INTRODUCTION

A mortgage is a way to use one's real property, like land, a house, or a building, as a guarantee
for a loan to get money. Many people do this to buy the home they use for mortgage: the loan
provides them the money to buy the house and the loan is guaranteed by the house.
In a mortgage, there is a debtor and a creditor. The debtor is the owner of the property, while the
creditor is the owner of the loan. When the mortgage transaction is made, the debtor gets the
money with the loan, and promises to pay the loan. The creditor will receive money back with
interest over time (usually in payments made each month by the debtor). If the debtor does not
pay the loan, the creditor may take the mortgaged property in place of the loan. This is called
foreclosure.
Right of redemption is the right which every mortgagor possess, which is created by virtue of the
mortgage deed. This right is considered to be inalienable, and cannot be taken away from a
mortgagor by means of any contract to the contrary. The term redemption can be defined
as the act of the vendor of property in buying it back again from the purchaser at the same or
an enhanced price.1
Right of Redemption can be as an agreement or paction, by which the vendor reserves to
himself the power of taking back the thing sold by returning the price paid for it.
This right finds place under Section 60 of the Transfer of Property Act, 1882 which makes
mortgagor the owner of the property mortgaged, and makes him able get his property back from
the mortgagee on paying the amount borrowed from him.

1 BLACKS Law Dictionary.

Section 602: Right of mortgagor to redeem

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 existing.

Section 613: Right to redeem separately and 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.4

2 Transfer of Property Act, 1881.

3 The Transfer of Property Act, 1881.

SCOPE OF THE SECTION

Prior to the year 1882 in England a mortgagee could not be compelled to deliver up to the
mortgagor any documents of title until actual payment or tender of all that was due to him. Nor
was the mortgagee bound to allow inspection of such documents, though, under special
circumstances, inspection of the mortgage deed itself was allowed.
1. By the conveyancing and Law of Property Act, 1881.
2. However, it was provided that the person entitled to redeem was entitled to inspect and take
copies or extracts of the documents of title in the possession of the mortgagee.
This section was newly added in this Act by the amending act of 1929 substantially reproducing
section 96, sub section (1) of the English Law of Property Act, 1925. A mortgagor is now
entitled to entitled to inspect and make copies of the documents of title relating to the mortgages
property which are in the custody or power of the mortgagee.5

Amendment:
This section was substituted by the amending Act 20 of 1929.

4 Ibid.
5 Chitaley, Manohar, Commentary on Transfer of Property Act. Nagpur: All India Reporter, EDN 7,
2010.

Salient features of the concept:

1. Mortgagor
the word mortgagor here includes not only the mortgagor himself but also his heirs and
survivors.

2. Same Mortgagee
A executes a mortgage X in favor of B, B transfers the mortgage in favor of C. A.
thereafter executes another mortgage Y in favor of C in which he contracts that he will
not redeem mortgage X without redeeming Y. can it be said in this case that the
mortgages X and Y are in favor of the same mortgagee and can C claim to consolidate
the two mortgages? Yes, C having taken a transfer of mortgage X from B is the
mortgagee under mortgage X. the subsequent mortgage Y was executed in favor of the
mortgagee of mortgage X, that is, the same mortgagee. This section will therefore
apply.

3. Contract to the Contrary

The parties themselves may exclude the operation of the section, and the contract of
mortgage may allow the mortgagee to consolidate. However, a provision to that effect
may be explicit. If there is a stipulation for simultaneous redemption in the subsequent
mortgage of the same property, this is equivalent to a contract for consolidation and the
mortgages cannot be redeemed separately. It is not a clog on redemption.
Illustration
A covenant in the latter of the two mortgages ran: when the whole of the mortgage
money due under this deed together with the amount due under the previous deed shall be

paid, the mortgage shall be payable. It was held, that it was a contract to contract to the
contrary within the meaning of this section.6

CASE:
Ganga Rai v Kitharath Rai7:
The first mortgage was by two mortgagors, and the second by one of them only, who covenanted
to pay before redeeming the first mortgage. This was held not be a contract of consolidation, but
to be a provision fixing time for payment.

Lallu Singh v Ram Nandan8:

The mortgagor had made a usufructuary mortgage of his occupancy holding, and then took
further advances and executed two bonds of further charge, and in those bonds covenanted not
redeem the usufructuary mortgage of his occupancy until these subsequent advances had been
paid off. Now a transfer of an occupancy holding was forbidden by the Agra Tenancy Act, 1881.
But the high court held that a usufructuary mortgage in so far as it is a transfer of a right to
occupy or of a right to possession is valid. 9
6 AIR 1922 All 403
7 (1911) ILR 33 All 393.
8 (1930) ILR 52 All 281.
9 Mulla, The Transfer of Property Act. Gurgaon: LexisNexis India, EDN 10, 2006.

Under this ruling, the bonds were invalid as mortgages or deeds of further charge and the
usufructuary mortgage was valid only as a transfer of the right of possession.
In view of this ruling, each of the judges took a different view of the effect of the covenant one
judge held that as a personal covenant it was valid another judge held that it was invalid as it
hindered redemption of the usufructuary mortgage.

4. Two or more mortgages

Under the section it is clear that even if the mortgages are of the same property, the
mortgagor may redeem each separately, unless restrained by a contract to the contrary. The
effect of the amendment is to abolish the consolidation of mortgages whether in respect of
the same properties or different properties.10
It might be supposed that conversely a mortgage who holds two or more mortgages of the
same property from the same mortgagor might enforce each separately, and that the old rule
requiring the mortgagee to consolidate was abolished. However, this is not so, and sec 67A
of the TP act as amended puts the rights of a mortgagee on a totally different footing, and if
he has successive mortgages of the same property or different mortgages of different
properties from the same mortgagor, he must enforce all or none. This is because a sale of
property subject to other mortgages is not likely to realize a fair price, and would be
hardship on the mortgagor. 11
On the other hand, if mortgagor redeems one of several mortgages, he benefits the
mortgagee by enhancing the value of his security. This equitable consideration overrides not
only the rule of procedure which allows a separate suit on each cause of action, but also the
principle that rights of redemption and foreclosure are co extensive. 12

10 Jai Narayan v Gokul Singh AIR 1937 Oudh 321.

11 Singh, Jaswant Law of Transfer of Property Madras: Madras Law Journal Office, EDN 12 , 2004.

5. Right of Consolidation where some charges barred by limitation

A executes two mortgages X and Y in favor of B, Y contains and express contract that A
shall not redeem one without redeeming the other property also. B allows mortgage X to be
barred by limitation. A thereafter sues for redemption of mortgage Y. It was held in cases
arising under the old section that B could claim that A should redeem both X and Y,
notwithstanding that a suit on mortgage X would be barred by limitation, inasmuch as the
Limitation Act did not to defence.

6. Redeem any one such mortgage

The word redeem any one such mortgage mean merely pay off any one such mortgage
and not necessarily redeem the property by compelling the performance of the several acts in
relation to the mortgaged property referred to in clauses (a), (b), and (c) of S. 60. Thus, where
X executes three different mortgages of the same property to A, X will, under this section, be
entitled to pay off any one of them without, at the same time, paying off the others. But so
long as any one of the mortgages remain unpaid, he cannot compel the mortgagee to perform
the several acts referred to in clauses (a), (b) and (c) of the section 60.

Case:

12 http://articles.economictimes.indiatimes.com/2009-12-13/news/27660233_1_mortgageemortgage-money-mortgagor

Raja Janaki Nath Roy v Raja Pramath Nath Malia13 X executed four mortgages on different dates to Y over the same properties. He then mortgaged
the four mortgages on different dates to Y over the same properties. He then mortgaged the same
properties to Z and he latter paid the first three mortgages, but not the fourth. The question arose
as to whether Z was entitled to priority Y in respect of the mortgages paid off. Their Lordships of
the Privy council held that by paying off the three mortgages, Z must be deemed to have
redeemed them within the meaning of section 92, although he could not have compelled X to
perform any of the acts mentioned in clauses (a), (b) and (c) of section 60.

CONCLUSION

13 AIR 1940 PC 38.