Mortgagor and Mortgagee:

The mortgagee is the lender, whereas the mortgagor is the borrower. The
mortgagor requires the secured loan.
Rights and Liabilities of Mortgagor
What Is Right of Redemption?
The right of redemption allows individuals who have defaulted on their mortgages
the ability to reclaim their property by paying the amount due (plus interest and
penalties) before the foreclosure process begins, or, in some states, even after a
foreclosure sale (for the foreclosure price, plus interest and penalties)

What is suit for redemption?

Into execute and to have registered an acknowledgement in writing
that any right in derogation of his interest transferred to the mortgagee
has been extinguished. The right conferred by this section is called a
right to redeem. A suit to enforce this is referred to as a suit for
redemption.

60. Right of mortgagor to redeem. – At any time after the principal money has become,
the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-
money, to require the mortgage,
(a) 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) Where the mortgagee is in possession of the mortgaged property, to deliver possession
thereof to mortgagor, and
(c) At the cost of the mortgagor either to re-transfer the mortgaged property to him or to such
third person as he may direct,
Or to execute and (where the mortgage has been effected by a registered instrument) to have
registered an acknowledgment in writing that any right in derogation of his interest transferred
to the mortgagee has been extinguished:
 Provided that the right conferred by this section has not been extinguished by the act of the
parties or by decree of a Court.

The right conferred by this section is called a right to redeem and a suit to enforce it is called
a suit for redemption.

Nothing in this section shall be deemed to render invalid any provision to the effect that, if
the time fixed for payment of the principal money has been allowed to pass or no such time has
been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of
such money.

Redemption of portion of mortgaged property. – Nothing in this section shall

entitle a person interested in a share only of the mortgaged property to redeem his own share
only, on payment of a proportionate part of the amount remaining due on the mortgage,
except only where a mortgagee, or, if there are more mortgagees than one, all such
mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.
Explanation
It means that
Property once mortgaged could never remain mortgaged for an indefinite period.
Once a mortgage always a mortgage and mortgagee could not step in the shoes of owners by
lapse of time.
Lawful owner could not be deprived of his right merely by efflux of time nor could a person
enjoying possession for a long time be awarded with premium of ownership.
In this section it is described that:
1. Nature of the right of redemption.
2. When it can be exercised.
3. How it can be exercised.
4. Rights of the mortgagor on redemption.
5. Partial redemption.
Clog on the right of redemption:
Where an obligation continues during the term of the mortgage and beyond, which renders the
property mortgage less available in the hands of its owner apart from the realization of the
mortgage debt, it is a “clog’ on the equity of redemption.
Case laws
Noakes v. rice
The leading case on the subject is noakes v. rice. In 1897 Rice, a licensed victuallrer brought a
public house held under a lease expiring in 1923. Rice was unable to find all the purchase
money. Part of it was advanced by Noakes & Co.upon mortgage of the premisis executed by
Rice in their favour, as well as of the benefits of licences which were in his favour.
Rice, thereupon, filed a suit for declaration that on repayment of the mortgage amount he was
entitled to a reconveyance of the premises free from the covenant aforementioned.
Citation name: 2021 MLD 1877 KARACHI HIGH COURT SINDH
It is upheld that:
Such right was not extinguished by act of parties or by decree of a court.

60A. Obligation to transfer to third party instead of re-transference to

mortgagor.–
(1) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions on
the fulfilment of which he would be entitled to require a re-transfer, he may require the
mortgagee, instead of re-transferring the property, to assign the mortgage-debt and transfer
the mortgaged property to such third person as the mortgagor may direct; and the mortgagee
shall be bound to assign and transfer accordingly.

(2) The rights conferred by this section belong to and may be enforced by the mortgagor or by
any encumbrance notwithstanding an intermediate encumbrance; but the requisition of any
encumbrance shall prevail over a requisition of the mortgagor and, as between encumbrances,
the requisition of a prior encumbrance shall prevail over that of a subsequent encumbrancer.

(3) The provisions of this section do not apply in the case of a mortgagee who is or has been in
possession.
Explanation:
The mortgagor has the right to redeem the property. On redemption he can require the
mortgagee to reconvey the property to him. Now instead of getting the property reconveyed to
himself the mortgagor is entitled to require the mortgagee to transfer the mortgaged property
and to assign the mortgage debt to a nominee of his and the mortgagee shall be bound to
assign and transfer accordingly. This is to avoid the execution of two separate transfer deeds,
one by the mortgagee in favour of mortgagor on redemption and the other by the mortgagor in
favour of his assignee, in whose name he wishes the mortgage-debt and the property to be
transferred.

For example-
A is a mortgagor. He has taken amount of Rs. 50,000 from B and as a security he has mortgaged
his immovable property (house) to B. Now if A has to transfer the concerned property to C,
then he may direct B to transfer the property directly to C instead of transferring it to A.
Subsection 2 of this section provides that an encumbrancer of the property will have a prior
right to that of the mortgagor
Subsection 3 provides that where the mortgagee is in possession, he is not bound to assign the
mortgage-debt and transfer the mortgage property to the nominee of the mortgagor.

60B. Right to 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 at his own cost, and on payment of the mortgagees costs and expenses in
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.

Explanation
The right to inspect and make copies of documents of title relating to the mortgage property
can only by exercised by the mortgagor alone and not by any other person.
The right of inspection extends only to documents of title relating to the mortgaged property
which are in the custody or power of the mortgagee and to no other documents.

SECTION 61. RIGHT TO REDEEM SEPARATELY OR SIMULTANEOUSLY

A mortgagor who has executed two or more mortgages in favor 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.

EXPLANATION
Under section 61 of the Act states that when a mortgagor has executed several mortgages in
favor of the same mortgagee, he may redeem one or more of such mortgages when they
become due without redeeming the other mortgages. When there are several mortgagees, the
mortgagor can redeem the mortgage separated or simultaneously according to his
convenience. However, the parties may allow consolidation of mortgages by mutual consent.

ILLUSTRATION
A executed a usufructuary mortgage in favor of B for rupees 5500 and then borrowed a further
some of 2500 from the mortgagee and executed a document reciting, “I shall first pay up the
debt including principle and interest and, therefore, I can redeem the mortgaged village having
paid up the mortgage money. Without the payment of this debt I cannot redeem the more
Mortgaged village”.
Held that under the subsequent deed the parties intended that the original village should
remain in the possession of the B, mortgagee, until the second debt was paid off and that,
therefore, the properties should be security for the debt, and A could only redeem on payment
of the subsequent debt along with the prior debt.

RIGHT OF REDEMPTION
The right of redemption, in the law of real property, is the right of a debtor whose real property
has been foreclosed upon and sold to reclaim that property if they are able to come up with the
money to repay the amount of the debt.
The mortgagor is entitled to get back his property on payment of the principal and interest after
the expiry of the due date for the repayment of the mortgagee’s money. This right of the
mortgagor is called the Right of Redemption.

DOCTRINE OF CONSOLIDATION
This section abolishes consolidation of mortgages. The doctrine of consolidation is a very old
doctrine which provides that if the same mortgagor provides a mortgage over two different
properties to a mortgagee and seeks to redeem only one of the mortgages, then the mortgagee
can require the mortgagor to redeem both mortgages.
The doctrine of consolidation in mortgages is based on the equitable maxim, “He who seeks
equity, must do equity”. Consolidation is the right of mortgagee, where he holds two or more
properties in mortgage of same mortgagor to hold them as one security for all the mortgage
debts. The result is the mortgagor cannot redeem one property without redeeming the other.
ILLUSTRATION
Suppose A, the mortgagor, mortgages first white acre for £1000 to X, the mortgagee, and
subsequently he mortgages black acre to X for another £1000. If A wishes to redeem white
acre, X can say ‘No, you can’t redeem one property alone, you must redeem both white acre
and black acre or neither of them'.

IN THE ABSENCE OF A CONTRACT TO CONTRARY

It means that if parties are agreed that their transactions will be governed by the rule of
consolidation then this section will not apply. Such a stipulation allowing consolidation maybe
covenanted at the time of further advances.
ILLUSTRATION
There is an existing mortgage in favor of the mortgagor and the mortgagor A, ask for a further
loan from mortgagee B. The mortgagee agrees to make this on the condition that both the prior
and the subsequent debts will be paid together. Thus, where the first transaction between the
parties is a mortgage and the mortgagor takes a further loan on the security of the property
and stipulates that he will not redeem the earlier mortgage without payment of the money due
on the subsequent mortgage. The stipulation is not wrong because both parties are agreed to
it.

CASE LAWS
In the case of Shankar v. Yeshwant, A had mortgaged his land to B, the mortgage deed stated
that in default of redemption after 20 years, B would be the owner of half of the land. This
condition was a clog on the equity of redemption. However 4 years after the expiry of the 20
years, B was still in possession of the mortgaged property and A executed a mortgage deed
which stated that B would be release half the mortgaged property and the other half would be
conveyed to B. The court stated that this condition was valid as it was a mere arrangement
between the two parties.
In Subratmnia v. Balasubramania (1915) 29 M.L.J. 195 : I.L.R. 38 Mad. 927 (F.B.), it was held by
a Full Bench of this Court that it was open to a mortgagee to bring a suit for the recovery of his
debt by sale of the properties mortgaged to him subject to his interest in a prior mortgage, and
the principle of Section 61, which was applied to a suit for sale on the mortgage by a mortgagee
holding more than one mortgage on the same property, was held not to be a sufficient ground
for refusing to allow a mortgagee suing on a puisne mortgage to sell subject to a prior mortgage
in his favour.
In another case of Pomal Govindji v. Vrajlal Purohit, the Supreme Court held that a long term
for the payment of mortgaged debt will not be a clog on redemption. However, a very long
period for redemption along with considering the other relevant facts could create a
presumption that it was a clog on redemption.

Section 62. 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 1[together with the mortgage-deed and all documents relating to the
mortgaged property which are in the possession or power of the mortgagee],—
(a) Where the mortgagee is authorized to pay himself the mortgage-money from the rents
and profits of the property,—when such money is paid;
(b) where the mortgagee is authorized to pay himself from such rents and profits 2[or any
part thereof a part only of the mortgage-money],—when the term (if any) prescribed for the
payment of the mortgage-money has expired and the mortgagor pays or tenders to the
mortgagee 3[the mortgage-money or the balance thereof] or deposits it in Court as
hereinafter provided.

EXPLANATION
This section relates specifically in respect of Usufructuary mortgages. It gives a right to a
mortgagor to recover possession of the mortgaged property in case the terms of the contract
bound the mortgagee to appropriate towards the mortgage consideration the profits and rents
accruing from such property. Thus, at the payment of whole mortgage consideration, or in case
such contract bound partially the mortgagee to appropriate the rents and profits towards the
mortgage consideration when such remaining payment is return by the mortgagor to the
mortgagee.

RIGHT OF USUFRUCTUARY
A usufruct is a legal right accorded to a person or party that confers the temporary right to use
and derive income or benefit from someone else’s property. It is a limited real right that can be
found in many mixed and civil law jurisdictions. A usufructuary is the person holding the
property by usufruct.

ACCESSION: SEC.63
The word "accession" has not been defined in the Act. In the Roman law, "accession" is the
general name given to every accessory thing, whether corporeal or incorporeal, that has been
added to principal thing from without, and has been connected with it, whether by the powers
of nature or by the will of man, so that in virtue of this connection, it is regarded as part and
parcel of the thing.1 Basically, accession means any addition to property. According to this right
mortgagor is entitled to such accession to his property which is in the custody of mortgagee.
It means during the mortgage when the mortgagee has possession of the mortgaged property
And if during that duration there is an increase/accession in the property, then in the absence
of
Any contract to the contrary, the mortgagor is entitled to get that accession. 2

(a) Types of accession

1

2
1. Natural accession: These are those accessions that are not made by parties to the mortgage,
and they arise by the course of nature. Natural accessions that occur during the term of the
mortgage may be redeemed by the mortgagor together with the mortgaged property. When
the mortgagor redeems the mortgage; the mortgagee has no right to keep or claim those
accessions.
a) 'A' mortgage to 'B' a certain field bordering on a river. The field is increased by alluvion. For
the purposes of his security, B is entitled to the increase.

2. Acquired accessions: These types of accessions are those accessories or additions to the
property that are made by the mortgagee during the period of a mortgage.
(b) 'A' mortgage a certain plot of building land to B and afterward erects a house on the plot.
For the purposes of his security, 'B' is entitled to the house as well as the plot .

It is further classified
(a) Separable acquired accessions: Where the acquired accession is separable from the
property and upon redeem of the mortgage by the mortgagor, the mortgage would remove
those accessions. If the mortgagor desires to take those accessions from the mortgagee, then
he must pay the cost of accessions to the mortgagee.
(b) Inseparable acquired accessions: Where the acquired accession is permanent and cannot
be separated from the mortgaged property, then the mortgagor shall take these acquisitions
together with the mortgaged property. However, the mortgager is liable to pay the mortgagee
the expenses incurred by him in making the acquisition.

Case LAW
KULLA VS Ganesh, AIR 1929 All 340.
Of course, everything which is substituted in place of the old property would not be an
accession. Re-building a fallen house is not, therefore, an accession

Siddheshwar v. Rant Saroop, AIR 1963 Pat 412.

Accession by alluvion is a natural accession by virtue of section 63, and can be redeemed by the
mortgagor along with the other property without payment of any additional moneys. There
may also be what are called incorporeal accessions, such as the acquisition of an interest in the
property

IMPROVEMENT: 63-A
Of course, everything which is substituted in place of the old property would not be an
accession. Re-building a fallen house is not, therefore, an accession. The term repair and
improvement have very different meanings when it comes to the law. Although sometimes we
use these terms as synonyms but in this statute, they have different meanings. According to
Stroud’s Judicial Dictionary, the term repairing is different from the term improvement.
“Repairs are often used in the plural that is not technical suppression and invokes the idea of
something pre-existing, the condition of which has been affected in one of the modes
suggested and presupposes something in existence to be repaired or the existence of the thing
to be repaired. The term ‘repairs’ has been held to include improvements and embrace
rebuilding.”
According to this right if the mortgaged property has been improved while it was in possession
of mortgagee, then on redemption and in the absence of any contract to the contrary
mortgagor is entitled to such improvement.
However, in some cases like Shepard v. Jones (1907) the judiciary interpreted that a mortgagee
is allowed to obtain compensation from the mortgager if the improvement made is reasonable.

 in the absence of any contract to the contrary

 The term of contract said that the mortgagee does not make any improvement
 According to the English law, as summarized by Fisher on Mortgagees (Art. 1782) “the
improvements must always be reasonable having regard to the nature and value of the
estate; for it, were not so, a weapon would be put in the mortgagee’s hands with which he
might greatly clog the right of redemption which he has no right to make more expensive
than is necessary to keep the estate in good repair and working order and to protect the
title.” Through Fisher’s Law of Mortgage, the Amendment of 1929 was made.
 Conditions
There are few conditions given in Section 63A dealing with the improvement in the mortgaged
property.
When the mortgage is in progress and the mortgaged property is in the possession of the
mortgagee and he improved the property then, in the absence of any contrary contract, the
mortgagor is liable to pay the costs of improvement as an addition to the principal with the
same rate of interest. If the rate of interest is not fixed, then at the rate of nine per cent per
annum in the following cases:

 It was necessary to preserve the property from deterioration or destruction or

 It was necessary to prevent the security from becoming insufficient or
 It was made in the compliance of a lawful order given by a public servant or public
authority like Panchayat, Municipality, etc.
 For instance, if the mortgagor erects a pucca house by replacing the kutcha house, then it
will not be considered as an improvement under Section 63A. For increasing yield, if
mortgagor improved the fertility of the soil of the mortgaged land, then also it will not be
considered as an improvement
And if any profits are accrued by the reason of improvement, then the mortgagor is entitled to
those.

 The mortgagor is not liable to pay mortgagee unless:

• Improvements made by the mortgagee were to protect the property or with the prior
permission of mortgagor.
• Improvements were made by the mortgagee with the permission of the public authority.

 Interest
 Pay cost with interest at the same rate as is payable on the principal
 If not fixed then nine percent per annum

Case laws
Nijalingappa Nijappa Halagatti v. Chanbasawa Kom Satavirappa Nesari
and Anr. (1919)
In this case, it was held that in a redemption suit, a mortgagee from his mortgagor is allowed to
recover the reasonable and proper costs incurred in making improvement i.e., making the
property more productive; and that in allowing costs of improvements the Court should inquire
into the fairness of claims in each and every case and also must naturally be on its guard against
extravagant or unfounded claims.

Difference between 63 and 63A

63 63A
It deals with accession It deals with improvement of mortgage
property

It distinguishes between superable or But 63A say nothing about it

non-separable accession

63 talk about accession with consent of But it does not

mortgagor
Right to Renewed Lease
Renew’ means ‘to make like new ‘or ‘to restore to existence’; and ‘to extend’ means ‘to stretch
out to fullest length’
When a mortgaged property is a lease hold property, and during the duration of the mortgage, the
mortgagee obtains the lease renewal, then upon the redemption, the mortgager is entitled to get the
benefits of the new lease. This is subjected to any contract contrary

LIABILITIES OF MORTGAGOR:
A mortgagor is a borrower in the mortgage. Mortgagor owes the obligation secured by the
mortgage. The borrower must meet the conditions of the underlying loan or other obligation in
order to redeem the mortgage. If the mortgagor fails to meet these conditions, the mortgagee
may foreclose to recover the outstanding loan. Mortgage is condition alienation

 Implied contacts by mortgagor (section 65)

In the absence of a contract to the contrary, the mortgagor shall be deemed t contract with the
mortgage.
a) That the mortgagor's title is perfect and he has right to transfer the interest in the property
to the mortgagee. But if his title turns out to be defective then it is his duty to compensate the
mortgagee for a defective title in the mortgaged property. The mortgagee can sue the
mortgagor for principle money even before the stipulated time period.
b) Mortgagor will defend his title if question of title arises. He will also enable mortgagee who is
in possession of mortgaged property, to defend his title. All the expenses for raising the defense
either by himself or by mortgagee shall be borne by mortgagor only.
c) When there is no delivery of possession of mortgagor (simple mortgage), then it is his duty
to pay all public charges and taxes levied on it.
d) The mortgagor is liable to pay the lease rent of mortgaged property if the mortgaged
property is under the lease .The Mortgagor must comply also with terms and conditions of
lease deed, if mortgaged property is under lease deed. If mortgagor fails to observe the lease
conditions and fails to pay the lease rent, he shall indemnify mortgagee against all claims
sustained by the mortgagee by reason of such non-performance on the part of mortgagor.
e) If same property is mortgaged again to a second person, he is called second and subsequent
mortgagee. It is duty of mortgagor to clear off all dues i.e. principle money and interest on prior
encumbrances. The subsequent mortgagee shall not be responsible for such prior
encumbrances of the Mortgagor.

EXPLANATION:
If mortgage property is owned by joint owners A and B and both have shares. A is mortgagor
and B is joint owner of share in property and on partition part of mortgaged property or share
falls or come in possession of owner other than mortgagor that is B. Now mortgagee is entitle
to property or share under mortgagor part A.

 Section 65A: Added by 1929 Amendment Act

1) Mortgagor has power to lease mortgaged property without permission of mortgagee after
satisfying following conditions
2) (a) Lease to be entered for management of property and as per local laws applicable.
(b)Every lease shall reserve best rent and shall not paid in advance.
(c) No covenant to be made for renewal of lease.
d) Such lease to take effect within 6months from date of its formation.
e) In case of lease of building, duration shall not exceed 3 years
3) The above terms can be varied or extended but within limits of sec 65A

CASE LAW
Achhaibar Singh vs Rajmati And Ors. on 5 March, 1929
(Allahabad High Court)
Equivalent citations: AIR 1929 All 483, 121 Ind Cas 111
In appeal,it arises out of a suit brought by the plaintiff-appellant for sale of certain property on
the basis of a mortgage. The property was mortgaged to him by one Behari Das Goshain. The
mortgage was a simple mortgage. Subsequently Behari Das sold the equity of redemption to
Mt. Rajmati who is the mother of the defendant-respondents.One plea taken in defence was
that the property being waqf property, Behari Das, the mortgagor, was not entitled to
mortgage it. This plea was repelled by the trial Court on two findings.
One finding was that the property was not waqf property
second was that in any case the defendants having obtained possession of the property from
their mother who got the equity of redemption from Behari Das were estopped under Section
65(a), T.P. Act, from denying the right of Behari Das to mortgage the property.
Possession through their mother and any interest acquired by their mother was the interest of
Behari Das as it existed subsequent to the mortgage. Therefore, neither their mother nor the
defendants themselves can take up a position which it was not open to Behari Das as
mortgagor to take. Now Behari Das either had or had not power to make the mortgage.
Assuming that he had not power still he could not, in a suit by the mortgagee, take up the
position that he had no power to transfer the property by mortgage. That is clearly barred
by Section 65(a), T.P. Act. His successors-in-interest arein no better a position. the right of a
mortgagee to take advantage of the implied contract stated in Section 65 can be enforced by
every successor-in-interest of the mortgagee. This provision would be of no effect if it was only
the mortgagor personally against whom they would be invoked. For the above reasons we
accept this appeal and restore the decree of the trial Court with costs to the appellant both in
the lower Court and in this

 Duty to avoid waste (sec 66)

Mortgagor having possession of property should not commit any act which leads to inquiry to
property or any which reduces the value of mortgaged property.e.g removal of valuable fixtures
from the property.
A mortgagor is not liable for any minor waste.
When an act is done which causes major waste of the property or leads to the reduction in
value of mortgaged property, then mortgagor will be liable to mortgagee.

Analysis:
As in transfer of property act Pakistan explained that security is insufficient if mortgaged property does
not exceed value of 1/3 and in buildings about value of ½.

But in Indian Act, it is explained as if change or waste in property, either with or without consent of
mortgagee, the loss must not exceed 1/3 of property value and in buildings must not exceed ½ and if so
mortgagor does is liable.

There is difference in meaning. Of explanation in both acts and need more work on this concept to make
it more easily understandable .