Mortgage by Conditional Sale

Property Law
INTERIM SUBMISSION

Submitted by

Jannavi Singha
DIVISION B, PRN: 16010224095
BATCH 2016 – 2021
OF

SYMBIOSIS LAW SCHOOL, NOIDA

SYMBIOSIS INTERNATIONAL (DEEMED) UNIVERSITY, PUNE

UNDER THE GUIDANCE OF

Ms. Pallavi Mishra

In`

July, 2018
INTRODUCTION
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.1 There are mainly six kinds
of mortgages which include – Simple Mortgage, Mortgage by Conditional Sale, Unsufructuary Mortgage,
English Mortgage, Mortgage by Deposit of Title Deeds, and Anamolous Mortgage.

The topic of concern for this research project is Mortgage by Conditional Sale. It is defined as a situation,
where the mortgagor ostensibly sells the mortgaged property on any of the three conditions:

a) On the condition that on default of payment of the mortgage money (loan) on a certain date the
sale shall become absolute or
b) on condition that on such payment being made the sale shall become void or,
c) on the condition that in such payment being made the buyer shall transfer the property to the
seller,

PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied
in the document which affects or purports to affect the sale? This kind of mortgage came into vogue in
India during Muslim rule and was given legal recognition in the Bengal Regulation Act, 1978. Maclean
CJ recognized the importance of the date of repayment of the debt by the mortgagor to the mortgagee. He
held that this certain date is an essential element of the mortgage in a Calcutta High Court case. 2
Previously the relevant sections of law pertaining to this topic were framed so as to ensure that two
separate documents were drawn up to carry out such a transaction, the sale deed and another document
regarding the reconveyance of the property. The provisions were subsequently amended to provide for
both halves of the transaction to happen through a single document. There have been cases were
confusion has arisen between such mortgages by conditional sales and pure sales of property. In such
cases, the confusion has been dealt with by taking into consideration a number of factors, primarily the
intention of the parties regarding the nature of the transaction at its commencement.3

1
Section 58(a) of the Transfer of Property Act, 1882.
2
Kinuram v. Nitve Chand (1907) 11 Cal WN 400
3
Mortgage by Conditional Sale – Astha Pratik, NUJS, Academike, www.lawctopus.com/academike/mortgage-
conditional-sale.
 First Party
 Name Sumit Jha
 Age 32 years
 Address K-1/62, Chittaranjan Park, New Delhi – 110019
 Occupation Branch Manager for Punjab National Bank,
Chittaranjan Park Branch.
Second Party
 Name Shivam Sharma
 Age 46 years
 Address 4/502, Eastend Apartments, Indirapuram,
 Occupation Ghaziabad, Uttar Pradesh – 201014
Neurosurgeon at Fortis Hospital, Sector 62,
NOIDA, Uttar Pradesh - 210001
Location of Property I-504,
Chittaranjan Park,
New Delhi – 110019
Description of Property Super built-up area: 1000sq ft.
Built-up area: 925
Carpet Area: 765
3 BHK house
3 Bathrooms
2 Balconies
1 Storeroom
1 Parking Covered
Age: Above 15 years
Wooden Flooring
Width of facing road: 39.5 ft.
Valuation of Property Rs. 94,00,000 (ninety four lakh only)
Circle Rate: Rs. 2,50,000

Type of Transfer Mortgage by Conditional Sale

Approximate Stamp Duty Rs. 1,88,000

Approximate Registration Duty Rs. 94,000

Jurisdiction Delhi

Additional Documents 1. Completely filled form A with signature

Original Document with Xerox copy.
2. Two passport size photographs on both
copies of documents (seller and purchaser)
3. Original ID proof of the concerned parties
(mortgager, mortgagee and two witnesses)
like voter card, pan card, passport, driving
licene, aadhar card, and in case of
 Companies, power of attorney/ board
resolution)
4. Bank draft of registration fee with
undertaking / affidavit
5. Copy of pan card or form 60.

BIBLIOGRAPHY:

A. BOOKS

1. Dr. Poonam Pradhan Saxena, M. (2013). The Transfer of Property Act (11th ed.). Delhi: Butter
worths.

2. Shukla, S. (2015). Transfer of Property Act. Delhi: Allahbad Law Agency.

3. Singh, A. (2016). The Textbook on the Transfer of Property Act 1882 (5th ed.). Delhi: Universal
Law Publication.

B. JOURNAL ARTICLE

4. Botra, N. (2017). Evolution of Leasing in India. SSRN , 4.

C. WEBSITES

5. Government, D. (n.d.). Delhi Online Registration Information Systen. Retrieved 30.07.2018, from
Delhi e-court:
https://eval.delhigovt.nic.in/without_Crate.aspx?dcode_main=NqbfbgcMVak%3d&dcode=BXM
K1vXkBxg%3d&deedcode=u0e0mSq3eSs%3d&deedsubcode=NfF48TQ++ZQ%3d&locality=tr
DHoUUx1D4%3d&Digest=av5X3xzVEYoTbhHNI7Pfkg

6. Maps of India.com. (2017). MCD Circle Rate. Retrieved August 30, 2018, from Maps of India:
https://www.mapsofindia.com/delhi/information/mcd-circle-rates.html

7. LLP, B. C. (2011). Registration of lease deed/ rent agreement. Retrieved July 30, 2018, from
Online Property Registration:http://www.onlinepropertyregistration.com/lease-deed-
registration.html

D. STATUTES

8. The TRANSFER OF PROPERTY ACT, 1882

9. INDIAN STAMP ACT, 1899 WITH DELHI STAMP RULES, 2007

10. THE REGISTRATION ACT, 1908