The rights of the mortgagor are :
(i)Right of redemption: This is a right to redeem the mortgage property, on payment or tender to the mortgage of the mortgage money, after the same has become due. The right includes:
(a) a right to return of all documents relating to the mortgaged property, including the mortgage deed, in possession of the mortgagee;
(b) to obtain delivery of possession of the mortgage property from the mortgagee where the latter is in possession thereof;
ADVERTISEMENTS:
(c) to obtain re-transfer of the same to himself or his nominee(at his own cost)(d) to as registered acknowledgement from the mortgagee (where mortgage is registered), to the effect that the mortgagee rights re: the property are extinguished . These rights can be enforced by suit also (sec.60).
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A mortgagor having a share in the mortgage property, however, is not entitled to redeem his share, only payment of a proportionate amount, unless the mortgage has acquired, in whole or in part, the share of other co-mortgagor. Further, if the due date of payment expires, the mortgagee is entitled to reasonable notice before payment, if the mortgage deed so provides. Notice that the right of redemption is available to the mortgagor only if (i) it has not been extinguished by acts of parties or (ii) by as decree of the Court (ibid).
“Clog on redemption”: the right of redemption also called “the equity of redemption”, is a statutory right, which cannot be fettered by any restrictions, which prevent or obstruct is exercise. Such a provision is called a “Clog on redemption” and is regarded by law as void. The principle of law is “once a mortgage, always a mortgage”. Thus a condition converting a mortgage into a sale, on failure to repay on the due date is bad. There is nothing, however, to prevent the mortgage buying up the property subsequently.
ADVERTISEMENTS:
A condition postponing the right of redemption for a particular period, if repayment is not made on the due date, is also bad for the same reason. A stipulation for a penalty in case of default is regarded as a “clog” and is relieved against. Where by the terms of a mortgage, the mortgagee secures as collateral benefit for himself, it is question of fact in each case, whether it is a “clog” or not. If the collateral benefit extends beyond the term of the mortgage, e.g. as permanent lease, it would be void.
A right of preemption to the mortgage, which is exercisable by him after redemption, has been held to be not as clog in England. Of course, an dependent agreement entered into by the mortgagee after the mortgage, affecting the mortgaged property or the right of redemption, is not as “clog”. An agreement to sell the property to the mortgage at a fixed rate, if the mortgage is not redeemed, has, however, been held to be a “clog” and, therefore, bad in law.
Notice that a mortgage security is one and indivisible. It cannot therefore be redeemed in parts. The only case when such partial redemption is permissible is where the mortgage has acquired a share in the mortgaged property. The owners of the remaining shares can then redeem their shares, by payment of proportionate amount. The mortgager, only redemption, is also entitled to call upon the mortgagee to assign the mortgage debt and transfer the mortgaged property to such third person as the mortgagor may direct (sec.60 A).
(ii)Right of inspection: The mortgagor is entitled, at his own costs, to get inspection and copies of documents relating to the mortgaged property in the possession of the mortgagee, so long as the right of redemption subsists (sec.60B).
ADVERTISEMENTS:
(iii) Right to redeem separately: A mortgagor who has executed two or more mortgages (on the same or different properties), is entitled to redeem any one of them, without being compelled or redeem them all unless the contract otherwise provides (sec.61). In other words, consolidation of mortgages against the mortgager is not allowed by law, unless the contract otherwise provides.
(iv) Right to possession: In case of usufructuary mortgage, the mortgager is entitled to recover possession of the mortgaged property from the mortgagee only the mortgage debt being repaid in part or in whole from the usufruct and on the payment of the balance(if any)(sec.62).
(v)Right to “accessions”: Where the mortgaged property receives any accession during the continuance of the mortgage, the mortgager shall , only redemption, in absence of a contract to the contrary, been entitled to the same, provided that
(a) if the accession can be separated, he shall pay the expenses of acquiring the same to the mortgagee. (a) if the accession can be separated,he shall pay the expenses of acquiring the same to the mortgagee.
(b)if it can not been separated, he shall pay the cost thereof to the mortgagee, only if such accession was necessary to preserve the property from destruction , forfeiture or sale or if it was made with the assent of the mortgager. Interest as the mortgage rate or at 9 p.c. if notice rate is fixed shall been payable only such cost (sec.63).
Accessions may be natural or acquired. Instances of the latter are new trees, a new well, adding as new storey. Notice that as regards “accessions” which cannot be separated, they must, on redemption, be handed over the mortgager, who is not bound to pay compensation for the same to the mortgagee, unless the case comes within the words of the sec.
(vi) Renewal of lease: if the mortgagee of as leasehold obtains as renewal thereof during the continuance of the mortgagor is entitled to the benefit of the new lease, on redemption, unless the contract otherwise provides (sec.64).
(vii) Improvements: where the mortgaged property is improved by the mortgagee during his possession thereof, the mortgagor only redemption is, and absence of a contract to the contrary, entitled to such improvements. The mortgagor is bound to pay the cost thereof to the mortgagee, only if (a) they were necessary to preserve the property from destruction or deterioration or to prevent the security being insufficient or (b) if they were made under the lawful orders of any public servant or authority. Interest at the mortgagee rate or at 9 p.c., if notice rate is fixed, is also payable thereon. Profits resulting from such improvements must be credited to the mortgagor (sec.63A).
Generally the mortgagee cannot be allowed “to improve the mortgagor out of the estate”. He is allowed reasonable costs of improvements, only if his case falls within any of the above two cls. Thus rebuilding, the mortgaged property at as cost exceeding five times trade mortgage amount will not bee justified.
(viii) Deposit in Court: the mortgagor can, after the date for redemption has been passed, deposit the mortgage amount due according to him, in court. On such deposit being made, the Court will serve a written notice thereof on the mortgagee. If the mortgagee accepts the payment, he can withdraw the moneys deposited in the Court, only his depositing in the Court mortgage deed and all other documents relating to the mortgaged property in his possession, which shall then be handed over the mortgagor.
If the mortgagee has been in possession of the mortgaged property, he can also be called upon to deliver possession to the mortgagor and (at mortgagors’ costs), to execute as re-transfer of the property to the mortgagor or his nominee (sec.83). If the amount is found to be the proper amount due, the mortgagee shall not be entitled to any interest after the date of deposit (sec.84).