DILMURAD vs PROVINCE OF SINDH through Deputy Commissioner, Nawabshah S

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DILMURAD VS PROVINCE OF SINDH through Deputy Commissioner, Nawabshah S.58---Mortgage of immovable property---Scope---Type of mortgages---Under S.58(a) of the Transfer of Property Act, 1882, a mortgage is 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---Transferor is called a "mortgagor" and the transferee a "mortgagee", and the principal money and interest/profit thereon, the payment whereof is secured, is called "mortgage money"---All the said terms are defined in S.58(a) of the Act, but the term "mortgaged property" has not been defined therein although it has been used in almost every section of Chapter IV (Of Mortgages of Immovable Property and Charges) of the Act---Plain reading of S.58(a) implies that mortgaged property is that specific immovable property the interest wherein is transferred by the mortgagor in favour of the mortgagee in consideration of the purpose mentioned in the said section---Section 58(f) provides that where a person delivers to a creditor or to his agent documents of title of an immovable property with intent to create a security thereon, the transaction is called a mortgage by deposit of title deeds---This type of mortgage is also called an equitable mortgage---Transfer of an interest in the mortgaged property under S.58(a) of the Act in favour of the mortgagee creates a right in rem in favour of the mortgagee in respect of the mortgaged property that remains intact till the entire mortgage money is paid by the mortgagor to the mortgagee; during the subsistence of mortgage although the mortgagor remains the lawful owner of the mortgaged property, however, his proprietary rights in relation thereto are subject to the mortgagee's rights and interest therein, and they remain suspended till the entire mortgage money is paid by him to the mortgagee and the mortgaged property is redeemed by him in accordance with law; and, during such period, the mortgagor cannot transfer, alienate, sell or encumber the mortgaged property without the consent of the mortgagee, and any such action taken by him without the mortgagee's consent to defeat the mortgagee's rights and interest in the mortgaged property, would be illegal and would be subject to the rights and interest of the mortgagee in the mortgaged property.

DILMURAD vs PROVINCE OF SINDH through Deputy Commissioner, Nawabshah S — 2023 CLC 1323 KARACHI-HIGH-COURT-SINDH

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