Transfer of Property Act (TPA)
Doctrine of Tacking and Its Prohibition under Section 93: The Historical Position and the Indian Rule
Tacking was an English device by which a mortgagee improved his position without improving his security. In one form, a third mortgagee who had lent without notice bought in the first mortgage and tacked his own advance to it, squeezing out the second mortgagee who stood between them. In another, a first mortgagee tacked further advances to his original security. Indian law rejects both. Section 93 says so in terms, and leaves a single exception — the case provided for by section 79, where the mortgage itself published a maximum.
1. The Section
Section 93, TPA '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.' |
The section was inserted by the Transfer of Property (Amendment) Act, 1929, to put beyond argument a position the Indian courts had already reached: that the English doctrine of tacking, resting as it did on the distinction between legal and equitable estates, had no application in a country where that distinction does not exist.
2. The Two Forms of Tacking
2.1 Tabula in naufragio — the plank in the shipwreck
A owns property and mortgages it successively to B, then C, then D. C's security proves worthless because the property is not worth enough for three. D, having lent without notice of C's mortgage, buys in B's first mortgage. Under the English doctrine D could tack his own third mortgage to the first he had acquired, and claim priority over C for both. The metaphor is the plank seized by a drowning man: the first legal mortgage is the plank, and the last mortgagee who reaches it is saved at the expense of the man in the middle.
2.2 Tacking further advances
A first mortgagee who makes further advances to the mortgagor claims to add them to his original security, so that they too rank ahead of an intermediate mortgage. At common law this was allowed where the further advance was made without notice of the intermediate mortgage; after notice, the rule in Hopkinson v. Rolt denied it.
3. Why India Rejected It
- There are no legal and equitable estates in India. The whole doctrine of tabula in naufragio depended on a third mortgagee acquiring the legal estate and holding it against equitable claims. Where all interests are of the same character, there is no plank to seize.
- It produced arbitrary results. The second mortgagee, who had done nothing wrong, lost his security because a later lender happened to be quicker or better advised.
- It sat badly with a system of registration. Once priority is published and ascertainable from a public record, there is no reason to let it be rearranged by a private purchase of an earlier security.
- And it conflicted with subrogation. Section 92 already gives the person who redeems a prior mortgage the priority of that mortgage — no more and no less. Tacking would have given him that priority for a different debt as well.
4. What Section 93 Does and Does Not Prevent
The claim | Position |
|---|---|
A third mortgagee pays off the first and claims priority for his own advance | Forbidden. He acquires no priority in respect of his original security by paying off the prior mortgage |
The same mortgagee claims the priority of the mortgage he paid off | Allowed — but under section 92, by subrogation, and only to the extent of the mortgage discharged |
A first mortgagee makes a further advance and claims to add it to his original security | Forbidden, whether or not he had notice of an intermediate mortgage — except in the case of section 79 |
A mortgage expressing a maximum for future advances or a running account | Section 79 applies: advances up to the maximum keep their priority notwithstanding notice of a later mortgage |
A mortgagee holding several mortgages insisting on being redeemed on all together | Forbidden by section 61, which abolishes consolidation — the companion prohibition |
5. Tacking, Consolidation and Subrogation
Doctrine | What it claimed | The Indian position |
|---|---|---|
Tacking | To add a later advance, or a later security, to an earlier one so as to share its priority | Abolished by section 93, save for the section 79 case |
Consolidation | To require a mortgagor redeeming one mortgage to redeem all mortgages held by the same mortgagee | Abolished by section 61, in the absence of a contract to the contrary |
Subrogation | To succeed to the rights and priority of a mortgagee who has been paid off | Recognised by section 92, and confined to the mortgage actually discharged |
6. A Worked Illustration
Three mortgages and a purchase A mortgages his property to B for ₹5 lakh, then to C for ₹4 lakh, then to D for ₹6 lakh. The property realises ₹12 lakh. D, who lent without notice of C's mortgage, buys in B's mortgage. Under the English doctrine D might have tacked his own ₹6 lakh to B's ₹5 lakh and taken ₹11 lakh, leaving C with ₹1 lakh. Under section 93 he may not. By subrogation under section 92 he stands in B's shoes for ₹5 lakh and takes that first. C then takes his ₹4 lakh. D's own advance ranks last, and takes the remaining ₹3 lakh. |
7. Landmark Cases
📖 Marsh v. Lee, (1670) 2 Vent 337 Held: The doctrine of tabula in naufragio was applied: a subsequent incumbrancer who had lent without notice of an intermediate incumbrance, and who afterwards acquired the first legal mortgage, was allowed to hold that legal estate for his own debt as well, so displacing the intermediate incumbrancer. Ratio: The origin of tacking in English equity — the doctrine that section 93 refuses to receive into Indian law. |
📖 Hopkinson v. Rolt, (1861) 9 HLC 514 Held: A first mortgagee securing a running account continued to make advances after receiving notice of a second mortgage. The House of Lords held that he could not claim priority for the advances made after notice: as to those sums, he had lent on a security he knew to be encumbered. Ratio: The limit English law itself placed on tacking further advances; section 93 goes further and denies priority whether or not there was notice, save under section 79. |
8. Related Topics and Provisions
- Mortgage Securing an Uncertain Amount, Section 79 — the only exception section 93 preserves
- Priority Between Mortgages — the general rule and the qualifications
- Section 92, TPA — subrogation, and the priority it does confer
- Section 61, TPA — the abolition of consolidation
- Section 78, TPA — postponement of a prior mortgagee
- Vested Remainder vs Contingent Remainder — for the wider point that English estate doctrines were not received in India