Mortgage under property law
Mortgage is defined by Section 58 (a) of the Transfer of Property Act, 1882 (TPA) as a transfer of an interest in specific immoveable 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 (monetary) 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 affected is called a mortgage-deed.
Types of Mortgages
![](https://vault.drishtijudiciary.com/english_file_uploads/1712316638_image.png)
- Simple Mortgage:
- Section 58(b) of TPA defines simple mortgage.
- It states that 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.
- The essential elements of simple mortgage are:
- There is a personal undertaking by the mortgagor to repay the loan.
- Possession and enjoyment remain with the mortgagor.
- There is a power of sale but to be exercised only through Court.
- It must be affected by a registered instrument.
- There is no delivery of ownership or possession.
- There is no foreclosure.
- A personal undertaking to obtain a money decree against the mortgagor.
- To sue on the mortgage and obtain a decree for the sale of the property.