DR.

RAM MANOHAR LOHIA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION

2016-2017

PROPERTY LAW

ROUGH DRAFT

ON

" THE RULE AGAINST CONSOLIDATION AS GIVEN UNDER SECTION 61 OF

THE TRANSFER OF PROPERTY ACT "

SUBMITTED TO: SUBMITTED BY:

MR. BHANU PRATAP SINGH MANU PRATAP SINGH

ASSISTANT PROFESSOR LAW SEC- A, ROLL NO- 75

DR. RMLNLU, LUCKNOW B.A LL.B (HONS)

SEMESTER VI

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OBJECTIVES

To learn about the " THE RULE AGAINST CONSOLIDATION AS GIVEN UNDER
SECTION 61 OF THE TRANSFER OF PROPERTY ACT: and to learn the contents and its
scope and its application. : and also about the various kinds of information with the help of
different judgments.

RESEARCH METHODOLOGY

Books and case laws have been used as the primary source for the purpose of writing the
project. Secondary sources such as articles, editorials and internet resources have also been
used.

The methodology assisted is non-empirical and qualitative and is not based upon observation
or experiments. This project will be purely doctrinal in nature as it will be based on resources
already generated previously and hence has no newfound facts or principles enunciated in it.

The researcher will be perusing the data collected and drawing many conclusions from
external sources. These are not necessarily correct and of authoritative value.

Introduction
A mortgager who has executed two or more mortgages in favour of the same mortgagee shall,
in the absence of a contract to the contrary, when the principal money of any two or more of
the mortgages has become due, be entitled to redeem any one such mortgage separately, or
any two or more of such mortgages together.1

The effect of the rule is to prevent consolidation of mortgages whether of same or different
properties2 and to prevent hardship to the mortgagor. An explicit provision to the contrary in
the deed can exclude the operation of this rule. A provision fixing time for payment is not
covered under the clause contract to the contrary.3

This section says that a mortgagor who has executed two or more mortgages in the favour of
the same mortgagee shall be entitled to redeem any one such mortgage separately and any
two or more of such mortgages together. However this is subject to contrary contract, i.e., the

1
Section 61 of the Transfer of Property Act 1882.
2
Jai Narain v. Gokul Singh, AIR 1937 Oudh 321.
3
Ganga rai vs. Kidharnath Rai, (1911) ILR 33 All 393.

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mortgagor and mortgagee may exclude this provision from their mortgage. It is possible only
when the principal money of any two or more of the mortgages has become due.4

Doctrine of consolidation
Doctrine of consolidation was an equitable doctrine under the English law. It enabled the
mortgagee of different properties mortgaged by the same mortgagor to consolidate those
mortgages and force him to redeem them all or to prevent him from redeeming one of them
without redeeming the other. The doctrine was supposed to be based on the maxim he who
seeks equity, must do equity.

For example, where a mortgagor mortgaged two properties A and B to a Mortgagee and
subsequently the value of property A increased considerably, mortgagor wanted to redeem
that property only, this proved to be a bad bargain for the mortgagee because he was left with
only property B which was of lesser value while his loan amount was heavy. Thus in order to
protect the interest the mortgagee equity provided that the mortgagee could require mortgagor
to redeem both mortgages together. However, this doctrine was abolished in England earlier,
however now it was re-enacted by the Law of Property Act, 1925 and made subject to a
contract to the contrary.

Bibliography

Drshah J. vakil, Transfer of property act

Jaswant Singh, Law of Property

Poonam Pradhan Saxena, Property Law

Online sources:

www.manupatra.com

www.scconline.com

www.westlawindia.com

4
Avtar Singh, Transfer of Property (10 th edition, eastern book company 2009) page 271.

3
www.lexisnexis.com

www.indiankanoon.org