Subject:

Property Law
Topic:
Charge - Definition and Elements
©Mohammed Shahzad
[B.Com(Hons.) LLB, LLM, UGC-NET)]
Assistant Professor of Law
Charge [S. 100]
𐄷 A charge is said to be created when, either by act of
parties or operation of law:
𐄷 immoveable property of one person is made security
for the payment of money to another person, but the
transaction must not amount to a mortgage.
𐄷 The essential elements of a charge are:
✾ Charge can be created only on Immovable Property:
A charge cannot be created on movable property
under S. 100 and 101, because it comes under the
provisions governing ‘pledge’ [S. 172 of the Indian
Contract Act, 1872 which is security for payment of
debt or performance of a promise.]
✾ It must not be a mortgage: As seen in Gobinda Chandra
v. Dwaraka Nath [(1906) 35 Cal. 87], the Court must
look into the substance of the security to ascertain
whether the security created amounts to a mortgage or
charge. If the deed specifically mentions that the security
created is a mortgage, then there is no doubt that no
charge has been created under S. 101.
✾ Intention to Create Security not Necessarily by Words: It
is not necessary to have technical words or formalities to
create a charge. There must be an intention of parties or
an operation of law to create a charge against immovable
property.
✾ Property must be only be Specified for Identification: It
is not necessary to be as definite as needed for mortgage.
Reference
𐄷 Dr. S.R. Myneni's Law of Property (Transfer of Property,
Easements and Wills), (2020).
Thank You!!