SUNITA JUGALKISHORE GILDA versus RAMANLAL UDHOJI TANNA (DEAD) THR. LRS. AND OTHERS

Citation: [2013] 8 S.C.R. 215 · Decided: 21-08-2013 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2013] 8 S.C.R. 215 
SUNITA JUGALKISHORE GILDA 
v. 
RAMANLAL UDHOJI TANNA (DEAD) THR. LRS. AND 
OTHERS 
(Civil Appeal No. 6966 of 2013) 
AUGUST 21, 2013 
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.] 
A 
8 
Transfer of Property Act, 1882 - s. 52 - Mortgagor 
inducting tenant in a mortgaged property, to the prejudice of C 
the mortgagee, pendente lite - Permissibility - On facts, 
mortgagor (respondent no.2 & 3) inducted respondent no.1 
as a tenant without consent of the mortgagee (appellant) -
Induction of respondent no.1-tenant was during subsistence 
of the mortgage and a/so subsistence of various legal 
D 
proceedings pending before various courts between the 
mortgagor and the mortgagee - Suit of appellant-mortgagee 
against respondents for recovery of possession, and 
damages for use and occupation - Held: Rule of /is pendens 
applies to suit by a mortgagee as well - s.52 of the TPA 
E 
prevents a mortgagor from creating any /ease during the 
pendency of mortgaged suit so as to effect the right of a 
mortgagee - However, in view of s. 52, if the mortgagor grants 
such a /ease during the pendency of a suit for sale by the 
mortgagee, the lessee is bound by the result of litigation and 
F 
if the property is sold in execution of the decree, the lessee 
cannot resist a claim for possession by auction purchaser -
Tenant inducted during subsistence of the mortgage is not 
entitled to get protection of the Rent Act - The courts below 
erred in non-suiting the appellant - Appellant entitled to get 
G 
decree, as prayed for, since respondent no. 1 was inducted 
illegally by respondent nos. 2 & 3 and to the prejudice of 
appellant-mortgagee - Suit of appellant decreed, however, 
without any mesne profits - Maharashtra Rent Act. 
215 
H 
216 
SUPREME COURT REPORTS 
[2013] 8 S.C.R. 
A 
Doctrines - Doctrine of !is pendens - Rationale for - Held: 
B 
The doctrine is intended to prevent one party to a suit making 
an assignment inconsistent with the rights which may be 
decided in the suit and which might require a further party to 
be impleaded in order to make effectual the court's decree. 
'G', the grand mother-in-law of the appellant, became 
a mortgagee of the property in question in 1953 by a 
registered mortgage deed executed by one 'V", father of 
Respondent Nos.2 and 3 for himself and as guardian of 
Respondent No.2. Suit was filed by 'G' for enforcing the 
C mortgage, which was decreed by the civil court on 
01.09.1956 and preliminary decree later became final as 
against the share of 'V'. 'G' purchased % share in the 
mortgaged property from 'V' on 02.03.1960 which was 
confirmed in her favour by the civil court and was placed 
D in joint possession by the executing court on 25.11.1960. 
Respondent no.1 was inducted as a tenant while all these 
proceedings were pending before the court. The entry of 
respondent no.1 into the suit property was not with the 
consent and knowledge of 'G' even though she was a 
E mortgagee of a portion of the property from 1953 
onwards. 
Several civil suits were also pending between the 
mortgagor and the mortgagee and it is during the course 
F of those proceedings, evidently, respondent no.1 was 
inducted as a tenant. 'G' filed civil suit against the 
respondents for recovery of possession, damages for 
use and occupation. The trial court dismissed the suit on 
the ground that Respondent Nos.2 and 3 being 
G mortgagors were entitled to induct Respondent No.1 as 
a tenant. Appeal before the District Judge was dismissed. 
'G' later bequeathed the suit property in favour of the 
appellant. Subsequently the appellant filed Second 
Appeal, which was dismissed by the High Court and 
therefore the instant appeal. 
H 
SUNITA JUGALKISHORE GILDA v. RAMAN LAL UDHOJI 
217 
TANNA (DEAD) THR. LRS. 
The question that arose for consideration in the 
A 
instant appeal was whether the mortgagor can induct a 
person as tenant in a mortgaged property, to the 
prejudice of the mortgagee, pendente lite, in violation of 
Section 52 of the Transfer of Property Act, 1882. 
Allowing the appeal, the Court 
B 
HELD: 1.1. The induction of respondent no.1 was 
during the subsistence of the mortgage and pendency of 
court proceedings. Rule of lis pendens applies to suit on 
mortgagee as well. The doctrine is intended to prevent C 
one party to a suit making an assignment inconsistent 
with the rights which may be decided in the suit and 
which might require a further party to be impleaded in 
order to make effectual 

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