Section 58 of the Transfer of Property Act (TPA) is the foundational provision defining "mortgage" and classifying it into six distinct types under Indian law. Under this section, a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced as a loan, an existing or future debt, or an engagement giving rise to pecuniary liability.
Legal definition
Section 58(a) of the Transfer of Property Act, 1882 provides the core definition:
Section 58(a): A mortgage is the transfer of an interest in specific immoveable 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 section then defines the six types:
- Section 58(b) — Simple mortgage: The mortgagor binds himself personally to pay the mortgage money without delivering possession, and agrees that on default, the mortgagee may cause the property to be sold and apply the proceeds to the mortgage money.
- Section 58(c) — Mortgage by conditional sale: The mortgagor ostensibly sells the property on condition that on default of payment the sale becomes absolute, or that on repayment the sale shall become void, or that the buyer shall retransfer the property to the seller.
- Section 58(d) — Usufructuary mortgage: The mortgagor delivers possession to the mortgagee and authorises him to retain possession, receiving rents and profits in lieu of interest or in payment of the mortgage money or both.
- Section 58(e) — English mortgage: The mortgagor binds himself to repay on a certain date and transfers the property absolutely to the mortgagee, subject to a proviso for retransfer upon payment.
- Section 58(f) — Mortgage by deposit of title deeds (equitable mortgage): Created by depositing title deeds with a creditor in notified towns, with intent to create a security.
- Section 58(g) — Anomalous mortgage: Any mortgage that does not fall within the above five categories, or combines elements of two or more types.
How courts have interpreted this term
Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247]
The Supreme Court established that the mortgagor's right of redemption is an absolute and indefeasible right under Section 60, and any clause in a mortgage deed that clogs the equity of redemption is void. The Court affirmed the principle "once a mortgage, always a mortgage" — the transaction cannot be converted into a sale through contractual terms, regardless of the type of mortgage under Section 58.
Pandurang Ramchandra Mandlik v. Shantibai Ramchandra Ghatge [(1989) 2 SCC 627]
The Court distinguished between a mortgage by conditional sale under Section 58(c) and an actual sale with a condition for repurchase. The test lies in the intention of the parties — if the predominant intention was to secure a debt, the transaction is a mortgage regardless of its form; if the intention was an outright sale with a buyback option, it is not a mortgage.
State of Haryana v. Navir Singh [(2024)]
The Supreme Court clarified that for an equitable mortgage under Section 58(f), the mortgagor's act of depositing title deeds with the lender is sufficient to create the mortgage. Execution of a memorandum of entry or undertaking is not obligatory — these are merely evidentiary records and not instruments creating the mortgage. Consequently, registration of an equitable mortgage is not required.
Why this matters
Section 58 is the structural backbone of secured lending in India. Every home loan, every property-backed business loan, and every real estate development financing arrangement must operate within one of the six categories established by this section. Understanding which type of mortgage governs a transaction determines the rights and remedies available to both lender and borrower.
For banking practitioners, the distinction between simple mortgage and equitable mortgage is the most consequential. Most institutional lenders prefer equitable mortgages (deposit of title deeds) because they are simpler to create, do not require registration or stamp duty in many states, and can be constituted quickly. However, equitable mortgages can only be created in notified towns — a limitation that matters for rural and semi-urban lending.
For borrowers, the type of mortgage determines whether they retain possession (simple mortgage, English mortgage) or surrender it (usufructuary mortgage). It also determines the enforcement process — under the SARFAESI Act, 2002, banks can enforce simple mortgages and equitable mortgages without court intervention, but certain categories like usufructuary mortgages may require different enforcement mechanisms.
Related terms
Broader concepts:
Specific types:
Related provisions:
Frequently asked questions
How many types of mortgage are there under the TPA?
Section 58 of the Transfer of Property Act, 1882 recognises six types: simple mortgage (58(b)), mortgage by conditional sale (58(c)), usufructuary mortgage (58(d)), English mortgage (58(e)), mortgage by deposit of title deeds or equitable mortgage (58(f)), and anomalous mortgage (58(g)). Each type has distinct characteristics regarding possession, personal liability, and enforcement.
Which type of mortgage is used for home loans in India?
Banks and housing finance companies typically use either a simple mortgage under Section 58(b) or an equitable mortgage (deposit of title deeds) under Section 58(f). The equitable mortgage is preferred because it does not require registration, is quick to execute, and involves lower costs for the borrower.
What is the difference between simple mortgage and English mortgage?
In a simple mortgage under Section 58(b), the mortgagor does not transfer ownership — only a right to sell the property on default. In an English mortgage under Section 58(e), the mortgagor transfers the property absolutely to the mortgagee, subject to a condition for retransfer upon repayment. English mortgages involve a more complete transfer of interest.
Can a mortgage be created without a written deed?
Yes. Under Section 58(f), a mortgage by deposit of title deeds (equitable mortgage) is created by the act of depositing title deeds with the creditor with intent to create security. No written deed, registration, or stamp duty is required in most jurisdictions, as confirmed by the Supreme Court in State of Haryana v. Navir Singh (2024).
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.