Amendment status not verified — confirm the current text below against the official source.
“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 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 1[or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorizes 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- 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". 25 money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. (e) English mortgage Where the mortgagor binds himself to re-pay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer 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.] 9[59. Mortgage when to be by assurance Where the principal money secured is one hundred rupees or upwards, a mortgage 10[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 11[a registered instrument] signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property. 12[***]. 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 ¡V 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. 9 As to limitation to the territorial operation of section 59, see, section 1, supra. Section 59, extends to every cantonment ¡V see section 287 of the Cantonments Act, 1924 (2 of 1924). 10 Ins. by Act 20 of 1929, sec. 20. 11 Subs. by Act 6 of 1904, sec. 3, for “an instrument”. 12 The third paragraph was omitted by Act 20 of 1929, sec. 20. 26 13[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.] Rights and Liabilities of Mortgagor