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Rights Of The Mortgagor

Rights Of The Mortgagor

Right of redemption: At any time after the mortgage money has become due, the mortgagor has the right to redeem. On payment of the mortgage- money he should get back his property free from all traces of the mortgage.

This is the right of redemption. It is of the essence of a mortgage. It cannot be excluded by a contract to the contrary. It cannot even be impeded or hampered in its exercise. A contract designed to impede redemption is a clog on redemption and is void. This may be illustrated by a few examples:

(1) "The mortgagor alone may redeem not his heirs or assignees." This is void. Even heirs and transferees from the mortgagor may redeem.

(2) "The mortgagor should repay out of his own pocket, without borrowing from others." This is void. The mortgagor can borrow and repay.

(3) "The mortgagor should repay without selling the mortgaged property." This is a clog.

(4) "When the mortgagor repays, he can take back only a part of the property while the remaining property will be retained by the mortgagee as owner." This is a clog.

(5) "If the mortgagor does not repay on the stipulated date, he cannot repay for twelve years thereafter." This is a clog. The mortgagor can repay after the stipulated date ignoring this condition.

(6) "If the mortgagor does not repay on the specified date the mortgage shall be treated as a sale." This is a clog. Once a mortgage always a mortgage. A mortgagor cannot be deprived of his right to redeem by a penal clause converting the mortgage into a sale. By the doctrine of clogs on redemption, the mortgagor's right to redeem is jealously guarded by the courts. The period of limitation for exercising this right is sixty years.

Right of partial redemption:

One of several mortgagors can redeem the whole mortgage. He cannot redeem only his share except when the mortgagee has acquired the share of a mortgagor.

A, B & C together mortgage properties X, Y, and Z, belonging to them respectively, for Rs. 15,000. Each property is worth Rs. 10,000. Now B can redeem by paying Rs. 15,000. He can redeem Y by paying Rs. 5,000, his share of the debt. Suppose the mortgagee acquires A's interest in X, say, by transfer or by inheritance. The effect is to wipe out a part of the debt. Since A's share in the entire property mortgaged is 1/3, a third of the debt will be wiped out. The balance due is Rs. 10,000. B may pay Rs. 10,000 and redeem both Y and Z. However, he has also the right of partial redemption in such a case. He can pay Rs. 5,000 and redeem Y alone.

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