490 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
(ii) Transfer of an Interest:
It means the tranfer of some right belonging to the mortgagor in respect of the property.
Ownership consists of a bundle of rights, such as, right to possess, right to enjoy, sell, etc.
It is enough if one of these rights is transferred. The right transferred may vary :—
(i) It may be the right to sell.
(ii) It may be the right to enjoy.
(iii) It may be the right to own.
- The nature of the right transferred is matter of no consequence so long as some right is transferred.
III. T HE PURPOSE MUST BE SECURING THE PAYMENT OF MONEY ADVANCED .
The transfer of interest is by way of Security. The idea of a Security involves two things. There must be a debt or pecuniary liability and secondly there must be some property pledged for the meeting of that liability.
The purpose of the transfer must be securing of the debt. A transfer made for the purpose of securing a debt must be distinguished from a transfer, the purpose of which is to discharge a debt.
25 All. 115=30 I. A. 54.
11 Bom. 462.
- The right trasferred must be to enable the man to recover the debt. The transfer must not extinguish the debt. If the effect of the transfer is to extinguish the debt then there is no mortgage.
Illustration. —
11 Bom. 462 Abdulbhai vs. Kashi
In 1862, A in consideration of Rs. 150 passed to B a writing called Karz Rokha (or debt-note). It proved ( inter alia ) that B should hold and enjoy a certain piece of land belonging to A for twenty years, that at the end the land should be restored to A free from all claims in respect of principal or interest.
Held, not a mortgage.
25 All. 115.