History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.614

v4.c63.614

It has already been stated above (p. 429) that in certain cases (i.e. when it is a *gopya ādhi*) the ownership is lost to the mortgagor (i. e. in the language of modern law there is a foreclosure), if the amount has risen to double of the money lent without payment (even after the period of grace) or if the period fixed has passed away without there being repayment (whether the amount has risen to double of that lent or not, acc. to Mit. on Yāj. II. 58). But if at the time of contracting the debt the stipulation is to repay the sum lent with interest and there is no stipulation about loss of the ownership of the thing mortgaged (i. e. it is like a simple mortgage of modern times), then there is no loss of ownership. There is then only a power of sale in the mortgagee. So also in the case of a *bhogyādhi* the mortgagor or his heirs can redeem the property at any time by paying the principal and there is no loss of ownership to the mortgagor. According to Yāj. II. 63 and Bṛ.⁷²² (S. B. E. vol. 33 p. 325 verse 29) the creditor can sell in the presence of (the debtor's relatives) and witnesses the ādhi, when the amount has grown to double of that lent or when the period fixed has passed, if the debtor has not redeemed and is absent or dead. After meeting his own dues the creditor has, as said by Kāt. 529, to hand over the balance of the sale price to the king (i. e. probably to the court of the locality). Kaut.⁷²³ (III. 12) provides that if the debtor is present and the creditor is afraid of the loss of his money because it may exceed the market value of the ādhi he may sell it with the permission of the judges (*dharmastha*) or he may demand a surety for assurance. It appears from these passages that a sale through court and a right of private sale were both recognised in the case of mortgages in ancient India (as in modern times under sections 65 and 69 of the Transfer of Property Act).