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INTRODUCTION The law of transfer of property is one of the comparatively complex branches of
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the law . The law of transfer of property in India is largely based on the English Law. Before the
Transfer of Property Act, 1882 the Judges presiding over Indian courts and the Judicial Committee
deciding appeals from India were largely drawing upon the law as it was then administered in
England. The codification of 1882 is largely an adaptation of the English Law subject to such
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modifications as the framers thought were necessary in ( for ) the different conditions obtaining
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in this country . From fundamental concepts as regards ( about ) property , is corporeal and
incorporeal interests and slide naturally into easement. The holding of property and its transfer are
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then dealt with, the transfer of property generally ( ___ ) and mortgages , sales , exchanges ,
gifts and lease being successively the subjects of treatment . The word mortgage is defined under
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Transfer of Property Act, 1882. Section 58 of the T.P, Act, 1882 defines the term mortgage ,
mortgagor, mortgagee. Section 69 deal with the power of sale when valid , in this section , sale of
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private mortgage is explained . When the mortgage can be ( a , the ) sale and what can parties
do in those circumstances . All this is explained under section 69 of the Transfer of Property Act,
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1882. Section 67 deals with the rights to foreclosure or sale . This right is basically ( ___ ) for the
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mortgagee ( mortgage ) .
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MORTGAGE : In ( the , an ) ancient system of law ( \ ) a mortgage was really ( ___ )

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a pledge , the property being conveyed on the default in payment . The transaction was made
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either by delivery of possession or by ( ___ ) conditional conveyance . In Roman law , the
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earliest type of security was the fiducia ( fiduciary, fiducial, fiducials, Fiducia ) , a conditional
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conveyance under which the property , whatever its value was forfeited in case of nonpayment. A mortgage is a transfer of an interest in specific immovable property as security
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for the repayment of a debt . But such interest itself is immovable property . The nature of the
right transferred depends upon the form of the mortgage . Section 58 of the said Act states that
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(a) Mortgage, mortgagor, mortgagee, mortgage-money and mortgage-deed
defined - A mortgage is the transfer of an interest in specific immovable property for the
purpose of securing the payment of money advanced or to be advanced by way of loan ,
an existing or future debt , or the performance of an engagement which may give rise to a
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pecuniary liability .
The transferor is called a mortgagor, the transferee a mortgagee.
The principal money and interest of which payment is secured for the time being are called
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the mortgage-money, and the instrument
by which the transfer is effected is called a
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mortgage deed . (b)
Simple Mortgage- where , without delivering the possession of the
mortgaged-money, agrees , expressly or impliedly, that , in the event of his failing to pay
according to his contract , the mortgagee shall have a right to cause the mortgaged property
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to be sold and
proceeds of sale to be applied , so far as may be necessary , in payment
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of the mortgage-money, the transaction is called a simple mortgage and the mortgagee
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( mortgage ) a simple mortgagee ( mortgage ) .
( c) Mortgage by conditional sale where the mortgagor ostensibly sells the mortgaged property - on condition that on default
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of payment of mortgage-money on a certain date the sale can become absolute . Or on
condition that on such payment being made the sale shall become void, Or on condition that
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such payment being made the buyer shall transfer the property to
( the , a ) seller .
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The transaction is called a mortgage by conditional sale and the mortgagee ( mortgage )
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a mortgagee ( mortgage ) by conditional sale . Provided that no such transaction shall
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deemed ( be deemed ) to be a mortgage , unless the condition is embodied in the
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document which ( that ) effects
( \ ) or the purports the effect the sale . In State of
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Kerala v. The cochin ( Cochin, coin, chin, cohen, couching ) chemical refineries L.t.d the
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respondent executed a mortgaged deed under which the State of Travancore- cochin ( Cochin,
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coin, chin, cohen, couching ) was have to advanced ( advance ) certain sum to the respondent.
The respondent had transferred certain properties to the state by simple mortgage . The respondent
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mortgagor , ( ___ ) undertook to supply
( a , the ) certain quantity of groundnut cake to the
state . The state failed to advance the money and also to take the groundnuts cake . On behalf of
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the state , ( state\ ) it was claim that failure to advance , ( ___ ) absolved the state from its
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obligation to purchase the goods of the respondent . The Supreme Court held that the state is
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liable . It could not be said that by refusing to advance the loan which ( that ) the state has
taken to advance , the obligation to purchase the goods . The company came to end . State is liable
not only for its failure to advance the money but also for the failure to purchase the goods . Thus
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( \ ) the failure to advance the amount of money undertaken to be advanced does not make the
transaction invalid.
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RIGHTS OF MORTGAGEE The mortgagee ( mortgage ) has been empowered to recover

back his money with interest . Where the mortgagor fails to pay it within the stipulated date , the
mortgagee, become entitled to recover the same out of the security . The following rights have been
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conferred upon the mortgage ton recover the money : i. Right to foreclosure or sale . (sec 67) ii
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( Ii, II, vii, dii ) . Right to sue for the mortgage money . (68) iii ( Iii, III, vii, dii ) . Right to exercise
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the power of sale , if so given (69) And other rights are also provided to ( the , a ) mortgagee
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( mortgage ) under sec 69A, 70, 71, 72, 73 of the said Act. RIGHT TO FORECLOSURE OR
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SALE ( SECTION 67) The ( A ) foreclosure is not a thing which ( that ) can be effected by
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the act of parties . It can be affected by the ordser ( order, orders, orderer, ordure ) of court in
a suit property instituted for that purpose . A decree for foreclosure extinguishes the mortgagors
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right to redeem and makes the mortgagee ( mortgage ) an absolute owner of the property
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from the date of
( the , a ) decree . This section is regarded as the counterpart of section 60
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which confers a statutory right of redemption on the mortgagor, where as ( whereas ) this
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section confers a right ot ( at, out, not, hot, got ) foreclosure or sale of the mortgaged property
to the mortgagee. Just as the right of redemption arises immediately on the expiry of the
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mortgagee ( mortgage ) under this section also arises the at the same time he can get a
decree for foreclosure or sale depending on the kinds of the mortgage he holds so long as
a decree for redemption has not been made or mortgage money has not been paid to him
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or deposited in the court under section 83.
Section 67 of the said Act states that In the
absence of a contract to the contrary , the mortgagee has, at any time after the mortgagemoney has become due to him, and before a decree has been made for the redemption of the
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mortgaged property , or the mortgage money has been paid or deposited as hereinafter
provided , a right to obtain from the court a decree that the mortgagor shall be absolutely
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debarred of his right to redeem the property , or a decree that the property to be sold .
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A suit
to obtain a decree that a ( the ) mortgagor shall be absolutely ( ___ )
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debarred of his right to redeem the mortgaged property is called a suit for foreclosure
.
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Nothing in this section shall be deemed a)
To authorize any mortgagee ( mortgage )
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other than a mortgagee ( mortgage ) by conditional sale or a mortgage under an
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anomalous mortgage by the terms of which he is entitled to foreclosure, to institute a
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suit for foreclosure, or an usufructuary mortgagee ( mortgage ) as such or a mortgagee
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( mortgage ) by conditional sale as to institute for the sale
b)
To authorize a
mortgagor who holds the mortgagees rights as his trustee or legal representative and who
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may sue for a sale of the property , to institute a suit for foreclosure.
c) To authorize
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the mortgagee of a railway , canal , or other work ( another work, other works ) in the
maintenance of which the public are interested , to institute a suit for foreclosure or sale
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d) To authorize a person interested in part only of the mortgage-money to institute a
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suit relating only to a corresponding part of the mortgaged have , with the consent of the
mortgagor, served their interests under the mortgage . The mortgagors right to redeem and
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the mortgagees right to foreclosure or sale cannot be exercised earlier than the date on
which the mortgage-money become due unless the terms of the mortgage expressly allow
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him to do so . RIGHT TO EXERCISE THE POWER OF SALE ( SECTION 69) This section has
been superseded by special Acts SARFAESI Act, 2002. The procedure Section 69 was confined
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to English mortgage . SARFAESI extends this procedure of sale was without intervention of
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( the , a ) court to all mortgages . Authorized officer of
( the , a ) bank hears objections and
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decides the case . This is decree of court under SARFAESI Act. This section deals with the
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power of a mortgagee to sell the mortgaged property without
( the , an ) intervention of
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the court . The right to sale can be exercised not only by living persons but also by fictitious
person like incorporated company . A mortgagee having power of sale without the intervention of
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( the , a ) court cannot file a suit for that purpose in court of law . Section 69 states that when
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power of sale is valid - 1)
A mortgagee ( mortgage ) , or any person acting on his behalf ,
shall, subject to the provisions of this section have power to sell or concur in selling the
mortgaged property or any part thereof, in default of payment of the mortgage-money,
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without the intervention of the court , in the following of the cases and in no other a)
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Where the mortgagee ( mortgage ) is an English mortgage is a Hindu, Mohammadan
( Mohammedan, Muhammadan, Mohammad ) or Buddhist or a member of any other race ,
sect , tribe or class from time to time specified in this behalf by the state government in
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the official Gazette;
b) Where a ( the ) power of sale without the intervention of the
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court is expressly conferred on the mortgagee ( mortgage ) by the mortgage-deed, and
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the mortgagee ( mortgage ) is the government . c)
Where a power of sale without the
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intervention of the court is expressly conferred on the mortgage by the mortgage-deed,
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and the mortgage property or any paqrt ( part, parte, port, pert, pact ) thereof was , on
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the date of the execution of the mortgaged-deed, situate ( situated ) within the towns
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of Calcutta, Madras, Bombay, or in any other town or area which the Sate Government
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may, by notification in the Official Gazette, specify in this behalf .
2) No such power
shall be exercised unless and until- a) Notice in writing requiring payment of the principal
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money has been served on the mortgagors, and default has been in payment of the principal
money , or of the part thereof, for three months after such service . b) Some interest under the
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mortgage amounting at least to five hundred rupees is in arrear ( arrears, area, rear,
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arrest, ar rear ) and unpaid for three months after becoming due . 3)
When a sale has
been made in professed exercise of such a power , the title of the purchaser shall not be
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impeachable on the ground that no sale had arisen to authorize the sale , or that due to
notice was not given , or that the power was otherwise improperly or irregularly exercised ,
but any person damnified by an unauthorized or improper or irregular exercise of the power
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shall have his remedy in damages against the person exercising the power .
4)
The
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money which is received by the mortgagee ( mortgage ) , arising from the sale , after
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payment into Court under section 57 of a sum to meet any prior encumbrances ,
shall, in the absence of a contract to the contrary , be held by him in trust to be applied by
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himfirst ( him first, first ) , in payment of all costs , charges and expenses properly
incurred by him as incident to the sale or any attempted sale , and secondly in discharge
of the mortgage-money and costs and other money , if any , due under the mortgage , and
the residue of the money so received shall be paid to the person entitled to the mortgaged
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property , or authorized to give receipt for the proceeds of the sale thereof.
5) Nothing
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in this section or in ( ___ ) section 69-A applies to powers conferred before the first day
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of July, 1882. Section 69 is a drastic provision and places bona fide mortgagors who have a
real defense to any action on the mortgage in a very disadvantageous and helpless position .
The power of sale referred to in this section is a power of sale without the intervention of
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the court and is distinct from the power of a simple mortgagee ( mortgage ) to cause the
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mortgaged property to be sold under section 67 of the said Act. The power of the sale
cannot be exercised except in one of the three cases : i. When the mortgage is an English mortgage
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( \ ) and the parties are not Hindus, Mohammedans, Budhists ( Buddhists, Buddhist ) or
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members of a notified class . ii ( Ii, II, vii, dii ) . Where the mortgagee ( mortgage ) is the
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Government and an express power of sale is conferred in the mortgaged-deed iii ( Iii, III,
vii, dii ) . When the mortgaged property is situated in one of the specified towns and the deed
contains an express power of sale . A power of sale without the intervention of the court
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does not affected ( affect ) the mortgagees ordinary right of realization by suit . The right
recognized by this section is independent of the right to have a receiver appointed under
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section 69-A and may be exercised even after a ( the ) receiver has appointed under section
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69-A . ( 69-A. ) EXERCISEING ( EXERCISING ) OF THE POWER The present section only
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refers to the mortgagee ( mortgage ) , but this includes the assignee of the mortgagee
( mortgage ) . In a Madras case , the mortgage deed provided for the existence of the power of the
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sale by the mortgagee or his assignee
( \ ) and it was held that it could be exercised by a sub101
mortgagee of the assignee . Such power can
( could ) be exercised by the second mortgagee
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( mortgage ) , even if the first mortgagee
( mortgage ) had not been given it . CONDITIONS
FOR THE EXERCISE OF THE POWER The power can be exercised subject to certain conditions
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laid down in sub-section(2). These conditions are mandatory and cannot be changed
by the
parties through any mutual agreement . These conditions are as follows : a) The power of the sale
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could be exercised only in case of default in payment of mortgage money . In
( the , a ) case
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of non-fixation of
( the , a ) due date , there is no default unless demand for payment has been
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made . The default may be in respect of
( the , a ) principal money or of interest or of
( ___ )
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both . b)
In
( the , a ) case of default in the payment of
interest ,
( interest\ ) the
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power of sale can be exercised only if the amount is at least Rs.
500 and is due for three
months . If it is so , the power of sale may be exercised any time without notice before the expiry
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of the period of redemption The mortgage may sell the mortgage
( mortgaged ) property either
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by private contract or by
( ___ ) public auction . He may enter into
a conditional contract
to sell on the power becoming exercisable and can carry such contract into effect provided the
contract is then proper . He must sell the property with a bona fide, without causing any loss to
the mortgagor. EFFECT OF THE SALE The Privy council in, Raja Krishnadatt Ram v. Raja
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Mumtaj
( Mumtaz ) Ali Khan laid down ; the effect of a sale under power of sale is to
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destroy the equity of redemption in the land and
constitutes the mortgagee exercising
the power of the a trustee of the surplus ( sale ) proceeds , after satisfying his own charge ,
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first for the subsequent
encumbrances and ultimately for the mortgagor.
The estate
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if purchased by a stranger passes into his
free of all the encumbrances . PURCHASERS
INTEREST PROTECTED Sub-section (3) provides that when a sale is made under this section ,
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the title of
( the , a ) purchaser is not affected on the ground of any irregularity in the exercise
of power of sale . The purchaser s title shall be questioned where the sale was made without due
notice or that the power was exercised improperly . Even the want of the power of sale would
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effect
( affect ) the purchaser s title . The purchaser is under no duty to make
inquiries .
REMEDY OF THE MORTGAGOR Whatever irregularity may have been committed in the
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exercise of the power of sale the mortgagors only remedy , in the absence of
the fraud , is
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in damages against the mortgagee
( mortgage ) .
( mortgagee. ) So when the mortgage
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sold not only for money due under an English mortgage but also for
the money due under
a subsequent equitable mortgage , the sale was valid and the mortgagors only remedy was
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in damages against the mortgagee
( mortgage ) .
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CONCLUSION Section 69 of the Transfer of the Property Act, 1882 talks about the sale
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of the mortgage . If the payment is not return ( is not returned ) to mortgagee ( mortgage,
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mortgages ) then ( \ ) there are certain rights which ( that ) is ( are ) given to ( the , a )
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mortgagee ( mortgage, mortgages ) and as well as to the mortgagor. Section 67 of the Transfer
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of the Property Act, 1882 talks about the right of mortgagee ( mortgage ) i.e ( i.e.\ ) right to
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foreclosure or sale . Even without the intervention of the court the mortgage ( mortgaged )
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property can be
( a , the ) sale . This section talks about the condition for the exercising of the
power . This power can be exercised only in case of default in payment of mortgage money .
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In
( the , a ) case of default in the payment of
interest , ( interest\ ) the power of sale
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can be exercised only if the amount is at least Rs. 500 and is due for three months . If it is
so , the power of sale may be exercised any time without notice before the expiry of the period of
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redemption . Sub-section (3) provides that when a sale is made under this section , the title of
( the , a ) purchaser is not affected on the ground of any irregularity in the exercise of power of sale .
Whatever irregularity may have been committed in the exercise of the power of sale the
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mortgagors only remedy , in the absence of the fraud , is in damages against the mortgagee
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( mortgage ) . So this is the basic concept of the sale of the private mortgage .
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