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INTRODUCTION

Kinds and Definitions of Property: Property is of two kinds, movable and

immovable.

IMMOVABLE PROPERTY

Immovable property is a kind of property that cannot be moved i.e the property

attached to earth.

The following acts have given several definitions of the term ‘immovable

property’:

Section 3(26) of the General Clauses Act, 1897 states that

“immovable property ” shall include land, benefits to arise out of land, and

things attached to the earth, or permanently fastened to anything attached to

the earth.

According to Section 2(6) in The Registration Act, 1908

“immovable property” includes land, buildings, hereditary allowances, rights to

ways, lights, ferries, fisheries or any other benefit to arise out of land, and

things attached to the earth or permanently fastened to anything which is

attached to the earth, but not standing timber, growing crops nor grass.

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Section 3 of the Transfer Of Property Act, 1882 states “immovable

property” does not include standing timber, growing crops or grass.

MOVABLE PROPERTY

All other kind of property which is not immovable property is movable property.

The following Acts give the definitions as under mentioned:

Section 3(36) of the General Clauses Act states that

“movable property” shall mean property of every description, except

immovable property.

According to Section 2(13) of the Civil Procedure Code, 1908

“movable property includes growing crops.”

Section 2(9) of the Registration Act , 1908 states that

“movable property includes standing timber growing crops and grass, fruit

upon and juice in trees, and property of every other description, except

immovable property.”

According to Section 22 of the Indian Penal Code 1860

“movable property are intended to include corporeal property of every

description, except land and things attached to the earth or permanently

fastened to anything, which is attached to the earth.”

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The way of providing loan:

In case of movable property loan is given through hypothecation i.e. pledging of

something as security without delivery of title or possession (Black’s Law

Dictionary 8th edition) by the banks and/or financial institutions.

In case of immovable property loan is provided by way of mortgage.

The Acts which deals with mortgage in India:

In India, the Transfer of Property Act, 1882 deals with mortgage of immovable

property. Chapter IV, Sections 58 – 104 of the said Act deals with mortgage .The

Transfer of Property Act deals with substantive part of mortgage of immovable

property, where on the other hand, the Civil Procedure Code ,1908 deals with the

procedural part of it.

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MORTGAGE DEFINED

The Black’s Law Dictionary (7th) Edition defines the term “mortgage”:

1. ” A conveyance of title to property that is given as security for the payment of

a debt or the performance of a duty and that will become void upon

performance according to the stipulated terms.

The transferor is called the mortgagor, the transferee is called the 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.

Therefore by way of mortgage deed the mortgagor transfers his interest in a

specific immovable property, the mortgaged property for securing the payment of

mortgaged money to the mortgagee.

Essential elements of the term mortgage:

1. There must be a transfer of interest

2. The interest transferred must be some specific immovable property.

3. The purpose of the transfer must be to secure the payment of any debt or

performance of an engagement which may give rise to a pecuniary liability.

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Mortgaged as defined in the Transfer of Property Act, 1882

A mortgage is a method of creating charge on immovable properties like land and

building.

Section 58 of the Transfer of Property Act 1882, define a mortgage as follows:

"A 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, an existing or future debt, or the performance of an engagement which may

give rise to a pecuniary liability."

In terms of the definition, the following are the characteristics of a mortgage:

(1) A mortgage can be affected only on immovable property. Immovable property

includes land, benefits that arise out of land and things attached to earth like

trees, buildings and machinery. But a machine which is not permanently fixed

to the earth and is shift able from one place to another is not considered to be

immovable property.

(2) A mortgage is the transfer of an interest in the specific immovable property.

This means the owner transfers some of his rights only to the mortgagee. For

example, the right to redeem the property mortgaged.

(3) The object of transfer of interest in the property must be to secure a loan or

performance of a contract which results in monetary obligation. Transfer of

property for purposes other than the above will not amount to mortgage. For

example, a property transferred to Liquidate prior debt will not constitute a

mortgage.

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(4) The property to be mortgaged must be a specific one, i.e., it can be identified

by its size, location, boundaries etc.

(5) The actual possession of the mortgaged property is generally with the

mortgager.

(6) The interest in the mortgaged property is re-conveyed to the mortgager on

repayment of the loan with interest due on.

(7) In case, the mortgager fails to repay the loan, the mortgagee gets the right to

recover the debt out of the sale proceeds of the mortgaged property.

NATURE OF MORTGAGE

According to Section 58 of the Transfer of Property Act, 1882, 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 agreement which may give rise

to pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee; the principal

money and interest the payment of which is secured for the time being are called

the mortgage money and the instrument by which the transfer is effected is called

the mortgage deed.

Essentials of a Mortgage

1) Transfer of Interest: The first thing to note is that a mortgage is a transfer

of interest in the specific immovable property. The mortgagor as an owner

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of the property possesses all the interests in it, and when he mortgages the

property to secure a loan, he only parts with a part of the interest in that

property in favour of the mortgagee. After mortgage, the interest of the

mortgagor is reduced by the interest which has been transferred to the

mortgagee. His ownership has become less for the time being by the

interest which he has parted with in favour of the mortgagee. If the

mortgagor transfers this property, the transferee gets it subject to the right

of the mortgagee to recover from it what is due to him i.e., the principal

plus interest.

2) Specific Immovable Property: The second point is that the property must be

specifically mentioned in the mortgage deed. Where, for instance, the

mortgagor stated “all of my property” in the mortgage deed, it was held by

the Court that this was not a mortgage. The reason why the immovable

property must be distinctly and specifically mentioned in the mortgage

deed is that, in case the mortgagor fails to repay the loan the Court is in a

position to grant a decree for the sale of any particular property on a suit

by the mortgagee.

3) To Secure the Payment of a Loan: Another characteristic of a mortgage is

that the transaction is for the purpose of securing the payment of a loan or

the performance of an obligation which may give rise to pecuniary liability.

It may be for the purpose of obtaining a loan, or if a loan has already been

granted to secure the repayment of such loan. There is thus a debt and the

relationship between the mortgagor and the mortgagee is that of debtor

and creditor. When A borrows 100 bags of paddy from B on a mortgage and

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agrees to return an equal quantity of paddy and a further quantity by way

of interest, it is a mortgage transaction for the performance of an

obligation.

4) Where, however, a person borrows money and agrees with the creditor

that till the debt is repaid he will not alienate his property, the transaction

does not amount to a mortgage. Here the person merely says that he will

not transfer his property till he has repaid the debt; he does not transfer

any interest in the property to the creditor. In a sale, as distinguished from

a mortgage, all the interests or rights or ownership are transferred to the

purchaser. In a mortgage, as stated earlier, only part of the interest is

transferred to the mortgagee, some of them remains vested in the

mortgagor.

To sum up, it may be stated that there are three outstanding characteristics of a

mortgage:

a) The mortgagee’s interest in the property mortgaged terminates upon the

performance of the obligation secured by the mortgage.

b) The mortgagee has a right of foreclosure upon the mortgagor’s failure to

perform.

c) The mortgagor has a right to redeem or regain the property on repayment

of the debt or performance of the obligation.

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Difference between Mortgage and Charge

1) A mortgage is created by the act of the parties whereas a charge may be

created either through the act of parties or by operation of law.

2) A charge created by operation of law does not require the registration as

prescribed for mortgage under the Transfer of Property Act. But a charge

created by act of parties requires registration.

3) A mortgage is for a fixed term whereas the charge may be in perpetuity.

4) A simple mortgage carries personal liability unless excluded by express

contract. But in case of charge, no personal liability is created. But where a

charge is the result of a contract, there may be a personal remedy.

5) A charge only gives a right to receive payment out of a particular property,

a mortgage is a transfer of an interest in specific immovable property.

6) A mortgage is a transfer of an interest in a specific immovable property, but

there is no such transfer of interest in the case of a charge. Charge does not

operate as transfer of an interest in the property and a transferee of the

property gets the property free from the charge provided he purchases it

for value without notice of the charge.

7) A mortgage is good against subsequent transferees, but a charge is good

against subsequent transferees with notice.

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FORMS OF MORTGAGES

Section 58 of the transfer of Property Act enumerates six kinds of mortgages:

(1) Simple mortgage.

(2) Mortgage by conditional sale.

(3) Usufructuary mortgage.

(4) English mortgage.

(5) Mortgage Ly deposit of title deeds.

(6) Anomalous mortgage.

(1) Simple Mortgage

In a simple mortgage, the mortgager does not deliver the possession of the

mortgaged property. He binds himself personally to pay the mortgage money and

agrees either expressly or impliedly, that in case of his failure to repay, the

mortgagee shall have the right to cause the mortgaged property to be sold and

apply the sale proceeds in payment of mortgage money.

The essential feature of the simple mortgage is that the mortgagee has no power

to sell the property without the intervention of the court.

The mortgagee can:

(i) apply to the court for permission to sell the mortgaged property, or

(ii) file a suit for recovery of the whole amount without selling the property.

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(2) Mortgage by Conditional Sale

In this form of mortgage, the mortgager ostensibly sells the property to the

mortgagee on the following conditions:

(i) The sale shall become void on payment of the mortgage money.

(ii) The mortgagee will retransfer the property on payment of the mortgage

money.

(iii) The sale shall become absolute if the mortgager fails to repay the

amount on a certain date.

(iv) The mortgagee has no right of sale but he can sue for foreclosure.

Foreclosure means the loss of right possessed by the mortgager to redeem the

mortgaged property. The mortgagee has the right to institute a suit for a decree

so that the mortgager will be absolutely debarred from his right to redeem the

property. The right to foreclosure arises when the time fixed for repayment

expires and the mortgager fails to repay the mortgage money. Without the fore

closure order the mortgagee will not become the owner of the property.

(3) Usfructuary Mortgage

Under this form of mortgage, the mortgager delivers possession of the property

or binds himself to deliver possession of the property to the mortgagee. The

mortgagee is authorized to retain the possession until the debt is repaid. The

mortgager reserves the right to recover the property when the money is repaid.

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The essential feature of this form of mortgage is that the mortgagee is entitled to

receive rents and profits relating to the mortgaged property till the loan is repaid

and appropriate the same in lieu of interest or in repayment of the loan or both.

The mortgager is not personally liable to repay the mortgage money. So the

mortgagee cannot sue the mortgager for repayment. He can neither sue

foreclosure nor sue for sale of the mortgaged property; the only remedy for the

mortgagee is to remain in possession of the property and pay himself out of the

rents or profits of the mortgaged property. Since there is no time limit he has to

wait for a very long time to recover his dues.

(4) English Mortgage

The English mortgage has the following characteristics:

(1) The mortgager transfers the property absolutely to the mortgagee. The

mortgagee, therefore, is entitled to take immediate possession of the

property. The transfer is subject to the condition that the property shall be

transferred on repayment of the loan.

(2) The mortgager also binds himself to pay the mortgage money on a certain

date.

(3) In case of non-repayment, the mortgagee has the right to sell the

mortgaged property without seeking permission of the court in

circumstances mentioned in section 69 of the Transfer of Property Act.

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(5) Mortgage by Deposit of Title Deeds

When a debtor delivers to a creditor or his agent document of title to immovable

property, with an intention to create a security there on, the transaction is called

mortgage by deposit of title deeds. Such a mortgage is restricted to the towns of

Kolkata, Mumbai and Chennai and other towns notified by the State government

for this purpose in the Official Gazette. This type of mortgage requires no

registration. This form of mortgage is also known as equitable mortgage.

Legal Mortgage vs. Equitable Mortgage

On the basis of transfer of title to the mortgaged property, mortgages are divided

into two types, namely:

(i) Legal Mortgage.

(ii) Equitable Mortgage.

Legal Mortgage In a legal mortgage, the legal title to the property is transferred

in favour of mortgagee by a deed. The deed is to be registered when the principal

money is Rs. 100/- or more. On repayment of the loan, the legal title is

retransferred to the mortgagor. This method of creating charge is expensive as it

involves registration charges and stamp duty.

Equitable Mortgage An equitable mortgage is effected by mere delivery of

documents of title to property to the mortgagee. The mortgagor through

Memorandum of deposit undertakes to grant a legal mortgage if he fails to pay

the mortgage money.

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Essential Requirements of Equitable Mortgage

(1) An equitable mortgage requires three essential features

i. there must be a debt existing or future,

ii. there must be deposit of title deeds, are the title deeds should be

deposited as security for the debt.

(2) Registration of documents is not necessary.

In the case of Royal Printing Works and Others Vs. Oriental Bank of Commerce1,

it was established that where a security is furnished by deposit of title deeds, no

registration is necessary.

(3) An equitable mortgage can be effected only in the towns of Kolkata, Mumbai

and Chennai and in certain places notified by the State Government.

In the case of Sulochana and Others Vs. The Pandyan Bank Ltd2, it was held that

the debtor need not produce the documents and deposit the same in person in

any of the towns mentioned in that Section. If the intention was to deposit the

documents in the towns mentioned and the documents were duly forwarded,

such deposit shall be deemed to have been made in the towns specified in the

Section.

1 AIR 1990 AP 120 2 AIR 1975 Mad 70

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Further, in the case of Sabasiva Rao Vs. Bank of Baroda3, it was held that even if

certified copies of documents of title to goods are deposited, if the intention of

the deposit is for security to cover a loan, it would amount to equitable mortgage.

(4) The documents are to be retransferred to the mortgagee on repayment of the

debt.

(5) The mortgagee is empowered to apply to the court to convert the equitable

mortgage into a legal mortgage, if the mortgager fails to repay the loan on a

specified date.

Advantages

(1) No registration is required in equitable mortgage and so stamp duty is saved.

(2) It involves minimum formalities.

(3) The information regarding such mortgage is kept confidential between the

lender and borrower. So the reputation of the borrower is not affected.

Disadvantages

(1) If the mortgagor fails to repay, the mortgagee must get the decree for the sale

of the property. Getting a decree is expensive and time consuming.

(2) The borrower may hold the title deeds not on his own account, but in the

capacity of a trustee. If an equitable charge is created, the claim of the

beneficiary under the trust will prevail over equitable mortgage.

3 1991 70 CompCas 840 AP

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(3) There is the risk of subsequent legal mortgage in favour of another party. If the

equitable mortgagee parts with the security, even for a short period, the

debtor may create a second legal mortgage over the same property. In that

case, the second mortgage shall have the first priority over the equitable

mortgagee. The mortgagee should be very careful in this regard.

(6) Anomalous Mortgage

In terms of this definition an anomalous mortgage is one which does not fall

under anyone of the above five terms of mortgages. Such a mortgage can be

effected according to the terms and conditions of the mortgager and the

mortgagee. Usually it arises by a combination of two or more of the above said

mortgages. It may' take various forms depending upon custom, usage or contract.

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RIGHTS OF MORTGAGER

(1) Rights of Redemption:

The mortgager has a right to redeem the mortgaged property provided:

a. he-pays the mortgage money on due date at the proper place and time,

b. the right of redemption has not been terminated by an act of the parties or

by decree of a court.

The mortgager who has redeemed the mortgage is entitled to the following

rights:

(a) to get back the mortgage deed and all other documents relating to the

mortgaged property,

(b) to obtain possession of the mortgaged property from the mortgagee, as in

the case of English mortgage,

(c) to have the mortgaged property retransferred at his cost to him or to such

third person as he may direct.

(2) Accession to Mortgaged Property:

During the possession of the property, if the mortgagee has voluntarily made any

improvement in the property, the mortgager, on redeeming the property, is

entitled to all such additions or improvements, unless there is a contract to the

contrary.

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(3) Right to Transfer to Third Party:

The mortgager may require the mortgagee to transfer the mortgaged property to

a third person instead of retransfer to him.

(4) Right to Inspection and Production of Documents: The mortgager has the right

to inspect and make copies of all documents of title in the custody of

mortgagee.

RIGHTS OF MORTGAGEE

(1) Right to sue for mortgage money: The mortgagee has the right to file

a suit in a court of law for the mortgage money in the following cases:

a. Where the mortgager binds himself to repay the mortgage money, as in the

case of simple and English mortgage.

b. Where the mortgaged property is wholly or partly destroyed or the security

is rendered insufficient and to mortgager has not provided further security.

c. Where the mortgagee is deprived of the whole or a part of his security by

the wrongful act of the mortgager.

d. Where the mortgager fails to deliver the mortgaged property in case the

mortgagee is entitled to it.

(2) Right of sale: The mortgagee in case of a simple, English and equitable

mortgage has the right to sell the property after filing a suit and getting a

decree from a court. A mortgagee has a right of sale without the intervention

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of the court under certain circumstances mentioned in Section 69 of Transfer

of Property Act.

(3) Right of foreclosure:

The mortgagee has a right to obtain from the Court a decree for foreclosure

against the mortgager, that is, the mortgager is absolutely debarred of his right to

redeem the property. The right of fore closure is allowed in (i) a mortgage by a

conditional sale, and the anomalous mortgage.

(4) Right of accession to property:

If any addition is made to the mortgaged property, the mortgagee is entitled to

such addition for the purpose of security provided there is no contract to the

contrary. For example, A mortgages a certain plot of land to B and afterwards

constructs a building on it. B is entitled to the building and land as security for the

loan.

(5) Right of possession:

The mortgagee is entitled to the possession of the mortgaged property as per the

terms of mortgage deed. Such a right is available in usufructuary mortgage.

In the case of Purasawalkam Hindu Janopakara Saswatha Nidhi Ltd. v. Kuddus

Sahib4, it was held that where the amount due for principal is not repayable at

any particular date, nor is anything stated as to when it is to be repaid, there can

be no default in the payment of the principal sum due until there is a demand

made for the money.

4 AIR 1926 Mad 841

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RIGHT OF REDEMPTION

Section 60 of the Transfer of Property Act, 1882 provides the right of redemption

to the mortgager

Section 60 in The Transfer of Property Act, 1882 reads as

Right of mortgagor to redeem.—At any time after the principal money has

become due, the mortgagor has a right, on payment or tender, at a proper time

and place, of the mortgage-money, to require the mortgagee

(a) 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,

(b) where the mortgagee is in possession of the mortgaged property, to deliver

possession thereof to the mortgagor, and

(c) at the cost of the mortgagor either to re-transfer the mortgaged property to

him or to such third person as he may direct, or to execute and (where the

mortgage has been effected by a registered instrument) to have registered an

acknowledgement in writing that any right in derogation of his interest

transferred to the mortgagee has been extinguished:

Provided that the right conferred by this section has not been extinguished by act

of the parties or by decree of a Court.

The right conferred by this section is called a right to redeem and a suit to enforce

it is called a suit for redemption.

Nothing in this section shall be deemed to render invalid any provision to the

effect that, if the time fixed for payment of the principal money has been allowed

to pass or no such time has been fixed, the mortgagee shall be entitled to

reasonable notice before payment or tender of such money.

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Redemption of portion of mortgaged property.—Nothing in this section shall

entitle a person interested in a share only of the mortgaged property to redeem

his own share only, on payment of a proportionate part of the amount remaining

due on the mortgage, except only where a mortgagee, or, if there are more

mortgagees than one, all such mortgagees, has or have acquired, in whole or in

part, the share of a mortgagor.

There are certain limitations to this right by the fact that it exists only till the

mortgagee decides to exercise his right of foreclosure on the property. Thus, the

contract of mortgage between the parties ends, when the debtor exercises his

right to redeem through paying off the loan.5

This right provided by the Transfer of Property Act is a statutory right which can

only be done away by compliance to the procedure established by law6. It would

henceforth follow that any obstruction to this right would be declared as void as a

clog on the equity of redemption.7

5 Parmeswaran Govindan v. Krishnan Bhaskaran, AIR 1992 SC 1135.

6 Mulla, The Transfer of Property Act, 1882 656 (Solil Paul ed., 9th edition, 2000). 7 Ibid

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CLOG ON REDEMTION

In Stanley v. Wilde8, Lindley M.R. gave one of the founding explanations of the

basis of this doctrine –

“The principle is this: a mortgage is a conveyance of land or an assignment of

chattels as a security for the payment of a debt or the discharge of some other

obligation for which it is given. This is the idea of a mortgage: and the security is

redeemable on the payment or discharge of such debt or obligation, any provision

to the contrary notwithstanding. That, in my opinion, is the law. Any provision

inserted to prevent redemption on payment or performance of the debt or

obligation for which the security was given is what is meant by a clog or fetter on

the equity of redemption and is therefore void. It follows from this, that ‘once a

mortgage always a mortgage’.”

The maxim ‘once a mortgage always a mortgage’ means that there can no

covenant that modifies the character of the mortgage agreed between the parties

that would stop the mortgagor to redeem his property back on payment of the

principal and respective interests.9

The basis of this doctrine lies in the exercise equity, justice and good

conscience10 and is extensive to areas where the act is not applicable.11

8 (1899) 2 Ch 474

9 G.C.V. Subha Rao, Law of Transfer of Property Act 882 (4th ed., 2006).

10 Murarilal v. Dev Karan, AIR 1965 SC 225.

11 Ambalal Jasraj v. Ambalal Badarwal, AIR 1957 Raj 321.

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On a realistic perusal of the workings of a mortgage, it is observed in most of the

cases that the mortgagor enters into such an agreement because of some

financial predicament12. The law recognizes the power of the dominant party to

insert clauses which will serve his personal interests by creating impediments on

the right to redeem the property13. Such obstructions are henceforth struck down

by the courts to enable the mortgagee to redeem his property14.

In U. Nilan v. Kannayyan (Dead) Through Lrs15, explaining the philosophy behind

the doctrine, it was said that –

“Adversity of a person is not a boon for others. If a person in stringent financial

conditions had taken the loan and placed his properties as security therefor, the

situation cannot be exploited by the person who had advanced the loan. The Court

seeks to protect the person affected by adverse circumstances from being a victim

of exploitation. It is this philosophy which is followed by the Court in allowing that

person to redeem his properties by making the deposit under Order 34 Rule 5

C.P.C.”

12 Poonam Pradhan Saxena, Property Law 348 (2nd ed., 2011).

13 Ibid 14 Ibid 15 AIR 1999 SC 3750.

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INTRODUCTION Section 100 of the Transfer of Property Act, 1882 defines a charge.

“Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another; and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.”

It says that where immovable property of one person is, by act of parties or operation of law, made security for the payment of money to another, and the transaction does not amount to mortgage, the latter person is said to have a charge on the property, and all the provisions hereinbefore contained which apply to simple mortgage shall, so far as may be, apply to such charge.

“Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly insured in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.”

The expenses incurred by the trustee are a charge upon the trust property but this charge, unlike other types of charges, cannot be enforced by the sale of the trust property for it would have the effect of destroying the trust. Section 32 of the Trust Act says that the trust may only reimburse itself for such expenses out of the income of the trust estate and prohibit any disposition of the trust property without previous payment of his expenses.

The second exception lays down that no charge shall be enforced against any property in the hands of the person to whom such property has been transferred for consideration and without notice of the charge. This exception brings out the distinction between a charge and mortgage.

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Mortgage And Charge Distinguished:

The main points of difference between mortgage and a charge are as follows:

A mortgage is a transfer of an interest in specific immovable property but a charge is not. In a charge no right in rem is created, but the right is something more than a personal obligation, for it is a just ad rem, that is right of payment out of property specified, while a mortgage is a right in rem.

A charge may be created by act of parties or by operation of law; but a mortgage can be created only by act of parties.

The creation of a charge does not necessarily imply the existence of a debt while it is always so in case of a mortgage.

A mortgage is good against subsequent transferees and may be enforced against a bona fide purchaser for value with or without notice, while a charge is good only against subsequent transferee with notice.

A charge created by operation of law does not require registration pre scribed by section 59 of the Act for a mortgage. A charge created by act of parties requires registration irrespective of the amount involved.

It should be noted that a transaction intended to be a mortgage but not reduced to writing and registration in cases where such a formality is required cannot operate as a charge. In Goinda v. Dwarka Nath, it was observed that: “if an instrument is expressly stated to be a mortgage, and give the power of realization of the mortgage money by sale of mortgaged premises, it should be held to be a mortgage. The fact that necessary formalities of the due execution were wanting would not convert the mortgage into a charge. If, on the other hand, the instrument is not on the face to it a mortgage, but simply creates a lien, or directs the realization of money from a particular property without reference to sale, it creates a charge.”

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Charge And Lien Distinguished:

In law, a lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the lienor and the person who has the benefit of the lien is referred to as the lienee.

A charge may be created by the act of parties or by operation of law, but lien can arise only by operation of law.

A charge may not only empower its possessor in many cases to hold the property charged, if it is in his possession, but also to enforce it in a court of law. A lien, on the other hand, is simply a right to possess and retain property until some charge attaching to it is paid or discharged.

A charge is confined to immovable property, but a lien may be in respect of movable property.

Charge And Simple Mortgage Distinguished:

Section 58 of The Act defines simple mortgage as:

“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..

In simple terms a simple mortgage does not involve giving the possession of the mortgagor's property to the mortgagee. It is under mutual agreement that in case of non-payment by the mortgagee to the mortgagor within the specified time, the mortgagee can cause the mortgaged property to be sold in accordance with law and have the sale proceeds adjusted towards the payment of the mortgage money.

In a simple mortgage, there is a personal covenant to pay the mortgage money whereas in charge, there is no understanding to pay the money personally.

Mortgage and charge

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In simple mortgage there is a transfer of interest in the property mortgaged, in a charge there is no such transfer. Not withstanding this vital distinction, the section says:

“The provision hereinbefore contained which apply to simple mortgage shall, so far may be, apply to charge.” As in case of a simple mortgage, the charge-holder has got a right to enforce the charge by sale of the property subject to charge.

KINDS OF CHARGES

The charges that have been dealt in this section are:-

Charges created by act of parties.

Charges arising out of operation of law.

The Nagpur HC had held that a charge which is created by a decree is not created by acts of parties, nor can it be said to have been creates by operation of law. Such charge does not fall under the section nor does the principle underlying it apply to it. But in a later decision, the same HC has held that a charge created by a compromise of a money decree is a charge created by the act of parties and is thereof governed by this section. The Patna HC has, however, held that where a charge is created by a decree which was passed in pursuance of an agreement between the parties; it is a charge by act the act of parties and consequently, one contemplated by sec. 100 of the Act. The Calcutta HC held that a charge created by a consent decree over certain property of the husband for maintenance of the deserted wife for his life was in the nature of a charge contemplated by sec. 100 of the Act, and will not lapse by death of the husband. But a charge created by ordinary decree would not be charge created by the acts of parties and the provision of sec. 100 would not apply.