A usufructuary mortgage fixes a term of 5 years for repayment. Can the mortgagor recover the property before expiry of the term on the ground that the debt has been paid off from the usufruct?
The mortgagor can recover the property before the expiry of the term of the mortgage of five years on the ground that the debt has been paid off from the usufruct.
Section 62 of the Transfer of Property Act reads as follows:
“In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee] (a) Where the mortgagee is authorized to pay himself the mortgage money from rents and profits of the property, when such money is paid”.
It is clear from section 62 (a) of the Transfer of Property Act that once the mortgage debt has been paid off from usufruct rent, profit, etc., the mortgage comes to an end and the mortgagor can sue for recovery of possession without waiting for the 5 year term to expire. The same view was held by Madras High Court in the leading case
Immani Seshayya Vs. Lakshminarasimha rao 57 M.L.J. 800.