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Section 58 – Transfer of Property Act 1882

Transfer of Property Act 1882

 

58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.—

 

(a) A mortgage is the transfer of an interest in specific immoveable 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 a pecuniary liability.

 

The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

 

(b) Simple mortgage.—Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.

 

(c) Mortgage by conditional sale.—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 mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

 

1[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.]

 

(d) Usufructuary mortgage.—Where the mortgagor delivers possession 1[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 2[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 3[or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.

 

(e) English mortgage.—Where the mortgagor binds himself to repay 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.

 

4[(f) Mortgage by deposit of title-deeds.—Where a person in any of the following towns, namely, the towns of Calcutta, Madras, 5[and Bombay], 6[* * *] and in any other town7 which the 8[State Government concerned] 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.

 

(g) Anomalous mortgage.—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.]

 

COMMENTS

 

Usufructuary mortgage

(i) The mortgagor had borrowed Rs. 1000 from the mortgagee and the possession of the building was handed over to the mortgagor. The mortgage money was to be repaid within a period of six months and in case of default the mortgagee had the right to bring the property to sale and realise the amount. The document therefore which was described as usufructuary mortgage was held to be anomalous mortgage and not usufructuary mortgage as it had character of a simple mortgage too as mortgagee was given the right to sell the property to realise the mortgaged amount; Hathika v. Puthiyapurayil Padmanathan, AIR 1994 Ker 141.

 

(ii) Where a mortgagee is continuing in possession of suit land as mortgagee for a continuous period of not less than fifty years, mere increase in the mortgage money, induction of a co-mortgagee, non-defining of their shares, would not alter the situation; Narayana Pillai Raghavan Pillai v. Narayani Amma Ponnamma, AIR 1992 SC 146.

 

————————

1. Ins. by Act 20 of 1929, sec. 19.

 

2. Subs. by Act 20 of 1929, sec. 19, for “and to appropriate them”.

 

3. Subs. by Act 20 of 1929, sec. 19, for “and”.

 

4. Added by Act 20 of 1929, sec. 19.

 

5. Subs. by the A.O. 1948, for “Bombay and Karachi”. The word “and” had been ins. by the A.O. 1937.

 

6. The words “Rangoon, Moulmein, Bassein and Akyab” omitted by the A.O. 1937.

 

7. For notifications relating to the towns of—Ahmedabad, see Gazette of India, 1935, Pt. I, p. 936, Bandra, Kurla and Ghathkoper Kirol, see Gazette of India, 1924, Pt.I, p.1064, Cawnpore, Allahabad and Lucknow, see Gazette of India, 1938, Pt. I, p. 158. Coimbatore, Madura, Cocanada and Cochin, see Gazette of India, 1935, Pt. I, p. 526.

 

8. The words “Governor General in Council”, successively amended by the A.O. 1937 and the A.O. 1950 to read as above.

 

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Transfer of Property Act 1882

 

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