TMI Blog1962 (5) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1950 (Bihar Act XXX of 1950), hereinafter called the Act, and their having no subsisting right to recover possession from the appellants. It was also held that they could not get advantage of the provisions of clause (c) of sub-s. (1) of s. 6 of the Act as amended by the Bihar Land Reforms (Amendment) Act, 1959 (Act XVI of 1959) as no mortgage subsisted on the date of vesting. The amended clause (c) read as follows : (c) lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof. 3. It is contended for the respondents, who applied for the review of our judgment, that our view that the mortgage w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccruing from the property 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 or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgage an usufructuary mortgagee. 5. When the mortgage money is paid by the mortgagor to the mortgagee, there does not remain any debt due from the mortgagor to mortgagee, and therefore the mortgage can no longer continue after the mortgage money has been paid. The transfer of interest represented by the mortgage was for a certain purpose, and that was to secure payment of money advanced by way of loan. A security cannot exist after the loan had been paid u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, on payment or tender, at a proper time and place of the mortgage-money, to require the mortgagee to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession of power of the mortgagee where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished : Provided that the right co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforce his right to get back the mortgage document, the possession of the mortgaged property and the reconveyance of that property through Court. A new right to get his demands enforced through the Court thus arises as a result of the provisions of s. 60 of the Act. 10. If the mortgage money has been paid and then the mortgagor goes to Court to enforce his demands, that would not be to enforce his right of redemption which was really his right to make those demands on payment of the mortgage money. The right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money. This is also clear from the decree for redemption. Order XXXIV, r. 7, C.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument executed by the mortgagor is an agreement to convey the lands after three months. There is however no document or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of ₹ 100 mentioned therein. This was only an agreement to convey the lands after three months, and, if at all the question of extinction of the equity of redemption could arise on the conveyance being executed but not before. 12. There are other cases also which throw a light on this question and go against the contention of the respondents. In Samar Ali v. Karim-ul-lah I.L.R. (1886) All. 402, it was said : Now, as I have said, the contract of mortgage in the present case being sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion formulated for determination was whether the suit being a suit to recover possession of the mortgaged property after the mortgage money been paid off was a suit 'against the mortgagee to redeem' or 'to recover possession of immovable property mortgaged'. Braund J., said : Now, it is quite obvious that section (s. 60 of the Transfer of Property Act) can only refer to a case in which a mortgagor under a subsisting mortgage approaches the Court to establish his right to redeem and to have that redemption carried out by the process of the various declarations and orders of the Court by which it effects redemption. In other words s. 60 contemplates a case in which the mortgage is still subsisting and the mortgagor goes t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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