What are the different types of mortgages recognised under Section 58 of the Transfer of Property Act?

Question

I am taking a loan against my property and the bank documents mention 'equitable mortgage by deposit of title deeds'. What does this mean under Section 58? Specifically, I want to know how Transfer of Property Act 1882, Section 58 applies to a situation like mine and what the property law position in India actually is. If there is a deadline I should be aware of, I need to know that now.

MyVakeel Legal Desk · Accepted Answer

What are the different types of mortgages recognised under Section 58 of the Transfer of Property Act? is governed in India primarily by Transfer of Property Act 1882, Section 58, Transfer of Property Act 1882, Section 59 and SARFAESI Act 2002, Section 13. Outcomes in section 58 mortgage types disputes depend heavily on documentation, so check what you can actually evidence as you read.

Section 58 recognises six kinds of mortgages: simple mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, mortgage by deposit of title deeds (equitable mortgage), and anomalous mortgage.

An equitable mortgage is created merely by depositing original title deeds with the lender in notified towns, without a separate registered mortgage deed, though a memorandum recording the deposit is advisable.

In a simple mortgage the mortgagor does not deliver possession but personally binds himself to repay, giving the mortgagee a right to seek sale of the property through court on default.

Section 59 requires a registered instrument signed by the mortgagor and attested by two witnesses for mortgages of Rs.100 or more, except for equitable mortgages by deposit of title deeds.

Banks enforcing mortgages over Rs.100 secured loans commonly invoke SARFAESI Section 13 for faster recovery without going through a civil suit.

What this means for you: 1) Identify which type of mortgage your loan document creates before signing; 2) Retain copies of all title deeds deposited with the lender and get a receipt; 3) Check registration requirements for the specific mortgage type under Section 59; 4) Seek legal advice before creating a mortgage on ancestral or jointly owned property.

Where the facts are disputed, what usually decides a section 58 mortgage types matter is the paper trail — dated complaints, acknowledgments and written replies under Transfer of Property Act 1882, Section 58. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in property law.