0

[Date]
ASSIGNMENT 22:
DEED OF
MORTGAGE
NAME: MOHD OVES AHMAD
ROLL NO: 34
CLASS: BA LLB(h)/ SEM VIII REGULAR
SUBJECT: CLINICAL II
SUBMITTED TO: ADV RAJESH
SHARDA
 1

INTRODUCTION

In India, section 55 of the Transfer of Property Act,1882 explains for the relevant convenants
and under section sub section 2 of section 55 of the Transfer of Property Act,1882, the benefit
of the covenants run with the land and can be enforced by the transferees for time to time
except the covenant as to indemnity. Before going to discuss with the deed of mortgage, it is
apt to see how a conveyance begins with. A conveyance starts with the names of the parties
and it ends with the execution and attestation clauses.

Some Essential Requirements Of Deed Of Transfer:

1) Description of deed; 2. Parties to the deed; 3.Date on which it is executed. These three are
essential requirements of a deed. As a matter of fact, there are special requirements of
different kinds of transfer, such as lease, sale, mortgage, gift, and exchange etc.,

1. Description of deed:

The title of deed is to be written in capital letters like '' THE DEED OF MORTAGE''; ''THE
DEED OF SALE''; THE DEED OF LEASE''. Etc.

2. Parties to the deed:

While drafting a deed, the name of party comes first, and then the surname and thereafter the
address of the party by other descriptions like '' son of '' (''s/o''), ''wife of ''(''w/o''), ''daughter
of '' (''d/o''). the transferor must be mentioned first thereafter the the transferee. And then the
occupation/profession of party comes next. If there is a confirming party, he/she may be
joined and placed next after the transferor. It must be remembered that all proper parties to a
deed , however the inter parties should be impleaded for the reason in common law, only
parties to the contract can take benefit under the same. If any change in names of the parties
is intended, such change should be accounted for after the name of the conveying party. If a
woman, who is divorced, her name should be described as '' fame sole''. Caste or religion may
be mentioned.

Trust: If there is trust, their names and as trustees to the estate under the deed of trust must
 2

be stated. In case of any trustee who is appointed by Court, the date of such order of the
Court and its proceedings are to be mentioned.

Government: In case of Government, person authorized under Article 229(1) of Indian

Constitution is to be mentioned in the deed and such transfer must be expressly made on
behlaf of or in the name of the President of India or the Governor of State concerned.

Firms: In case of Firms, all partners must join as under section 19 of the Indian Partnership
Act (IX of 1932). Here, it is essential to see that one or more partners of a firm shall not
transfer any immovable property which belongs to such firm in the absence of express terms
or by virtue of custom or usage to the contrary. However, if trading assets of a firm, which
business is to buy and sell lands, the managing partner can sell as the partner of firm and
acting on behalf of such firm carrying business under the name and style of such firm.

Juridical Persons: If registered society, company, after their names, registered under
Societies Registration Act, or the Indian Companies Act, or incorporated under anyy special
statue with full address of the head office are to be mentioned.

Recitals Of Deed: The recital of the deed must be short and intelligible. The recital of a deed
must contain a brief history of the property up to its vesting in the transferor. Basically,
recitals are two types. 1. Narrative recitals, 2. Introductory recitals. Narrative recitals means
facts and circumstances which show the nature of interest to be dealt with. Introductory
recitals means those show the motive or intention behind the execution of the deed and are
immediately followed by the operative part , however Introductory recitals of a deed can
contain facts culminating in the execution of the deed beginning from the agreement up to the
motive for such transfer.

Habendum: It means part of the deed which explains the interest that the purchaser is to take
in the property such phrases as '' to have'' and ''to hold'' are to be used, however, those are not
essential to make the transfer.

Covenants: Generally a covenant can be in express terms. However, it is inferred on the

construction of the entire instrument. That too, an implied covenant or covenant in law, is one
 3

which the law implies either from the nature of the transaction or from the use of certain
technical words. Further, a covenant is an agreement under seal,whereby one or more of the
parties to the deed stipulate for the truth of certain facts, or is bound to do or not to do a
specified thing.

Apart from the above, testimonium, Testatum, Operative Words, Parcels, Exceptions and
Reservations, Completion of transaction, execution, Attestation, Possession of the property,
Registration of deed, Delivery of deed, Essence of drafting of deed are also essential.

Requirements Of Mortgage Deed:

1. A thorough investigation of title upto 60 years and preparation of an abstract on title and a
thorough search in all the places as required in the case of sale.

2. Recitals: a short history of the property right upto its vesting in the mortgagor and the
object of the loan—Amount and rate of interest.

3. Parties to the deed: Mortgagor first and thereafter the mortgagee.

4. Operative words: in the case of a simple mortgage, the property is charged and assured as
security for repayment of the mortgage debt. In case of English mortgage, it is out and out
sold to the mortgagee subject to the convenant as to re-conveyance upon repayment of the
debt with interest. (Sec 58 (e) of Transfer of Property Act).

5. Possession: An English mortgagee has the right to take possession of the property. Such a
mortgage should contain a clause as to the appointment of a Receiver who may be a nominee
of the mortgagee. Sec 69A of Transfer of Property Act.

6. Execution and Attestation: Attestation is compulsory to every mortgage. In case where the
mortgagor doest not know the language, the deed must be explained to him by some
cpmpetent person.

7. Registration: Compulsory in case of mortgage of value above Rs 100/-, and in all cases
under the West Bengal Land Reforms Act (Vide section.7).
 4

8. Delivery of title deed: A mortgagee is entitiled to all the title deeds of the mortgaged
property. If for any reason they are left with the mortgagor through inadvertence or
negligence, he can manipulate a prior equitable mortgage by depositing the same elsewhere.

9. Redemption: Period is fixed by agreement between the parties. Under Article 61 of The
Limitation Act,1963, a suit for redemption may be brought within 30 years from when the
right to redeem accrues according to the agreement. In case where the property has been
transfered by the mortgagee for valuable consideration the period of limitation is 12 years for
the date of knowledge.

Before a deed is executed, the executant should read the entire deed. If the executant cannot
read, then it should be read over over and explained to him by a competent person. That too,
in case of a purdanashin lady, care should be taken that she totally understands the terms of
the deed, implications and effect of the deed. A fortiori, the fact of explaining should be
endorsed on the deed itself.
 5

DEED OF MORTGAGE

This Deed of Mortgage made at Delhi this 1ST Day of January 2019 Between Owais Bashir,
son of Faiz Bashir resident of C- 50, Indira Nagar, New Delhi hereinafter called as a
mortgagor of the ONE PART and Atif Aslam, son of Mohammad Shahid resident of 49/3,
Gaffar Manzil, New Delhi hereinafter called as a mortgagee of the OTHER PART.

WHEREAS, the mortgagor is absolutely seized and possessed of or otherwise well and
sufficiently entitled to the house bearing municipal no. 829 situated on Laxmi Nagar, Road 6,
New Delhi more particularly described in the Schedule hereunder written;

AND WHEREAS, the mortgagor has requested the mortgagee to lend him a sum of Rs.
90,00,000 (rupees ninety lakh only) which the mortgagee has agreed on the mortgagor
mortgaging his property.

NOW, This Deed Witnesseth

That in pursuance to the said agreement and in consideration of the sum of Rs. 90,00,000
(rupees ninety lakh only) at or before the execution of these presents paid by the mortgagee to
the mortgagor (the receipt whereof, the mortgagor doth hereby admit and acknowledge and of
and from the same hereby release and discharge the mortgagee), the mortgagor hereby
covenants with the mortgagee that he will pay on the 5 th day of February 2019 (hereinafter
called "the said date"), the said sum of Rs. 15,00,000 (rupees fifteen thousand only) with
interest @ 2% per annum from the date of these presents till the repayment of the said sum in
full, every quarter the first instalment of interest to be paid on the 15 th day of March 2019 and
each subsequent instalment on the 10th day of July, October, January and April of each
succeeding year until the said sum is repaid in full.

AND THIS DEED FURTHER WITNESSETH THAT

In consideration aforesaid, the mortgagor doth hereby transfer by way of mortgage his house
bearing municipal no. 829 situated on Laxmi Nagar, Road 6, New Delhi and more
particularly described in the Schedule hereunder written as a security for repayment of the
 6

said sum with interest @2% per annum with the condition that the mortgagor, his heirs,
executors, administrators or assigns shall on the said the pay to the mortgagee, his heirs,
executors, administrators or assigns the said sum of Rs 90,00,000 (rupees ninety thousand
only) together with interest thereon at the rate mentioned above, the said mortgagee, his heirs,
executors, administrators, or assigns shall at any time thereafter upon the request and at the
cost of the mortgagor, his heirs, executors, administrators or assigns reconvey the said house,
hereinbefore expressed to be mortgaged unto or to the use of the mortgagor, his heirs,
executors, administrators or assigns or as he or they shall direct.

And It Is Hereby Agreed And Declared that if the mortgagor does not pay the said mortgage
amount with interest when shall become due and payable under these presents, the mortgagee
shall be entitled to sell the said house through any competent court and to realise and receive
the said mortgage amount and interest, out of the sale proceeds of the house.

And It Is Further Agreed And Declared by the mortgagor that during the period, the mortgage
amount is not paid and the said house remains as a security for the mortgage amount, the
mortgagor shall insure the said house and take out an insurance policy in the joint names of
the mortgagor and mortgagee and continue the said policy in full force and effect by paying
premium and in case of default by the mortgagor to insure or to keep the insurance policy in
full force and effect, the mortgagee can insure the said house and the premium paid by the
mortgagee will be added to the mortgage amount, if not paid by the mortgagor on demand.

And It Is Further Agreed That the mortgagor can grant lease of the said house with the
consent of the mortgagee in writing.

And It Is Further Agreed by the Mortgagor that he shall bear stamp duty, registration charges
and other out of pocket expenses for the execution and registration of this deed and
reconveyance deed but however each party will bear cost and professional charges of his
Solicitor/Advocate.

IN WITNESS WHEREOF the parties have put their hands the day and year first hereunder
written.
 7

THE SCHEDULE ABOVE REFERRED TO

Signed and delivered by Owais Bashir the within named mortgagor

Signed and delivered by Atif Aslam the within named mortgagee

WITNESSES:

1. Raj Chaudhary

2. Arif Ali