Section 79 in The Transfer of Property Act, 1882
Title: Mortgage to secure uncertain amount when maximum is expressed.
If a mortgage made to secure future advances, the performance of an engagement or the balance of a running account, expresses the maximum to be secured thereby, a subsequent mortgage of the same property shall, if made with notice of the prior mortgage, be postponed to the prior mortgage in respect of all advances or debits not exceeding the maximum, though made or allowed with notice of the subsequent mortgage.
A mortgages Sultanpur to his bankers, B & Co., to secure the balance of his account with them to the extent of Rs. 10,000. A then mortgages Sultanpur to C, to secure Rs. 10,000; C having not ice of the mortgage to B & Co., and C gives notice to B & Co. of the second mortgage. At the date of the second mortgage, the balance due to B & Co. does not exceed Rs. 5,000. B & Co. subsequently advance to A sums making the balance of the account against him exceed the sum of Rs. 10,000. B & Co. are entitled to the extent of Rs. 10,000, to priority over C.
[Tacking abolished.] Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), s. 41.
Title: Marshalling securities.
1[81. Marshalling securities.-- If the owner of two or more properties mortgages them to one person and then mortgages one or more of the properties to another person, the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgagedebt satisfied out of the property or properties not mortgaged to him, so far as the same will extend, but not so as to prejudice the rights of the prior mortgagee or of any other person who has for consideration acquired an interest in any of the properties.]
1. Subs. by Act 20 of 1929, s. 42, for s. 81.
Title: Contribution to mortgage-debt.
1[Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date.]
Where, of two properties belonging to the same owner, one is mortgaged to secure one debt and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rate ably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid.
Nothing in this section applies to a property liable under section 81 to the claim of the 2[subsequent] mortgagee.
1. Subs by s. 43, ibid., for the first paragraph.
2. Subs. by s. 43, ibid., for "second".
Title: Power to deposit in Court money due on mortgage.
At any time after the principal money 1[payable in respect of any mortgage has become due] and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.
Right to money deposited by mortgagor.-- The Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgage e may, on presenting a petition (verified in manner prescribed by 2law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and-on depositing in the same Court the mortgage-deed 3[and all documents in his possession or power relating to the mortgaged property], apply for and receive the money, and the mortgage-deed, 4[and all such other documents], so deposited hail be delivered to the mortgagor or such other person as aforesaid.
4[Where the mortgagee is in possession of the mortgaged. property, the Court shall, before paying to him the amount so deposited direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgment in writing that any right in derogation of the mortgagor's interest transferred to the mortgagee has been extinguished.]
1. Subs. by s. 44, ibid., for "has become payable".
2. See the Code of Civil Procedure, 1908 (5 of 1908), Sch. I, Order VI, rule 15.
3. Subs. by Act 20 of 1929, s. 44, for "if then in his possession or power ".
4. Ins. by s. 44, ibid.