Section 58:
Mortgage , mortgagor , mortgagee , mortgage-money and mortgage- deed defined.
(a) A mortgage is the 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
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 arc called the mortgage -money, and
the instrument (if any) by which the transfer is effected is called a mortgage -deed.
(b) Simple mortgage.-- 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.
(c) Mortgage by conditional sale.-- Where the mortgagor ostensibly sells the mortgaged
property--
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:
1[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) Usufructuary mortgage.-- Where the mortgagor delivers possession 2[or expressly or by
implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and
authorises him to retain such possession until payment of the mortgage -money, and to receive
the rents and profits accruing from the property 3[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 4[or] partly in payment of the mortgage-money, the transaction is called an
usufructuary mortgage and the mortgagee an usufructuary mortgagee.
(e) English mortgage.-- 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.
5[(f) Mortgage by deposit of title-deeds.-- Where a person in any of the following towns,
namely, the towns of Calcutta, Madras 6[and Bombay], 7*** and in any other town which the
8[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 immoveable property, with intent to create
a security thereon, the transaction is called a mortgage by deposit of title-deeds.
(g) Anomalous mortgage.-- 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.]
Notes:
1. Added by Act 20 of 1920 , s . 1 9 .
2 . I n s . b y s . 1 9 , i b i d .
3. Subs. by s. 19, ibid., for and to appropriate them.
4. Subs. by s. 19, ibid, for and.
5. Added by Act 20 of 1929, s. 19.
6. Subs. by the A.O. 1948, for Bombay and Karachi. The word and had been ins. by the A.O. 1937.
7. The words "Rangoon, Moulmein, Bassein and Akyab" omitted by the A.O. 1937.
8. The words "Governor General in Council" successively amended by the A.O. 1937 and the A.O. 1950 to read
as above.