Vol. 12 · pages 541–545

520 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Liabilities of the mortgagor Section 65. 1. The liabilities consists of certain statutory covenants. 2. They are warranties for the breach of which the mortgagor is liable. I. GENERALLY— (a) Covenant for title. (i) There is a title in the mortgagor in the interest transferred. (ii) That he had the right to transfer. Substituted Security Where the owner of an undivided share in a joint and undivided estate mortgages his undivided share, the person who takes the security i.e. the mortgagee takes it subject to the right of these co-sharers to enforce a partition and thereby convert what is an undivided share of the whole into a defined portion held in severally—11. A. 106. After partition the security will be the separate share allotted in place of the undivided share. Proceed against the share allotted and not against share originally mortgaged. *** (a) Covenant to deferred title. (b) Covenant to pay public dues—if the mortgagee is not in possession. (c) Covenant to pay prior incumbrance (debt) on its being due. II. WHEN THE MORTGAGED PROPERTY IS LEASEHOLD. (i) Covenant that all conditions have been performed down to the commencement of the mortgage. (ii) Covenant to pay rent reserved by the lease if the mortgagee is not in possession. (iii) Covenant to perform all the conditions if the lease is renewed. These covenants are not personal covenants. They run with the mortgaged property and can be availed of by a transferee from the mortgagee. ***

521THE TRANSFER OF PROPERTY ACT Rights of the Mortgagee 1. They fall into two divisions— (1) Right to realize the mortgage money. (2) Right to have the security maintained in tact during the continuance of the mortgage. I. RIGHT TO REALIZE THE MORTGAGE MONEY. 1. Under this fall the following rights— (1) Right to foreclose 67. (2) Right to sell 67/69. (3) Right to sue for mortgage money 68. (4) Right to claim money on sale and acquisition 73. 2. A suit to obtain a decree that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is a suit for foreclosure. NOTE.— 1. Mortgage money does not mean the whole of the mortgage money. If a mortgage is payable by instalments, it is open to the mortgagee to bring a suit for foreclosure for an instalment of the principal and interest. 13 M.L.I.2. 2. In the absence of an express stipulation, a mortgagee is not bound to receive payment by instalments— 24 All. 461. 3. A suit for interest is maintainable even before the principal money became due unless there is a covenant prohibiting him from doing so. 4. The three rights are not available to every mortgagee. I. THE RIGHT TO SUE FOR MONEY. Section 68. This is available only where the mortgagor binds himself to repay the same. Question.—When can it be said that a mortgagor personally binds himself to pay ? There are two views on the matter. (a) A personal covenant is presumed in all mortgages of whatever form. According to this view, the only difference that can arise is that the Court might in the absence of an express covenant, demand more clearly implied covenants than it might require in other case— 13 Lah. 259.

522 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (b) The other view is that a covenant can arise only where there is an express covenant the words are binds himself. This clause would be unnecessary if personal covenant was implied in all cases. By definition Section 58. 1. The mortgagor in a simple mortgage binds himself to repay the money. 2. In a mortgage by conditional sale, he says that “if he pays he will recover his property”. 3. In a usufructuary mortgage he does not even make this qualified covenant. It is therefore clear that a mortgagor can sue for a money decree in the case of a simple mortgage but not in the case of other kinds of mortgages unless there is an express covenant to that effect. Exceptions. The mortgagor can sue for a money decree from the mortgagor. But he cannot sue for a money decree from a transferee from the mortgagor or from his legal representative.— Other cases in which he can sue for a money decree. Generally a mortgagee can sue for a money decree when there is a personal covenant by the mortgagor to pay. 2. There are cases where a mortgagee can sue although there is no personal covenant to pay— Section 68. (i) Where by accidental causes, not due to the act of either party such as fire, flood or vis major the property is destroyed, wholly or partly, or is rendered insufficient and the mortgagor on being given an opportunity fails to give further security. (ii) Where the mortgagee is deprived of the whole or part of his security by the wrongful conduct of the mortgagor. (iii) Where the mortgagee being entitled to possession, the mortgagor fails to deliver possession or fails to secure the mortgagee in his possession. Right to sell 1. This right belongs only to— (i) Simple mortgagee.

523THE TRANSFER OF PROPERTY ACT (ii) English mortgagee. (iii) Equitable mortgagee. 2. They cannot sue to obtain possession. They can only sue for sale. If the Court erroneously gives him possession, that possession does not amount to foreclosure and the mortgagor can subsequently redeem the mortgage. 19 Mad. 249 (252-53) P. C. CONDITIONS FOR THE EXERCISE OF THE RIGHT OF SALE AND FORECLOSURE. 1. After the mortgage-money has become due and before decree for redemption is made. 2. Suit must be for the whole of the mortgage-money. There cannot be a suit for the realization of a part of the mortgagemoney by sale or foreclosure of a part of the mortgage property. Exception.—If there is a severence of the interests of the mortgagee with the consent of the mortgagor, a suit for a part may be brought by the mortgagee. Section 67 A. 3. A mortgagee who holds many mortgages against the same mortgagor must bring one suit on those mortgages in respect of which— (i) A right to sue has accrued to him and (ii) In respect of which he has a right to obtain the same kind of decree. Section 65 A. 4. If the mortgagor could not only manage the property but, if he is lawfully in possession of the mortgaged property, he shall have the power to make leases thereof which would be binding upon the mortgagee. 5. After the mortgage this power of the mortgagor to deal with the property is limitted. He has not anything like general authority. 6. The power to lease is circumscribed by certain condition. (i) He may lease it in accordance with local law, custom or usage.

524 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (ii) Every lease shall reserve lest rent can reasonably be obtained—rent shall not be paid in advance. (iii) The lease must not contain a convenant for renewal. (iv) Lease shall take effect from a date not later than 6 months from the date on which it was made. (v) In the case of a lease of a building, the duration of the lease shall not exceed three years. 7. The general power of the lease is subject to a contract to the contrary. The other provisions are subject to variarions. Right to foreclose. This right belongs to— (1) Mortgagee by conditional sale. (2) Mortgagee by anomalous mortgage by the terms of which he is entitled to foreclose. Mortgagees who can neither sue for sale nor for foreclosure. (1) Usufructuary mortgagee. (2) Mortgagee of a Railway and canal or other work in the maintenance of which the public are interested. Case of a mortgagor who may become a trustee or executor of the mortgagee or the mortgagee may become a trustee or executor of the mortgagor. Can such a mortgagor or mortgagee foreclose sale ? Sub-clause (b) of Section 67 provides for the case of a mortgagor who has become a trustee for the mortgagee. According to this clause a mortgagor trustee, who may sue for sale, is not allowed to foreclose. In the other case the foreclosure is equally prohibited according to English practice on the principle that it is the duty of the trustee to consult the interests of the mortgagor and that it is for the mortgagor’s interests that a sale and not foreclosure, should take place. EXERCISE OF THE POWER OF SALE WITHOUT THE INTERVENTION OF THE COURT 1. As a rule, a mortgagee can bring the property to sale only through the Court.