Mortgage And Its Types (mention under section 58 of Transfer of Property Act,1882) Mortgage is a transfer of some interest in immovable property.It is given by way of security for a loan.A person who takes a loan and gives some security for the repayment of the loan in the form of transfer of some interest in any immovable property, it is called a mortgage of property.The ownership of the property remain in the debtor but some of his interest in the property are transferred to the creditor who has given loan.In case advanced money could not recovered by the creditor,he can recover his money on the basis of his interest in that property.
Element of mortgage are:-
a)Transfer of interest :- Mortgage debt is not an actionable claim under this act but it is only a transfer of an interest in an immovable property.The interest is given by the mortgagor to the mortgagee and without transfer of an interest there is no question of there being a mortgage.
b)Specific immovable property:-The interest created by mortgage must be in some specific immovable property.In mortgage deed the property must be specifically defined and not in general terms.
c)Consideration:-The Consideration may be either money advance or to be advanced by way of loan, an existing or future debt or the performance giving rise to pecuniary liability.
-》Types Of Mortgage Under Transfer Of Property Act Are :-
A)Simple Mortgage:- Where without delivering the 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 in payment of the mortgage money,the transaction is called a simple mortgage.
B)Mortgage by Conditional Sale:- When the mortgagor sells the mortgage property- On condition that on default of payment of 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.
C)Usufructuary Mortgage:- Where the mortgagor delivers possession or expressly or impliedly bind himself to deliver possession of the mortgaged property to the mortgagee and authorises him to retain such possession until payment of mortgage money and to receive the rents and profits accruing from the property and to appropriate the same in lieu of interest or in payment of the mortgage money, the transaction is called Usufructuary Mortgage.
D)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.In case of English mortgage the mortgagor transfers the ownership of the mortgaged property absolutely to the mortgagee as a security.The mortgagee shall return or re-transfer the property once the mortgagor repays the amount as agreed on a certain date.
E)Mortgage By Deposit of Title Deeds (Equitable Mortgage):- In this type of mortgage,mortgagor delivers to a creditor or his agent documents of title of immovable property with intent to create a security thereon the transaction is called Mortgage By Deposit of Title-Deeds or Equitable Mortgage.
F)Anomalous Mortgage:-A mortgage which is not a Simple mortgage,a mortgage by Conditional sale, an Usufructuary mortgage, an English Mortgage or Mortgage by deposit of title deeds within the ambit of section 58 is called Anomalous Mortgage. For Example: Combination of Simple Mortgage and Usufructuary Mortgage, Usufructuary Mortgage by Conditional sale, etc
PUBLISHED BY:-
Ritik Nagpal
3rd yr B.A.LL.B(Hons)
C.R.LAW COLLEGE,Hisar(Haryana)
Comments
Post a Comment