Section 58 of transfer of property act defines the terms mortgage, mortgagor, mortgagee, mortgage money and mortgage deed.
Section 58 of transfer of property act. Mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, existing or future debt, performance of an engagement which may give rise to a pecuniary liability.
What is a Mortgage ?
A mortgage or charge is granted by a borrower in favour of a lender to secure repayment of a loan. If the borrower fails to pay back the debt, the mortgage gives the lender the right to take possession or to sell the property. The mortgage must be registered against the property at the appropriate registry. Each province has its own mortgage and registration rules.
What is a mortgage discharge ?
A mortgage discharge (also known as a “release”) is the removal of a mortgage from the registry in which it was listed. Once the mortgage has been discharged, the lender loses any rights it had against
the property under the mortgage.
The borrower must pay the legal fees for preparing and registering the mortgage, as well as any administrative
fees charged by the lender.
Conclusion
Mortgage is a legal instrument which is used to create a security interest in real property held by a lender as a security for a debt it is the lenders security for a debt. In other words the mortgage is a security for the loan that the lender makes to the borrower.
The case of Kanti Ram vs Kutubuddin is perfect to answer this question.
Sale of mortgage property or suit for sale of mortgaged property without redeeming prior mortgage form of decree sections 48,58,60,86,88,96 and 97 of transfer of property act. The plaintiff is not entitled to bring to sale the mortgaged property without first redeeming the prior mortgages. The lower court have proceeded upon a mistaken view of the law on the subject, and that they are entitled to bring to sale the mortgaged property subject to the lien of the prior mortgages and that would be acquired by th purchaser under the sale is the equity or redemption which existed in the hands of the mortgagor at the time of the second mortgage. The right of the mortgagor to redeem the prior mortgages. And on the other hand it has been contended on behalf of the respondents relying mainly upon the case of mata din kasodhan vs Kazim Hussain.
