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? I have been reading conflicting things online and I would like to understand what Indian law actually says about this, which Act and Section applies, what the realistic timelines and costs are, and what I should be doing right now to protect my position. If the matter can be resolved without litigation I would prefer that route, but I want to know what my rights are before I agree to anything or sign any document.

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. The short answer is set out below, followed by the practical steps most people in this situation need to take. Read it alongside the specific provisions named, because the exact relief available to you turns on the facts you can prove on paper.

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 to do next: 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.

If the other side has already issued a notice, filed a case or set a deadline, treat the matter as time-sensitive — most remedies under Transfer of Property Act 1882, Section 58 carry limitation periods, and a delay you cannot explain weakens an otherwise strong case. 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 this practice area.