This is a very
important right of the mortgagor, which the law protects. Generally law stands
in favour of the weaker party and mortgagor being debtor; law safe guards his
right. Section 60 of Transfer of Property act deals with Right of Redemption
which is a right available to mortgagor to get back the (redeem) the property mortgaged that is after any time, the principal amount has become due, on
payment of all the dues. The mortgager may demand from the mortgagee, the
mortgage deed, all the documents, and if the property had been delivered, to
deliver the possession of the property. The entire cost of this process to be
borne by the mortgagor. He may also direct the mortgagee to deliver the deed;
documents, possession of the property so any third person. If the mortgage has been effected by registered document, the redemption or re-conveyance deed also need to be registered.
This right of
redemption is available before the mortgagee files a suit for enforcement of
mortgage.
The mortgage is
indivisible Section 60 of the Transfer of property act does not allow partial
redemption, one of the mortgagors cannot
redeem part of the mortgaged property by paying the proportionate amount. If
redeemed, the entire property has to redeemed. The only exception is that if
the mortgagee is a creditor himself and is responsible for breaking the
integrity of the mortgage by allowing the co-mortgagor to redeem partially or
when he acquires the interest of one of the co-mortgagors.
Clog means
obstruction. A mortgagor has the right to enjoy hold of the property as he was
entitled before the mortgage. If that right is prevented/restricted, such conditions are called clogs. A term/condition in a mortgage transaction is
treated as clog, if it is unreasonable.
This is a right
available to the mortgagee. The relevant section is 67 of Transfer of property
act. This right can be exercised if there are no contrary conditions in the
mortgage deed and after the mortgaged money has become due and before the mortgagor gets decree of redemption, or mortgaged money has been paid,deposited. In simple terms the right can be enforced on failure of the
mortgagor to repay the money borrowed on due date. The mortgagee may obtain a
decree from the court, that the mortgagor is prohibited from right to redeem
the property or property be sold. This is suit for foreclosure. However the
remedy depends upon the nature of the mortgage.
In the simple mortgage the foreclosure is not available. Remedy is either proceed against the
mortgagor personally or per sale of the property mortgaged, so also in care of
Usufructuary mortgage, where the mortgagee is in possession of the property and
continues to be so until the debris repaid on full. In case of conditional sale, the mortgagee
matures into sale on the failure of the payment of the debt, so the mortgage
may foreclosure depriving the right of redemption. In English mortgage they may
bring a suit for sale of the property. In case of mortgage by deposit of titles
deeds. The remedy is sue for personal decrees or for sale of the property.
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