What is mortgage? explain various kinds of mortgage giving detail essential ingredients of each kinds.
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Q. What is mortgage? explain various kinds of mortgage giving detail essential ingredients of each kinds. (2002)(2003)
1. Introduction:
A mortgage is security for the payment of debt. mortgage is created by act of the parties by a written document providing security for the performance of a duty or the payment of the debt.
2. Relevant provisions:
Sec. 58 transfer of property act.
3. Definition of mortgage:
"Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to pecuniary liability.
Mortgagor:
The transferor is called mortgagor.
Mortgagee:
The transferee is called the mortgagee.
Mortgage money:
The principal money and interest of which payment is secured for the time being is called mortgage money.
Mortgage deed:
The instrument if any which the transfer is effected is called a mortgage deed.
4. Essentials of mortgage:
Following are essentials of mortgage.
(i) Transfer of an interest.
(ii) Specific property.
(iii) Security for payment of loan.
5. Kinds of mortgage:
Following are various kinds of mortgage.
(i) Simple mortgage:
Simple mortgage is a transaction in which without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money and agree expressly or impliedly that in the event if this failing to pay according to the contract the mortgages shall have right to cause the mortgage property to be sold the proceeds of sale to be applied in payment of mortgage money.
Essentials:
(i) Property is mortgaged.
(ii) Possession is not delivered.
(iii) A personal obligation to pay the debt.
(iv) Obligation may be express or implied.
(v) The transfer of a right to cause the mortgage property to be sold in default of the payment.
(ii) Mortgage by conditional sale
Where the mortgagor ostensible sells the mortgaged property on condition that on default of the payment of the mortgage money on a certain bate the sale shall become absolute or on condition 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 sellor the transation is called a mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale.
Essentials:
(i) This mortgage is a form of sale.
(ii) The sale become absolute on the non-payment of mortgage money.
(iii) The sale may become void on the non-payment of mortgage money.
(iv) No delivery of possession is given.
(v) There is no personal liability on the part of the mortgagor to pay the debt.
(iv) The remedy of the mortgage is by foreclosure only.
(iii) Usufuctuary mortgage:
Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgage property to the mortgagee and authorize him to retain such possession until payment of the mortgage money, and to receive the rent and profits accruing from the property or any part of such rent and profit and to appropriate the same in lieu of interest, or in payment of the mortgage money, or party in lieu of interest or partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee an usufractuary mortgagee.
Essentials:
(i) No personal liability on the mortgagor.
(ii) Possession of property is delivered to the mortgagee.
(iii) No time period is fixed, to pay the mortgage money.
(iv) Mortgagee can not sale out the property.
(v) Mortgagee is entitled for rents and profits of the mortgage property.
(iv) English mortgage:
Where the mortgagor binds himself to repay the mortgage money on a certain date, and transferred the mortgage property, absolutely to the mortgagee, but subject to a proviso that he will re-transfer is to the money as agreed, the transaction is called an English mortgage.
Essentials:
(i) Mortgagor binds himself to re-pay the mortgagee on a certain date.
(ii) The property is absolutely transferred to the mortgagee.
(iii) Transfer of property should be subject to the proviso that the mortgagee will recover the property to the mortgagor on the payment.
(v) Mortgage by deposit of title deed:
Where the person specify in his behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to great a security thereon, the transaction is called a mortgage by deposit of title deed.
Essential:
(i) Document of titled deed is deposit as security.
(ii) There is a debt.
(iii) On the payment of mortgage money, the title deed is returned to the mortgagor.
(vi) Anomalous mortgage:
A mortgage which is not a simple mortgage, mortgage by conditional sale, a usufructuary mortgages and English mortgage by deposit of title deed is called anomalous mortgage.
6. Remedies for mortgagor:
Mortgagor has following remedies.
(i) Suit for sale.
(ii) Suit for money.
7. How conditional mortgage is determined:
The court generally apply certain tests to determine whether the transaction was sale with a condition or repurchase or a mortgage by way of conditional sale.
(i) The existence of debt indicate a mortgage.
(ii) The long period of repayment indicate a mortgage.
(iii) A stipulation for interest on repayment indicated mortgage.
8. Conclusion:
To conclude I can say that a mortgage is the transfer of an interest in specific immovable property for securing the payment of money advanced or to be advanced by law of money. the different kinds are simple, conditional, usufructory, English by deposit of title deed and anomalous mortgage.
1. Introduction:
A mortgage is security for the payment of debt. mortgage is created by act of the parties by a written document providing security for the performance of a duty or the payment of the debt.
2. Relevant provisions:
Sec. 58 transfer of property act.
3. Definition of mortgage:
"Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to pecuniary liability.
Mortgagor:
The transferor is called mortgagor.
Mortgagee:
The transferee is called the mortgagee.
Mortgage money:
The principal money and interest of which payment is secured for the time being is called mortgage money.
Mortgage deed:
The instrument if any which the transfer is effected is called a mortgage deed.
4. Essentials of mortgage:
Following are essentials of mortgage.
(i) Transfer of an interest.
(ii) Specific property.
(iii) Security for payment of loan.
5. Kinds of mortgage:
Following are various kinds of mortgage.
(i) Simple mortgage:
Simple mortgage is a transaction in which without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money and agree expressly or impliedly that in the event if this failing to pay according to the contract the mortgages shall have right to cause the mortgage property to be sold the proceeds of sale to be applied in payment of mortgage money.
Essentials:
(i) Property is mortgaged.
(ii) Possession is not delivered.
(iii) A personal obligation to pay the debt.
(iv) Obligation may be express or implied.
(v) The transfer of a right to cause the mortgage property to be sold in default of the payment.
(ii) Mortgage by conditional sale
Where the mortgagor ostensible sells the mortgaged property on condition that on default of the payment of the mortgage money on a certain bate the sale shall become absolute or on condition 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 sellor the transation is called a mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale.
Essentials:
(i) This mortgage is a form of sale.
(ii) The sale become absolute on the non-payment of mortgage money.
(iii) The sale may become void on the non-payment of mortgage money.
(iv) No delivery of possession is given.
(v) There is no personal liability on the part of the mortgagor to pay the debt.
(iv) The remedy of the mortgage is by foreclosure only.
(iii) Usufuctuary mortgage:
Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgage property to the mortgagee and authorize him to retain such possession until payment of the mortgage money, and to receive the rent and profits accruing from the property or any part of such rent and profit and to appropriate the same in lieu of interest, or in payment of the mortgage money, or party in lieu of interest or partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee an usufractuary mortgagee.
Essentials:
(i) No personal liability on the mortgagor.
(ii) Possession of property is delivered to the mortgagee.
(iii) No time period is fixed, to pay the mortgage money.
(iv) Mortgagee can not sale out the property.
(v) Mortgagee is entitled for rents and profits of the mortgage property.
(iv) English mortgage:
Where the mortgagor binds himself to repay the mortgage money on a certain date, and transferred the mortgage property, absolutely to the mortgagee, but subject to a proviso that he will re-transfer is to the money as agreed, the transaction is called an English mortgage.
Essentials:
(i) Mortgagor binds himself to re-pay the mortgagee on a certain date.
(ii) The property is absolutely transferred to the mortgagee.
(iii) Transfer of property should be subject to the proviso that the mortgagee will recover the property to the mortgagor on the payment.
(v) Mortgage by deposit of title deed:
Where the person specify in his behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to great a security thereon, the transaction is called a mortgage by deposit of title deed.
Essential:
(i) Document of titled deed is deposit as security.
(ii) There is a debt.
(iii) On the payment of mortgage money, the title deed is returned to the mortgagor.
(vi) Anomalous mortgage:
A mortgage which is not a simple mortgage, mortgage by conditional sale, a usufructuary mortgages and English mortgage by deposit of title deed is called anomalous mortgage.
6. Remedies for mortgagor:
Mortgagor has following remedies.
(i) Suit for sale.
(ii) Suit for money.
7. How conditional mortgage is determined:
The court generally apply certain tests to determine whether the transaction was sale with a condition or repurchase or a mortgage by way of conditional sale.
(i) The existence of debt indicate a mortgage.
(ii) The long period of repayment indicate a mortgage.
(iii) A stipulation for interest on repayment indicated mortgage.
8. Conclusion:
To conclude I can say that a mortgage is the transfer of an interest in specific immovable property for securing the payment of money advanced or to be advanced by law of money. the different kinds are simple, conditional, usufructory, English by deposit of title deed and anomalous mortgage.
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