Report No. 110
X. Mortgage Decrees
34.37. Secured debts-position regarding mortgage decrees.-
Certain questions have arisen as to whether a decree (preliminary or final) for the foreclosure or sale of property can be passed without a succession certificate where the mortgagee has died. Should the legal representative be asked to produce a succession certificate before obtaining such a decree? Section 214 does not expressly include within its scope a decree for the enforcement of the mortgagee's rights against the mortgaged property.
On a detailed examination of the case law, the position appears to be this. A decree for the foreclosure of a mortgage is not one for the payment of a "debt" so as to fall within the provision of section 214. The direction to pay within the period fixed in the decree, is given not to fix a personal liability for the debt, but to enable the defendants to save their right of redemption and to prevent its extinction by foreclosure1.
1. (a) Ammanna v. Gurumurthi, 1893 ILR 16 Mad 64.
(b) Marwant v. Mithrana, 1900 AWN 95.
34.39. Money due under usufructuary mortgage.-
A suit to recover the money due under a usufructuary mortgage is also not a suit for "debt" or money due under a contract, but is, in reality, one for assessment in money of the value of the plaintiff's mortgage interest1.
1. Arumugan v. Valura Goundan, 1901 ILR 24 Mad 22.
A suit for redemption (brought by the heir of the mortgagor) is also not a suit against a debtor to obtain a decree for payment of his "debt". The plaintiff is really the debtor, and not the creditor of the deceased mortgagor. Obviously, therefore, a person who, as heir of the mortgagor, is bringing a suit for redemption, is not suing to recover any debt, and a succession certificate is not required1.
1. Zafer All v. Kanti Prakash, AIR 1929 All 896 (Dalal, J.)
34.41. Suits for sale of mortgaged property.-
According to the majority of the High Courts, a suit to recover money due on a simple mortgage, by sale of the mortgaged property, is also not a suit for the recovery of a 'debt'. It is a suit to enforce a charge on immovable property, and no succession certificate, therefore, need be obtained by the heirs of the mortgagee to recover the money1.
The mere tact that the remedy by personal decree for the debt is still available to the mortgagee would not also make any difference.2 On this view, "debt" would not cover a decree for the enforcement of the mortgagee's rights against mortgaged property.
1. (a) Nanchand v. Yenawa, 1904 ILR 28 Bom 630 (632).
(b) Raghu Nath v. Paresh Nath, 1888 ILR 15 Cal 54 (57).
(c) Kanchan v. Bah Nath, 1892 ILR 19 Cal 336 (339), dissented from in 16 All 259.
(d) Baid Nath v. Shamanand, 1895 ILR 22 Cal 143.
(e) Mohmmad Yusuf v. Abdur Rahim, 1899 ILR 26 Cal 839.
(f) Subramanian v. Rakku, 1897 ILR 20 Mad 232.
(g) Pallaniraju v. Bapanna, 1899 ILR 22 Mad 380.
(h) Palaniyandi v. Veerammal, 1906 ILR 29 Mad 77.
(i) Basu Devanand v. Raghubir Saran, AIR 1955 Pat 284 (286, 287).
2. Ramasami v. Venkamma, AIR 1963 AP 135 (136, 137), paras. 7 and 12 (reviews case law) dissenting from Fateh Chand v. Muhammed Baksh, 1894 ILR 16 All 259.
34.42. The Allahabad High Court, in its earlier cases, expressed the opinion that money lent on the security of a mortgage is a "debt" due from the mortgagor to the mortgagee, and the decree in a suit on such mortgage is a decree for the payment of "debt"-i.e., payment by sale of the mortgaged property. Consequently, a succession certificate is necessary1-2 for proceedings on such decrees.
But, in a later Allahabad case3, where the personal remedy under the mortgage deed had become barred by limitation long before the suit was brought, and the mortgagee was simply entitled to a decree for sale of the mortgaged property, it was held that the application for the execution of the mortgage decree for realisation of the amount by sale of the mortgaged property was not an application to obtain an order for the payment of his "debt". No succession certificate was, therefore, necessary. The earlier Allahabad rulings are not cited in the judgment.
1. (a) Fateh Chand v. Muhammad Baksh, 1894 ILR 16 All 259 (FB) (Case under section 4, Succession Certificate Act, 1880).
(b) Allah Dad Khan v. Sant Ram, 1912 ILR 35 All 74 (77) (DB).
(c) Azmat v. Sitla, 9 ALJ 766: 16 IC 108.
2. Kasumari v. Mahku, AIR 1927 All 227 (This was a suit for sale-see Zafar Ali v. Kanti Prakash, AIR 1929 All 896).
3. Mohammad Ibrahim v. Bhagwan Das, AIR 1935 All 897 (898) (Sulaiman, C.J. and Bennet, J.).
34.43. True position.-
It seems to us that but for the early rulings of the Allahabad High Court, the position is well established that a decree for sale is not a decree for "debt". The later Allahabad judgment also discloses-if indirectly-a changed trend. In this position, a clarification of the law is not required.
34.44. Personal decree-succession certificate.-
As regards personal decree, an application by the heirs of a mortgagee for a personal decree under section 90 of the Transfer of Property Act (0. 34, R. 6, C.P.C., 1908) requires a succession certificate1.
Thus, where, after a decree for sale had been made in a mortgage suit, the mortgagee died and his sons got themselves substituted on the record, but the proceeds of the sale of the mortgaged property proved insufficient, and the sons applied for a personal decree for the balance, it was held that until the applicants obtained a certificate, no such decree could be made in their favour2. These cases also do not necessitate any amendment of the law.
1. Kulwanta Bewa v. Karam Chand, (1942) 43 CWN 4: AIR 1983 Cal 714.
2. (a) Nanchand v. Yenawa, ILR 28 Born 630.
(b) Sahadev v. Sakhawat, 10 CWN 145 (149).
(c) Abdul Sattar v. Satya Bhushan, 1908 ILR 35 Cal 767.