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Mortgage

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Topics on Mortgage

  • Deinition of Mortgage
  • Essential features of Mortgage
    • Parties competant to contract
    • Transfer of an interest
    • Specific Immovable property
    • Present or future loan
    • Consideration
    • Registration

Forms of Mortgage

  • Simple Mortgage
  • Mortgage by Conditional Sale
  • Sale with a Condition for Reconveyance
  • Usfructuary Mortgage
  • English Mortgage
  • Mortgage by deposit of title deeds
  • Anomalous Mortgage
  • Bapu Swamt v P Gounder Patty
  • Vidhyadhar v Manikrao

Rights of Mortgagor

  • Right to Redeem
  • Obligation to transfer to third party instead of re-transfer to mortgagor
  • Right to inspection and production of documents
  • Right to redeem separately or simulteneously
  • Right of usufructuary morgagor to recover possession
  • Accession acquired in virtue of transferred ownership
  • Right to improvement of mortgaged property
  • Right to renewal of mortgaged lease
  • Implied contracts by morgagor
  • Mortgagors power to lease
  • Waste by morgagor in possession

Rights and Liabilities of Mortgagee

  1. Right to foreclosure or sale
  2. Right to Sue
  • Mortgagee when bound to bring one suit on several mortages
  • Right to Sue for mortgage-money
  1. Power of Sale
  • Notice
  • Damages
  1. Right to appont Receiver
  2. Accession to mortgaged property
  3. Renewal of mortgaged lease
  4. Right of mortgagee in possession
  • Necessary Expenses
  • Insurance
  1. Right to proceeds of reveue sale or compensation on acquisition
  2. Collateral Advantages
  • Liabilities
  • Loss ccasioned by his default
  • Receipts in lieu of interest

Doctrine of Redemption Clog on Redemption

  • "Once a morgage - always a mortgage"
  • Clog on Redemption
  • Examples
  • Case Law: Noakes & Co vs Rice (1902) AC 24 M & B
  • Case Law: Kreglinger v New Patagonia Meat and Cold Storage Co Ltd, 1914 AC 25 M & B
  • Condition of sale in default
  • Exceptions to right to redemption
  • Right to Redeem and Right to Foreclosse are co-extensive

Priority and its Exceptions

  • Qui rior Est Tempore Potior Est Jure
  • Exceptions
    • Fraud
    • Misrepresentation
    • Gross Negligence
  • Hopkinson v Rolt

Marshalling and Contribution

  • Marshalling Securities
  • Kamata Singh v Chaturbhuj Singh Singh
  • Aldrich v Cooper

Contribution to Mortgage debt

Difference between Marshalling and Contribution

Subrogation

  • Meaning
  • Example
  • Essential Requisities for a valid subrogation
  • Kinds of Subrogation
  • Legal Subrogation
    • Suret
    • Co-mortgagor
    • Puisine Mortgagee
    • Purchaser of the equity of redemption
  • Conventional Subrogation
    • Simple Money Lender
    • A person who has an agreement with the mortgagor
    • A purchaser of puisne mortgagee by the same transaction
  • Difference between Legal Subrogation and Conventional Subrogation

Doctrine of Tacking

Redeem Up - Foreclose Down

Charge

  • Types of Charge
    • Charge by Act of Parties
    • Floating Charge
    • Specific Charge

Related Cases / Recent Cases / Case Laws

  • Williams v Bosanquet, (1819) 1 B&B. 238: There is no privity of estate or of contract between the mortgagee of a leasehold and its lessor seen though the former enters into possession. This rule applies in England. Jagadamba Loan Co v Shibaprasad, (1940) 45 CWN 644 PC: This case said that the privity of estate rule as discussed in the prior mentioned case does not apply in India.
  • Ramkinkar v Satyacharan, (1938) 43 CWN 281 PC: In India, the mortgagor retains a legal interest before and after the expiry of the date of payment, and a transferee from him by way of sale or mortgage get a legal interest.
  • Imperial Bank v U Rai, 1923 Rang. 637 PC: In India, unlike in England, a mortgage by deposit of title-deeds is as good a form of mortgage as any other, and does not create a mere agreement, giving rise to an equitable interest.

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