Report No. 70

Chapter 83

Prior and Subsequent Mortgages

Sections 93 To 95

83.1. Section 93.-

This brings us to certain provisions mote immediately concerned with.the respective rights of prior and subsequent mortgages. Tacking is prohibited by section 93 which provides as follows:-

"93. No mortgagee paying off a prior mortgage, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his original security and, except in the case provided for by section 79, no mortgagee making a subsequent advance to the mortgagor, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of the security for such subsequent advance."

Section 93 does not require any change.

83.2. Rights of mesne mortgages.-

According to section 94, where a property is mortgaged for successive mortgages, a mesne mortgagee has the same rights against mortgagees posterior to himself as he has against the mortgagor. The familiar maxim-redeem up, foreclose down-is how divided into section 91(a) and section 94. Section 91(a) gives the right of redemption of a prior mortgage to a puisne mortgagee. Section 94 gives the right of foreclosure of a puisne mortgage to a prior mortgagee.

It is to be noted, however, that there is one inaccuracy in the wording of section 94,1 where the section refers to a "mesne mortgagee". The word "prior" is more appropriate, because the section does not refer to rights against earlier mortgagees.2 That aspect is dealt with in section 91(a), a puisne mortgagee being the assignee of the equity of redemption.3 We, therefore, recommend that in section 94, for the word "mesne", the word "prior" should be substituted.

We have no further comments on section 94.

1. Mulla, (1973), p. 605.

2. Dhanivanti v. Hargovind, AIR 1924 Pat 484.

3. Amba Prasad v. Maniram, AIR 1930 All 523.

83.3. Right of redeeming co-mortgagor to expenses.- Section 95 reads-

"95. Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation under section 92 against his co-mortgagors, be entitled to add to the mortgage-money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property".

The section needs no change.