KSLU Corner™ New AIBE previous QP

mortgage by conditional sale

English · Property and land

Meaning. A mortgage in the form of an ostensible sale that becomes absolute if the loan is not repaid by a set date.

In a mortgage by conditional sale the mortgagor ostensibly sells the property on condition that the sale becomes absolute on default of payment on a certain date, or becomes void on payment, or the buyer must retransfer the property on payment. The mortgagee's remedy is foreclosure, not sale.

A transaction is not a mortgage of this kind unless the condition is embodied in the same document that effects the sale. The key question is the intention of the parties: a sale with a separate agreement to repurchase is an outright sale, while a single document showing the transaction was meant as security for a debt is a mortgage.

Example

The deed recited a sale but provided that the property would be reconveyed on repayment of the Rs 2 lakh loan within three years; it was a mortgage by conditional sale.

In Indian law

  • Section 58(c), Transfer of Property Act, 1882 (with proviso)
  • Section 67, Transfer of Property Act, 1882 (foreclosure)

See also

mortgage · foreclosure · clog on redemption · equity of redemption

Read more in the study notes

← Back to the dictionary