Conflicting clauses in mortgage deed
praveen
(Querist) 27 July 2014
This query is : Resolved
If there is a conflicting clauses in mortgage deed, which clauses will prevail?
For example if the first clause of the agreement provides that Mortgage is for 10 years. and Next clause says that Mortgagee should be in possession of the property till the money is repaid which implies there is no time limit for mortgage?
As per the law of interpretation, if there is a conflicting agreement the latest clause will prevail over earlier clause. Is our understanding correct?
praveen
(Querist) 28 July 2014
No This is not a academic query.
Considering the recent supreme court judgement on if there is no time limit is fixed to seek redemption for usurfructory mortgage, limitation act will not apply till the mortgagor request for redemption.
In our case Mortgage deed includes both clauses as provided in the query. Unable to conclude whether mortgage deed provides time limit to seek redemption or not.
praveen
(Querist) 28 July 2014
No This is not a academic query.
Considering the recent supreme court judgement on if there is no time limit is fixed to seek redemption for usurfructory mortgage, limitation act will not apply till the mortgagor request for redemption.
In our case Mortgage deed includes both clauses as provided in the query. Unable to conclude whether mortgage deed provides time limit to seek redemption or not to apply the supreme court judgement on what is the starting point for redemption.
Anirudh
(Expert) 28 July 2014
Dear Mr. Praveen,
Only if you read both the clauses as a separate clause independent of each other, you will land in an imaginary situation of conflicting clauses.
If only you read both the clauses in an harmonious manner you will not find any conflict at all.
The first clause says that the mortgage is for 10 years. That means within that time the mortgagor has to redeem his mortgaged property. Till that time the mortgagee has to hold the property in tact.
If even after 10 years, the mortgagor has not redeemed the mortgaged property, naturally the mortgagee has to give a written notice to the mortgagor asking him to redeem the property by paying off the amount within a prescribed time, failing which he would be disposing of the property etc. etc.
Without giving due notice, the mortgaged property cannot be disposed off, just because the 10 year period is over.
Rajendra K Goyal
(Expert) 28 July 2014
All the terms of agreement need to be referred, consult a local lawyer.
Devajyoti Barman
(Expert) 28 July 2014
read on ' clog on redemption'. Your doubts will be cleared.
praveen
(Querist) 28 July 2014
HI Barman sir, where I should read on " Clog on Redemption" is it posed in Lawyers club only?
K.K.Ganguly
(Expert) 28 July 2014
1. There is nothing conflicting in the said clauses,
2. The first clause states that mortgage is for 10 years. After 10 years either the mortgage shall have to be renewed or the loan has to be repaid,
3. As per the second clause, the mortgagee shall have to be in possession of the said mortgaged property i.e. he should not rent it and pass on possession of the said property to any third party till the loan amount is repaid.
T. Kalaiselvan, Advocate
(Expert) 29 July 2014
The views expressed by experts Mr. Anirudh and Mr. Ganguly are self explanatory and proper to the query raised by the author, nothing more to add to the valuable opinions rendered by the experts.
Biswanath Roy
(Expert) 05 August 2014
Rightly interpreted the subject of the query by Learned Expert Mr.Anirudh.
