However, this right may be prescribed by a limitation period or by an attachment order obtained by the hypothecary creditor from the court. It goes without saying that the mortgagee`s right to enforcement and the mortgage debtor`s right to repayment are exhaustive. Even if a foreclosure action has been brought, there is leniency towards the mortgage debtor. In such an action, two decrees are issued, a provisional decree and a final decree, in which the former gives the mortgage debtor another period to settle the debt and redeem the property. In the case of an English mortgage, there is a personal responsibility of the mortgage debtor to repay the amount of the mortgage debt at a certain time as agreed. A payment agreement is an important part of such a mortgage. Such an agreement between the mortgage debtor and the mortgagee in accordance with their terms is called an abnormal hypothec. When it is not a simple mortgage, usufruct by conditional sale, etc. is called an abnormal mortgage. In Thumbuswamy v.
Hossain Rowthen, the Privy Council noted that the essential feature of a mortgage is that if the condition is breached, the deed of sale itself would be executed and the transaction would become an absolute sale without any liability between the parties. Therefore, a mortgage is defined as an explicit transfer of a share of a property as collateral for a loan. The most important feature of a mortgage is that it is a transfer of a legal interest in the property with a buy-back provision, which means that the transfer becomes void or the interest is redistributed when the debt is repaid. In this mortgage, the mortgage debtor retains ownership with him. In this mortgage, the property is never with the mortgagee, otherwise it is always with the mortgagee. The mortgage debtor is required to repay the loan amount within the time limit, if this does not happen, the mortgagee has the right to sell the property and get his money back. In order to protect various common mortgages that prevail in different parts of the country, paragraph (g) has been adopted by law. An abnormal mortgage is called a combination of two or more mortgages. For example, a usufruct mortgage may also have the right to sell (as mentioned above, a usufruct mortgage is only granted to the mortgagee and he does not have the right to sell). Here, ownership of the property is transferred to the mortgagee for a certain period of time on the condition that in case of non-repayment of the debt, the mortgage is considered a mortgage by conditional sale. Thus, it becomes a usufruct mortgage, as well as a mortgage by conditional sale, which makes such a mortgage an abnormal mortgage.
A debt can be of an existing or future nature. A transfer of a share of a property to secure the payment of advanced or advanced money or existing or future debt, or the realization of an exposure that results in a financial obligation, is called a mortgage, and clause (f) that contains a fair mortgage gives only one of the types of mortgage training. 58(e) English mortgage. – If the mortgage debtor agrees to repay the mortgage money on a certain date and absolutely transfers the pledged property to the mortgagee, but on condition that he hands it over to the mortgagee after payment of the mortgage money as agreed, the transaction is called an English mortgage. When we look at the definition of mortgage, we often think about what happens if the money is not repaid within a certain period of time. Can the mortgage debtor be permanently excluded from the recovery of his property? The hypothecary creditor has two rights, one against the person of the mortgage debtor and the other against the pledged property. For the first, the mortgagee can personally sue the mortgagee for the money he had agreed to repay, otherwise he uses the profits of the property as in the case of a usufruct mortgage or sells the mortgage property, as in the case of a simple mortgage, an English mortgage and a mortgage by transferring title deeds. He can have a seizure as a remedy, as in the case of a mortgage by conditional sale, and thus become the owner of such property that has been pledged. In this case, there is a delivery of the possession. The hypothecary creditor retains ownership of the mortgaged property until the mortgage money is repaid and is entitled to receive the rents and profits resulting from that property and use them for principal or interest, or both. If the loan is repaid through the use of the rent and profits of the property, the property can only be repaid by the mortgage debtor. There is no personal liability and there is no recourse for the mortgagee through sale or foreclosure.
The right of the mortgagee to retain ownership indefinitely until the loan is repaid. This type of mortgage is done by depositing title deeds with the mortgagee with the intention that they constitute a guarantee for the debt. Ownership of the property is not given, but only the title deed is deposited. The remedy must therefore be purchased by means of a trial. The recourse with the mortgagee is by foreclosure and not by sale, which is only possible by a court order. The hypothecary creditor may only file a garnishment order under section 67 of the PCPA, Rules 2 and 3 of Ordinance 34, CPC, if the hypothecary debtor fails to pay the amount on time and the sale becomes absolute. This is the process of filing the fair mortgage electronically. This mortgage must be filed with the office of the deputy registrar.
If we complete the mortgage in this way after the mortgage date within 30 days, it is mandatory to file it with the sub-registrar`s office. We called this mortgage deed a mortgage by filing the title deed. The stamp and registration of this document must be paid in accordance with section 6 of the Mumbai Stamps Act 1958. For this document, the submission of the notification is important. The stamp duty is about 0.2% and the registration fee Rs.1000 / – There is no need to physically deliver the documents, constructive delivery of the documents is sufficient. A valid equity mortgage does not require that all ownership documents be filed or that the documents filed bear full title. It is sufficient that the documents filed are in good faith, relate to the property and constitute physical proof of ownership. If a title to the deed is not indicated at all in the filed document and there are documents that show its title to the property but are not filed, no fair mortgage is created. In the event that the mortgage debtor does not repay the loan within the specified period, the mortgagee has the following two remedies: There are also two other terms used in connection with the mortgage that the reader should be aware of. These are: With the modification of the clause, the focus is on the inclusion of the redemption provision in the original deed of sale itself, rather than on the transaction carried out by two documents (one is the deed of sale, the other is the document containing the conditions of return). If they appear in separate documents, the nature of the transaction would not be a mortgage by conditional sale, even if they are executed at the same time. The mortgage debtor cannot take back the property until the mortgage amount has matured, unless there is a specific contract between the two parties that allows the mortgage debtor to repay earlier.
Even in the case of usufruct mortgages, the mortgage debtor can claim ownership as soon as the debt from the profits of the pledged property is realized. The mortgagee has the right to sue the mortgage money in the following cases: The concept of a mortgage by conditional sale (known in Islam as “bye-bil-wafa”) was introduced by Muslims due to the prohibition in their religion not to take interest on the money lent as a loan. This type of mortgage allowed them to realize both their capital and their interest while keeping their conscience pure. In this mortgage, the mortgagee deposits the original title to the property with the mortgagee as security and against this the mortgagee grants a loan to the mortgagee. However, the hypothecary creditor may combine the two means in a single remedy. He can personally sue the mortgage debtor and apply to the court for a decree in his favor for the sale of the property, but in both cases, the lawsuit must be brought within 12 years of the date on which the loan, that is, the money from the mortgage, expires. The heart of the transaction lies in the intention that the title deeds are a guarantee for the borrowed money (debts). The mere transfer of the title deeds to Mr X by Mr Z does not constitute a mortgage.
The acts must be delivered in execution of this agreement as they are a guarantee for the debt. 4. Usufruct hypothec (mortgage deed with possession). Haryana State v. Narvir Singh, (2014) 1 SCC 105. Clause 13. A title deposit mortgage is the actual transfer of ownership documents on real estate by a borrower to the lender with the intention that these documents constitute a guarantee that ultimately allows the creditor to recover the money borrowed by him. 14.2. No instrument needs to be drawn for this purpose. However, the parties may choose to have a memorandum drawn up indicating only the filing of title deed.
In such a case, no registration is required. But in a case where the written memorandum creates or expires rights, responsibilities, the same thing requires registration. .