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Section 59: Mortgage when to be by assurance

Transfer of Property Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1882
Section 58 All 137 Sections of Transfer of Property Act Section 60

Legal Commentary & Landmark Judgments: Section 59

Section 59 regulates the execution and registration formalities of mortgages, mandating that 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.

  • Mandatory Writing & Registration: Where principal money secured is ₹100 or upwards, mortgage (other than by deposit of title deeds) must be by a registered instrument signed by the mortgagor.
  • Two Attesting Witnesses: Instrument must be attested by at least two attesting witnesses who personally witnessed execution.
  • Mortgage by Deposit of Title Deeds Exception: Mortgage by deposit of title deeds under Section 58(f) is exempted from Section 59 formalities in notified towns, though state amendments frequently mandate registration of memorandums.
  • Oral Mortgage Void: An unregistered mortgage or oral mortgage securing ₹100 or more is void and creates no legal charge on the property.
Key Landmark Precedents:
  • M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, (1969) 1 SCC 573: The Supreme Court authoritatively analyzed Section 59 attestation, holding that attesting witnesses must sign with animo attestandi (intention to attest execution), and a registering officer or identifying witness signing administratively does not satisfy Section 59.
  • State of Haryana v. Narvir Singh, (2014) 1 SCC 105: The Supreme Court held that a mere deposit of title deeds does not require registration under Section 59; however, if a written memorandum creates the mortgage contract in presentia, it requires registration under Section 59 read with Section 17 Registration Act.
Courtroom Practice & Strategic Litigation Guidance:

In mortgage drafting, ensure two independent witnesses sign the deed and append their full names and addresses to withstand Section 59 attestation challenges.

Section 58 All 137 Sections of Transfer of Property Act Section 60