Mortgage by
conditional sale (c) Where the
mortgagor ostensibly sells the mortgaged property-
on condition that
on default of payment of the mortgage-money on a certain date the sale shall
become absolute, or
on condition that
on such payment being made the sale shall become void, or
on condition that
on such payment being made the buyer shall transfer the property to the seller,
the transaction is
called a mortgage by conditional sale and the mortgagee a mortgagee by
conditional sale:
Provided that no
such transaction shall be deemed to be a mortgage, unless the condition is
embodied in the document which effects or purports to effect the sale;
Usufructuary mortgage (d) Where the mortgagor delivers possession
or expressly or by implication binds himself to deliver possession of the
mortgaged property to the mortgagee, and authorises him to retain such
possession until payment of the mortgage-money, and to receive the rents and
profits accruing from the property or any part of such rents and profits and to
appropriate the same in lieu of interest, or in payment of the mortgage-money,
or partly in lieu of interest or partly in payment of the mortgage-money, the
transaction is called an usufructuary mortgage and the mortgagee an
usufructuary mortgagee.
English mortgage (e) Where the mortgagor binds himself to
re-pay the mortgage-money on a certain date, and transfers the mortgaged
property absolutely to the mortgagee, but subject to a proviso that he will
re-transfer it to the mortgagor upon payment of the mortgage-money as agreed,
the transaction is called an English mortgage
Mortgage by deposit of title-deeds (f) Where a person in the town of 16[ Dhaka,
Narayangonj and Chittagong] and in any other town which the Government 17[ * *
*] may, by notification in the official Gazette, specify in this behalf,
delivers to a creditor or his agent documents of title to immoveable property,
with intent to create a security thereon, the transaction is called a mortgage
by deposit of title-deeds.
Anomalous mortgage (g) A mortgage which is not a simple
mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English
mortgage or a mortgage by deposit of title-deeds within the meaning of this
section is called an anomalous mortgage.
Mortgage when to be by assurance
59. Where the
principal money secured is one hundred taka or upwards, a mortgage other than a
mortgage by deposit of title-deeds can be effected only by a registered
instrument signed by the mortgagor and attested by at least two witnesses 18[ :
Provided that a
mortgage by deposit of title-deeds, where the mortgagee is the Government or a
Scheduled Bank as defined in the Bangladesh Bank Order, 1972 or a financial
institution as defined in the Financial Institutions Act, 1993, shall also be
effected only by a registered instrument in the aforesaid manner 19[ :
Provided further
that where in pursuance of a tripartite agreement between a buyer, a seller and
a Scheduled Bank or financial institution, the buyer undertakes to buy a flat
or floor space to be constructed or a plot of land to be developed by the
seller (a real estate owner, firm or company), and the seller undertakes to
transfer the flat or floor space or a plot of land, as the case may be, to the
buyer by registered instrument upon construction or development, as the case
may be, and the Scheduled Bank or financial institution undertakes to pay the
price, or part of the price, of the flat or floor space or plot of land to the
seller on behalf of the buyer, on condition, among others, that the flat or
floor space to be constructed or the plot of land to be developed, and
transferred to the buyer, shall be mortgaged to the Scheduled Bank or financial
institution by deposit of title-deed as security against the money paid or to
be paid to the seller on behalf of the buyer as loan, such mortgage by deposit
of title-deed shall not be required to be effected by a registered instrument
as aforesaid.]]
Where the
principal money secured is less than one hundred taka, a mortgage may be
effected either by a registered instrument signed and attested as aforesaid, or
(except in the case of a simple mortgage) by delivery of the property.
References to mortgagors and mortgagees to
include persons deriving title from them
20[ 59A. Unless
otherwise expressly provided, references in this Chapter to mortgagors and
mortgagees shall be deemed to include references to persons deriving title from
them respectively.]
Rights and Liabilities of Mortgagor
Right of mortgagor to redeem
60. At any time
after the principal money has become due, the mortgagor has a right, on payment
or tender, at a proper time and place, or the mortgage-money, to require the
mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents
relating to the mortgaged property which are in the possession or power of the
mortgagee, (b) where the mortgagee is in possession of the mortgaged property,
to deliver possession thereof to the mortgagor, and (c) at the cost of the
mortgagor either to re-transfer the mortgaged property to him or to such third
person as he may direct, or to execute and (where the mortgage has been
effected by a registered instrument) to have registered an acknowledgement in
writing that any right in derogation of his interest transferred to the
mortgagee has been extinguished:
Provided that the
right conferred by this section has not been extinguished by the act of the
parties or by decree of a Court.
The right
conferred by this section is called a right to redeem and a suit to enforce it
is called a suit for redemption.
Nothing in this
section shall be deemed to render invalid any provision to the effect that, if
the time fixed for payment of the principal money has been allowed to pass or
no such time has been fixed, the mortgagee shall be entitled to reasonable
notice before payment or tender of such money.
Redemption of portion of mortgaged
property Nothing in this section shall
entitle a person interested in a share only of the mortgaged property to redeem
his own share only, on payment of a proportionate part of the amount remaining
due on the mortgage, except only where a mortgagee, or, if there are more
mortgagees than one, all such mortgagees, has or have acquired, in whole or in
part, the share of a mortgagor.
Obligation to transfer to third party instead
of re-transference to mortgagor
21[ 60A. (1) Where
a mortgagor is entitled to redemption, then, on the fulfilment of any
conditions on the fulfilment ofwhich he would be entitled to require a
re-transfer, he may require the mortgagee, instead of re-transferring the property,
to assign the mortgage-debt and transfer the mortgaged property to such third
person as the mortgagor may direct; and the mortgagee shall be bound to assign
and transfer accordingly.
(2) The rights
conferred by this section belong to and may be enforced by the mortgagor or by
any encumbrancer notwithstanding an intermediate encumbrance; but the
requisition of any encumbrancer shall prevail over a requisition of the
mortgagor and, as between encumbrancers, the requisition of a prior
encumbrancer shall prevail over that of a subsequent encumbrancer.
(3) The provisions
of this section do not apply in the case of a mortgagee who is or has been in
possession.
Right to inspection and production of
documents
60B. A mortgagor,
as long as his right of redemption subsists, shall be entitled at all
reasonable times, at his request and at his own cost, and on payment of the
mortgagee's costs and expenses in this behalf, to inspect and make copies or
abstracts or, extracts from, documents of title relating to the mortgaged
property which are in the custody or power of the mortgagee.]
Right to redeem separately or
simultaneously
61. A mortgagor
who has executed two or more mortgages in favour of the same mortgagee shall,
in the absence of a contract to the contrary, when the principal money of any
two or more of the mortgagees has become due, be entitled to redeem any one
such mortgage separately, or any two or more of such mortgages together.
Right of usufructuary mortgagor to recover
possession
62. In the case of
a usufructuary mortgage, the mortgagor has a right to recover possession of the
property together with the mortgage-deed and all documents relating to the
mortgaged property which are in the possession or power of the mortgage,-
(a) where the
mortgagee is authorised to pay himself the mortgage-money from the rents and
profits of the property, - when such money is paid;
(b) where the
mortgagee is authorised to pay himself from such rents and profits or any part
thereof a part only of the mortgage-money – when the term, if any, prescribed
for the payment of the mortgage-money has expired and the mortgagor pays or
tenders to the mortgagee the mortgage-money or the balance thereof or deposits
it in Court as hereinafter provided.
Accession to mortgaged property
63. Where mortgaged property in possession of
the mortgagee has, during the continuance of the mortgage, received any
accession, the mortgagor, upon redemption, shall, in the absence of a contract
to the contrary, be entitled as against the mortgagee to such accession.
Accession acquired in virtue of transferred
ownership Where such accession has been
acquired at the expense of the mortgagee, and is capable of separate possession
or enjoy-ment without detriment to the principal property, the mortgagor
desiring to take the accession must pay to the mortgagee the expense of
acquiring it. If such separate possession or enjoyment is not possible, the
accession must be delivered with the property; the mortgagor being liable, in
the case of an acquisition necessary to preserve the property from destruction,
forfeiture or sale, or made with his assent, to pay the proper cost thereof, as
an addition to the principal money, with interest at the same rate as is
payable on the principal, or, where no such rate is fixed, at the rate of nine
percent. per annum.
In the case last
mentioned the profits, if any, arising from the accession shall be credited to
the mortgagor.
Where the mortgage
is usufructuary and the accession has been acquired at the expense of the
mortgagee, the profits, if any, arising from the accession shall, in the
absence of a contract to the contrary, be set off against interest, if any,
payable on the money so expended.
Improvements to mortgaged property
22[ 63A.(1) Where
mortgaged property in possession of the mortgagee has, during the continuance
of the mortgage, been improved, the mortgagor, upon redemption, shall, in the
absenceof a contract to the contrary, be entitled to the improvement; and the
mortgagor shall not, save only in cases provided for in sub-section (2), be
liable to pay the cost thereof.
(2) Where any such
improvement was effected at the cost of the mortgagee and was necessary to
preserve the property from destruction or deterioration or was necessary to
prevent the security from becoming insufficient, or was made in compliance with
the lawful order of any public servant or public authority, the mortgagor
shall, in the absence of a contract to the contrary, be liable to pay the
proper cost thereof as an addition to the principal money with interest at the
same rate as is payable on the principal, or, where no such rate is fixed, at
the rate of nine per cent. per annum, and the profits if any, accruing by
reason of the improvement shall be credited to the mortgagor.]
Renewal of mortgaged lease
64. Where the
mortgaged property is a lease, and the mortgagee obtains a renewal of the
lease, the mortgagor, upon redemption, shall, in the absence of a contract by
him to the contrary, have the benefit of the new lease.
Implied contracts by mortgagor
65. In the absence
of a contract to the contrary, the mortgagor shall be deemed to contract with
the mortgagee-
(a) that the
interest which the mortgagor professes to transfer to the mortgagee subsists,
and that the mortgagor has power to transfer the same;
(b) that the
mortgagor will defend, or if the mortgagee be in possession of the mortgaged
property, enable him to defend, the mortgagor's title thereto;
(c) that the
mortgagor will, so long as the mortgagee is not in possession of the mortgaged
property, pay all public charge accruing due in respect of the property;
(d) and, where the
mortgaged property is a lease, that the rent payable under the lease, the
conditions contained therein, and the contracts binding on the lessee have been
paid, performed and observed down to the commencement of the mortgage; and that
the mortgagor will, so long as the security exists and the mortgagee is not in
possession of the mortgaged property, pay the rent reserved by the lease, or,
if the lease be renewed, the renewed lease, perform the conditions contained
therein and observe the contracts binding on the lessee, and indemnify the
mortgagee against all claims sustained by reason of the non-payment of the said
rent or the non-performance or non-observance of the said conditions and
contracts;
(e) and, where the
mortgage is a second or subsequent in-cumbrance on the property, that the
mortgagor will pay the interest from time to time accruing due on each prior
incumbrance as and when it becomes due, and will at the proper time discharge
the principal money due on such prior incumbrance.
The benefit of the
contracts mentioned in this section shall be annexed to and shall go with the
interest of the mortgagee as such, and may be enforced by every person in whom
that interest is for the whole or any part thereof from time to time vested.
Mortgagor’s power to lease
23[ 65A. (1)
Subject to the provisions of sub-section (2), a mortgagor, while lawfully in
possession of the mortgaged property, shall have power to make leases thereof
which shall be binding on the mortgagee.
(2) (a) Every such
lease shall be such as would be made in the ordinary course of management of
the property concerned, and in accordance with any local law, custom or usage.
(b) Every such
lease shall reserve the best rent that can reasonably be obtained, and no premium
shall be paid or promised and no rent shall be payable in advance.
(c) No such lease
shall contain a covenant for renewal.
(d) Every such
lease shall take effect from a date not later than six months from the date on
which it is made.
(e) In the case of
a lease of buildings, whether leased with or without the land on which they
stand, the duration of the lease shall in no case exceed three years, and the
lease shall contain a covenant for payment of the rent and a condition of
re-entry on the rent not being paid within a time therein specified.
(3) The provisions
of sub-section (1) apply only if and as far as a contrary intention is not
expressed in the mortgage-deed; and the provisions of sub-section (2) may be
varied or extended by the mortgage-deed and, as so varied and extended, shall,
as far as may be, operate in like manner and with all like incidents, effects
and consequences, as if such variations or extensions were contained in that
sub-section.]
Waste by mortgagor in possession
66. A mortgagor in
possession of the mortgaged property is not liable to the mortgagee for
allowing the property to deteriorate; but he must not commit any act which is
destructive or permanently injurious thereto, if the security is insufficient
or will be rendered insufficient by such act.
Explanation.-A
security is insufficient within the meaning of this section unless the value of
the mortgaged property exceeds by one-third, or, if consisting of buildings,
exceeds by one-half, the amount for the time being due on the mortgage.
Rights and Liabilities of Mortgagee
Right to foreclosure or sale
67. In the absence
of a contract to the contrary, the mortgagee has at any time after the
mortgage-money has become due to him, and before a decree has been made for the
redemption of the mortgaged property, or the mortgage-money has been paid or
deposited as hereinafter provided, a right to obtain from the Court a decree
that the mortgagor shall be absolutely debarred of his right to redeem the
property, or a decree that the property be sold.
A suit to obtain a
decree that a mortgagor shall be absolutely debarred of his right to redeem the
mortgaged property is called a suit for foreclosure.
Nothing in this
section shall be deemed-
(a) to authorise
any mortgagee other than a mortgagee by conditional sale or a mortgagee under
an anomalous mortgage by the terms of which he is entitled to foreclose, to
institute a suit for foreclosure, or an usufructuary mortgagee as such or a
mortgagee by conditional sale as such to institute a suit for sale; or
(b) to authorise a
mortgagor who holds the mortgagee's rights as his trustee or legal
representative, and who may sue for a sale of the property, to institute a suit
for foreclosure; or
(c) to authorise
the mortgagee of a railway, canal or other work in the maintenance of which the
public are interested, to institute a suit for foreclosure or sale; or
(d) to authorise a
person interested in part only of the mortgage-money to institute a suit
relating only to a corresponding part of the mortgaged property, unless the
mortgagees have, with the consent of the mortgagor, served their interests
under the mortgage.
Mortgagee when bound to bring one suit on
several mortgages
24[ 67A. A
mortgagee who holds two or more mortgages executed by the same mortgagor in
respect of each of which he has a right to obtain the same kind of decree under
section 67, and who sues to obtain such decree on any one of the mortgages,
shall, in the absence of a contract to the contrary, be bound to sue on all the
mortgages in respect of which the mortgage-money has become due.]
Right to sue for mortgage-money
68. (1) The
mortgagee has a right to sue for the mortgage-money in the following cases and
no others, namely:-
(a) where the
mortgagor binds himself to repay the same;
(b) where, by any
cause other than the wrongful act or default of the mortgagor or mortgagee, the
mortgaged property
is wholly or
partially destroyed or the security is rendered insufficient within the meaning
of section 66, and the mortgagee has given the mortgagor a reasonable
opportunity of providing further security enough to render the whole security
sufficient, and the mortgagor has failed to do so;
(c) where the
mortgagee is deprived of the whole or part of his security by or in consequence
of the wrongful act or default of the mortgagor;
(d) where, the
mortgagee being entitled to possession of the mortgaged property, the mortgagor
fails to deliver the same to him, or to secure the possession thereof to him
without disturbance by the mortgagor or any person claiming under a title
superior to that of the mortgagor:
Provided that, in
the case referred to in clause (a), a transferee from the mortgagor or from his
legal representative shall not be liable to be sued for the mortgage-money.
(2) Where a suit
is brought under clause (a) or clause (b) of sub-section (1), the Court may, at
its discretion, stay the suit and all proceedings therein, notwithstanding any
contract to the contrary, until the mortgagee has exhausted all his available
remedies against the mortgaged property or what remains of it, unless the
mortgagee abandons his security and, if necessary, re-transfers the mortgaged
property.
Power of sale when valid
69.(1) 25[ * * *]
a mortgagee, or any person acting on his behalf, shall, subject to the
provisions of this section, have power to sell or concur in selling the
mortgaged property, or any part thereof, in default of payment of the
mortgage-money, without the intervention of the Court, in the following cases
and in no others, namely:-
(a) where the
mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is
a Hindu, 26[ Muslim] or Buddhist or a member of any other race, sect, tribe or
class from time to time specified in this behalf by the Government, in the
official Gazette;
(b) where a power
of sale with out the intervention of the Court is expressly conferred on the
mortgagee by the mortgage-deed and the mortgagee is the Government 27[ or a
scheduled bank as defined in Article 37 of the Bangladesh Bank Order, 1972,]
and
(c) where a power
of sale without the intervention of the Court is expressly conferred on the
mortgagee by the mortgage-deed and the mortgaged property or any part thereof
was, on the date of the execution of the mortgage-deed, situate within the town
of 28[ Dhaka], or in any other town or area which the Government may, by
notification in the official Gazette, specify in this behalf.
(2) A power under
sub-section (1) shall not be exercised unless and until.
(a) notice in
writing requiring payment of the principal money has been served on the
mortgagor, or on one of several mortgagors, and default has been made in
payment of the principal money, or of part thereof, for three months after such
service; or
(b) some interest
under the mortgage amounting at least to five hundred Taka is in arrear and
unpaid for three months after becoming due:
Provided that the power
of a scheduled bank under clause (b) of sub-section (1) shall further be
subject to such conditions as may be prescribed in this behalf by notification
in the official Gazette by the Government in consultation with the 29[
Bangladesh Bank].
(3) When a sale
has been made in professed exercise of such a power, the title of the purchaser
shall not be impeachable on the ground that no case had arisen to authorise the
sale, or that due notice was not given, or that the power was otherwise
improperly or irregularly exercised; but any person damnified by an
unauthorised or improper or irregular exercise of the power shall have his
remedy in damages against the person exercising the power.
(4) The money
which is received by the mortgagee, arising from the sale, after discharge of
prior incumbrances, if any, to which the sale is not made subject, or after
payment into Court under section 57 of a sum to meet any prior incumbrance,
shall, in the absence of a contract to the contrary, be held by him in trust to
be applied by him, first, in payment of all costs, charges and expenses
properly incurred by him as incident to the sale or any attempted sale; and,
secondly, in discharge of the mortgage-money and costs and other money, if any,
due under the mortgage; and the residue of the money so received shall be paid
to the person entitled to the mortgaged property, or authorised to give
receipts for the proceeds of the sale thereof.
(5) [Omitted by
section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration)
Act, 1973 (Act No. VIII of 1973).]
Appointment of receiver
[69A. (1) A mortgagee having the right to
exercise a power of sale under section 69 shall, subject to the provisions of
sub-section (2), be entitled to appoint, by writing signed by him or on his
behalf, a receiver of the income of the mortgaged property or any part thereof.
(2) Any person who
has been named, in the mortgage-deed and is willing and able to act as receiver
may be appointed by the mortgagee.
If no person has
been so named, or if all persons named are unable or unwilling to act, or are
dead, the mortgagee may appoint any person to whose appointment the mortgagor
agrees; failing such agreement, the mortgagee shall be entitled to apply to the
Court for the appointment of a receiver, and any person appointed by the Court
shall be deemed to have been duly appointed by the mortgagee.
A receiver may at
any time be removed by writing signed by or on behalf of the mortgagee and the
mortgagor, or by the Court on application made by either party and on due cause
shown.
A vacancy in the
office of receiver may be filled in accordance with the provisions of this
sub-section.
(3) A receiver
appointed under the powers conferred by this section shall be deemed to be the
agent of the mortgagor; and the mortgagor shall be solely responsible for the
receiver's acts or defaults, unless the mortgage-deed otherwise provides or
unless such acts or defaults are due to the improper intervention of the
mortgagee.
(4) The receiver
shall have power to demand and recover all the income of which he is appointed
receiver, by suit, execution or otherwise, in the name either of the mortgagor
or of the mortgagee to the full extent of the interest which the mortgagor
could dispose of, and to give valid receipts accordingly for the same, and to
exercise any powers which may have been delegated to him by the mortgagee in
accordance with the provisions of this section.
(5) A person
paying money to the receiver shall not be concerned to inquire if the
appointment of the receiver was valid or not.
(6) The receiver
shall be entitled to retain out of any money received by him, for his
remuneration, and in satisfaction of all costs, charges and expenses incurred
by him as receiver, a commission at such rate not exceeding five per cent. on
the gross amount of all money received as is specified in his appointment, and,
if no rate is so specified, then at the rate of five per cent. on that gross
amount, or at such other rate as the Court thinks fit to allow, on application
made by him for that purpose.
(7) The receiver
shall, if so directed in writing by the mortgagee, insure to the extent, if
any, to which the mortgagee might have insured, and keep insured against loss
or damage by fire, out of the money received by him, the mortgaged property or
any part thereof being of an insurable nature.
(8) Subject to the
provisions of this Act as to the application of insurance money, the receiver
shall apply all money received by him as follows, namely:-
(i) in discharge
of all rents, taxes, land revenue, rates and outgoings whatever affecting the
mortgaged property;
(ii) in keeping
down all annual sums or other payments, and the interest on all principal sums,
having priority to the mortgage in right whereof he is receiver;
(iii) in payment
of his commission, and of the premiums on fire, life or other insurances, if
any, properly payable under the mortgage-deed or under this Act, and the cost
of executing necessary or proper repairs directed in writing by the mortgagee;
(iv) in payment of
the interest falling due under the mortgage;
(v) in or towards
discharge of the principal money, if so directed in writing by the mortgagee;
and shall pay the
residue, if any, of the money received by him to the person who, but for the
possession of the receiver, would have been entitled to receive the income of
which he is appointed receiver, or who is otherwise entitled to the mortgaged
property.
(9) The provisions
of sub-section (1) apply only if and as far as a contrary intention is not
expressed in the mortgage-deed; and the provisions of sub-sections (3) to (8)
inclusive may be varied or extended by the mortgage-deed, and, as so varied or
extended, shall, as far as may be, operate in like manner and with all the like
incidents, effects and consequences, as if such variations or extensions were
contained in the said sub-sections.
(10) Application
may be made, without the institution of a suit, to the Court for its opinion,
advice or direction on any present question respecting the management or
administration of the mortgaged property, other than questions of difficulty or
importance not proper in the opinion of the Court for summary disposal. A copy
of such application shall be served upon, and the hearing thereof may be
attended by, such of the persons interested in the application as the Court may
think fit.
The costs of every
application under this sub-section shall be in the discretion of the Court.
(11) In this
section, “the Court” means the Court which would have jurisdiction in a suit to
enforce the mortgage.]
Accession to mortgaged property
70. If, after the
date of a mortgage, any accession is made to the mortgaged property, the
mortgagee, in the absence of a contract to the contrary, shall, for the
purposes of the security, be entitled to such accession.
Illustrations
(a) A mortgages to
B a certain field bordering on a river. The field is increased by alluvion. For
the purposes of his security, B is entitled to the increase.
(b) A mortgages a
certain plot of building land to B and afterwards erects a house on the plot.
For the purposes of his security B is entitled to the house as well as the
plot.
Renewal of mortgaged lease
71. When the
mortgaged property is a lease, and the mortgagor obtains a renewal of the
lease, the mortgagee, in the absence of a contract to the contrary, shall, for
the purposes of the security, be entitled to the new lease.
Rights of mortgagee in possession
72. A mortgagee
may spend such money as is necessary-
(a) [Repealed by
section 36 of the Transfer of Property (Amendment) Act, 1929 (Act XX of 1929).]
(b) for the
preservation of the mortgaged property from destruction, forfeiture or sale;
(c) for supporting
the mortgagor's title to the property;
(d) for making his
own title thereto good against the mortgagor; and
(e) when the
mortgaged property is a renewable lease-hold, for the renewal of the lease;
and may, in the
absence of a contract to the contrary, add such money to the principal money,
at the rate of interest payable on the principal, and where no such rate is
fixed, at the rate of nine per cent. per annum: Provided that the expenditure
of money by the mortgagee under clause (b) or clause (c) shall not be deemed to
be necessary unless the mortgagor has been called upon and has failed to take
proper and timely steps to preserve the property or to support the title.
Where the property
is by its nature insurable, the mortgagee may also, in the absence of a
contract to the contrary, insure and keep insured against loss or damage by
fire the whole or any part of such property; and the premiums paid for any such
insurance shall be added to the principal money with interest at the same rate
as is payable on the principal money or, where no such rate is fixed, at the
rate of nine per cent. per annum. But the amount of such insurance shall not
exceed the amount specified in this behalf in the mortgage-deed or (if no such
amount is therein specified) two-thirds of the amount that would be required in
case of total destruction to reinstate the property insured.
Nothing in this
section shall be deemed to authorise the mortgagee to insure when an insurance
of the property is kept up by or on behalf of the mortgagor to the amount in
which the mortgagee is hereby authorised to insure.
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