Section 65 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.
Section 65 says that, unless the mortgage-deed says otherwise, a mortgagor is taken to have made five promises to the mortgagee. They cover his title, defending it, public charges, a mortgaged lease, and earlier mortgages. This article explains each as per the text of the Act consulted.
"In the absence of a contract to the contrary", the mortgagor is deemed to contract with the mortgagee that: (a) his interest subsists and he has power to transfer it; (b) he will defend the title (or enable the mortgagee to defend it if the mortgagee is in possession); (c) he will pay public charges while the mortgagee is not in possession; (d) for a mortgaged lease, rent and conditions have been met and will be met; and (e) for a second or later mortgage, he will pay prior encumbrances on time. These promises pass to whoever holds the mortgagee's interest.
What the section does
The text consulted is a publisher's print of the Act showing amendments up to the Transfer of Property (Amendment) Act, 2002 (3 of 2003); later amendments should be checked. Section 65 does not need the parties to write these promises. The law reads them in. If the deed is silent, the promises apply; if the deed says something different, the deed prevails. The section belongs to the group on the mortgagor's rights and liabilities that begins with Section 60 and the right to redeem.
For a lender, this is the baseline protection. For a borrower, it is a checklist of what the law expects of him. Both should read it alongside the deed. Our loan documentation support service reviews such deeds before signing.
The five promises
(a) The interest exists and can be transferred
The mortgagor contracts that the interest he professes to transfer to the mortgagee subsists, and that he has power to transfer it. If a borrower mortgages a plot that he does not hold or cannot mortgage, this promise is the first to be broken.
(b) Defence of title
The mortgagor will defend, or, if the mortgagee is in possession, enable the mortgagee to defend, the mortgagor's title to the property. In other words, if someone challenges the title, the mortgagor cannot walk away.
(c) Public charges
So long as the mortgagee is not in possession, the mortgagor will pay all public charges accruing due on the property. Once the lender takes possession, the duty shifts. See our article on sections 76 and 77, where the mortgagee in possession must pay government revenue and other public charges out of income.
(d) A mortgaged lease
Where the mortgaged property is a lease, the mortgagor contracts that the rent payable under the lease, the conditions in it and the contracts binding on the lessee have been paid, performed and observed down to the commencement of the mortgage. He also promises that, so long as the security exists and the mortgagee is not in possession, he will:
- pay the rent reserved by the lease (or the renewed lease);
- perform the conditions in it and observe the binding contracts; and
- indemnify the mortgagee against all claims sustained by reason of non-payment of the rent or non-performance of the conditions.
The copy prints "[ *]" after the word lease, which marks omitted words without saying what they were.
(e) A second or later mortgage
Where the mortgage is a second or subsequent encumbrance, the mortgagor will pay the interest as it falls due on each prior encumbrance, and will at the proper time discharge the principal due on it. This protects the later lender from being squeezed by an earlier one.
The copy shows "[ *]" between clause (e) and the closing paragraph; omitted wording, not described in the text.
Who can enforce the promises
The closing paragraph says the benefit of these contracts is annexed to and goes with the interest of the mortgagee as such, and may be enforced by every person in whom that interest is, for the whole or any part, from time to time vested. So if the lender assigns the mortgage, the new holder can enforce the promises.
Summary table
| Clause | Promise by the mortgagor | When it applies |
|---|---|---|
| (a) | The interest subsists and he has power to transfer it | Every mortgage |
| (b) | He will defend the title, or enable the mortgagee to defend it | Every mortgage; "enable" when the mortgagee is in possession |
| (c) | He will pay public charges accruing due | While the mortgagee is not in possession |
| (d) | Lease rent and conditions paid and observed; future payment and indemnity | Where the property is a lease |
| (e) | He will pay interest and principal on each prior encumbrance | Second or later mortgages |
Example for a second mortgage
Kabir has already mortgaged his warehouse to Bank X and now mortgages it again to Sapna. Under clause (e), Kabir is taken to promise Sapna that he will pay Bank X's interest as it falls due and discharge Bank X's principal at the proper time. If he stops paying Bank X, Sapna can point to this promise. It does not stop Bank X from acting, but it gives Sapna a contract-based claim against Kabir.
Drafting points
- Add specifics. Because clause (c) stops once the mortgagee is in possession, say in the deed what happens to taxes after possession is taken.
- Lease mortgages. For a leasehold, list the rent paid and conditions complied with, so clause (d)'s statement about the past is clear.
- Second charges. Add an express covenant about prior loans and a right for the later lender to pay and add to the debt, if that is what the parties want. The Act's own rule on a mortgagee spending money is covered in the article on sections 70 to 73.
- Registration and stamp duty: not in this Act; see how to register a mortgage deed and stamp duty on a mortgage deed.
Need help with mortgage covenants?
If you are drafting or reviewing a mortgage-deed and want the covenants to match what you actually intend, our loan documentation support team can go through the clauses and point out where the deed departs from the implied promises.
Key takeaways
- Section 65 reads five promises into a mortgage unless the contract says otherwise.
- The mortgagor promises that his interest exists and is transferable, and that he will defend or help defend it.
- Public charges are his burden only while the mortgagee is not in possession.
- A mortgaged lease carries promises about rent, conditions and indemnity.
- A second mortgagor promises to keep prior encumbrances paid.
- The benefit passes to every later holder of the mortgagee's interest.
Read next
- Section 60: right of the mortgagor to redeem
- Sections 65A and 66: mortgagor's power to lease and waste
- Section 58: kinds of mortgage
- Mortgage deed: drafting essential clauses and registration
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.