Once a mortgage is always a mortgage
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Once
a mortgage is always a mortgage signifies a legal principle which is applicable
to all mortgage transactions. This basically means that the right of the
mortgagor cannot be controlled, managed or limited by any terms of the mortgage
contract executed between the parties. A mortgage is always redeemable.
According
to this principle, a unilateral act of mortgage could not be converted into
sale by the mortgagee . For example, if no period was fixed for redemption of
usufructuary mortgage when it was created. Mortgagee would not become owner
simply by expiry of time due to non- redemption and mortgagor’s suit for
redemption would be proper.
Once
a mortgage always a mortgage also signifies
the doctrine of clog or clog on right of redemption which is enforced in order to maintain equity
between the parties as the mortgagee
would always have an upper hand as compared to the mortgagor or the person in need of money . Therefore,
in order to protect the right of the mortgagor this doctrine comes into force. In
the above example the term of 10 years stated would act as a clog to the
mortgagee deed as it states that of the
mortgagor is not able to pay the amount within 10 years from date of the executive of the
mortgagee deeds between the
parties, the mortgagor would lose his
right to redeem the property and in turn
would have to sell the land to the mortgagee, this would be a clog on the right
of redemption of the mortgagor and therefore, would be void.
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