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Report No. 70

Chapter 85

Anomalous Mortgages

Section 98

85.1. Section 98.-

Section 98 provides that in the case of an anomalous mortgage, the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage deed, and so far as such contract does not extend, by local usage.

85.2. Of course, this section, in so far as it permits freedom of contract, is subject to the mandatory provisions in the chapter on mortgages, or for that matter, in the entire Act. For example, the right of redemption is an indispensable attribute of a mortgage, and no contract can take it away even where the mortgage is an anomalous one.1

However, procedural and minor matters may, it seems, be regulated by contract so that, for example, under the terms of an anomalous mortgage a separate suit for the recovery of interest appears to be maintainable.2

We have no further comments on section 98.

1. Mohammed Sher Khan v. Sethi Swami Dayal, AIR 1922 PC 17.

2. Chan Yin Sein v. Mg. Aung Thein, AIR 1934 Rang 159.

The Transfer of Property Act, 1882 Back

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