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Translations
(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 salee:
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 "[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, [and Bombayl and in
any other town which the 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 immovable 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, a 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
(i) Mortgage is a transfer of property but it not includes the transfer relates
to ownership; B. Jai Shankarappa & others v. D.S. Gulawadi; AIR 2000
Kar. 359.
(ii) Where the deeds of alleged sale or re-sale are executed on different dates,
the same cannot be called mortgage under section 58(C); Oscaran v.
Madanial, AIR 1995 Raj. 130.
(iii) Section 58(C) makes it clear that if the condition for re-sale is not
embodied in the document which effects or purports to effect the sale,
the transaction cannot be regarded as mortgage; Chunchun Jha v.
Sheikh Ibadat Ali, AIR 1954 SC 345.
(iv) There is no need of registry for mortgage by deposit of title-deeds
because it remains continue from deposits. It can be oral or written; V.G.
Rao v. Andhra Bank, AIR 1971, SC 1673.
(v) Mere delivery of title deeds is sufficient to constitute for equitable
Mortgage under section 58(F). It is not necessary to execute other
documents; H. Pyoli v. 5.K. Shivdasan & others, AIR 1998 Ker, 344; C.
Aasiyamma v. State Bank of Masore, AIR 1990 Ker. 157.
(v) Agreement made by the parties come under the category of conditional
Mortgage when the absence of condition for re-purchase in sale-deed;
Mushir Mohd Khan (Dead) by Legal Representative v. Smit. Sajida Bano
& others, AIR 2000, SC 1085.
59. 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 [a registered instrument] signed and attested
as aforesaid or (except in the case of a simple mortgage) by delivery of the
property.
*[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.]
67. Right to fore-closure or sale.- In the absence of a contract to the
contrary, the mortgagee has, at any time after the mortgage-money has become
[due] to him, and before a decree has been made for the redemption of the
mortgaged property, or the mortgage-money has been paid or deposited as
hereinafter provided, a right to obtain from the court la decree] that the
mortgagor shall be absolutely debarred of his right to redeem the property, or [a
decree] that the property be sold.
A suit to obtain [a decree] that a mortgagor shall be absolutely debarred of
his right to redeem the mortgaged property is called a suit for foreclosure.
Nothing in this section shall be deemed
3[(a) to authorise any mortgagee other than a mortgagee by conditional
sale or a mortgagee under an anomalous mortgage by the terms of
which he is entitled to foreclose, to institute a suit for foreclosure, or
an usufructuary mortgage as such or a mortgagee by conditional
sale as such to institute a suit for sale; or]
(b) to authorise a mortgagor who holds the mortgagee's rights as his
trustee or legal representative, and who may sue for a sale of the
property, to institute a suit for foreclosure; or
(c) to authorise the mortgagee of a railway, canal, or other work in the
maintenance of which the public are interested, to institute a suit
for fore-closure or sale; or
(d) to authorise a person interested in part only of the mortgage money
to institute a suit relating only to a corresponding part of the
mortgaged property, unless the mortgagees have, with the consent
of the mortgagor, severed their interests under the mortgage.
[67A. Mortgagee when bound to bring one suit on several mortgages.-
A mortgagee who holds two or more mortgages executed by the same mortgagor
in respect of each of which he has a right to obtain the same kind of decree
under section 67, and who sues to obtain such decree on any one of the
mortgages, shall, in the absence of a contract to the contrary, be bound to sue
on all the mortgages in respect of which the mortgage-money has become due.]
5[68. Right to sue for mortgage-money.-(1) The mortgagee has a right to
sue for the mortgage-money in the following cases and no others, namely,—
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(i)
(ii)
(iii)
(iv)
(v)
(vi)
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