Mortgage : Rights of Mortgagor | Property Law

1) Introduction 

        A mortgage is the transfer of an interest in the specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. There are Six Kinds / Types of Mortgage.

2) Definition of Mortgage -

          According to Section 58(a) of the Transfer of Property Act 1882, "A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

3) Who is Mortgagor? 

       The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed

See... Essentials of Mortgage 

4) Rights of Mortgagor 

Right of Mortgagor are as follows-

I) Right to Redeem - 

         According to Section 60 of the Transfer of Property Act 1882, At any time after the principal money has become due, the mortgagor has a right on payment or tender at a proper time and place of the mortgage-money to require the mortgagee

              (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 the 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 acknowledgement 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 mortgages than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

II) Right to inspection and production of documents -

         According to Section 60B of the Property Act, 1882 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 mortgagee's cost and expenses in this behalf, to inspect and make copies or abstracts of, or extracts from, documents of title relating to the mortgaged property which are in the custody or power of the mortgagee.

III) Right to redeem separately or simultaneously -

          According to Section 61 of the said Act, 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 anyone such mortgage separately, or any two or more of such mortgages together.

IV) 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 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 authorised to pay himself from such rents and profits 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 the mortgage-money or the balance thereof or deposits it in court hereinafter provided.  (Section 62 of TPA)

See....Difference between Mortgage and Lien

V) Accession to mortgaged property -

                According to Section 63 of the Transfer of Property Act, 1882 Where 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.

        Accession acquired in virtue of transferred ownership- Where such accession has been acquired at the expense of the mortgagee and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it.

         If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale, or made with his assent, to pay the proper cost thereof, as an addition to the principal money, with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine percent per annum. In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor. Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended.

VI) Renewal of mortgaged lease  -

                  According to Section 64 of the Act, where the mortgaged property is under lease, and the mortgagee during possession of the mortgaged property gets renewal of the lease, then the mortgagor has the right of redemption with renewal of the lease.


See also...

Liabilities of the Mortgagor