INTRODUCTION
A mortgage is a security given by a person to ensure or facilitate the fulfilment of some obligation undertaken by him. Usually, this obligation is the repayment of a debt Section 58 of the Transfer of Property Act deals with the mortgage and its kinds.
MEANING OF MORTGAGE
A mortgage is an interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt.
DEFINITION OF MORTGAGE
A mortgage is the transfer of an interest in specific immovable property for security the payment of money advanced or to be advanced by way of a loan, existing or future debt, or the performance of an engagement that may give rise to a pecuniary liability.
MORTGAGOR
RIGHTS OF MORTGAGOR
Following are the rights of the mortgagor.
1. RIGHTS OF MORTGAGOR TO REDEEM
At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a property time and place. of the mortgage money to require the mortgagee.
(a) Right to deliver mortgage deed: To deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee.
(b) Right to demand delivery of possession: Where the mortgagee has the mortgaged property to deliver possession thereof to the mortgagor
(c) Right to re-transfer the property: At the cost of the mortgagor whether to re-transfer the mortgaged property to him or to such third person as he may direct or to execute and have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished
2. RIGHT OF INSPECTION AND PRODUCTION OF DOCUMENTS
A mortgagor, as long as his right of redemption subsists, shall be entitled at all reasonable times, at his request and his own cost, and on payment of the mortgagee’s costs and expenses on this behalf, to inspect and make copies or abstract of or extracts from documents of title relating to the mortgaged property which are in the custody or power of the mortgagee.
3. RIGHTS TO REDEEM SEPARATELY OR SIMULTANEOUSLY
A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately or any two or more of such mortgages together.
4. RIGHT OF USUFRUCTUARY MORTGAGOR TO RECOVER POSSESSION
In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage deed and all documents relating to the mortgaged property which is in the possession or power of the mortgagee.
5. ACCESSION TO MORTGAGE PROPERTY
Where the mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession.
6. RENEWAL OF MORTGAGED LEASE
Where the mortgaged property is a lease, and the mortgagee obtains a renewal of the lease the mortgagor upon redemption shall, in the absence of a contract by him to the contrary have the benefit of the new lease.
7. MORTGAGOR HAS THE POWER TO LEASE
Subject to the provisions of subsection 2, a mortgagor, while lawfully in possession of the mortgaged property shall have the power to make a lease thereof which shall be binding on the mortgagee.
DUTIES OF THE MORTGAGOR
Following are the liabilities of the mortgagor
1. Liability to Transfer Valid Interest
The mortgagor is liable to transfer valid interest to the mortgagee in respect of the mortgaged property.
2. Liability to Defend Title
The mortgagor is under liability to defend his title if he has mortgage property and if the mortgagee is in possession he must enable him to defend his property.
3. Liability to pay Public Charges
The mortgagor can pay the public charges so long as the mortgagee is not in possession.
4. Liability to Pay Rents
Where the mortgaged property is a lease it is the liability of the mortgagor to pay the rent.
5. Liability to pay interest and other Encumbrances
It is a liability to pay interest on the prior mortgage and discharge at the proper time when the mortgagee is after a second mortgage.
MORTGAGEE
RIGHTS OF MORTGAGEE
Following are the rights of the mortgagee.
1. RIGHT TO FORECLOSURE OR SALE
In the absence of a contract to the contrary, the mortgagee has at any time after the mortgage money has become due to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage money has been paid or deposit as hereinafter provided a right to obtain from the court a decree that the mortgagor shall be debarred of his right to redeem the property or a decree that the property be sold.
2. RIGHT TO SUE FOR THE MORTGAGE MONEY
The mortgagee has a right to sue for the mortgage money in the following cases and no others, namely
(a) The mortgagor binds himself to repay the same.
(b) By any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient and the mortgagor has failed to do so.
(c) The mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor.
3. POWER OF SALE WHEN VALID
A mortgagee or any person acting on his behalf shall have the power to sell or concur in selling the mortgaged property, or any part thereof, in default of payment of the mortgage money.
of such encumbrances at
4. APPOINTMENT OF RECEIVER
Section 69-A A mortgagee having the right to exercise a power of sale under section 69 shall be entitled to appoint a receiver of the income of the mortgaged property or any part thereof.
5. ACCESSION TO MORTGAGED PROPERTY
If after the date of the mortgage, any accession is made to the mortgaged property, the mortgagee in the absence of a contract to the contrary, shall, for the security, be entitled to such accession.
6. RENEWAL OF MORTGAGED LEASE
When the mortgaged property is a lease and the mortgagor obtains a renewal of the lease the mortgagee in the absence of a contract to the contrary, shall, for the security, be entitled to the new lease.
DUTIES OF MORTGAGEE
Following are the liabilities of the mortgagee in possession.
1. MANAGEMENT OF PROPERTY
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must manage the property as a person of ordinary prudence would manage it if it were his property.
2. COLLECTION OF RENTS AND PROFITS
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must use his best endeavours to collect the rents of profits thereof.
3. PAYMENT OF GOVERNMENT REVENUE
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must in the absence of the contract to the contrary, out of the income of the property pay the Government revenue.
4. PAYMENT OF PUBLIC CHARGES
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must in the absence of a contract to the contrary pay all other charges of a public nature.
5. PAYMENT OF RENTS
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must, in the absence of the contract to the contrary pay all rent accruing due in respect thereof during such possession.
6. PAYMENT OF ARREARS
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must in the absence of the contract to the contrary pay any arrears of rent in default of payment of which the property may be summarily sold.
7. NECESSARY REPAIRS OF PROPERTY
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rent and profits thereof after deducting from such rents and profits the payments mentioned in clause (c) and the interest on the principal money.
8. NOT TO COMMIT DESTRUCTIVE ACTS
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must not commit any act which is destructive or permanently injurious to the property.
9. APPLICATION OF INSURED MONEY IN REINSTATING PROPERTY
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property where he has ensured the whole or any part of the property against loss or damage by fire, he must, in case of such loss or damage, apply any money which he receives under the policy or so much thereof as may be necessary, in reinstating the property or, if the mortgagor so directs, in reduction or discharge of the mortgage money.
10. ACCURATE ACCOUNTS
When during the continuance of the mortgage the mortgagee takes possession of the mortgaged property he must keep clear, full, and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported.
CONCLUSION
It is concluded that to constitute a mortgage there must be a transfer of interest in immovable property to the mortgagee. There should be a certain immovable property. The interest in the property should be to secure the debt.
There should be a consideration of the mortgage contract between the two parties which are the mortgagor and the mortgagee. This mortgage contract should be for the lawful purpose. The right of foreclosure or sale can only be exercised in cases of the mortgage by conditional sale and anomalous mortgage.
