The Transfer of Property Act - Page 536

SECTION II

THE RIGHTS AND LIABILITIES OF THE MORTGAGE

INTRODUCTION

1. The property which is the subject-matter of the mortgage is subject to the rights of the mortgagor and the mortgagee.

2. There are two questions to be considered—

(i) What are the rights of the mortgagor and mortgagee ?

(ii) What is the nature of those rights ?

§ What is the nature of the rights

1. The English Law divides :—the interests of the mortgagor is spoken of as an equitable estate, while the interests of the mortgagee is spoken of as a legal estate. The Indian Law does not recognize this distinction between legal and equitable estate.

(1872) I.A. Supp. 47 (71).

30 I.A. 238.

2. Even under the Trust Act this distinction is not recognized.

58 I. A. 279.

3. Both have legal rights—there is nothing equitable as opposed to legal.

II. Under the English Law mortgagee is owner while the mortgagor has a bare right of reconveyance.

1. Under the Indian Law it is just the reverse. The mortgagor is the owner and the mortgagee has only a right in re abena.

Rights of the Mortgagor

1. The Rights of the mortgagor fall into three divisions—

I. The Right to redeem.

II. The Right to manage the property.

III. The Right to obtain re-transfer.