Simple mortgagee protected against prior charge where no notice existed and lis pendens did not apply.

A compromise-decree charge was treated as a charge created by act of parties under section 100 of the Transfer of Property Act, 1882, but the proviso was held to protect a simple mortgagee who took the property for consideration without notice. The expression covering property transferred for consideration was read broadly enough to include a mortgagee with a legally vested interest, and the prior charge could not prevail where actual or constructive notice was absent. The doctrine of lis pendens also did not apply because the earlier suit was only a money claim, the property was not directly in issue, and no pending execution or darkhast attracted section 52. The later mortgagee's interest was therefore protected.

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Issues: (i) Whether a simple mortgagee, as a transferee for consideration without notice, is protected by the proviso to section 100 of the Transfer of Property Act, 1882 against enforcement of a prior charge created by a compromise decree; (ii) whether the doctrine of lis pendens could defeat the subsequent mortgagees' rights.

Issue (i): Whether a simple mortgagee, as a transferee for consideration without notice, is protected by the proviso to section 100 of the Transfer of Property Act, 1882 against enforcement of a prior charge created by a compromise decree.

Analysis: A charge created by a compromise decree was treated as a charge created by act of parties and therefore within section 100. The proviso to section 100 was construed in the context of the statute as a whole, the distinction between a transfer of ownership and a transfer of an interest in property, and the legislative purpose of protecting bona fide transferees for consideration without notice. The expression "property in the hands of a person to whom such property has been transferred for consideration" was held wide enough to include a simple mortgagee, because a mortgagee takes a legally vested interest in property for consideration. On the facts, the mortgagee had neither actual nor constructive notice of the earlier charge, since the omission in the registration indices prevented a proper search from disclosing it.

Conclusion: The subsequent simple mortgagee was protected by the proviso to section 100, and the prior charge could not prevail against that mortgagee in the absence of notice.

Issue (ii): Whether the doctrine of lis pendens could defeat the subsequent mortgagees' rights.

Analysis: The earlier suit was only a money claim when instituted, and the property later subjected to charge was not directly and specifically in issue in that suit. The later mortgages were created when no execution or darkhast was pending that could attract lis pendens. The statutory conditions for section 52 were therefore not satisfied.

Conclusion: The doctrine of lis pendens did not apply.

Final Conclusion: The appeals failed because the later mortgagee's interest was protected against the prior charge, and no lis pendens argument displaced that result.

Ratio Decidendi: A simple mortgagee is a transferee for consideration within the proviso to section 100 of the Transfer of Property Act, 1882, and a prior charge cannot be enforced against such transferee in the absence of notice; lis pendens applies only when the property is directly and specifically in question in a pending suit.

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