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Mortgage & Section 52 of the Transfer of Property Act, 1882= 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. – No = Section 52 of the TPA prevents a mortgagor from creating any lease during the pendency of mortgaged suit so as to effect the right of a mortgagee or the purchaser. This Court in Mangru Mahto and others (supra) had -an occasion to consider the scope of Section 52 of the TPA in that very context and held as follows: “……………..But in view of Section 52 of the Transfer of Property Act, if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of the litigation. If the property is sold in execution of the decree passed in the suit, the lessee cannot resist a claim for possession by the auction-purchaser. The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property. But if he allows the property to be sold in execution of the mortgage decree and they have now lost the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption. They cannot resist the claim of the auction purchaser of recovery of possession of the lands.”- Section 65-A of the TPA deals with the mortgagee’s powers to lease. However, in view of Section 52, if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of litigation and if the property is sold in execution of the decree, the lessee cannot resist a claim for possession by auction purchaser.- A tenant who is inducted during the subsistence of the mortgage is not entitled to get the protection of the Maharashtra Rent Act. This legal position has been settled by this Court in Om Prakash Garg v. Ganga Sahai and others AIR 1988 -SC 108. – In the above-mentioned circumstances, we are of the view that the courts below have not appreciated the various legal issues and committed an error in non-suiting the appellant. We answer those questions in favour of the appellant and hold that the appellant is entitled to get a decree, as prayed for, since the original first respondent was inducted illegally and to the prejudice of the original mortgagee. Consequently, the judgments of the courts below are set aside and the suit is decreed, however, without any mesne profits. The appeal is allowed, but without any order as to costs.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40663 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6966 OF 2013 [Arising out of SLP (Civil) No.12731 of 2007) Sunita Jugalkishore Gilda .. Appellant Versus Ramanlal Udhoji Tanna (Dead) Thr. Lrs. and others .. Respondents J U D G M E N T K. S. … Continue reading
Protection of Women from Domestic Violence Act, 2005 – s.2(q) read with proviso thereto – Expression “respondent” in s.2(q) – Interpretation of – Complaint under the provisions of the Act – Whether female members cannot be made parties in proceedings under the Act, as “females” are not included in the definition of “respondent” in s.2(q) – Held: Although s.2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso to s.2(q) widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage – Though the expression “female” has not been used in the proviso to s.2(q) also, but, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner – No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Act, to make it specific to males only – In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Act. The appellant had filed a complaint, being a Misc. Crl. Application, against her husband (respondent no.1), mother-in-law (respondent no.2) and sister-in-law (respondent no.3) under Sections 12, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005. The High Court, by the impugned judgment, confirmed the order of the Sessions Judge in regard to deletion of names of respondent Nos.2 and 3 from the proceedings, upon confirmation of the finding of the Sessions Judge that no female could be made a party to a petition under the Domestic Violence Act, 2005, since the expression “female” had not been included in the definition of “respondent” in the said Act. The question which, therefore, arose for consideration in the instant appeal was whether female members cannot be made parties in proceedings under the Domestic Violence Act, 2005, as “females” are not included in the definition of “respondent” in Section 2(q) of the said Act. =Allowing the appeal, the Court HELD:1. Although Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso to Section 2(q) widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage. [Paras 11, 12] [267-E-H; 268-A-B] 2. It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only. [Para 13] [268-B-C] 3. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005. [Para 14] [268-D] 4. Both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression “respondent” in the main body of Section 2(q) of the aforesaid Act. Consequently, the trial Court shall also proceed against the said Respondent Nos.2 and 3 on the complaint filed by the Appellant. [Paras 15, 16] [268-E-F] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 271 of 2011. From the Judgment & Order dated 05.03.2010 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition NO. 588 of 2009. Garvesh Kabra, Pooja Kabra, Nikita Kabra, Abhishek Chaudhary, Adarsh Upadhyay, Harshvardhan for the Appellant. Satyajit A. Desai, Anagha S. Desai for the Respondents
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.271 OF 2011 (Arising out of SLP (Crl.) No.2854 of 2010) Sou. Sandhya Manoj Wankhade … Appellant Vs. Manoj Bhimrao Wankhade & Ors. … Respondents J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. This Appeal is … Continue reading
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