Deed of Simple Mortgage under Section 58(b) of the Transfer of Property Act
A Deed of Simple Mortgage is a legal instrument by which a mortgagor binds themself personally to repay a debt and secures it by transferring a right to cause the mortgaged property to be sold through court intervention upon default. Crucially, possession of the property is not delivered to the mortgagee.
This document is executed between a borrower (mortgagor) and a lender (mortgagee) and is governed by Section 58(b) of the Transfer of Property Act, 1882. It is a registered instrument that must be signed by the mortgagor and attested by at least two witnesses.
- Governing law
- Transfer of Property Act 1882 (ss.58, 59, 60, 67, 69) + Registration Act 1908 (s.17) + Indian Stamp Act 1899
- Sections
- s. 58s. 59s. 60s. 67s. 69
When this is the right filing
- When the borrower retains physical possession of the property but the lender requires the security of immovable property for the loan.
- When the parties intend the lender's primary remedy on default to be a court-ordered sale of the property, not a private sale.
- When the transaction involves a secured sum of one hundred rupees or more, making a registered instrument mandatory.
- Do not use this deed for a mortgage where the lender takes possession and appropriates rents in lieu of interest; that requires a Usufructuary Mortgage under Section 58(d).
- Do not use this deed for a mortgage by deposit of title deeds, which is created by the physical delivery of documents and requires no registration under Section 58(f).
What the court looks for
- A clear personal covenant by the mortgagor to repay the principal and interest.
- An unambiguous description of the property in the schedule, sufficient for identification.
- Proof of execution by the mortgagor and attestation by at least two witnesses who signed in the executant's presence.
- Registration of the instrument with the Sub-Registrar having jurisdiction over the property, as required by Section 17 of the Registration Act, 1908.
- Absence of any clause that operates as a clog on the mortgagor's right of redemption under Section 60 of the Transfer of Property Act.
The structure the court expects
The components of the filed format, in the order they appear. LexPilot fills every one of them from your facts and papers.
- 1Recitals
- 2Operative part
- 3Schedule of property
- 4Witnesses
2. Interest — The Mortgage Debt shall carry interest at the rate of [rate]% per annum, calculated on [interest basis] with effect from the date of this Deed. Any interest in arrears may, at the option of the Mortgagee, be added to and form part of the principal and itself carry interest at the said rate.
Bracketed items are filled from your case.
Frequently asked questions
Is registration compulsory for a simple mortgage deed?
Yes. Under Section 59 of the Transfer of Property Act, a simple mortgage securing one hundred rupees or more can only be effected by a registered instrument. Section 17 of the Registration Act, 1908 also mandates registration for such instruments.
What is the key difference between a simple mortgage and an English mortgage?
In a simple mortgage, the mortgagor binds themself personally to pay and gives the mortgagee a right to sell the property through court, without transferring ownership. An English mortgage under Section 58(e) involves an absolute transfer of the property to the mortgagee with a covenant to re-transfer it upon repayment.
Can the mortgagee sell the property privately on default under this deed?
Generally, no. The remedy under a simple mortgage is to apply to the court for a decree to sell the property under Section 67 of the Transfer of Property Act. A private power of sale is available only in the limited circumstances permitted by Section 69, which should be verified for applicability.
Free trial · Drafting assistance, not legal advice — always verify before filing.