492 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
- Pledge can only be of personal property. Mortgage can be of both personal as well as real property.
Mortgage and Liens
A lien is a kind of security which is created by the operatin of the law. Lien is a right created by law and not by contract to retain possession of the property blonging to another until certain demands are satisfied.
The law on the subject of lien is scattered in many statutes of the Indian Legislature. E.g. Contract Act Sections
170-General-171-Bankers Solicitors, etc., 221-Agent’s lien. Sale of goods 47, unpaid Vendor’s lien. T. P. 554 : 55 (6) seller’s and buyer’s lien.
Lien does not create general ownership as a mortgage does, not even qualified property as in a pledge—only right to retain possesion.
Both mortgagee and pledgee can sell: but lien holder cannot.
Mortgage and a charge
- A charge is defined in Section 100. There are two elements in a charge :
(1) There is a pecuniary liability.
(2) Immoveable property is made security for the discharge of that pecuniary liability.
- In a mortgage there are three elements :—
(i) There is pecuniary liability.
(ii) Immoveable property is made security for the discharge of that pecuniary liability.
(iii) There is a transfer of an interest in that property in favour of the creditor.
- In a charge there is no transfer of interest. There is only burden.
35 Cal. 837 (844) ; 13 Lah. 660 T. B.
35 Cal. 985.
- The difference between mortgage and charge is material.