498 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
Query. How can it be a mortgage if the sale is absolute ? This seems to conflict with the definition of mortgage which is transfer of an interest.
Difference in practice merely means this: that in English Mortgage, the mortgagee is entitled to immediate possession, While in the case of a mortgage by conditional sale, the right to possession depends upon the terms of the mortgage.
(2) In English Mortgage, there is a personal obligation to pay. In a conditional mortgage, there is no such right.
REQUISITES OF A MORTGAGE BY DEPOSIT OF TITLE DEEDS.
I. Debt.
- A debt has been defined as a sum of money due now even though payable in the future, and recoverable by action— ( 1922 ) 2 K. B. 599 (617).
N OTE . —As to difference between a debt due by statute and debt due by contract—(1922) 2 K. B, 37. There is no necessity of a promise to pay in order to render the money recoverable when the debt is a statutory debt.
The debt may be an existing debt or a future debt. The deposit may be to cover a present as well as future advances— 50 I. A. 283 ; 17 All. 252 ; 17 All. 252 ; 25 Cal. 611.
The debt may be a general balance that might be due on an account.
2 Mad. 239 P. C.
II. D EPOSIT OF TITLE DEEDS .
(i) Title deeds
It has been held in England that it is sufficient if the deeds deposited bona fide relate to the property or are material evidence of title, and that, it is not necessary that all the deeds should be deposited. (1872) 8 Ch. App. 155.
These cases have been followed in India.
59 Cal. 781.
- But Page c.f. in 11 Rang 239 F. B. held that the documents must not only relate to the property but must also be such as to show a prima facie or apparent title in the depositor.