Transfer of Property Act 1882
98. Rights and liabilities of parties to anomalous mortgages.—
98. Rights and liabilities of parties to anomalous mortgages.—In the case of 1[an anomalous mortgage] the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage-deed, and, so far as such contract does not extend, by local usage.
The mortgagee was given the right to sell the property in his possession for the realisation of mortgage debt in the case the mortgagor defaulted in payment of mortgage debt. The mortgagee had to pay a monthly sum of Rs.85 towards “excess profits” after adjusting the balance towards interest on the mortgage amount. It has been held that payment of Rs. 85 was not rent for the property and the mortgagee was not a lessee, but the mortgage was an anomalous mortgage and rights and liabilities of the mortgagee were to be determined according to section 98 of Transfer of Property Act; Hathika v. Puthiyapurayil Padmanabhan, AIR 1994 Ker 141.
1. Subs. by Act 20 of 1929, sec. 49, for “a mortgage, not being a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage or an English mortgage or a combination of the first and third, or the second and third, of such forms”.