December 3, 2020

Rights and Liabilities of Mortgagor in India

Transfer Of Property Act

Rights and Liabilities of Mortgagor are covered under the section 60, 60A, 60B, 61, 62, 63, 63A, 64, 65, and 66 of The Transfer of Property Act, 1882.

Right to Redeem

Section 60 of The Transfer of Property Act, 1882 states the Right of mortgagor to redeem.

Right to redeem is the right to recover something by making certain kind of payments. It is actually that, the mortgagor has the right to back or recover a certain property after making the payment of the loan. It is a right which rests in the mortgagor by virtue of his residuary ownership in the property. As stated above, mortgagor’s right of redemption has been mentioned under section 60 of The Transfer of Property Act, 1882 and hence it a legal and statutory right in India. In some cases, clog on redemption occurs when there are conditions and stipulations which prevent the mortgagor from redeeming the mortgage property on the payment of the loan. In India, the clog on redemption is void because no condition or stipulation can eventually prevail against the statutory right guaranteed by the section 60 of The Transfer of Property Act, 1882.

In the case of, Gulab Chand Sharma.V. Saraswati Devi, [1]Supreme Court held that, the stipulation on the mortgage deed was a clog on right of redemption and hence it can be enforced and it stands to be void.

Mortgagor can exercise his right of redemption in the following ways that is, either by paying or tendering the mortgage money to the mortgagee, by depositing the mortgage money in the court or either by filing a suit for redemption. Right of redemption can be extinguished by the act of parties as in when the parties themselves stipulate for it by a separate agreement, it can also be done by the decree of the court; but such decree must be the final decree of the court.

Against Re-Transfer

Section 60A of The Transfer of Property Act, 1882 states the obligation to transfer to third party instead of retransference to mortgagor,this section enables the mortgagor to require to the mortgagee as in not to retransfer the mortgaged property to a third person but in fact transfer the mortgage itself.

Section 61 of The Transfer of Property Act, 1882 states the right to redeem separately or simultaneously, under this section a mortgagor who has already executed 2 or more separate mortgages in favour of the same mortgagee, eventually gets the right to redeem any one mortgage separately or any 2 or more mortgages together. This section also does not recognize the equity of consolidation.[2]

Right to recover the possession

Section 62 of The Transfer of Property Act, 1882 states the right of usufructury mortgagor to recover the possession, under this section the usufructury mortgagor is entitled to recover the possession of the mortgaged property together with mortgage deed under the following circumstances, upon the payment of the principal money or upon the expiry of the term prescribed for payment of mortgage money. In the case of K.Variath .V. P.C.K Haji, [3]the Supreme Court held that, where a usufructury mortgagor could not recover possession on the basis of an oral mortgage as it could not be proved for want of registration, it was open to him to recover possession on the strength of his title.

Accessions

Section 63 of The Transfer of Property Act, 1882 states the accession to the mortgaged property, so this section incorporates rules relating to accessions to the mortgaged property and it also provides that in the absence of any contract the mortgagor is entitled to the accession while redeeming the mortgage.

Improvements to the mortgaged property

Section 63A of The Transfer of Property Act, 1882 states the improvements to the mortgaged property. This section was included by the amending act of 1929. This section provides that, if in the absence of any contract, if the mortgaged property has underwent any improvements during the mortgage; the mortgagor will get eventually liable to those improvements without paying its cost.

Renewal

Section 64 of The Transfer of Property Act, 1882 states the renewal of the mortgaged lease,it provides that if the mortgage property is the lease hold property so during the continuance of the mortgage the mortgagee will get that lease renewed and then on redemption, the mortgagor will be entitled to have the benefit out from the new lease.

Implied Contracts

Section 65 and 66 provide for the liabilities of a mortgagor under The Transfer of Property Act, 1882. According section 65 of The Transfer of Property Act, 1882 it states the implied contracts by the mortgagor. This provides with the liabilities of a mortgagor which are implied in every mortgage, these liabilities are deemed to be in every mortgage except when the parties have agreed to do so.

Not to anything which is destructive or injurious in nature

At last, section 66 of The Transfer of Property Act, 1882 states the Waste by mortgagor in possession, this article imposes a liability on a mortgagor as in not to do anything which is destructive or injurious in nature or can prove to be fatal to the mortgaged property. In all this section provides that mortgagee should not actively do anything on the property which is in his possession or deals with it in such a manner which ultimately reduces the market value of the mortgaged property.

Conclusion on Rights and Liabilities of Mortgagor

Section 60, 60A, 60B, 61, 62, 63, 63A, 64, 65, and 66 of The Transfer of Property Act, 1882 provides for the Rights and Liabilities of Mortgagor.

[1] AIR 1977 SC 242
[2] Dr RK Sinha, The Transfer of Property Act (12 edn, Central Law Agency 2011) 316
[3] AIR 1974 SC 689

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Author Details: Rakshandha Darak (2nd year student of B.A. LL.B. (Hons.) at Alliance University, Chandapura)

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