Section 62 of the Transfer of Property Act, 1882: Right of Usufructuary Mortgagor to Recover Possession
Section 62 provides when the owner of property given under a usufructuary mortgage may reclaim possession and the mortgage documents. The entitlement depends on how the mortgagee is to recover the secured money from the property's rents and profits.
Complete text of Section 62
62. Right of usufructuary mortgagor to recover possession. 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 the rents and profits of the property,—when such money is paid;
(b) where the mortgagee is authorized to pay himself from such rents and profits or any part thereof a part only of the mortgage-money,—when the term (if any), prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in Court as hereinafter provided.
What is a usufructuary mortgage?
Under Section 58(d), a usufructuary mortgage is a mortgage in which the mortgagor delivers or expressly or impliedly binds himself to deliver possession to the mortgagee and authorizes the mortgagee to retain possession and receive rents and profits, applying them towards interest, principal, or both, as specified by the mortgage. The mortgagor is the person who mortgages the property; the mortgagee is the person in whose favour the mortgage is created.
When can possession be recovered?
Clause (a): Entire mortgage-money recoverable from rents and profits
Where the mortgagee is authorized to satisfy the whole mortgage-money from income generated by the property, the mortgagor's right to recover possession under clause (a) arises when that money has been fully paid through the agreed application of rents and profits. The mortgagee must then restore possession and deliver the mortgage deed and related title documents held by or under the mortgagee's control.
Clause (b): Only part recoverable from rents and profits
Where the mortgagee is authorized to recover only part of the mortgage-money from rents and profits, the mortgagor may recover possession after expiry of the stipulated term, if any, and upon payment, valid tender, or deposit in Court of the mortgage-money or outstanding balance as provided by law. The relevant accounts and terms of the mortgage determine the sum outstanding.
Documents to be returned
The right under Section 62 extends to the mortgage-deed and all documents relating to the mortgaged property in the mortgagee's possession or power. This is in addition to recovery of physical possession; it is not merely a right to obtain photocopies.
Illustrative examples
Example 1: A mortgagor places agricultural land in the mortgagee's possession, authorizing the mortgagee to appropriate all net rents and profits toward the entire mortgage-money. Once the secured amount has been satisfied in accordance with the mortgage, clause (a) entitles the mortgagor to recover the land and documents.
Example 2: The mortgagee is entitled to apply rents only toward interest or part of the principal, with the balance payable by the owner. Subject to the agreed term and accounting, clause (b) permits recovery after the relevant term expires and the outstanding mortgage-money is paid, tendered, or deposited as legally prescribed.
Relationship with redemption and other mortgage provisions
Section 60 states the general right of redemption. Section 62 specifically governs recovery of possession under a usufructuary mortgage. Section 60B addresses inspection and copying of title documents while redemption subsists, and Section 61 concerns separate or simultaneous redemption of multiple mortgages in favour of the same mortgagee. Accounting of rents, profits, expenses, and any applicable limitation questions may require examination of the mortgage deed, the facts, and governing law.
Official statutory sources
For the authoritative text and subsequent amendments, consult India Code for the Transfer of Property Act, 1882 and the Legislative Department, Government of India. Local amendments, if applicable, and judicial interpretation should be checked for the particular property and transaction.
Section 62 distinguishes between full satisfaction of the debt from property income and arrangements where a balance remains payable. Neither situation should be confused with an unconditional entitlement to take possession before the statutory conditions are met.