Doctrine of Tacking

Introduction

The doctrine of tacking deals with priority between multiple mortgagees (lenders). It prevents a later mortgagee from improving his position unfairly by paying off an earlier mortgage. The rule ensures fairness among all mortgagees.

Meaning / Definition

Tacking means “adding or shifting one’s position”.

Under Section 93 of the Transfer of Property Act, a mortgagee who pays off a prior mortgage cannot gain priority for his own mortgage over intermediate (middle) mortgagees.

In simple terms, a later mortgagee cannot combine (add) the earlier mortgage with his own to defeat others.

Modes or Types

Prohibition of Tacking

The law prohibits tacking.

If a later mortgagee pays off an earlier mortgage, he only gets the rights of that earlier mortgage, but cannot use it to gain priority for his own loan.

Redeem Up and Foreclose Down

This is a related principle:

• A later mortgagee can redeem (pay off) earlier mortgages
• An earlier mortgagee can foreclose (block rights of) later mortgagees

This protects the rights of all mortgagees in order of priority.

Distinction / Comparison

Tacking vs Subrogation

• Tacking: Not allowed; cannot improve priority for own mortgage
• Subrogation: Allowed; person steps into the shoes of earlier mortgagee

Tacking tries to gain extra advantage, while subrogation only transfers existing rights.

Practical Example

A mortgages property to X (first), Y (second), and Z (third).

Z pays off X.

• Z gets X’s rights (priority over Y for that loan)
• But Z cannot use this to give his own loan priority over Y

So, Z’s original mortgage still remains third in order.

Summary

• Tacking means shifting or adding mortgage priority
• Section 93 prohibits tacking in India
• A later mortgagee cannot gain priority by paying earlier mortgage
• He only gets rights of the earlier mortgage (not extra benefit)
• Rule ensures fairness among multiple mortgagees
• Related principle: redeem up and foreclose down