Hindu Law and Custom (Recht und Sitte) c8.105

c8.105

Different grades of the right of mortgage are naturally excluded, because a pledge is valid only when it is actually in the possession of the creditor.² For that reason only the first mortgage is valid in the case of repeated mortgages of the same property with different creditors and if it is mortgaged with various creditors at the same time the priority of the possessor or superior right is the determinative factor or the pledge is divided among the creditors. The debtor could any time demand the restoration of the mortgaged property on payment of the debt and the accumulated interests, which according to the rule mentioned above could not exceed the amount of the principal, for in principle "pledges cannot be prescribed." This principle is particularly applicable in the case of usable pledges which are accordingly to be given back to the debtor as soon as the redoubling of the debt takes place as the result of the accumulation of interests and the whole amount which is thus due is realised through usufruct. According to another and perhaps a later view even in the case of usable pledges either the forfeiture of the same or the cessation of usufruct after the expiry of a fixed period may be stipulated. Stipulations for forfeiture were of common practice, e. g. after a term of 2, 5 or 10 years, in the case of pledges to be preserved uninjured; even without such stipulations they would be forfeited as soon as the interests in arrear have reached the amount of the principal or after 20 years; yet in favour of the debtor a respite of 10 or 14 days is arranged or a court warrant is given for the sale of the pledged property and partly also the refunding of the excess arising out of this sale is arranged for. The creditor too may get satisfaction by reverting to enjoying the pledged property from merely holding it in custody. Gold and precious stones, garments and stuffs are particularly mentioned as properties of pledge which are merely to be held in custody, but also slaves, horses, copper utensils of cooking etc. could be pledged in this way. Such pledges could be kept in custody also by a pledge-keeper (*adhipāla*) instead of the creditor himself¹.