Sections 59 and 59A explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
A mortgage is not complete just because a lender and a borrower agree. Section 59 of the Transfer of Property Act, 1882 says how a mortgage must be made: by a registered instrument, signed by the mortgagor and attested by at least two witnesses, with an exception for mortgage by deposit of title-deeds. Section 59A widens the words "mortgagor" and "mortgagee". This article reads both as per the text of the Act consulted.
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 it is less than one hundred rupees, a mortgage may be effected either by such a registered instrument or, except in the case of a simple mortgage, by delivery of the property. Section 59A: unless otherwise expressly provided, references in the Chapter to mortgagors and mortgagees include persons deriving title from them.
Section 59: the rule on form
The section is printed with its number in brackets, "[59]", in the copy consulted, and it contains several words in square brackets, which mark amended wording. It has two paragraphs. Lenders and borrowers who want the document prepared and executed correctly can use loan documentation support.
First paragraph. "Where the principal money secured is one hundred rupees or upwards, a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses."
Second paragraph. "Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property."
The table sets the two cases side by side.
| Principal money secured | How the mortgage can be effected |
|---|---|
| One hundred rupees or upwards | Only by a registered instrument, signed by the mortgagor and attested by at least two witnesses; a mortgage by deposit of title-deeds is excepted |
| Less than one hundred rupees | Either by a registered instrument signed and attested as above, or, except for a simple mortgage, by delivery of the property |
The figure of one hundred rupees is stated here exactly as the text prints it.
The copy also prints "[ *]" after the section, marking omitted words. The copy does not say what was omitted. It also shows a stray fragment ("nal Information") before the section, from a collapsed web box whose contents are not printed.
State position. Some States have amended the Act or made local rules on mortgages and their form. The State position should be checked.
The four requirements for a mortgage of one hundred rupees or upwards
- A written instrument. The mortgage must be made by an instrument.
- Registered. The instrument must be registered. Registration is governed by the registration law, not by this Act. Section 3 says "registered" means registered under the law for the time being in force regulating the registration of documents; see our article on section 3, attested, registered and actionable claim.
- Signed by the mortgagor. The borrower who gives the security must sign.
- Attested by at least two witnesses. Section 3 explains what "attested" means: two or more witnesses, each of whom saw the executant sign or mark, or saw another sign by his direction, or received a personal acknowledgement, and each of whom signed in the executant's presence. The same article sets out the detail.
If the mortgage is by deposit of title-deeds, the paragraph does not require a registered instrument. That kind is described in section 58(f); see our article on section 58, kinds of mortgage.
Example. Anil Kapoor borrows Rs. 25,00,000 from a lender and offers his flat as a simple mortgage. The principal money is above one hundred rupees, so the mortgage can be made only by a registered instrument signed by Anil and attested by at least two witnesses. If Anil only signs a note and hands over nothing, the form does not meet section 59.
Mortgages below one hundred rupees
For small amounts, the second paragraph gives a choice. The mortgage may be effected either by the registered, signed and attested instrument, or by delivery of the property, but delivery is not available for a simple mortgage. The reason follows from the definition: in a simple mortgage, possession is not delivered (section 58(b)). So for a simple mortgage, even a small one, the registered instrument route is the only one.
Example. Two people agree that one will hold a small plot as security for a loan of fifty rupees by taking possession of it. Because the amount is less than one hundred rupees and the arrangement is not a simple mortgage, delivery of the property can create the mortgage, according to the second paragraph. Modern loan amounts are far above that figure, so the first paragraph is the one most often relevant.
Link with the Registration Act
Section 4 says that section 54 paragraphs 2 and 3 and sections 59, 107 and 123 are to be read as supplemental to the Indian Registration Act, 1908; see our article on sections 1, 2 and 4. Section 1 also allows the State Government to exempt areas from section 59 in the way it describes. So the registration requirement here sits alongside the registration law. The registration procedure, fees and stamp duty are not in this Act. See our guide on how to register a mortgage deed, and check your State's rules and stamp duty.
Section 59A: mortgagors and mortgagees include successors
Section 59A is printed within square brackets and reads: "Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively."
Its effect is simple. When the Chapter on mortgages speaks of the mortgagor or the mortgagee, it also covers persons who derive title from them. A buyer of the mortgaged property from the mortgagor, or a lender to whom the mortgagee assigns the mortgage, is within the reference, unless a section expressly provides otherwise.
Example. A mortgagor sells the mortgaged flat to Divya. When a later section speaks of the right of the mortgagor to redeem, Divya, who derives title from the mortgagor, is covered by 59A unless that section says otherwise. See our article on section 60, the right of mortgagor to redeem.
Common mistakes
- Unregistered mortgage deed. For one hundred rupees or upwards, section 59 requires a registered instrument, except for a mortgage by deposit of title-deeds.
- Only one witness. The section says at least two witnesses.
- Witnesses who did not see or hear anything. Attestation has the meaning in section 3.
- Using delivery of property for a simple mortgage. Delivery is not available for that kind.
- Leaving out successors. Section 59A tells you the references include persons who derive title.
Practical checklist for lenders and borrowers
- Decide the kind of mortgage under section 58.
- Have the mortgage deed drafted with the property description, the principal, interest, repayment terms and rights on default.3. Have the borrower sign and two witnesses attest in the borrower's presence.
- Register the instrument under the registration law.
- Pay the stamp duty and fees under your State's rules.
- Keep the registered original safely, and record any later transfer by either party.
Need help documenting a mortgage?
A mortgage that is not made in the form section 59 requires may not do what the lender and borrower intended. We can help you draft, execute and register the paperwork through loan documentation support.
Key takeaways
- For principal money of one hundred rupees or upwards, a mortgage other than one by deposit of title-deeds needs a registered instrument signed by the mortgagor and attested by at least two witnesses.
- For less than one hundred rupees, a registered, signed and attested instrument or, except for a simple mortgage, delivery of the property will do.
- Section 59A treats references to mortgagors and mortgagees as including persons deriving title from them, unless otherwise expressly provided.
- Registration, stamp duty and fees are governed by other laws and State rules.
- Some States have amended the Act or made local rules; the State position should be checked.
- Later amendments should be checked.
Read next
- Section 58: mortgage defined and six kinds of mortgage
- Section 60: right of mortgagor to redeem
- Section 3: attested, registered and actionable claim defined
- How to Register a Mortgage Deed
Disclaimer: Based on a publisher's print of the Transfer of Property Act, 1882 showing amendments up to the Transfer of Property (Amendment) Act, 2002 (3 of 2003), as consulted on 2 October 2026. State amendments, later amendments, stamp duty and registration charges are not covered and should be checked. This article is general information, not legal advice; check the official text before acting.