Published on: 12 July 2023 at 14:00 IST
Court: High Court of Patna
Citation: Raja Sri Sri Shiva Prasad Singh v. Beni Madhab Chowdhury (1922)
Honourable High Court of Patna has held that Charge of an Immovable Property only gives right to payment out of a particular fund or particular property without actually transferring rights of the property to the Charge Holder. However, in Mortgage records a transfer of an interest in specific immovable property.
Now the broad distinction between a mortgage and a charge is this: that whereas a charge only gives right to payment out of a particular fund or particular property without transferring that fund or property, a mortgage is in essence a transfer of an interest in specific immovable property. The line of division in England between a charge and a mortgage is a very clear one; but in this country the division is not so well-marked. It has been pointed out that there is very little difference, if any, between a charge and a simple mortgage as defined in section 58 of the Transfer of Property Act; and that, in a simple mortgage, the interest transferred is the right to have the property sold. If that be so, it becomes a question of some nicety to distinguish between a simple mortgage and a charge.
In the case of Dalip Singh v. Bahadur Ram [(1912) I.L.R. 34 All. 446.] the late Chief Justice of this Court, then Mr. Justice Chamier, laid down the three essentials constituting a simple mortgage as follows: “In order that there may be a simple mortgage, there must be (a) a transfer of an interest in specific immovable property, (b) a personal undertaking by the mortgagor to pay the mortgage money, and (c) an agreement, express or implied, that in the event of the mortgagor failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold”.
This case was followed by this Court in the case of Anand Ram Marwari v. Dhanpat Singh [(1916) 1 Pat. L.J. 563.] . Now in the present case the conditions (b) and (c) have been fulfilled; but there is no express transfer of an interest in the property. In the case already cited, Chamier J. said as follows: “In a simple mortgage the interest transferred is the right to have the property sold, and this need not necessarily be provided for in the deed in so many words; it may be inferred from the language used and where such an agreement can be inferred then the requirements of condition (a) are satisfied”. ……………
Drafted By Abhijit Mishra
