THE TRANSFER OF PROPERTY ACT 497
The question is not what the parties meant, but what is the meaning of the words they used.
Importance of the Proviso.
- The condition must be embodied in the same document.
Points to be noted.
Only means that in determining the question if the condition is contained in another document Court cannot take into consideration in determining intention.
But, even if, it was contained in the same document, it is necessarily a mortgage by conditional sale and not a sale with the condition of repurchase.
The question of construction still remains.
(iii) Usufructuary Mortgage
- C HARACTERISTICS .
(i) Delivery of possession or undertaking to deliver possession.
(ii) Authority to retain such possession until payment of mortgage-money.
(iii) Authority to receive the rents and profits and to appropriate the same in liue of interest or in payment of the mortgage-money.
N OTE . —There is no personal obligation to pay.
(iv) English Mortgage
I. C HARACTERISTICS
(i) There is a personal obligation to repay by the mortgagor on a certain day.
(ii) The transfer of the mortgagee is absolute.
(iii) The transfer is subject to the proviso that the mortgagee shall reconvey the property on payment.
II. This closely resembles the conditional mortgage.
Difference.
(i) In the English Mortgage the sale is absolute while in the mortgage by conditional sale the sale is ostensible.