority as well as before the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. The Income-tax Authority issued 'No Objection Certificate' in favour of the Respondents 4 and 5 for the sale of the said property. Necessary permission was also obtained from the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 by the owners of the property namely, the Respondents 4 and 5, the Respondent 3 nominated the writ petitioner as the purchaser and the said nomination was duly accepted by the Vendors namely the respondents 4 and 5. The Respondents 4 and 5 agreed to convey the said property to the writ petitioner and a formal Deed of Conveyance was executed by the Repondents 4 and 5 in favour of the writ petitioner wherein the Respondent 3 added as a mere confirming party inasmuch as the said sale was made pursuant to an agreement for sale entered into by and between the Respondent 3 and the Respondents 4 and 5 whereby the Respondents 4 and 5 agreed to sell the said property either to the Respondent 3 or to his nominee. The Respondent 3 was shown as a mere confirming party in the said Deed of Sale in order to avoid any future controversy. The consideration money of 40 lakhs was paid by the petitioner to the Respondents 4 and 5 out of which a sum of Rs. 10,000/- has been paid to the Respondent 3 by way of reimbursement of the earnest money paid byhim to the Respondents 4 and 5 at the time of execution of the agreement for sale. The requisite stamp duty of Rs. 7,93,650/- was affixed to the Deed of Conveyance and that the said Deed of Conveyance was presented before the Respondent 1, Registrar of Assurances, Calcutta on 5th of August, 1987.
3. The Registrar of Assurances, Calcutta went to the residence of the Respondents 4 and 5 on Commission, upon payment of requisite commission fee for the purpose of execution of the said document and in the presence of the Respondent 1, the Vendors, namely the Respondents 4 and 5 and the confirming party, namely, the Respondent 3 duly signed the said Deed of Conveyance at the residence of the Respondents 4 and 5 and the original Deed of Conveyance was handed over to the Registrar of Assurances, Calcutta and the Registrar of Assurances, Calcutta took the said Deed of Conveyance for registration under the law. Upon payment of the consideration money as mentioned in the said Deed of Conveyance, the vendors namely the Respondents 4 and 5 handed over vacant possession of the aforesaid property to the writ petitioner. The Vendors, namely the Respondents 4 and 5 obtained 'No objection Certificate' from the I.-T. Authority as provided under Section 230A of the I.-T. Act, 1961 and filed the same before the Registrar of Assurances, Calcutta along with the written permission granted by the Urban Land Ceiling Authorities at the time of execution of the said Deed of Conveyance on commission.
4. By the impugned Memo No. 577 dated 26th Oct., 1987 the Registrar of Assurances, Calcutta informed the petitioner's Advocate, that the Respondent 3 was also required to obtain an Income-tax Clearance Certificate as provided under Section 230A of the I.-T. Act as according to the Respondent 1, the Respondent 3 by virtue of the agreement for sale acquired some interest or benefit in the land in question relying upon the definition of the word 'immoveable property' as provided in Section 2(6) of the Registration Act. It was also pointed out by the Registrar of Assurances, Calcutta that the agreement for sale that was entered into by and between the respondent 3 and the Respondents 4 and 5 created an interest in land in favour of the Respondent 3 and as such the same should be regarded as benefit arising out of the land. In order todecide this question whether the contract for sale created an interest in favour of the Respondent 3 within the meaning of Section 2(6) of the Registration Act in the land in question and whether the Respondent 3 has to obtain an Income-tax Clearance Certificate from the I.-T. Authorities under Section 230A of the I.-T. Act and has to produce the same before the Registering Authority along with the owners of the land who are the vendors, namely the Respondents 4 and 5 respectively, it is necessary to set out provisions of Section 2(6) of the Registration Act, Section 54 of the T. P. Act and Section 230A of the I.-T. Act. Sub-section (6) of Section 2 of the Registration Act reads as follows:
' 'Immoveable property' includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.'
Section 54 of the T. P. Act reads as follows:
' 'Sale' is a transfer or ownership in exchange for a price paid or promised or part-paid and part promised.
Such a transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of theproperty.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs; in possession of the property.
A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.'
(Underline supplied)
Section 230A of the I.-T. Act reads as follows :
'230A. (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 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 valued at more than fifty thousand rupees, no registering officer appointed under that Act shall register any such document, unless the I.-T.O. 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 Income-tax Act, 1922 (11 of 1922), the Wealth-tax Act, 1957 (27 of 1957) the Expenditure-tax Act, 1957 (29 of 1957) the Gift-tax Act, 1958 (18 of 1958), the Super Profits Tax Act, 1963 (14 of 1963) and the Companies (Profits) Surtax Act, 1964 (7 of 1964), 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.
(3) The provisions of Sub-section (1) shall not apply in a case where the person referred to in that Sub-section is any such institution, association or body, or belongs to any such class of institutions, associations or bodies, as the Board may, for reasons to be recorded in writing, notify in this behalf in the Official Gazette.'
5. The Registrar of Assurances, Calcutta while refusing to register the sale deed in question pointed out that the confirming party namely, the Respondent 3 had acquired an interest in the said immoveable property which was also sought to be transferred and as such an I.-T. Clearance Certificate under Section 230A of the I.-T. Act was required to be produced and unless the said I.-T. Clearance Certificate is produced, the document could not be registered and that the registration was withheld and the matter was kept pending until the confirming party namely theRespondent 3 produces the I.-T. clearance certificate under Section 230A of the I. T. Act.
6. The Registrar of Assurances, Calcutta, it appears, relied on a passage from Sanjiva Rao's Registration Act and relied on the principle laid down in an English case namely, Marshall v. Green which laid down the proposition that agreement for sale of immoveable property creates an interest in land one must acquired a real interest in any benefit arising out of the land.
7. It may be mentioned herein that whenever any sale of an immoveable property is to be made that should be governed by the provision of the T. P. Act, particularly Section 54 of the T. P. Act which defined 'sales' and also it provides that a contract for the sale of immoveable property does not of itself create any interest in or charge on such property. This last clause wherein it provides that such a contract for sale of immoveable property does not of itself create in or charge on such property totally abolished the English doctrine that a contract for sale transfers an equitable estate to the purchaser. The law of India does not recognise the equitable estate. In this connection, it may be mentioned that Section 17(2)(v) of the Registration Act provides that any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of 100/-and upward to or in immoveable property but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest is not required to be registered. It was submitted by Mr. Anindya Kumar Mitra, the learned Counsel appearing on behalf of the petitioner, the registering authority was in error and failed to appreciate the correct and the established legal position in this behalf inasmuch as no interest in any immoveable property had been created in favour of the respondent 3 by virtue of the said contract for sale and it was further submitted that the Registering Authority failed to appreciate the true scope and ambit of provisions of Section 230A of the I.-T. Act. It was further submitted that the production of I.-T. Clearance Certificate is required under the provision of Section 230A of the I.-T. Act in case of transfer of property within the meaning of T. P. Act and that the Registration Act doesnot create or extingusigh the rights, titles and interest in any property and if the Respondent 3 is not the owner and if the Respondent 3 had no occasion to transfer the property in favour of the petitioner, in that event, on proper construction of the provision of Section 230A of the I.-T. Act, the Respondent 3 was not required to obtain an Income-tax Clearance Certificate. In my view the submission made by Mr. Mitra requires the careful consideration. The object of Section 230A of the I.-T. Act, 1961 is primarily intended to be a safeguard against tax evasion. It provides a total safeguard in the sense that it requires not only the Income tax Clearance Certificate from the I.-T. O. but also prescribes an interdict to the Registering Authority not to register any documents which purport to transfer, assign, limit or extinguish the right, title or interest of any person to or in any property including agricultural land the value of which exceeds 50,000 unless such certificate is produced. The certificate is to the effect that the transferor had either paid or made satisfactory arrangement for payment of all existing tax liabilities so that the registration of the document will not prejudicially affect the recovery of any of the existing tax liability. This section has been enacted as part of the machinery for collection of recovery of Income-tax and other taxes. In the instant case, when the I.-T. Authorities issued 'No Objection Certificate' in favour of the respondents 4 and 5 for effecting the transfer of property in favour of the petitioner, the question is whether the Registrar of Assurances can insist that the Respondent 3 who is not the owner of the property in question but with whom an agreement was made for sale by the Respondents 4 and 5 and ultimately the writ petitioner being the nominee of the respondent 3 is purchasing the property directly from the Respondents 4 and 5 on production of Income-tax clearance certificate (sic). Such certificate as contemplated under Section 230A of the Income-tax Act was required to be taken by the Respondent 3 and had to be produced before the Registering Authority. From the scheme of Section 230A of the said Act, it appears that the object of such legislation was to transfer property by a person who had defaulted in making payment of Income-tax and Section 230A of the said Act was introduced for the purpose of recovery of the dues, otherwise if a personin arrear of payment of Income-tax is allowed to transfer its property without payment of the dues, in that event, the Revenue is bound to suffer as ultimately the Revenue would not get the property to fall back upon to realise the Income-tax. The Respondents 4 and 5 who are the owners of the land are admittedly not defaulters in payment of Income-tax and that was a reason why the I-T. Authorities issued 'No Objection Certificate' in respect of the transfer in question. In law the Respondent 3 had no saleable interest in the property in question and admittedly if the Respondent 3 is in arrear of payment of any Income-tax, certainly the I-T. Authorities cannot fall back upon the property in question in which the Respondent 3 had no right, title or interest which could be sold. The language used in Section 230A of the I.-T. Act could not be stretched too far as sought to be done by the Registrar of Assurances. It is firmly established principle that language is presumed to be used in its primary ordinary sense unless this stultifies the purpose of the Statute or otherwise produced some injustice, absurdity or anomaly or contradiction, in which case, some secondary ordinary sense must be preferred. In the instant case I have to look into the intention of the Parliament for enacting the provision of Section 230A of the I.-T. Act and the intention of such provision is clear. The interpretation sought to be given by the Registrar of Assurances would clearly amount to destructive analysis. The view taken by the Registrar of Assurances is on the fact of it perverse in view of the provision of T. P. Act and the provision of the Income-tax Act referred to above. The object of Section 230A of the I.-T. Act is clear and it is not difficult to ascertain the mischief which the statute was intended to remedy and under such circumstances, the construction as sought to be given by the Registrar of Assurances would be contrary to the spirit and/or the object of the provision of Section 230A of the said Act. Further the scope of Section 230A of the I.-T. Act. in my view, cannot be enlarged beyond what was intended by the legislature. Section 230A of the said Act clearly provided that Income-tax Clearance Certificate is required before the registration when the transferor purports to transfer, assign, limit or extinguish right, title or interest in the property. Section 54 of the T. P. Act clearly declared that the contract for sale ofimmoveable property did not of itself create any interest in or charge on such property. When in a matter like this, the Respondent had become a confirming party, the right of the respondent 3 to enforce the contract for sale against the Respondents 4 and 5 had been clearly abandoned in so many clear words and in order to avoid any future complication in this matter, the respondent 3 was made a confirming party. The confirming party in the instant case, had not acquired any interest which could be transferred In that view of the matter, in my view, the Registrar of Assurances was wholly wrong in holding that the contract for sale created an interest in favour of the respondent 3 in view of the definition of the immoveable property as provided in Section 2(6) of the Registration Act. The Registrar of Assurances, Calcutta, in my view, failed to appreciate the true scope of meaning and definition of the word 'immoveable property' as provided in Section 2(6) of the Registration Act. The word 'or any other benefit to arise out of land and things attached to the earth.....' cannot be read in isolation inasmuch as on plain reading of the said sub-section, it is clear that these words 'or any other benefit to arise out of land and things attached to the earth' must be a right or interest akin to rights to ways, lights, ferries, fisheries and that these words 'any other benefit to arise out of land' is provided after the words 'some specific rights' it should be held that any other benefit must be similar to the right mentioned in that sub-section on the basis of the principle of interpretation. These words 'any other benefit' are to be interpreted on the basis of the principles of ejusdem generis. What is transfer of property is provided under the T. P. Act and in this regard the T. P. Act overrides all other Acts. The scope and ambit of the T. P. Act is well known and well defined. The scope of Registration Act is also well settled namely, the purpose of this Act is to provide the provision for registration of document for effecting such transfer within the meaning of the T. P. Act. The scope of the Registration Act is only confined to registration and not to transaction. The scope of the T. P. Act is confined to transaction, in other words, create or extinguish right, title or interest of any property and the meaning of transfer of such right, title and interest. When the T. P. Act clearly provided that a contract for sale ofimmoveable property did not create any interest in or charge on property that should be regarded as the law of the land and the legal effect of contract for sale of immoveable property cannot be enlarged but the provision of the Registration Act as sought to be made by the Registering authority. In my view, the Registrar of Assurances proceeded in the matter on an erroneous conception of law regarding the effect of a contract for sale of immoveable property. As hereinbefore stated the Respondent 3 had no manner of right, title or interest in the immoveable property which belongs to the Respondents 4 and 5 and the Agreement for sale specifically provided that the property might be sold either to the Respondent 3 or to his nominee when the property belongs to the Respondents 4 and 5 was sought to be transferred in favour of the petitioner being the nominee of the Respondent 3. By any stretch of imagination it cannot be said that the Respondent 3 had any right which is sought to be transferred in favour of the petitioner. When the Income-tax Authorities had issued 'No Objection Certificate', the Respondents 4 and 5 who are the owners of the property had no outstanding tax liability, the Registering Authority was bound to act upon the same and register the same on the strength of such certificate. The Registrar of Assurances had no jurisdiction to go behind the 'No Objection Certificate' issued or the clearance given by the Income-tax Authorities under the provision of the Income-tax Act. In my view, in the facts and circumstances of the case, particularly the Respondent 3 was not transferring any of his right, title and interest of property as provided in Section 230A of the I.-T. Act and as such the question of obtaining an I.-T. Clearance Certificate does not and could not arise at all. In my view, the Registrar of Assurances, Calcutta was in error in keeping the registration pending till the confirming party namely, the Respondent 3 produces the I.-T. Clearance Certificate inasmuch as the Respondent 3 being a confirming party and the Respondent 3 was not the owner of the property and the Respondent 3 had not acquired any right, title or interest in the property on the strength of the mere agreement to sell the property of which he was a party. Accordingly the decision contained in Memo No. 577 dt. 26th Oct. 1987 given by Mr. R. K. Dutt, Registrar ofAssurances, Calcutta, which is annexed to the petition, is set aside and the Respondent 1 is directed to forthwith register the Deed of Conveyance dt. 5th Aug. 1987 relating to the rear portion of the premises No. 15C, Raja Santosh Road, Alipore, Calcutta, which was presented before the said authority on 5th of Aug. 1987 which is annexed to the writ petition and to issue certificate of registration in favour of the petitioner as forthwith.
8. The writ petition accordingly succeeds. There will be no order as to costs.