Section 58 in The Transfer of Property Act, 1882
Title: 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 arc 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 a 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 2[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 3[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 4[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.
5[(f) Mortgage by deposit of title-deeds.-- Where a person in any of the following towns, namely, the towns of Calcutta, Madras 6[and Bombay], 7*** and in any other town 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.]
1. Added by Act 20 of 1920 , s . 1 9 .
2 . I n s . b y s . 1 9 , i b i d .
3. Subs. by s. 19, ibid., for and to appropriate them.
4. Subs. by s. 19, ibid, for and.
5. Added by Act 20 of 1929, s. 19.
6. Subs. by the A.O. 1948, for Bombay and Karachi. The word and had been ins. by the A.O. 1937.
7. The words "Rangoon, Moulmein, Bassein and Akyab" omitted by the A.O. 1937.
8. The words "Governor General in Council" successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
Title: Mortgage when to be by assurance.
Where the principal money secured is one hundred rupees or upwards, a mortgage 1[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.
Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by 2[a registered instrument] signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.
3* * * *
1. Ins. by Act 20 of 1929, s. 20.
2. Subs. by Act 6 of 1904, s. 3, for "an instrument".
3. Third paragraph omitted by Act 20 of 1929, s. 20.
Title: References to mortgagors and mortgagees to include persons deriving title from them.
1[59A. References to mortgagors and mortgagees to include persons deriving title from them.-- 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.]
1. Ins. by s. 21, ibid.
Title: Right of mortgagor to redeem.
At any time after the principal money has become 1[due], 1[due], the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver 2[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 act of the parties or by 3[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 p ass 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 4[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 mortgager.
1. Subs. by s. 22, ibid., for "payable".
2. Subs. by s. 22, ibid., for "the mortgage-deed, if any, to the mortgagor".
3. Subs. by Act 20 of 1929, s. 22, for "order".
4. Ins. by Act 20 of 1929, s. 22.
Title: Obligation to transfer to third party instead of re -transference to mortgagor.
1[60A. Obligation to transfer to third party instead of retransference to mortgagor .-- (1) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions on the fulfilment of which 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.
1. Sections 60A and 60B ins. by s. 23, ibid.