Usufructuary Mortgage Meaning

A mortgage is a security for a debt. But, in itself isn’t a debt. As opposed to this it is the lender’s security for a debt. It is an exchange of an interest in the immovable property from the proprietor to the lender, and such exchange is made on the condition that this interest will be returned back to the proprietor after fulfillment or execution of terms of the mortgagor. Hence, a mortgage is a security for that loan, which the lender makes to the borrower. There are different kinds of mortgages.

This article explores a section of the informal credit market in an agrarian society, namely the usufructuary mortgage, a type of money-lending contract that is popular in rural economies of South Asia. The article will dive into usufructuary meaning, usufructuary mortgage characteristics, usufructuary mortgage deed, and usufructuary mortgage limitation.

Usufructuary Meaning

A usufruct is a legitimate right concurred to an individual or party that presents the temporary right to utilize and get pay or benefit from another person’s property. It is a restricted genuine right that can be found in many mixed and civil law purviews. A usufructuary means the individual holding the property by usufruct.

A usufruct joins the two property rights of usus and fructus. Usus alludes to the right to utilize something straightforwardly without harming or modifying it, and fructus alludes to the right to enjoy the products of the property being utilized – that is, to benefit from the genuine property by leasing it, selling crops produced by it, charging admission to it, or similar.

Usufruct is generally given a temporary period. It very well may be conferred to the usufructuary, or individual holding usufruct, as an approach to take care of the property until the demise of a property owner and the estate can be settled if the property owner is extremely ill. While the usufructuary has the privilege to utilize the property, they can’t harm or pulverize it or discard the property. A usufructuary doesn’t have complete ownership of the property, since they do not have the third property right, abusus, which alludes to the right to consume, demolish, or transfer ownership of the property to another person.

Two Kinds of Usufruct

In usufruct, an individual or group has the option to utilize the property of another. They don’t claim it, however, have a legally authorized interest in it. There are two kinds of a usufruct:

Perfect Usufruct

In perfect usufruct, usufructuary means that the individual can utilize the property, and can benefit from it, yet can’t transform it in a substantial way. For instance, if the proprietor of a business gets severely ill and offers usufruct to a relative to maintain the business for the person in question, the usufructuary can maintain the business, but can’t sell it or destroy the structure and reconstruct it.

Imperfect Usufruct

In an imperfect usufruct framework, usufructuary means the individual has some capacity to alter the property, for example, when a landowner grants usufruct a piece of land for rural use. The usufructuary has the right to produce crops from the land and to make enhancements to the land that would help in that attempt. Notwithstanding, the usufructuary doesn’t possess these enhancements; when the usufruct closes, they belong to the original owner or to his or her estate.

Characteristics of Usufructuary Mortgage

Usufructuary mortgage has below-mentioned characteristics:

• That the possession of the property is delivered to the mortgagee;
• That the mortgagee is to get rents and profits in lieu of the interest or principal or both;
• That no personal liability is incurred by the mortgagor and
• The mortgagee cannot foreclose or sue for sale.
• That no time limit can be fixed expressly during which the mortgage is to subsist.

Usufructuary Mortgage Example

For instance, Ben has been given usufruct over Henna’s property. Henna’s property is a bed and breakfast with an enormous yard that requires tending. Henna is in bad health and can not, at this point, take care of the property and maintain the business. Ben, as the usufructuary, has the privilege to utilize the property and maintain the business for Helen’s sake for the time the usufruct is in effect. The usufruct might be in effect until Henna’s demise when the estate will be settled and the property will be passed according to the law or the directions in the estate.

Usufructuary Mortgage Deed

This Deed of Mortgage made on this ____________ day of _____________

Between

Sh. s/o Sh.__ r/o ____________ (the “Mortgagor”) of the one part

And

Sh. s/o Sh.__ r/o _____________ (the “Mortgagee”) of the other part

Whereas

The Mortgagor owns a plot of land located at _________ (as detailed in the attached schedule). The Mortgagor wishes to borrow Rs.__________ (Rupees ) from the Mortgagee for business purposes, and the Mortgagee agrees to lend Rs. at an annual interest rate of ___%, secured by the mortgage of the said property.

Now, This Deed Witnesseth as Follows:

The Mortgagor, in consideration of the loan of Rs.__________ (acknowledged by the Mortgagor), transfers the mortgaged property (as detailed in the attached schedule) to the Mortgagee by way of usufructuary mortgage. This transfer includes the right of possession, allowing the Mortgagee to retain possession until the loan is repaid. The Mortgagee has the right to receive rents and profits from the property, which will be used to pay government revenues, taxes, and interest, or to reduce the mortgage debt.

The Mortgagor guarantees that the mortgaged property is free from encumbrances or charges.

The Mortgagee agrees that the Mortgagor may redeem the mortgage at any time after _________ years by repaying the loan of Rs.__________ with interest. Upon repayment, the Mortgagee will re-transfer the property to the Mortgagor and restore possession.

Both parties agree that the Mortgagor will bear the costs of registration, stamp duty, and other miscellaneous expenses.

In Witness Whereof, the parties have signed below on this day _________ of __________.

(The schedule hereinabove referred to)

Usufructuary Mortgage Limitation

According to the Limitation Act, 1963 — Art. 61 — Usufructuary home loan; There is no fixed time-limit for the usufructuary mortgagor to look for reclamation and recuperation of ownership of immovable property mortgaged. Option to look for recovery would accrue not from date of formation of mortgage but rather from date of payment of mortgage money out of usufructs or partly out of usufructs and partly on payment or deposit by mortgagor as given under S. 62 of TP Act. Up to that point, usufructuary mortgage limitation would not begin under Art. 61 and therefore, simple expiry of period recommended thereunder would not stifle mortgagor’s right of reclamation and qualifies mortgagee to look for declaration of title and ownership over the mortgaged property. Singh Ram v. Sheo Ram, (2014) 9 SCC 185.