Mortgage Under Transfer of Property Act 1882

Mortgage and its kinds
 Meaning and Definition:

Section 58(a) : A mortgage is the transfer of interest in specific immovable property for the purpose
of securing the payment of money advanced or to be advanced by way of loan, an existing or future
debt or the performance of an engagement which may give rise to pecuniary liability.
 The transferor is called a mortgagor
 The transferee is mortgagee
 The principal amount and interest of which payment is secured for the time being are called
mortgage money
 The instrument by which transfer is effected is mortgage deed.

 Essential of Mortgage:
 Mortgage is a transfer of an interest in immovable property.
 The immovable property must be specified.
 The transfer of interest must be made for the security of :
(i) The payment of money advanced or
(ii) The payment of money to be advanced by way of loan or
(iii) Existing or future debt or
(iv) The performance of an engagement which may give rise to pecuniary liability.
 Kinds of Mortgages:
Simple mortgage( S.58 (b): ESSENTIALS:

1. The mortgagor takes a personal undertaking to pay the loan.
2. The possession of the mortgage-property is not given to the mortgagee.
3. In the case of non-payment of loan the mortgagee has right to have the mortgage property sold.
Remedies available to mortgagee:
(i) Mortgagee can cause the mortgaged property to be sold in the case of non-payment.
(ii) He can sue the mortgagor for the mortgage money because of his personal undertaking.
Registration:
 Simple mortgage can be made only through a registered document.

 Even if the sum of money is less than 100, a simple mortgage must be effected by registered
instrument. Judgement:
Mathai Mathai v. Joseph mary AIR2014 SC 2277.
 Mortgage by conditional Sale (S.58(c):

ESSENTIALS:
1. There is an ostensible sale of an immovable property.
2. The sale is subject to any of the following conditions;
(a) On non - payment of mortgage money the sale would become absolute or
(b) On pay-ment of mortgage money, the sale shall become void or the buyer shall retransfer the said
property to the seller.
3. The condition must be embodied in the same document.
Registration: where the consideration amount or the mortgage money is 100/- or more, the
document must be registered.
Judgements:
(1) Tulsi v. Chandrika Prasad AIR 2006 SC 3359..,(2) Vasantrao v. Kishanrao AIR 2008
Bomb 42.,.(3) Sunil v. Aghor AIR 1989 Gau 39.
 Usufructuary Mortgage (S. 58 (d): means produce, benefits, rents or profits of the mortgage
property.
Essentials:
1. Delivery of possession of the mortgage property or an express or implied undertaking
by mortgagor to deliver such possession.
2. Enjoyment or use of the property by mortgagee until his dues are paid off.
3. No personal liability of the mortgagor.
4. Mortgagee cannot foreclose or sue for sale of mortgage property.
Registration: Where the consideration amount or the mortgage money is 100/- or more, the
document must be registered. Where the amount is less than 100/- delivery of possession is sufficient.
 English Mortgage (S. 58(e):

Essentials:
1. The mortgagor binds himself to repay the mortgage money on a certain date.
2. The mortgage property is transferred absolutely to mortgagee.
3. The absolute transfer is subject to a proviso that mortgagee will retransfer the property to mortgagor
on payment of mortgage money on said date.
Registration:
Where the principal money is Rs100/- or more, the document must be registered. Where the mortgage
money is less than 100/- the registration is optional.
 Mortgage by Deposit of Title- Deeds (S.58 (f): ESSENTIALS:

1. There must be existence of debt.
2. The mortgag]or should deposit the title deeds relating to immovable property with creditor or agent.
3. The deposit should be with the intention to create a security of the debt.
4. Territorial Restriction; application of this form of mortgage only in specified towns.
Registration: Registration is not necessary. Mere delivery of documents are enough.
 Anomalous Mortgage (S.58(g)): Combination of any two or more forms of specific categories
of mortgage.
Instances of anomalous mortgage:
1. Simple mortgage usufructuary

2. Mortgage usufructuary by conditional sale
3. Customary forms of anomalous mortgage
Attestation of anomalous mortgage: It should be in writing and attested.

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Mortgage and its kinds

 Meaning and Definition:

Remedies available to mortgagee:

 Simple mortgage can be made only through a registered document.

 Mortgage by conditional Sale (S.58(c):

 English Mortgage (S. 58(e):

 Mortgage by Deposit of Title- Deeds (S.58 (f): ESSENTIALS:

1. Simple mortgage usufructuary

Attestation of anomalous mortgage: It should be in writing and attested.

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