Word History of Mortgage As understood by 17th-century attorneys, the etymology of the word ‘ mortgage’ of the Old French term ‘morgage’. The word has been in English much longer than the 17th century, being first recorded in Middle English with the form morgage and the primary sense pledge (of Germanic origin) in a work written before 1393. Introductory It seemed to Sir Edward that it had to do with the doubtfulness of whether or not the mortgagor will pay the debt. When there is a dubiety of whether or not the person will pay the debt , there must be a condition. This etymology is the basis for the word ‘ Mortgage’. If mortgagor does not pay the debt, it is dead to him upon condition. If mortgagor does pay the debt, then the pledge/ mortgage is dead with regard to mortgagee. The word ‘mortgage’ is linked to phrase ‘ as security for performance of an obligation or repayment of a debt’. The giving of property, usually immovable property, as security to a creditor for payment of a debt. In another sense, it is a deed pledging the security. In India, it means: A mortgage is the transfer of - An interest in immovable property - For purpose of securing the payment of money advanced; or to be advanced by way of loan, - An existing or future debt, - Or the performance of an engagement which may give rise to a pecuniary liability. The Origin and historical development: During 1552-1634, Sir Edward explained , who is the great jurist, succinctly explained how the word mortgage was come from Old French words ‘’ mort’’, ‘’gage’’ and ‘’ dead’’.’’ Pledge’’. If mortgagor does not pay the debt forever, it is dead to him upon condition. If mortgagor does pay the debt, then the pledge/ mortgage is dead with regard to mortgagee. How to understand the terms: Flowchart: Or: Mortgagor Mortgagee Mortgage-money Mortgage deed The transferee is a mortgagee; The transferor is a mortgagor; The transferee is a mortgagee; The instrument is a mortgage deed. The principal money and interest of which payment is secured for the time being are called the mortgage-money. How to understand a mortgage? A mortgage is the transfer of ...: -An interest in immovable property Can: - An existing or future debt, - Or the performance of an engagement which may give rise to a pecuniary liability. Can: - For purpose of securing the payment of money advanced; or to be advanced by way of loan, There are different kinds of mortgages as enumerated in section 58 of the Transfer of Property Act. Kinds of Mortgages: 1. Simple Mortgage 2. Mortgage by Conditional Sale 3. Usufructuary Mortgage 4. English Mortgage 5. Mortgage by deposit of title of deeds 6. Anomalous mortgage Simple Mortgage - No delivery of possession if fails to repay the according to contract, of the mortgaged property mortgagee has right to sell the property. Simple mortgage:- the possession of the mortgaged property is not transferred from mortgagor to the mortgagee. If the mortgagor fails to pay according to the contract, the mortgagee has the right to sell the property and recover the loan from the sale amount. Mortgage by Conditional Sale – If fails to pay on On condition that payment is made, sale is invalid , or a certain date, the sale will become absolute On condition that on such payment , the buyer shall transfer the property to the seller. Mortgage by Conditional Sale: Under this Mortgage, the mortgagor apparently sells the property to the mortgagee on certain conditions.1.On failure to repay the mortgage money before a certain date the sale shall become absolute, or 2.On condition that on such payment of mortgage money the sale becomes invalid, or 3.On condition that on such payment the buyer shall transfer the property to the seller. Usufructuary Mortgage Possession is transferred to mortgagee Mortgagee receives income from the property The title deed retains with the owner 3. Usufructuary Mortgage In this mortgage, the possession of the mortgaged property is transferred to the mortgagee. The mortgagee receives the income (such as profit, interest ,rent etc) from the property until the repayment of the loan. The title deeds remain with the owner. 4. English Mortgage Mortgagor binds himself to repay the mortgage money on a certain date Transfers property Absolutely yet Mortgagee shall retransfer it to the mortgagor upon payment of mortgage money In an English Mortgage 1.The mortgagor binds himself to repay the borrowed money on a certain date. 2.The mortgagor transfers the property absolutely to the mortgagee. 3.But such transfer is subject to the condition that the mortgagee will retransfer the property on repayment before the agreed date. Mortgage by deposit of title of deeds Title is delivered to the mortgagee with an intention to create a security. Valid in towns like Kolkatta, Chennai, and Mumbai etc., State Government notifies such towns by publication 5. Mortgage by deposit of title of deeds In such mortgage, the mortgagor delivers the title document of the property to the mortgagee with an intention to create a security thereon. Such mortgage is valid in towns of Kolkatta, Mumbai and any other town as the State Government may notify by publication in Official Gazatte Anomalous mortgage A combination of different types of mortgages It is neither simple nor condition by sale nor by deposit of title deeds nor sn udufructury nor an English mortgage 6. Anomalous mortgage It is neither simple nor condition by sale nor by deposit of title deeds nor sn udufructury nor an English mortgage yet is a combination of different types of mortgages. Conclusion: For better understanding the word ‘ Mortgage’, apart from the above principles, it is apt to have a look on the maximOnce a mortgage, always a mortgage. In the Law of Mortgage by Dr. Rashbehary Ghose at page 231-232 under the heading Once a mortgage, always a mortgage it is noticed: In 1681 Lord Nottingham in the leading case of Harris v. Harris-firmly laid down the principle: Once a mortgage, always a mortgage. This is a doctrine to protect the mortgagors right of redemption: It renders all agreements in a mortgage for forfeiture of the right to redeem and also incumbrances of or dealings with the property by the mortgagee as against a mortgagor coming to redeem. In 1902 the well-known maxim, once a mortgage, always a mortgage, was supplemented by the words and nothing but a mortgage added by Lord Davey in the leading case of Noakes v. Rice, in which the maxim was explained to mean that a mortgage cannot be made irredeemable and a provision to that effect is void. The maxim has been supplemented in the Indian context by the words and therefore always redeemable, added by Justice Sarkar of the Supreme Court in the case of Seth Ganga Dhar v. Shankarlal. (See Achaldas Durgaji Oswal (Dead) ... vs Ramvilas Gangabisan Heda (Dead); AIR 2003 SC 1017, 2003 (1) AWC 671 SC, 2003 (1) CTC 364) It thus clear that the very conception of mortgage involves three principles. First, there is the maxim: Once a mortgage, always a mortgage. That is to say, a mortgage is always redeemable and if a contrary provision is made, it is invalid. And this is an exception to the aphorism, modus et conventio vincunt legem (custom and agreement overrule law). Secondly, the mortgagee cannot reserve to himself any collateral advantage outside the mortgage agreement. Thirdly, as a corollary from the first another principle may be deduced, namely, once a mortgage, always a mortgage, and nothing but a mortgage. In other words, any stipulation which prevents a mortgagor from getting back the property mortgaged is void. That is, a mortgage is always redeemable. -x- # Sec. 58 of the Transfer of Property Act, 1882 defines mortgage as - A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
Posted on: Tue, 03 Dec 2013 01:30:20 +0000
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