(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 are called the mortgage- money, and the instrument (if any) by which the transfer is effected is called a mortgage- deed.
Essential elements of a mortgage
The following are the essential characteristics of a mortgage.
1. there must be a transfer of an interest.
2. there must be specific immovable property intended to be mortgaged.
3. there must be made to secure the payment of a loan or to secure the performance of a contract.
Condition
Provided nevertheless, except as otherwise specifically stated in the mortgage, that if the mortgagor, his heirs, executors or administrators pay to the mortgagee, his heirs, executors, administrators or assigns the principal and interest secured by the mortgage, and shall perform any obligation secured at the time provided in the note, mortgage or other instrument or any extension thereof, and shall perform the condition of any prior mortgage, and until such payment and performance shall pay when due and payable all taxes, charges and assessments to whomsoever and whenever laid or assessed, whether on the mortgaged premises or on any interest therein or on the debt or obligation secured thereby; and shall keep the buildings on said premises insured against fire in a sum not less than the amount secured by the mortgage or as otherwise provided therein for insurance for the benefit of the mortgagee and his executors, administrators and assigns, in such form and at such insurance offices as they shall approve, and, at least 2 days before the expiration of any policy on said premises, shall deliver to him or them a new and sufficient policy to take the place of the one so expiring, and shall not commit nor suffer any strip or waste of the granted premises, nor commit any breach of any covenant contained in the mortgage or in any prior mortgage, then the mortgage deed, as also the mortgage note or notes shall be void, otherwise shall remain in full force. [1967, c. 377, (NEW).]
Kinds of mortgage
There are in all six kinds of mortgages in immovable property, namely
1. Simple mortgage
2. Mortgage by conditional sale
3. Usufructuary mortgage
4. English mortgage
5. Mortgage by deposit of title- deeds.
6. Anomalous mortgage
Definition of simple mortgage
Simple mortgage.- (b) 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.
Home remedies of simple mortgage
1. If you are choking on an ice cube, don’t panic. Simply pour a cup of boiling water down your throat and presto, the blockage will be almost instantly removed.
2. Clumsy? Avoid cutting yourself while slicing vegetables by getting someone else to hold them while you chop away.
3. You can avoid arguments with the Mrs. about lifting the toilet seat just by using the sink.
4. For high blood pressure sufferers: simply cut yourself and bleed for a few minutes, thus reducing the pressure in your veins. Remember to use an egg timer.
5. A mouse trap placed on top of your alarm clock will prevent you from rolling over and going back to sleep after you hit the snooze button.
6. If you have a bad cough, take a large dose of laxatives. Then you will be afraid to cough.
7. Have a bad toothache? Smash your thumb with a hammer and you will forget all about the toothache.
8. Sometimes, we just need to remember what the rules of life really are:
In life, you only need two tools – WD-40 and Duct Tape. If it doesn’t move but should, use the WD-40. If it should not move and does, use the duct tape.
9. Remember: Everyone seems normal until you get to know them.
10. Never pass up an opportunity to go to the bathroom
Definition of mortgage by conditional sale
Mortgage by conditional sale.- (c) 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.]
Definition of Usufructuary mortgage
Usufructuary mortgage.- (d) Where the mortgagor delivers possession 1[ or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage- money, and to receive the rents and profits accruing from the property 2[ 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 3[ or] partly in payment of the mortgage- money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
Definition of English mortgage
English mortgage.- (e) Where the mortgagor binds himself to re- pay the mortgage- money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgage- money as agreed, the transaction is called an English mortgage.
Definition of Mortgage by deposit of title
Mortgage by deposit of title- deeds.- 4[ (f) Where a person in any of the following towns, namely, the towns of Calcu1[ town which the 2[ 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.
Definition of Anomalous mortgage
Anomalous mortgage.- (g) 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.] tta, Madras, 5[ and Bombay], 6[ and in any other
DISTINCTION BETWEEN
ENGLISH MORTGAGE SIMPMLE MORTGAGE
1.What is transferred absolutely to the mortgage.
2.Right to possession-
The mortgage being the owner of the property has a right to enter into immediate possession of it.
3.Sale out of court-
An English mortgagee has in certain cases a right of sale without the intervention of court. Only the of sale is transferred.
The mortgage has no right to enter into immediate possession of the property.
A right of sale without the intervention of the court is not conferred on simple mortgagee.
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