Section 67A - Mortgagee When Bound to Bring One Suit on Several Mortgages

Section 67A of the Transfer of Property Act, 1882 addresses the consolidation of mortgage suits. When a mortgagee holds multiple mortgages executed by the same mortgagor and seeks the same kind of decree under Section 67, the law ordinarily requires the mortgagee to include all mortgages for which the mortgage-money is due, unless there is a contract to the contrary.

Complete text of Section 67A

Meaning of Section 67A

A mortgage is a transfer of an interest in specific immovable property to secure payment of money or performance of an obligation, as defined in Section 58. The mortgagor creates the security and the mortgagee is the person in whose favour it is created. Mortgage-money refers to the money secured by the mortgage. A decree under Section 67 concerns foreclosure or sale, as applicable to the mortgage and its legal conditions.

Section 67A prevents a mortgagee, in the specified circumstances, from pursuing separate suits for individual mortgages when the mortgagee can seek the same kind of decree on mortgages whose secured money has already fallen due.

Conditions for a combined mortgage suit

1. Same mortgagee: one mortgagee holds two or more mortgages.
2. Same mortgagor: the mortgages were executed by the same mortgagor.
3. Same kind of decree: the mortgagee has a right to obtain the same kind of decree under Section 67 in respect of each mortgage.
4. Suit instituted: the mortgagee sues to obtain that decree on any one of the mortgages.
5. Mortgage-money due: all mortgages to be included are those for which the mortgage-money has become due.
6. No contrary contract: the mortgage agreement does not validly provide otherwise.

When Section 67A does not compel consolidation

The section does not impose an unconditional requirement to combine every mortgage. Its express limitations matter: it applies to mortgages by the same mortgagor, where the same kind of Section 67 decree is available, and only to mortgages where the mortgage-money has become due. A contract to the contrary can also alter the statutory default rule. A mortgage not yet due is not required to be included merely because the mortgagee holds it.

Illustrative examples

Several mortgages with amounts due

A borrower mortgages two separate properties to the same lender under two mortgages. Both debts are due, and the lender is entitled to the same kind of sale decree under Section 67 for each. If the lender sues for a sale decree on one mortgage, Section 67A ordinarily requires the suit to cover both mortgages, unless a contrary contract applies.

One debt not yet due

Suppose the mortgage-money under the first mortgage is due, but payment under a second mortgage by the same mortgagor is not yet due. Section 67A does not, by itself, require the mortgagee to sue on the second mortgage at that time.

Different kinds of relief

If the mortgages do not give rise to the same kind of decree under Section 67, the specific consolidation requirement in Section 67A is not established merely because the parties are the same.

Relationship with Section 67 and procedural law

Section 67 governs a mortgagee's right to foreclosure or sale, subject to the statutory restrictions. Section 67A then addresses when multiple mortgages must be enforced in one suit. The conduct and adjudication of mortgage suits are also subject to applicable procedural law, including the Code of Civil Procedure, 1908, and its mortgage-suit provisions in Order XXXIV. Whether a decree may be sought and what relief is available must be assessed from the mortgage instruments, due dates and applicable law.

Practical points before filing a mortgage suit

• Identify all mortgages executed by the mortgagor in favour of the mortgagee.
• Check the mortgage-money due date for each instrument.
• Identify the relief available under Section 67 for each mortgage.
• Review any contractual term concerning separate enforcement or consolidation.
• Consider any additional applicable requirements governing the suit and relief.

Official legal text and related sections

For the authoritative statutory material, see India Code - Transfer of Property Act, 1882. Related reading includes Section 68 (right to sue for mortgage-money), Section 69 (power of sale), and Section 60 (redemption).

Frequently asked questions

Does Section 67A require one suit for every mortgage held by the lender?

No. The requirement applies only when the statutory conditions are met, including the same mortgagor, the same kind of decree under Section 67, due mortgage-money, and no contract to the contrary.

Can the mortgage documents permit separate suits?

Section 67A expressly operates in the absence of a contract to the contrary. The actual contractual wording and its enforceability must be considered.

Does Section 67A govern suits for recovery of money alone?

Its express focus is suits to obtain the same kind of decree under Section 67. A personal suit for mortgage-money is addressed separately in Section 68 and should not be treated as automatically governed by the same rule.