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A legal agreement that discloses a lender (mortgagor) a conditional right of ownership over a property as security for a loan. The security interest of the lender is recorded in the register of title documents to make it public notice and is reduced to zero when the loan is repaid in full. Virtually any legally owned property can be mortgaged, although real property (land and buildings) are the most common.

When personal property (equipment, cars, jewelry, etc.) is mortgaged, it is called a chattel mortgage. In the case of equipment, real property and vehicles, the right of possession and use of the mortgage object rests with the mortgagee in general but (unless specifically prohibited in the mortgage agreement) the mortgagee has the right to take over ( By following the prescribed) procedure) to protect the interests of his security at any time. In practice, however, courts generally do not enforce this right when it includes a dwelling house, and it is limited to certain specific situations.

In the event of a lapse, the mortgagee may appoint a receiver to manage the property (if it is a commercial property) or obtain a foreclosure order from the court to capture and sell. To be legally enforceable, the mortgage must be for a fixed period, and the mortgagee must have the right of redemption on the payment of the loan on or before the end of that period.        



Mortgage is defined in section 58 (a) of the Transfer of Property Act 1982, According to which a mortgage means the amount taken or taken in advance as a loan or any existing or provident loan or any act. Transfer of interest in a specified fixed asset for the purpose of protecting the payment of liability for pecuniary liabilities arising from the transaction.


A mortgage is a legal instrument used to create a security interest in real property held by the lender as security for the loan, which is usually a loan of money. A mortgage in itself is not a loan, it is the lender's security for the loan. It is to transfer the interest (or equivalent) on the land from the owner to the mortgage lender on the condition that this interest be returned to the owner when the conditions of the mortgage have been satisfied or performed. In other words, a mortgage is a security for the loan that the lender makes to the borrower.

The term is a French law word meaning "dead vows," originally referring only to the Welsh hostages (see below), but was applied to all garages in the later Middle Ages and reinterpreted by folk etymology. This means that the pledge ends (dies) either when the obligation is fulfilled or the property is taken through foreclosure.





Individuals and businesses use mortgages to make large real estate purchases without paying the entire purchase price up front. Over many years, the borrower repays the loan, plus interest, until she or he owns the property free and clear.

Mortgages are also known as "liens against property" or "claims on property." If the borrower stops paying the mortgage, the lender can foreclose. They are a form of incorporeal right.

In a residential mortgage, a homebuyer pledges their house to the bank or other type of lender, which has a claim on the house should the homebuyer default on paying the mortgage. In the case of a foreclosure, the lender may evict the home's tenants and sell the house, using the income from the sale to clear the mortgage debt.






·        There must be a transfer of interest.

·        There must be specific immovable property intended to be mortgaged.

·        The transfer must be made to secure the payment of a loan or to secure the performance of a contract.












 It has the following characteristics: -

i) That the mortgagee should be personally obliged to repay the loan

ii) To secure a loan that has given the authority to transfer the mortgage, which has been sold in the event of failing to repay the specific immovable property

iii) that the possession of the property has not been distributed to the lender.




 It is defined as a situation where the mortgagee sells the mortgaged property

i) On the condition that the sale will be completed by default in the payment of mortgage money (loan) on a certain date or

ii) on the condition that the sale will be void on such payment

iii) on the condition that the property will be transferred by the buyer to the seller in such payment,





 It has the following characteristics: - 

i) that the possession of the property is given to the mortgagee;

ii) that the mortgage is to receive rent and profit in lieu of interest or principal or both;

iii) that no personal liability is incurred by the pledgee and

iv) Mortgage cannot pressurize or sue for sale.

v) that no time limit can be clearly set, during which the mortgage is to be reduced.

It is not common in India




In England and popularly in India, this mortgage is called an equitable mortgage. Under the definition under section 58 (f) of the Property Act, 1882, the essential requirements of such mortgage are:

i) There should be a loan

ii) Submission of title deeds with the lender (most needed)

iii) The said deposit is with the intention that the said title deed will be a security for the loan.


Section 96 of the Transfer of Property Act holds mortgages in 1882 by deposit of title deeds on the same rung as ordinary mortgages. For example, the security can, by process of law, be enforced by a suit for the sale of mortgaged property like a simple mortgage. And such mortgage does not require registration and is equivalent to any other legal mortgage.




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.





It has the following characteristics: -

i) that the mortgagee should be obliged to repay the mortgage money / loan on a certain day;

ii) that the mortgaged property should be fully transferred to the mortgagee; And

iii) That such absolute transfer should be made subject to a provisional agreement that the mortgagee shall recover the property to the mortgagee, by payment of the mortgage money on the appointed day.

The difference between a conditional sale and a mortgage by an English mortgage is that in an English mortgage, the mortgagee binds personally to repay the money.






Based on the transfer of title to the mortgaged property, mortgages are divided into types namely:

1.     Legal Mortgage

2.     Equitable Mortgage




In a legal mortgage, the legal title to the property is transferred in favor of mortgagee by a deed.

The deed is to be registered when the principal money is Rs.100 or more. On repayment of the loan, the legal title is re-transferred to the mortgagor.

The method of creating a charge is expensive as it involves registration charges and stamp duty.



An equitable mortgage is affected by the delivery of documents of title to the property to the mortgagee.

The mortgagor through Memorandum of deposit undertakes to grant a legal mortgage if he fails to pay the mortgage money.




The right to release the mortgage will cease by the procedure known by law : Supreme Court-


18 April 2020 -The Supreme Court on Friday, dismissing a lawsuit filed in 1978, applied the principle that the right to withdraw a mortgage can be terminated only by a process known by law.


A bench of Justice Mohan M Shantanagoudar and Justice R Subhash Reddy said,

"This derives from the legal principle applicable to all mortgaged things -" once a mortgage, always a mortgage, "


The bench explained the principle in this way:-

"It is well settled that the right to redeem it under the mortgage deed may be terminated and may be terminated only by a process known by law, that is, through a contract between the parties to such effect, By a merger, or by a statutory provision preventing the mortgagee from rescuing the mortgage.


In other words, the mortgagor must release the possession of the mortgaged property when he is sued for the ransom, otherwise he must prove that the right to redeem that possession has expired by law. "


“The case pertained to an Inam / Watan land governed by the Bombay Hereditary Offices Act, 1874”. The original landowner hired a person named Ramachandra as a permanent tenant of the land in 1947.


In 1947 itself, Ramachandra mortgaged Shankar Sakharam Kenjal (ancestor of the appellants in the Supreme Court). According to the deed, the mortgage holding period was 10 years, during which the mortgagee would remain in possession of the land.

In 1950, the Bombay Parganas and Kulkarni Watan (Abolition) Act, 1950 (hereinafter the 'Abolition Act') was passed, which abolished all homeland and reassigned the land to the government.

Section 4 of the Abolition Act empowered the holder of the land to re-grant the land on payment of the expected occupancy value. The original homeland did not apply for re-grant of land. The mortgagee, however, applied for a grant again on the ground that he was in possession of the land, and he eventually received the grant again.

In 1978, Ramachandra, the legal heir of the original mortgage, sued to redeem the mortgaged land and recover possession of the land upon receipt of mortgage money.


The trial court dismissed the suit in 1983, stating that the right to abolish was abolished by the Abolition Act. The first appeal filed against it was dismissed in 1987.


The plaintiff filed a second appeal before the High Court in 1987. Twenty years later, the High Court allowed the appeal, stating that the right to release the mortgage was not lost.


This was done on the basis that the mortgage suit would not be in the possession of the land mortgagor and he could not obtain a re-grant order in his favor. Given that such re-grant was presumed on the underlying pledgee-pledger relationship, it was assumed that the pledgee received the pledged property from the mortgaged property on the basis of such re-granting.



The defense challenged it in the Supreme Court. After 11 years, the Supreme Court dismissed the petition, confirming the High Court's decision in the case.



"In our view, the re-granting of the appellants' ancestors on the basis of actual possession as a pledge cannot be separated from the existence of the underlying pledgee-pledgee-relationship between the parties. Therefore, by the pledgee's property Any benefits to be obtained must necessarily be ensured in the midst of the Mirashi tenant-mortgagee. "


The court also applied the principle under section 90 of the Indian Trust Act, about which the bench said:

"The reading of this provision indicates that if a pledgee avails of his position in the same manner, derives any benefit which would be in dishonor to the right of the pledgee, he shall be paid in such manner for the benefit of the mortgaged property. Have to take advantage of. "


The Court held that the right to redeem the mortgaged property was not abolished, rather it was protected under the provisions of the Abolition Act as well as the Bombay Tenancy and Agriculture Land Act, 1948.


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