Introduction to Usufructuary Mortgage
Usufructuary mortgage is a type of mortgage where the mortgagor delivers the possession of a property to the mortgagee to use the property and obtain rent, profits etc. from such property for repayment of the mortgage money. The mortgagee holds possession of the property and enjoys the benefits from such property till the payment of the mortgage money is complete.
Transfer of Property Act, 1882
Section 58 of the Transfer of Property Act, 1882 defines the different types of mortgages, including usufructuary mortgages. It defines mortgage as the transfer of an interest in immovable property for the purpose of securing the payment of money advanced, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. It also defines mortgagor and mortgagee.
According to Section 58 of the Transfer of Property Act, 1882, a mortgage is the transfer of an interest in immovable property for the purpose of securing the payment of money advanced, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The person who transfers the interest is called the mortgagor, while the person in whose favor the interest is transferred is called the mortgagee.
Section 60 of the Transfer of Property Act, 1882 lays down the rights and liabilities of the mortgagor and mortgagee in a usufructuary mortgage. It states that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee to deliver the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee. It also lays down the rights and liabilities of the mortgagor and mortgagee in a usufructuary mortgage.
Limitation Act, 1963
Article 61 of the Limitation Act, 1963 deals with the limitation period for redemption of a mortgage. It states that a mortgagor has the right to redeem the mortgaged property at any time before the expiration of thirty years from the date on which the right to redeem accrued.
Judgments on Usufructuary mortgage
The following are some of the relevant judgments on the subject:
- Singh Ram (D) Tr.Lr vs Sheo Ram & Ors on 21 August, 2014: The Supreme Court held that the bar of limitation of 30 years for redeeming a mortgage would not be applicable in case of Usufructuary mortgage. The Court observed that if the ownership is given to the mortgagee in such cases, then the whole purpose of the usufructuary mortgage will be defeated.
- Govindan Nair vs Abraham on 27 September, 2002: The Kerala High Court held that the mortgagee in possession of the mortgaged property is not entitled to file a suit for declaration claiming ownership of the property just because a long period of time has elapsed.
Commentary on Section 58 and 60 of Transfer of Property Act, 1882
Section 58 of the Transfer of Property Act, 1882 defines the different types of mortgages, including usufructuary mortgages. It defines mortgage as the transfer of an interest in immovable property for the purpose of securing the payment of money advanced, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. It also defines mortgagor and mortgagee.
Section 60 of the Transfer of Property Act, 1882 lays down the rights and liabilities of the mortgagor and mortgagee in a usufructuary mortgage. It states that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee to deliver the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee. It also lays down the rights and liabilities of the mortgagor and mortgagee in a usufructuary mortgage.
Conclusion on Usufructuary Mortgage
Usufructuary mortgage is a type of mortgage where the mortgagor delivers the possession of a property to the mortgagee to use the property and obtain rent, profits etc. from such property for repayment of the mortgage money. The Transfer of Property Act, 1882 defines the different types of mortgages, including usufructuary mortgages. The Limitation Act, 1963 deals with the limitation period for redemption of a mortgage. The judgments of the Supreme Court and various High Courts have further clarified the legal position on the subject. It is important to understand the provisions of the law and the judgments in order to have a clear understanding of the concept of usufructuary mortgage.
