Distinguish between the following: Charge and mortgage.
CS Executive · Economic, Business and Commercial Laws · PYQS · December 2021
Distinguish between the following: Charge and mortgage.
Answer & Explanation:
A mortgage is transfer of an interest in the property made by the mortgagor as a security for the loan, while the charge is not the transfer of any interest in the property though it is security for the payment of an amount. A charge may be created by act of parties or by operation of law. A mortgage can only be created by act of parties. A mortgage deed must be registered and attested by two witnesses, while a charge need not be made in writing, and if reduced to writing, it need not be attested or registered. In certain types of mortgage (viz., mortgage by conditional sale and anomalous mortgage) the mortgagor can foreclose the mortgaged property but in charge, the charge-holder cannot foreclose though he can get the property sold as in a simple mortgage. From the very nature of it, a charge as a general rule, cannot be enforced against a transferee for consideration without notice. But in a mortgage, the transferee of mortgaged property from the mortgagor, can only acquire the remaining interest of the mortgagor, and is therefore, only bound by the mortgage. In a charge created by act of parties the specification of the particular fund or property negatives a personal liability and the remedy of the charge-holder is against the property only. In a mortgage, there can be security as well as personal liability. In fact, the absence of a personal liability is the principal test that distinguishes a charge from a simple mortgage.
Topics: Transfer of Property Act, 1882
Related Questions in this Topic
- Distinguish between Vested and Contingent Interest under Transfer of Property Act, 1882.
- Distinguish between the following: Simple mortgage and Mortgage by conditional sale.
- Enumerate any four kind of properties which cannot be transferred under the Transfer of Property Act, 1882.
- Distinguish between the following: Actionable claim and Non-actionable claim.
- Distinguish between the following: Tenancy at will and Tenancy by sufferance