SECTION I
THE NATURE OF A MORTGAGE
I. D EFINITION .
- Section 58 defines what is a mortgage. According to the section, there are three ingredients of a mortgage transaction :—
(i) The transfer of interest.
(ii) In specific immoveable property.
(iii) For the purpose of securing the payment of money advanced by way of a loan.
II. E XPLANATION OF THESE INGREDIENTS .
(i) Immoveable property is not an essential ingredient of mortgage :
(1) Under the English Law, all kinds of property, personal or real, can be made the subject of a mortgage. The Real estate may be corporeal or incorporeal and the personal estate may be in possession or in action. The Estate may be absolute or determinable i.e. for life: it may be legal or equitable. Not only any kind of property may be the subject-matter of a mortgage but any interest in it may be mortgaged, whether such interest is vested, expectant or contingent.
(2) The Transfer of Property speaks only of immoveable property in relation to mortgages. This gives the impression that the law does not recognize the mortgage of a moveable property. This would be a mistake. The Transfer of Property Act merely defines and amends the law relating to property. It does not consolidate the law. It is, therefore, not a complete or exhaustive code of law relating to mortgage.
(3) Mortgages of moveables are recognized in India.
9 C. W. N. 14 : 8 Bom. S. R. 344.
(4) Law by which mortgages of moveables are governed.
The Transfer of Property Act makes no provision: The Indian Contract Act makes no provision. Consequently the principles of English Law will be applicable to such mortgages.
34 Cal. 223 (228) : 27 Bom. S. R. 1449.
(5) Mortgage of moveable property may be effected without writing.
(6) Mortgage of an actionable claim—in writing—though moveable by reason of Section 130 T.P.— 37 Bom. 198. (P. C.) Deposit of insurance policy.