Section 56 in The Transfer of Property Act, 1882
Title: Marshalling by subsequent purchaser.
1[56. Marshalling by subsequent purchaser.-- If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer is, in the absence of a contract to the contrary, entitled to have the mortgage-debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or any other person who has for consideration acquired an interest in any of the properties.]
1. Subs. by s. 18, ibid., for section 56.
Title: Provision by Court for incumbranccs, and sale freed therefrom.
(a) Where immoveable property subject to any incumbrance, whether immediately payable or not, is sold by the Court or in execution of a decree, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court,--
(1) in case of an annual or monthly sum charged on the property, or of a capital sum charged on a determinable interest in the property,--of such amount as, when invested in securities of the Central Government, the Court considers will be sufficient, by means of the interest thereof, to keep down or otherwise provide for that charge, and
(2) in any other case of a capital sum charged on the property,--of the amount sufficient to meet the incumbrance and any interest due thereon.
But in either case there shall also be paid into Court such additional amount - as the Court considers will be sufficient to meet the contingency of further costs, expenses and interest, and any other contingency, except depreciation of investments, not exceeding one -tenth part of the original amount to be paid in, unless the Court for special reasons (which it shall record) thinks fit to require a larger additional amount.
(b) Thereupon the Court may, if it thinks fit, and after notice to the incumbrance, unless the Court, for reasons to be recorded in writing, thinks fit to dispense with such notice, declare the property to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.
(c) After notice served on the persons interested in or entitled to the money or fund in Court. the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.
(d) An appeal shall lie from any declaration, order or direction under this section as if the same were a decree.
(e) In this section "Court" means (1) a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, (2) the Court of a District Judge within the local limits of whose jurisdiction the property or any part thereof is situate, (3) any other Court which the State Government may, from time to time, by notification in the Official Gazette, decla re to be competent to exercise the jurisdiction conferred by this section.
Title: Mortgage , mortgagor , mortgagee , mortgage-money and mortgage- deed defined.
(a) A mortgage is the transfer of an interest in specific immoveable 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 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 arc called the mortgage -money, and the instrument (if any) by which the transfer is effected is called a mortgage -deed.
(b) Simple mortgage.-- Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and 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 to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
(c) Mortgage by conditional sale.-- Where the mortgagor ostensibly sells the mortgaged property—
on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or
on condition that on such payment being made the sale shall become void, or
on condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
1[Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.]
(d) Usufructuary mortgage.-- Where the mortgagor delivers possession 2[or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage -money, and to receive the rents and profits accruing from the property 3[or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage -money, or partly in lieu of interest 4[or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
(e) English mortgage.-- Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
5[(f) Mortgage by deposit of title-deeds.-- Where a person in any of the following towns, namely, the towns of Calcutta, Madras 6[and Bombay], 7*** and in any other town which the 8[State Government concerned] may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
(g) Anomalous mortgage.-- A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.]
1. Added by Act 20 of 1920 , s . 1 9 .
2 . I n s . b y s . 1 9 , i b i d .
3. Subs. by s. 19, ibid., for and to appropriate them.
4. Subs. by s. 19, ibid, for and.
5. Added by Act 20 of 1929, s. 19.
6. Subs. by the A.O. 1948, for Bombay and Karachi. The word and had been ins. by the A.O. 1937.
7. The words "Rangoon, Moulmein, Bassein and Akyab" omitted by the A.O. 1937.
8. The words "Governor General in Council" successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
Title: Mortgage when to be by assurance.
Where the principal money secured is one hundred rupees or upwards, a mortgage 1[other than a mortgage by deposit of title-deeds], can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by 2[a registered instrument] signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.
3* * * *
1. Ins. by Act 20 of 1929, s. 20.
2. Subs. by Act 6 of 1904, s. 3, for "an instrument".
3. Third paragraph omitted by Act 20 of 1929, s. 20.
Title: References to mortgagors and mortgagees to include persons deriving title from them.
1[59A. References to mortgagors and mortgagees to include persons deriving title from them.-- Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.]
1. Ins. by s. 21, ibid.