A mortgage is the transfer of any interest in specific immovable 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 performance of an engagement that may give rise to pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which the 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 (Section 58).
Where the principal money secured is Rs100 or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
Rights of mortgagor
After the principal money has become due, the mortgagor has a right, on payment of the mortgage money, to require the mortgagee
- To deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee,
- Where the mortgagee is a possession of the mortgaged property, to deliver possession thereof the mortgagor, and
- Either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and to have registered an acknowledgement in writing that any right transferred to the mortgagee has been extinguished.
A mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate, but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient or will be rendered insufficient by such act.
Rights of Mortgagee
Mortgage has, at any time after mortgage-money has become due to him, and before a redemption decree or the mortgage-money has been paid or deposited a right to obtain from the court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that property be sold
The mortgage has a right to sue for the mortgage-money
Liabilities of mortgage
- Where the mortgagor binds himself to repay the same;
- Where, the mortgaged property is wholly or partially destroyed
- Where the mortgage is deprived of the whole or part of his security in consequence of the wrongful act or default of the mortgagor;
When the mortgage takes possession of the mortgage property, he must
- Manages the property as if it were his own;
- Collect the rents and profits thereof;
- Pay the government revenue; charges of a public nature and rent
- Make necessary repairs of the property
- Must not commit any act which is destructive or permanently injurious to the property
- He must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee