B. J. DIVAN, D. A. DESAI, S. N. PATEL, J.

( 1 ) IN Letters Patent Appeal No. 52 of 1972 a Division Bench consisting of myself and P. D. Desai J. has on July 5 197 referred the following three questions to a larger Bench and this Full Bench has been constituted because of that reference: (1) Whether under sec. 76 (a) of the Transfer of Property Act a lease created by the mortgagee in possession of an urban immovable property would be binding on the mortgagor after redemption of mortgage assuming that the lease is such as a prudent owner of property would have granted in usual course of management ? (2) Whether even apart from sec. 76 (a) of the Transfer of Property Act a lease created in exercise of a general power to grant a lease expressly conferred on the mortgagee under the mortgage deed would be binding on the mortgagor after redemption of the mortgage ? (3) Whether a tenant inducted on the property by a mortgagee with possession whose tenancy is not binding on the mortgagor after redemption of the mortgage would still be protected under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 ?

( 2 ) LETTERS Patent Appeal No. 201 of 1971 is against the decision of our learned brother J. M. Sheth J. sitting singly in First Appeal No. 577 of 1965. That First Appeal arose in execution proceedings and the First Appeal was filed against the order of the learned Civil Judge Senior Division Junagadh in Civil Miscellaneous Application No. 112 of 1964. When the Letters Patent Appeal against the decision of J. M. Sheth J. carne up for hearing before a Division. Bench consisting of A. D. Desai and T. U. Mehta JJ it was pointed out to the Division Bench that the points arising in the Letters Patent Appeal on merits were identical with the three points which have been referred to the larger Bench in Letters Patent Appeal No. 52 of 1972. Since all the three questions which arose on merits before them has been already referred to a Full Bench by the Division Bench in Letters Patent Appeal No. 52 of 1972 judicial propriety according to A. D. Desai and T. U. Mehta JJ. required that they should refer Letters Patent Appeal No. 201 of 1971 also to the Full Bench for deciding the said points and the final disposal of the appeal. Under these circumstances Letters Patent Appeal No. 201 of 1971 is now before this Full Bench.

( 3 ) BEFORE proceeding further we must clarify that the whole controversy before us turns upon the rights of a tenant inducted into an urban immovable property by a mortgagee with possession and the rights that we have to consider are as against the mortgagor after the mortgaged property has been redeemed by the mortgagor. The question that we have to consider is whether on redemption of a mortgage with possession by the mortgagor the tenant inducted by the mortgagee can resist eviction at the instance of the mortgagor either under the general law as set out in the Transfer of Property Act or by virtue of an express power conferred upon the mortgagee by the mortgagor or by virtue of the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Bombay Rent Act) whether under any one of these three heads protection for such a tenant is available even after the redemption of the mortgage with possession.

( 4 ) OUT of the three questions referred to us the first question brings out a clear provision under the Transfer of Property Act and what is the scope of sec. 76 (a) of the Transfer of Property Act in relation to mortgage with possession effected on urban immovable property. The second question refers to an express power conferred on the mortgagee under the mortgage deed itself but the power which is conferred is in general terms as distinguished from a special power. So far as the third question is concerned as the language of the third question itself indicates it proceeds on the footing that the tenant inducted on the property by a mortgagee with p

Click Here to Read the rest of this document