DOCTRINE OF TAKING OR PROHIBITION OF TAKING

Transfer of Property Act, 1882

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Tanmoy Mukherjee

[Advocate]

DOCTRINE OF TAKING OR PROHIBITION OF TAKING [Section – 93 of the Transfer of Property Act]-

Tanmoy Mukherjee

[Advocate]

'Taking' means, "uniting securities given at different times." Section 93 of the T.P.Act deals with prohibition of taking. It runs as follows-

No mortgagee paying off a prior mortgage, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his original security; and, except in the case provided for by section 79, no mortgagee making a subsequent advance to the mortgagor, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his security for such subsequent advance.

-This section prohibits tacking, i.e. uniting of securities given at different times. However, it recognizes an exception to this prohibition i.e. where there is a mortgage to secure further advance and the maximum is specified. A tacking may be explained in the following manner-

A mortgages his property X to B. Then he mortgages X to C and then to D. D pays the amount to B which he had advanced to A, and thus acquires the place of B. If there is no prohibition of tacking, D will acquire priority over C not only in respect of the amount which he had paid to B but also in respect of money which is due to him from A.

The doctrine of tacking for the purpose of squeezing out an intermediate mortgagee was never recognized in India and it was expressly prohibited by Section 80 of the Transfer of Property Act, which has been re-enacted as Section 93 of the Act by the Amending Act of 1929.

Section 93 of the Transfer of Property Act now declares that no mortgagee paying off a prior mortgage, whether with or without notice of an intermediate mortgagee shall thereby acquire any priority in respect of his original security. The net result is that a third mortgagee paying off the first mortgagee acquires priority with respect to the mortgage which he redeems and not with respect to his own mortgage.

The doctrine of tacking has been abolished in England by Section 94 of the Law of Property Act, 1925 with effect from 1st January 1926.