An Individual in his lifetime, one day or other, there arrives a need to execute documents like, Rent Agreement, Lease Agreement, Mortgage, Loan Agreements, Employment Agreements, Gift Deed, Sale Deed, Will, Partition Deed and Power of Attorney, etc.
Drafting is more a science than an Art, the careful draftsman should follow certain principles according to some established system to achieve the best results.
Sale Deed: In a case of Sale of Property; production of title deeds is obligatory on the part of the Vendor, which means and includes receipts which are being evident.
Lease: Deed of Lease for a Dwelling house which needs to contain what the lessor wishes, that the Lessee to abide by the conditions, example: Not to carry an offensive trade, etc. Tenancy agreements or letting furnished house, specifically to mention the amount of rent and pay regularly, rental agreements for fixed period, etc.
Will: Will is a necessary deed for the owner of the property or estate, execute in order to safeguard the interest of his property and family and avoid risks in the family.
Power Of Attorney: A power of attorney is an instrument empowering a specified person or persons to act for in the name of the person executing it. A power of attorney authenticated in the manner described under section 85 of the Indian Evidence Act for many purposes. For example: General Power of Attorney for a person going to reside abroad giving instructions to the agent to manage his property likewise.
Types of Mortgage:
Section 58 of The Transfer Of Property Act, 1882 define. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgaged”
Section 58(a) – A mortgage is the transfer of an interest in a 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 Transferor is called a Mortgagor, The Transferee a Mortgagee. The principal money and interest of which payment is secured for the time being are called the Mortgage-Money. The instrument (if any) by which the transfer is effected is called a Mortgage-Deed.
Section 58(b) – Simple mortgage-Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage.
Section 58(c) Mortgage by conditional sale-Where, the mortgagor ostensibly sells the mortgaged property-on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being
made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
Section 58(d) Usufructuary mortgage-Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.
Section 58(e) English mortgage-Where the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
Section 58(f) Mortgage by deposit of title-deeds-Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable
property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
Section 58(g) Anomalous mortgage-A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.
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