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Doctrine of consolidation

Doctrine of consolidation


Right against consolidation: If the mortgagor has executed more than one mortgage in favor of the same mortgagee, he may redeem any of them without being compelled to redeem all at the same time. The mortgagee cannot consolidate the mortgages. He cannot treat all the mortgages as one mortgage and ask the mortgagor to redeem all or none. The right of consolidation can be secured by the mortgagee by means of a contract with the mortgagor. Strictly speaking, such a contract would be a clog as it hampers redemption.

A concession, however, is made to the mortgagee in such a case. When the mortgagor has defaulted, he may be obliged to pay up all the mortgages that have fallen due as a condition of being allowed to pay any of them. This right of consolidation enables a mortgagee to compel the mortgagor to pay up other barred mortgage debts also if the mortgage sought to be redeemed is alive. Consolidation can be claimed only under a contract.

A simple money debt cannot be consolidated with a mortgage debt even by contract. Such a contract would be a clog and so void. Section 61 of the Transfer of Property Act, 1882 which deals with this subject has been remodeled in 1929. The new section is more comprehensive and abolishes consolidation of successive mortgages even over the same property, where there is no express reservation of the right. It is not retrospective in operation and if a claim to consolidation accrued before it came into force, that right can be asserted in a suit brought after the amending legislation came into force.


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