- A mortgage loan is a loan used to purchase or protect real estate, such as a home, land, or other assets.
- The borrower pledges to pay back the lender over time, typically in the form of a string of principal and interest-only payments made each month.
- Then the loan is secured by the property. A mortgage is equivalent to the Roman legal doctrine known as the “Hypotheca,” which provides that if a debtor defaults on a loan, the creditor may sell the debtor’s property to recoup his losses.
- Hindu law and Islamic law has likewise recognized the concept of a Mortgage Law, committing the property to the creditor and excluding the debtor from ownership until the loan is returned.
What is a Mortgage as per the Mortgage Law?
The most critical component of a mortgage is a legal interest transfer in the property with a mechanism for redemption, which denotes that upon loan repayment, the interest is re-conveyed or the transfer is nullified. There was no specific law controlling the transfer of mortgaged property in India before 1882.
After the Transfer of Property Act was passed, the mortgage laws underwent a thorough and urgently required review, and specific restrictions were implemented. However, a mortgagor’s right to redemption allowed them to get their money back before the 1882 Act. The Act measures mortgages under Section 58. Mortgage lending is a standard method for funding the private ownership of both residential and commercial property.
A mortgage is described in the Mortgage Law under the Transfer of Property Act Section 58 as “the transfer of an interest in specified immovable property for the purpose of ensuring the payment of money advanced or to be advanced by way of loan, a current or prospective debt, or the execution of an engagement which may result in a pecuniary liability.”
Mortgagee refers to the transferee, while mortgagor refers to the transferor. Mortgage money is the principal and interest payments for which a current guarantee exists. A mortgage deed is a legal document, if any, through which the transfer is accomplished.
What are the Ingredients of a Mortgage as per the Mortgage Law?
The following are the components required for a mortgage as per the Mortgage Law:
- Interest transfer is required– This in no way implies a change of ownership. The mortgagee’s right is merely an accessory designed to guarantee debt repayment.
- The transfer must relate to real estate– The transfer must relate to real estate that is clearly referenced in the deed. To identify which property it is, it must be pretty explained.
- To receive payment– A loan will be extended or used to advance: A mortgage is not a transfer made only to satisfy a debt or other obligations; it is not a debt discharge.
Therefore, these are the ingredients that constitute a mortgage as per the Mortgage Law.
What are the Types of Mortgages as per the Mortgage Law?
- Simple Mortgage– In a simple mortgage, as per the Mortgage Law, the mortgagor agrees to pay the mortgage balance rather than giving up the immovable property to the mortgagee. A simple mortgage is one where the mortgagee accepts the supposition that if the mortgage amount is not paid by the due date, the mortgagee has the right to sell the property and use the proceeds.
- Conditional Sale Mortgage– It is described as a situation when the mortgagor ostensibly sells a mortgaged property with the caveat that the transaction will become final if the mortgage money is not paid by a specific date. The sale shall be void and of no effect, if the purchase price is not paid per the terms of the transaction.
- Usufructuary Mortgage– In a usufructuary mortgage, as per the Mortgage Law, the mortgaged property is delivered to the mortgagee. The property generates income for the mortgagee up until the debt is repaid.
- On the other hand, the owner keeps the title deeds. This transfer gives the mortgagee the right to hold the mortgaged property until the loan is repaid, whether explicitly stated or implied.
- Additionally, it allows the mortgagee to receive income and rent from the mortgaged property in place of interest, in whole or in part, or as payment for the mortgaged money, in whole or in part. A mortgagee is not directly responsible for loan repayment. The mortgagee is therefore prohibited from suing the mortgagor for payment.
- English Mortgage– In this type of mortgage, as per the Mortgage Law, the mortgagor conveys the entire property to the mortgagee with the understanding that the mortgagee will re-transfer the property after receiving payment in full of the mortgage debt on the specified date. In the circumstances listed in Section 69 of the TPA, the mortgagee may sell the mortgaged property in the event of non-payment without permission from the Court.
- Deposit of Title Deeds– This is an equitable mortgage under English law. As per the Mortgage Law in India, a mortgage by deposit of title deeds is a transaction in which a debtor transfers ownership of the immovable property to a creditor or agent to establish a security interest in it. This mortgage type is available in Mumbai, Chennai, & Kolkata.
- Anomalous Mortgage– As per the Mortgage Law in India any of the five categories above does not apply to an anomalous mortgage. Such a mortgage may be affected by the conditions and characteristics of the mortgagor and mortgagee. The sum of two or more of the aforementioned mortgages is how it often arises. It can take a variety of shapes depending on usage, contract, and custom.
Hence these are the types of mortgages defined by the Mortgage Law in India.
Under the Transfer of Property Act of 1882, the idea of a mortgage is one of the critical principles since it helps to protect the mortgagor’s responsibility and also helps to regain the property once the mortgagor pays the mortgagee what is owed. A mortgage is therefore defined as an express conveyance of an interest in real property used as collateral for a debt.
Mortgages are most important because they transmit a legal interest in the property with a redemption provision, which states that the transfer would be nullified or the claim would be re-conveyed upon debt repayment. A mortgage deed gives the parties concerned many rights and obligations (mortgagor and mortgagee).
The Mortgage Law acknowledges and enshrines these rights and obligations. It assists in securing a debt owed to the mortgagor while enabling the mortgagor to recover property once the mortgagee receives payment for the loan. Take Legal Advice if you are thinking of availing of a mortgage.