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TP Lecture 10-11 Mortgage

The document outlines the Transfer of Property Act and Registration Act, focusing on the concept of mortgages as defined in Section 58 of the Act. It describes various types of mortgages, including simple mortgages, mortgages by conditional sale, usufructuary mortgages, English mortgages, and mortgages by deposit of title-deeds. Additionally, it covers the rights and liabilities of both mortgagors and mortgagees, emphasizing the right to redemption as per Section 60.

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29 views5 pages

TP Lecture 10-11 Mortgage

The document outlines the Transfer of Property Act and Registration Act, focusing on the concept of mortgages as defined in Section 58 of the Act. It describes various types of mortgages, including simple mortgages, mortgages by conditional sale, usufructuary mortgages, English mortgages, and mortgages by deposit of title-deeds. Additionally, it covers the rights and liabilities of both mortgagors and mortgagees, emphasizing the right to redemption as per Section 60.

Uploaded by

safatuddin2
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Law 205/219: Transfer of Property Act & Registration Act

Department of Law
Independent University Bangladesh
Spring Semester: January - June 2024
Course Teacher: Dr Zahidul Islam Biswas
Available at: [email protected]
Class Schedule: Monday & Wednesday: 1.00 - 2.30 PM
Section 1. Room: MK 4009

Lecture 10-11

Mode of Transfer of Property: Mortgage


Important sections 58-77

Section 58 in The Transfer of Property Act, 1882

“Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and


“mortgage-deed” defined:

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 are called the mortgage-money, and the instrument (if any) by
which the transfer is effected is called a mortgage-deed.

1
Different kinds of Mortgage

Simple mortgage:

Where, without delivering the 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:

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 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.

2
Usufructuary mortgage:1

Where the mortgagor delivers possession 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 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 an usufructuary
mortgagee.

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.

Currently, in the Indian subcontinent and in Bangladesh as well, we see


the practice of English mortgages in most of the cases.

Mortgage by deposit of title-deeds:


1 It comes from the Latin word usufruct, which in Roman and Civil Law meant the
right of enjoying all the advantages derivable from the use of something that belongs
to another, as far as is compatible with the substance of the thing not being destroyed
or injured.

3
Where a person in any of the following towns, namely, the towns of
Dhaka, Narayangonj and Chittagong and in any other town, which the
Government 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.

In the banking sector we see the use of this kind of mortgage frequently.

Anomalous mortgage:

Anomalous simply means unusual or exceptional.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.

Right to redemption (section 60)

Right of redemption is one of the important rights of the mortgagor's and


that has been reflected in section 60 of the Transfer of Property Act. At
any time after the principal money has become due, the mortgagor has a
right, on payment of the mortgage money, to redeem his property.

It simply means the Mortgagor has a legally protected right to recover or


get back the property after making payment of the loan. If the loan has
been paid, the interest so transferred must revert back to the mortgagor.
The mortgagee cannot retain any interest in the mortgage property.

The right conferred by this section is called a right to redeem and a suit to
enforce it is called a suit for redemption.

Homework for students:

4
Rights and Liabilities of Mortgagor

1. Section 60 - Rights of mortgagor to redeem.


2. Section 60A - Obligation to transfer to third party instead of re-
transference to mortgagor
3. Section 60-8 Right to inspection and production of document
4. Section 61- Right to redeem separately or simultaneously
5. Section 62 - Right of usufructuary mortgagor to recover possession.
6. Section 63 - Accession to mortgaged property
7. Section 63A - Improvements to mortgaged property
8. Section 64 - Renewal of mortgaged lease.
9. Section 65A - Mortgagor’s power to lease.
10. Section 66 - Waste by Mortgagor in possession.

Rights and Liabilities of Mortgagee

1. Section 67 - Rights to foreclosure or sale


2. Section 67A - Mortgagee when bound to bring one suit on several
mortgagees
3. Section 68 - Right to sue for mortgage-money.-
4. Section 69 - Power of sale when valid.
5. Section 69A - Appointment of receiver.
6. Section 70 - Accession to mortgaged property.
7. Section 71 - Renewal of mortgaged lease
8. Section 72 - Rights of mortgages in possession
9. Section 73 - Right to proceeds of revenue, sale or compensation on
acquisition.
10. Section 77 - Receipt in lieu of interest

Thank you, my students!

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