Section 59 of the Transfer of Property Act, 1882: Mortgage When to Be by Assurance
Section 59 specifies the formal requirements for creating a mortgage of immovable property in India, including registration, execution, attestation and limited exceptions.
Full text of Section 59
59. Mortgage when to be by assurance. Where the principal money secured is one hundred rupees or upwards, a mortgage 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.
Meaning and requirements of Section 59
The expression mortgage is defined by Section 58 as the transfer of an interest in specific immovable property to secure a loan, debt or an engagement giving rise to a pecuniary liability. The owner who creates the mortgage is the mortgagor, and the creditor receiving the security interest is the mortgagee.
1. Mortgages securing Rs. 100 or more
When the principal amount secured is Rs. 100 or more, a mortgage (other than a mortgage by deposit of title-deeds) must be created by an instrument that is registered, signed by the mortgagor and attested by at least two witnesses. An unregistered document cannot ordinarily substitute for the prescribed registered mortgage instrument.
2. Mortgages securing less than Rs. 100
Where the principal amount secured is below Rs. 100, the Act permits either a registered instrument signed and attested in the prescribed manner or, for mortgage types other than a simple mortgage, delivery of the property. A simple mortgage does not qualify for the alternative of delivery of possession.
3. Mortgage by deposit of title-deeds
The express exception concerns a mortgage by deposit of title-deeds under Section 58(f). Such a mortgage is based on delivery of title documents to a creditor or agent with the intention of creating security, in a town covered by that provision. A separate written memorandum may require registration if, on its proper construction, it itself creates or declares the mortgage rather than merely recording an already completed deposit.
Registration and attestation explained
Registration means recording the legally registrable mortgage instrument under the Registration Act, 1908. Attestation requires witnesses to attest execution in the manner contemplated by law; merely mentioning two persons in a document is not necessarily sufficient. Applicable stamp duty, registration requirements and local law must also be checked.
Illustrative examples
Example A: A borrower creates a simple mortgage to secure Rs. 5 lakh against a house. The mortgage must be made through a registered instrument signed by the borrower and attested by at least two witnesses.
Example B: A property owner deposits title deeds with a lender in a notified town with the intention of creating security. Whether a separate document requires registration depends on its terms and the nature of the transaction.
Related provisions and official legal sources
Read Section 58 (types of mortgages), Section 59A (successors in title) and Section 60 (right to redeem). For the statutory text and related legislation, consult the India Code official portal (Transfer of Property Act, 1882 and Registration Act, 1908) and the Legislative Department.
The statutory threshold of Rs. 100 remains part of the text of Section 59. It should not be confused with prevailing loan amounts or contemporary registration and stamp-duty requirements.