Mortgage , mortgagor , mortgagee , mortgage-money and mortgage- deed defined
Section 58 of the Transfer of Property Act, 1882 deals with mortgage , mortgagor , mortgagee , mortgage-money and mortgage- deed defined. 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 Act came into force on 01 Jul 1882.
(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 arc called the mortgage -money, and the instrument (if any) by which the transfer is effected is called a mortgage -deed.
(b) Simple mortgage.-- 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.
(c) Mortgage by conditional sale.-- 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.]
(d) Usufructuary mortgage.-- Where the mortgagor delivers possession 2[or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage -money, and to receive the rents and profits accruing from the property 3[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 4[or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
(e) English mortgage.-- Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
5[(f) Mortgage by deposit of title-deeds.-- Where a person in any of the following towns, namely, the towns of Calcutta, Madras 6[and Bombay], 7*** and in any other town which the 8[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.
(g) Anomalous mortgage.-- 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.]
Section 58, The Transfer of Property Act, 1882 (Act 4 of 1882).
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Referred to by 5
- Regiatrstion Act s. 93
- Registration Act s. 48 Registered documents relating to property when to take effect against oral agreements
- Registration Act s. 89 Copies of certain orders, certificates and instruments to be sent to registering officers and filed
- Registration ACT s. 93
- Registration Act s. 93
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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State of Haryana v. Navir Singh
Court's Decision & Legal Precedent
Judgment of Main Case order-14.pdf 2013-10-07. CA 9030/2013. C.K. Prasad. DATE-CHECK false positive (2007 Finance Commissioner letter / 2006 fee notification); body is the named TP 58(f) reportable ending NEW DELHI, OCTOBER 7, 2013. Isolates TP 58(f): a mortgage by deposit of title deeds is effected by delivery of documents with intent to create security — no registered instrument is required, so mutation of such a mortgage does not attract stamp/registration fee. Different CNR from leftover ROP SCIN010365742015. Do not pad Govardhan (applies Navir) or TP 53/54.
On this section: TP 58(f) deposit of title deeds is a mortgage without a registered instrument; mutation attracts no stamp/registration fee (Navir Singh). Do not pad 53/54 or Govardhan.
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Bishwanath Prasad Singh vs Rajendra Prasad
Court's Decision & Legal Precedent
Where a sale of property is effected by one document and is followed by a separate agreement for reconveyance, the transaction constitutes a sale followed by an option contract rather than a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act. Consequently, the right to exercise the option to repurchase must be exercised within the applicable period of limitation. Furthermore, a deposit proceeding under Section 83 of the Transfer of Property Act is ministerial in nature and does not constitute a 'hearing and finally decided' adjudication on the merits of whether a mortgage exists, and therefore cannot operate as res judicata to estop the respondent from denying the existence of a mortgage.
On this section: Examined the statutory requirements for a transaction to be construed as a mortgage by conditional sale. The court clarified that the condition for reconveyance must be embodied in the same document that effects the sale.
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Anuj Jain Interim Resolution Professional for Jaypee Infratech Limited vs Axis Bank Limited
Court's Decision & Legal Precedent
Mortgage transactions executed by a subsidiary to secure loans of its holding company constitute preferential transactions under Section 43 of the Insolvency and Bankruptcy Code 2016 when: (1) the transactions transfer the subsidiary's property for benefit of the holding company (a related party and creditor of the subsidiary) for antecedent debts owed by the subsidiary to the holding company; (2) the transactions put the holding company in a beneficial position compared to other creditors in liquidation distribution; (3) the transactions fall within the two-year look-back period for related party transactions; and (4) the transactions are not made in the ordinary course of business or financial affairs of the subsidiary, which requires reading the word 'or' in Section 43(3)(a) as 'and' to ensure both the subsidiary's and transferee's ordinary course of business are considered. Furthermore, lenders of a holding company cannot be categorized as financial creditors of a subsidiary merely by holding mortgages on the subsidiary's assets because financial debt requires disbursal against consideration for time value of money to the corporate debtor, and mortgage debt does not satisfy this essential requirement. The distinction between secured creditor and financial creditor must be maintained, with financial creditors being those with direct engagement in the corporate debtor's functioning from inception, involvement in assessing viability, and role in restructuring.
On this section: Mortgage is transfer of interest in immovable property to secure payment of money advanced or existing/future debt or performance of engagement giving rise to pecuniary liability
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Surjit Kaur vs Kartar Singh
Court's Decision & Legal Precedent
In a usufructuary mortgage where no time limit is fixed for repayment of the mortgage money, the right of the mortgagor to redeem or recover possession commences not on the date of mortgage but on the date when the mortgage money is paid out of the rents and profits of the property or, where rents and profits partially satisfy the debt, on the date when the mortgagor pays or tenders the remaining balance to the mortgagee or deposits it in court. Consequently, the period of limitation of 30 years prescribed under Article 61 of the Limitation Act runs from such date of payment or deposit, not from the date of the mortgage itself. The mortgagor's right of redemption, being a statutory right under Section 62 of the Transfer of Property Act and rooted in equitable principles, cannot be extinguished merely by the passage of time; it persists until extinguished by act of the parties or by court decree.
On this section: Definition of mortgage and its various types including usufructuary mortgage, which is the central transaction at issue in these cases
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 58
What have the courts held on Section 58 of the Transfer of Property Act?
State of Haryana v. Navir Singh (07 Oct 2013) is the leading judgment on this section among those set out below: TP 58(f) deposit of title deeds is a mortgage without a registered instrument; mutation attracts no stamp/registration fee (Navir Singh). Do not pad 53/54 or Govardhan. Another 3 judgments on this section are set out below, all of them from the Supreme Court. They run from 2006 to 2020.
How do I find court cases under Section 58 of the Transfer of Property Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: TP Act 58, section 58 TP Act, section 58 of the Transfer of Property Act. People searching for it also type 58f tpa and 58 tpa act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 4 reported judgments on this section are set out on this page, beginning with State of Haryana v. Navir Singh (07 Oct 2013).
What should I read with Section 58 of the Transfer of Property Act, and has it changed?
5 other provisions in this corpus refer back to it.
When did Section 58 of the Transfer of Property Act come into force?
Section 58 of the Transfer of Property Act, commonly called mortgage, and cited as TP Act 58, came into force on 01 Jul 1882, having been enacted on 17 Feb 1882. It is in force as at the date shown on this page.
Other sections of this Act
- 55. Rights and liabilities of buyer and seller1096 words
- 108. Rights and liabilities of lessor and lessee1030 words
- 69A. Appointment of receiver892 words
- 3. Interpretation-clause658 words
- 35. Election when necessary614 words
- 76. Liabilities of mortgagee in possession533 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.