Section 58 - Mortgage, mortgagor, mortgagee, mortgage-money and
mortgage-deed defined : Transfer of Property Act, 1882
What is Mortgage, mortgagor, mortgagee, mortgage-money and
Section 58 of Transfer of Property Act, 1882
Section 58 of Transfer of Property Act 1882 : "Mortgage,
mortgagor, mortgagee, mortgage-money and mortgage-deed defined"
58. (a) A mortgage is the transfer of an interest
is specific immovable 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) 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.
Mortgage by conditional sale.
(c) Where the mortgagor ostensibly sells the mortgaged
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:
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) Where the mortgagor delivers possession 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 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
and usufructuary mortgagee.
(e) 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 by deposit of title-deeds
(f) Where a person in any of the following towns,
namely, the towns of Calcutta, Madras and Bombay,
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) 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.