Mortgage under transfer of property law sec 58

mortgage , essentials of mortgage ,types of mortgage ,concept of subrogation, rights and liabilities of mortgagor ,difference of mortgage and pledge

1. PRESENTATION
Submitted by –Abhishek
Sharma 16BCL1022
Submitted to-Ms.Jasdeepkaur
mam(UILS)
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2. DISCOVER . LEARN. EMPOWER
Mortgage
INSTITUTE UILS
DEPARTMENT LAW
Bcom+LLB VIII
PROPERTY LAW INCLUDING INDIAN EASEMENT ACT, 1882
LLT –463
UNIT –III Presentation on mortgage

3. TRANSFER OF
PROPERTY
ACT,1882
Meaning:-It relates to transfer of intrestin
immoveable property from one person to
another as a security for money.
Section 58 of TPA
(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.
MORTGAGE
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4. 1) There must be a transfer of interest.
There is no transfer of ownership but transfer of interest only for the purpose
of securing payment of money by way of loan. The right of mortgagee is only
an accessory right, which is intended merely to secure the due payment of
Debt. Mortgage is simply a transfer of interest in the immovable property while
the ownership still remain with the mortgagor.
2) There must be specific immovable property intended to be mortgaged.
The immovable property must be distinctly specified. The description of the
property in the mortgage deed must be sufficient to identify the property
3)The transfer must be made to secure the payment of a loan or to secure the
performance of a contract. The consideration of mortgage maybe either.
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Essentials of mortgage

5. Types of mortgage
Sec. 58 classified the mortgage into the following six types.
1. Simple mortgage.
2. Mortgage by conditional sale.
3. Usufructuary mortgage.
4. English mortgage.
5. Mortgage by deposit of title deeds.
6. Anomalous mortgage.
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6. CONTD….
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1.Simplemortgage:-Incaseofsimple
mortgage,themortgagorwithoutdeliveringthe
prossessionofthemortgagedproperty,givesaperson
undertakingtothemortgagetorepaytheamountdue
underthemortgage.
2.MortgagebyconditionalSale:-Here,mortgagor,
firstselltheproperty,infavourofmortgagee,witha
conditiontorevertitbacktohim,ifheisrepayhisloan
withinterest,otherwisemortgageewillbecomeabsolute
owner.
3.Usufructuarymortgage:-Theword'usufruct'means
therightofenjoyingtheuseandadvantagesofanother
person'sproperty.Incaseofusufructuarymortgage,the
mortgagordeliverspossessionofthemortgagedproperty
.Hefurtherauthoritiesthemortgageetoreceivesthe
rentsandprofitsaccruingfromthepropertyandto
appropriatethesameinlieuofinterestandtheprincipal
sum.
4.Englishmortgage:-Here,propertyfirstsellinfavour
ofmortgagee,ifmortgagorrepayamount,thensalewill
becomevoid,otherwisewillbecomeabsoluteInthat
case,ifmortgageenowsellpropertytorecoverhisloan
soforanyshortageinrepaymentmortgagorispersonally
laible.

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5.Mortgagebydepositoftitledeeds:-Whereadebtordeclarestoacreditor
orhisagentdocumentsoftitletoproperty,withintenttocreateasecurity.
6.Anomalousmortgage:-Amortgagewhichdoesnotbelongtoanyof
theabovecategoriesiscalledananomalousmortgage.

8. CONTD…
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SUBMORTGAGEANDPUISNEMORTGAGE
(i) Sub-mortgage:-Whenamortgageefurther
mortgagesthepropertymortgagedwithhim by wayof
securitythemortgageiscalledasub-mortgage.
Example:-Mr.AmortgageshishousetoMr.Bforasum
ofRs.20,000.IfMr.BfurtherMortgagethatproperty
thenhecreatessub-mortgage.
ii)Puisnemortgage:Puisne(pronouncedas pyunii)
mortgageisthesecondmortgageby themortgagor
himselfonapropertywhichis alreadysubject to
mortgage. Thewordpuisne means'juniorinrankornext
inorder. Example-Mr.AMortgageshishouseworthRs.
50,000toMr.BforRs.20,000.Heisneedofmore
moneycreatesanothermortgageinfavorofMrCPME
onthesamehouseforafurthersumofRs.15,000.The
secondmortgageisapuisnemortgage.

9. SOME OF OTHER PROVISION RELATED TO
MORTGAGE
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Priorityofdebton mortgage:-
Thegeneralruleofpriorityofdifferentmortgagesonthesame
propertyisthatthesuccessivemortgageispaidafterthe
priormortgagehasbeensatisfied.Butwheretheprior
mortgagessuffersfromfraud,misrepresentation,the
subsequentmortgageshallhavepriorityoverprior
mortgagee.
Marshalingbysubsequentmortgagor (Section.81)
:-If the owner of two or more properties mortgages them
to one person and thenmortgageoneormoreofthe
propertiesto anotherperson,thesubsequentmortgageeisin
theabsenceofacontracttothecontrary,entitled to have the
mortgage-debt satisfied out of the propertyorpropertiesand
soldtohim,sofaras thesamewillextend,butnotsoasto
prejudice the rights of the mortgage of person claiming
underhimorofanyotherpersonwhohasfor consideration
acquiredaninterestinanyofthe properties.
Example of Marshaling :-O the owner of three properties
P1 , P2 P3 mortgages them to M subsequently O
mortgage the property P1 to B here B has right of
marshalling i.e.
he can compel M to satisfy his mortgage debt out of
properties P2 and P3 so far as it will extend

10. CONCEPT OF SUBROGATION
Subrogation:-Under Section 91 of the T.P. Act, enumerates the persons who may sue for
redemption. The primary right to redemption is given to the mortgagor under Section 60,
but in addition to the mortgagor certain other persons are also entitled to redeem.
a) Any person who has any interest in
b) Any surety for the payment of the mortgage-debt.
c) Any creditor of the mortgagor.
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RIGHTS AND LIBILITIES OF MORTGAGOR
RIGHTSOF MORTGAGOR
a) Right of redemption (Sec.60):-The first and the most important right of the mortgagor is the
right to redeem i.e., take back the mortgaged property by paying the mortgage money at any time
after the stipulated date for repayment.
But the mortgagor is not entitled to redeem before the mortgage money becomes due on the date
fixed for repayment of the loan.
Example:-A borrows money on a mortgage and agrees to pay it back after 5 years. A has won a
lottery and wants to pay the loan at the end of 3 years and redeem his property. He cannot to do,
because the right to redeem arises only when the money has become due at the end of 5 years
b) Right against clog or equity of redemption:-Clog means prevent mortgagor from
redeeming the property and it is void. Right of redemption or equity of redemption is the
essence of a mortgage, and any provision inserted in the mortgage deed to prevent, evade or
hamper redemption is void. Any condition which prevent the mortgagor from redemption
the property is called “clog” on the equity or right of redemption and is void.

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c)Rightofpartialredemption:-Amortgage,as arule,
beingoneandindivisibleforthedebt and every part
of it, the mortgage cannot redeem piecemeal; hemust
redeem thewhole property.
ButSection61oftheactgivesarightofpartial
redemptionstatingthat“amortgagorwhohasexecuted
twoormoremortgagesinfavourofthesamemortgagee
shall,intheabsenceofacontracttothecontrary,when
theprincipalmoneyofanytwoormoreofthemortgages
hasbecomedue,beentitledtoredeemanyonesuch
mortgageseparatelyoranytwoormoreofsuch
mortgagestogether.
Example:-A mortgages property X to .B and
obtainsaloanofRs.2,000.Aagainmortgagesthe
samepropertytoBandobtainsafurtherloanof
Rs.1,000.Aredeem thefirst mortgageofRs.2000 orhe
canredeem bothtogether

13. 
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LIABILITIES OF MORTGAGOR
1. Covenant for title.
2. Covenant for payment of public charges.RIGHTS AND LIBILITIES OF MORTGAGEE

RIGHT OF MORTGAGEE

1. Right to foreclosure or sale.

2. Right to sue for mortgage –money.

3. Right of sale without intervention of the
court.

4. Right of appoint receiver.
LIABILITIES OF MORTGAGEE

1. Only one suit for several mortgage

2. Liabilities of mortgagee in possession
a) Management
b) Collection of rents and profits
c) Payment of revenue etc.
d) Repairs
e) Insurance

14. Mortgage Pledge
1. It relatestoimmovableproperty.
2.Thereisatransfer ofaninterest
insome specificimmovable
property.
3.Thepropertyonwhichmortgageis
createdmayor maynotbe
transferredto themortgage.
4.Thereisnobar oncreatinga
number of mortgageonone
property.
1. It relatestomovableproperty.
2.Thereisonlyobligationtorepay
money.
3.Thepossessionof property
which ispledgedishandedover
tothe creditor pledge.
4.Thisisjust not possibleincase
ofpledge.
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DIFFERENCES IN MORTGAGE AND PLEDGE

15. THANK YOU
“Human nature is like water. It takes the shape of its container.”
―Wallace Stevens