Rights and Liabilities of Mortgagor and Mortgagee in Respect of Mortgage Property
•Rights of Mortgagor
1. Right to Redeem-It includes the three reliefs which the mortgagor is entled to under Cls. (a) (b) and (c) of S. 60, on pa or tender at proper time and place of the mortgage money. Thus, if all or any of the reliefs enumerated under clauses (a) (b) and (c) of S claimed in a suit, the suit can be taken as suit for redemption
2. Mortgagor may Require the Mortgagee to Assign the Mortgagee to a Third Person
According to S. 60 (a) where a mortgagor is titled to redemption, he on the fulfilment of any condition on the fulfilment which he would be entitled to require a re-transfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortg debt and transfer the mortgage property to such third person as the mortgage may direct and the mortgagee shall be bound to an ad trander accordingly.
3. Right to Inspection and Production of Documents
Accongte S.60 (b) a mortgagit has a right to inspection and copies of deeds of title relating to the mortgage property which are in the custody of the mortgagee. The cases which denied this right of inspection are longer good law.
4. Right to Redeem Separately or Simultaneously:
According to S.61, 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.
5. Right of Usufructuary Mortgagor to Recover Possession:
S. 62 provides that where the mortgagee authorised to pay himself the mortgage-money out of the rents and profits of the property, the mortgagor can recover possession only when such money is paid, not by him in cash or otherwise but out of the usufruct of the property. In such a mortgage, no term can possibly be fixed because none can say with any precision as to when the mortgage debt will be paid off out of the usufruct. If, therefore, a term is fixed at all, it is not of the essence of contract, and the mortgagor is entitled to recover possession even before the expiry of the term if he can show that the mortgage-debt is already paid off
6. Right to Receive Accession to Mortgaged Property
S. 63 refers to the mortgagor's right to accessions made by the mortgagee. The section deals with
(1) Natural accessions .
(2) Acquired accessions which are separable. (3) Acquired accessions which are not separable.
(i) Natural Accessions
They are additions to the security and becoming incorporated in it and are subject to redemption. For Instance where the area of village mortgaged without stipulation of boundaries was increased at a survey settlement, the mortgagor was on redemption entitled to the increase.
(ii) Acquired Accessions which can be Separated
The rule as regards the accessions acquired by the mortgagor depends upon whether they are separable or inseparable from the mortgaged property. If they are separable, the mortgagor is not bound to take them. But if he chooses to take them, he must pay the mortgagee the expense of acquiring them.
(iii) Acquired Accessions which cannot be Separated
If they are inseparable, the mortgagor cannot help but taking them on redemption. In such a case, however, the mortgagor is not always liable to pay for them. Where the acquisition was necessary to preserve the property from destruction, forfeiture or sale or was made with his consent, he is bound to pay its cost. For Example, if a mortgagor, makes necessary repairs to a well with the consent of the mortgagor, the later must pay the cost of the repairs.
7. Improvements to Mortgaged Property
According to S. 63(a) the mortgagor is liable to pay the cost of the improvements only if they were:
(i) Necessary to preserve the property from destruction or deterioration; or
(ii) Necessary to prevent the security from being inadequate; or
(ii) Done under the orders of a public authority such as a Municipality or Town Area Committee, Gaon Sabha etc.
In any of these cases, the mortgagor will also be liable, as in the case of accession, to pay interest on the cost of the improvements at the rate payable on the principal debt, or where no rate is fixed, at nine per cent per annum, and the profits accruing from the improvements will be credited to the mortgagor. If the improvements do not fall within any o these classes, the mortgagor is entitled to them without paying even a farthing
8. Renewal of Mortgaged Lease
According to S. 64 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.
•Mortgagor's Liabilities
With regard to the liabilities of a mortgagor, they are all grouped together in two sections of the Act. viz. 65 and 66. The liabilities arise out of covenants specified U/S 65 and deemed to be implied in every mortgage unless, as in the case of implied covenants by a vendor US. 55, all or any of these covenants are excluded by the terms of the mortgage. The covenants are for (i)title; (ii) defence of title: (iii) payment of public charges so long as the mortgagee is not in possession; (iv) payment of rent, etc, where the mortgaged property is a lease; and (v) payment of interest on the prior mortgage and discharge of such encumbrance at the proper time where the mortgage is a second or subsequent mortgage. All these covenants run with the land and can be enforceable by every person in whom the interest of the mortgagee is front time to time vested.
Liability for Waste
S. 66 imposes an imperative duty on the mortgagor while in possession of the mortgaged property not to commit acts of waste as to reduce the value of the security below the standard fixed in the Explanation annexed to the section. This duty is absolute and cannot be displaced by the parties to the mortgage agreeing to the contrary.
S.67 deals with the right of mortgagee. Such rights and liabilities have been given from Ss. 67 to 77 of the Act. The mortgagee has been empowered to recover back his money with interest. Where the mortgagor failed to pay it within the stipulated date the mortgagee becomes entitled to recover the same out of the security. The following rights have been conferred upon the mortgagee to recover the money
(i) Right to foreclosure or sale. (S. 67)
(ii) Right to sue for the mortgage money. (S. 68)
(iii) Right to exercise the power of sale, if so given. (S. 69)
(iv) Right to get a receiver appointed where sale is to be excited (S. 69-A)
(v) Right to appropriate the accession to the mortgaged property, (S.70)
(vi) Right to get the benefit of the renewed lease of the mortgage property a lease-bold. (S. 71).
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