Six Mortgages, Six Remedies: Untangling Section 58 of the Transfer of Property Act

A mortgage sounds like a single, simple idea, property offered as security for a loan. But the Transfer of Property Act, 1882 does not treat it as one transaction. Section 58 recognises six distinct types of mortgage, each with its own rules on possession, its own remedy if the loan goes unpaid, and its own formal requirements. Judiciary mains papers rarely ask you to simply list these six types. They ask you to identify which type applies to a specific fact pattern and, more importantly, what remedy follows from it. Getting the six types genuinely distinct in your mind, rather than blurred together, is what actually earns marks on this topic.

What a Mortgage Actually Is

Section 58(a) defines a mortgage as the transfer of an interest in specific immovable 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. The person transferring the interest is the mortgagor, the person in whose favour it is transferred is the mortgagee, the sum secured is the mortgage money, and the document creating or recording the transaction is the mortgage deed. The key idea to hold onto is that a mortgage transfers an interest in the property, not full ownership the way a sale does. This distinction is what separates mortgage from sale, and it is also why some types of mortgage, particularly mortgage by conditional sale and English mortgage, can look deceptively close to a sale on paper while remaining legally distinct.

Simple Mortgage

Defined under Section 58(b), a simple mortgage is one where the mortgagor does not deliver possession of the property to the mortgagee at all. Instead, the mortgagor personally binds himself to repay the mortgage money, and agrees, expressly or impliedly, that if he fails to pay as agreed, the mortgagee has the right to have the mortgaged property sold through a court decree or order, with the sale proceeds applied toward the mortgage money. The mortgagor stays in possession throughout. The remedy on default is judicial sale, not automatic ownership transfer, and a simple mortgage requires registration through a registered document regardless of the loan amount involved.

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Mortgage by Conditional Sale

This type resembles an outright sale on its face. The mortgagor ostensibly sells the property to the mortgagee, but on terms providing that the sale shall become absolute only on default of payment on a specified date, or that the sale shall become void on payment, or that the buyer shall retransfer the property to the seller on repayment. The critical safeguard here is that the transaction is treated as a mortgage, not a genuine sale, so long as the debt itself subsists and the parties clearly did not intend an outright, unconditional sale. Courts examine the substance of the arrangement closely, since disguising a mortgage as a conditional sale to circumvent mortgagor protections has historically been a real concern. The remedy for the mortgagee on default is foreclosure, not a simple judicial sale, meaning the mortgagor's right to redeem the property is extinguished and the conditional sale becomes absolute.

Usufructuary Mortgage

Defined under Section 58(d), this is the type where the mortgagor actually delivers possession of the property to the mortgagee, or binds himself to do so, authorising the mortgagee to retain that possession until the mortgage money is paid, and to receive the rents and profits arising from the property in lieu of interest, in payment of the mortgage money, or partly in each. The word usufructuary comes from usufruct, the right to enjoy the use and fruits of another's property. There cannot be two different usufructuary mortgages over the same property at the same time, since possession can only be handed to one party. The mortgagee effectively repays himself out of the income the property generates, rather than through a court-ordered sale, and this type notably gives the mortgagee no personal remedy against the mortgagor for the debt itself, the mortgagee's recourse is confined to the property and its income.

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English Mortgage

Defined under Section 58(e), an English mortgage arises where the mortgagor binds himself to repay the mortgage money on a certain, specified date, and transfers the mortgaged property absolutely to the mortgagee, subject to a proviso that the mortgagee will retransfer it to the mortgagor upon repayment as agreed. The word absolutely signals that this type carries stronger sale-like characteristics than a simple mortgage, though it remains a mortgage rather than an actual sale, since the retransfer obligation is built into the transaction itself. The remedy available to the mortgagee on default under an English mortgage is by sale, not by foreclosure, a detail that is frequently tested precisely because it inverts what candidates expect after studying mortgage by conditional sale.

Mortgage by Deposit of Title Deeds

Also called an equitable mortgage, this type is created not through a formal, elaborate mortgage deed, but simply by the mortgagor delivering the documents of title to the property to a creditor or the creditor's agent, in specified towns notified by the State Government, with the clear intention that those documents should serve as security for a debt. This is a comparatively fast and informal way to create a mortgage, useful in commercial lending, and is created purely through the act of deposit combined with the requisite intention, without necessarily requiring a separate registered deed in every case, depending on how the deposit and intention are established.

Anomalous Mortgage

Defined under Section 58(g), an anomalous mortgage is essentially the residual category, a mortgage that does not fit within any of the previous five types, simple mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, or mortgage by deposit of title deeds. It typically arises from a combination of elements drawn from more than one of these standard types, shaped by local custom or specific contractual terms between the parties. The rights and liabilities of the parties to an anomalous mortgage are governed first by their contract as recorded in the mortgage deed, and in the absence of clear contractual terms, by local usage. Possession may or may not be delivered, depending entirely on what the specific arrangement provides.

Why the Remedy on Default Is the Real Exam Trap

The single detail that trips up most candidates is matching each mortgage type to its correct remedy on default. Simple mortgage leads to a judicial sale through court decree. Mortgage by conditional sale leads to foreclosure, extinguishing the mortgagor's right to redeem. Usufructuary mortgage gives the mortgagee no direct remedy against the mortgagor personally, only the right to retain possession and collect income until repayment. English mortgage, despite its sale-like transfer language, leads to sale as the remedy, not foreclosure. Mixing up conditional sale and English mortgage on this exact point, foreclosure versus sale, is one of the most common errors in mains answers, precisely because the two types otherwise look structurally similar.

Frequently Asked Questions

Q1. How many types of mortgage does Section 58 of the TPA recognise?

Six: simple mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, mortgage by deposit of title deeds, and anomalous mortgage.

Q2. Does a simple mortgage involve delivery of possession?

No. In a simple mortgage, the mortgagor retains possession and is personally liable to repay, with the mortgagee's remedy on default being a court-ordered sale.

Q3. What is the remedy on default under mortgage by conditional sale?

Foreclosure, meaning the mortgagor's right to redeem the property is extinguished and the conditional sale becomes absolute.

Q4. How does the mortgagee recover money under a usufructuary mortgage?

By retaining possession of the property and collecting its rents and profits until the mortgage money is repaid, rather than through a personal claim against the mortgagor or a court-ordered sale.

Q5. What is the remedy on default under an English mortgage?

Sale, not foreclosure, despite the property being transferred absolutely to the mortgagee subject to a retransfer proviso on repayment.

Q6. How is a mortgage by deposit of title deeds created?

By the mortgagor delivering title documents to a creditor or the creditor's agent, in a notified town, with the clear intention of creating security for a debt, without necessarily requiring a formal mortgage deed.

Q7. What is an anomalous mortgage?

A mortgage that does not fall within any of the other five recognised types, governed first by the parties' contract in the mortgage deed and, failing that, by local usage.

Q8. Which two mortgage types are most commonly confused in exams?

Mortgage by conditional sale and English mortgage, since both involve sale-like language, but their remedies on default differ, foreclosure for the former and sale for the latter.

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Conclusion

Section 58 rewards precision. Knowing the six names is only step one, the marks come from correctly matching each type to its remedy on default and its treatment of possession. Nitesh Sir's TPA sessions at Aashayein Judiciary drill this exact distinction through problem-question practice, because mortgage law is one of the most consistently tested areas in Civil Judge Exam mains papers. If the six mortgage types still blur together in your notes, working through targeted PYQs in a structured judiciary coaching batch can help make each one distinct and exam-ready.