Transfer of Property Act (TPA)
Formalities of a Mortgage under Section 59: Registration, Signature and Attestation
Section 59 draws a line at a hundred rupees. Where the principal money secured is a hundred rupees or upwards, a mortgage can be made only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Below that figure the parties have a choice: the same registered instrument, or delivery of the property — except that a simple mortgage, which involves no delivery, must always be made by an instrument. One kind of mortgage stands outside the section altogether, because it needs no instrument at all.
Figure 1: The hundred-rupee line, and the three requirements of a mortgage deed
1. The Section
Section 59, TPA 'Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.' |
2. The Three Requirements
2.1 A registered instrument
The instrument must be registered under the Registration Act, 1908. An unregistered deed, where registration was compulsory, does not create the mortgage: by section 49 of that Act it does not affect the immoveable property comprised in it. It may still be used within the proviso to that section — as evidence of a contract in a suit for specific performance, and as evidence of a collateral transaction not required to be effected by a registered instrument.
2.2 Signed by the mortgagor
The signature required is that of the mortgagor, the person who gives the security. The mortgagee's signature is not required by the section, though in practice he signs where the deed contains covenants on his part. Signature includes a mark, and may be made by a duly authorised agent.
2.3 Attested by at least two witnesses
Attestation is defined in section 3. Each of two or more witnesses must have seen the executant sign the instrument, or have received from him a personal acknowledgment of his signature, and each must have signed the instrument in the presence of the executant. It is not necessary that more than one of them should have been present at the same time, and no particular form of attestation is necessary.
The requirement | What it means in practice |
|---|---|
Two or more witnesses | Two is the minimum; a deed attested by one witness does not satisfy the section |
Seen him sign, or received a personal acknowledgment | The words 'personal acknowledgment' were added by the amendment of 1926, after the decision that a witness who had not actually seen the signature could not attest |
Signed in the presence of the executant | The witness must sign in his presence, though the witnesses need not be present together |
With the intention of attesting | Animus attestandi is essential: a person who signs as a scribe, an identifier before the Sub-Registrar, or a party to the transaction does not thereby become an attesting witness |
Knowledge of the contents | Not required — the witness attests the signature, not the transaction |
3. The Two Sides of the Line
Principal money of ₹100 or upwards | Principal money under ₹100 | |
|---|---|---|
How the mortgage may be made | Only by a registered instrument, signed and attested | Either by such an instrument, or by delivery of the property |
Simple mortgage | A registered instrument | A registered instrument — the exception in the second paragraph excludes a simple mortgage from the delivery route, since no possession is given under it |
Usufructuary, English, conditional sale | A registered instrument | An instrument, or delivery of the property |
Mortgage by deposit of title deeds | Outside the section altogether | Outside the section altogether |
4. The Exception: Deposit of Title Deeds
A mortgage by deposit of title deeds under section 58(f) is expressly excluded from section 59. It is created by the deposit of documents of title, with intent to create a security, in a town notified for the purpose. No instrument is necessary, and no registration. Where the parties nevertheless execute a memorandum, the question is whether the writing merely records the deposit — in which case it needs no registration — or is the bargain between them, in which case it is the instrument by which the transfer is effected and must be registered.
5. Consequences of Non-Compliance
- No mortgage is created. Where the section requires a registered and attested instrument and one is not made, the transaction does not operate as a mortgage at all.
- A defective attestation is fatal to the deed as a mortgage, though the document may still be evidence of the loan.
- A personal remedy may survive. The lender is not without recourse: the debt itself may be sued upon, subject to limitation and to the rules of evidence about an unregistered document.
- And equitable relief may be available where the conditions of a mortgage by deposit of title deeds are in fact satisfied, since that form requires none of these formalities.
6. Landmark Cases
📖 Shamu Patter v. Abdul Kadir Ravuthan, (1912) 39 IA 218 (PC) Held: An attesting witness must have seen the executant actually sign the instrument, or must have signed in circumstances amounting to attestation of the signature itself. Attestation by a person who had not seen the execution and had merely received an acknowledgment was held insufficient as the law then stood. Ratio: The decision that led to the amendment of 1926, which added a personal acknowledgment of the signature as a sufficient basis for attestation. |
📖 Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty, AIR 1965 SC 1738 Held: An attesting witness need not know the contents of the document. What he attests is the execution, that is, the signature of the executant, and it is no objection to his attestation that he was unaware of what the deed contained. Ratio: Attestation certifies the signature, not the transaction. |
📖 M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri, (1969) 1 SCC 573 Held: To constitute attestation the witness must have put his signature animo attestandi — with the intention of attesting the execution of the document. A person who signs in some other capacity, such as the registering officer or a person identifying the executant, is not an attesting witness unless it is shown that he signed with that intention. Ratio: Animus attestandi is essential; a signature placed for some other purpose is not attestation. |
7. Related Topics and Provisions
- Mortgage — Definition and Essentials, Section 58 — what a mortgage is
- Kinds of Mortgages under Section 58 — and which of them may be made by delivery
- 'Attested' under Section 3 — the definition, and the amendment of 1926
- Sections 17, 49 and 60, Registration Act, 1908
- Section 54, TPA — the parallel formalities for a sale
- Execution vs Registration of a Sale Deed — the same two steps in the context of a sale