General Provisions (ss 48-53)

48.     Execution of bonds

            (1) A mortgage bond shall be executed in the presence of the Registrar by the owner of the immovable property therein described or by a conveyancer duly authorized by such owner by power of attorney, and shall be attested by the Registrar.

            (2) A bond may be registered to secure an existing debt or a future debt or both existing and future debts.

            (3) Bonds intended to secure loans for building purposes shall be deemed to be bonds to secure existing debts.

            (4) If in a bond purporting to secure a future debt the amount of an existing debt is mentioned, such existing debt shall be deemed to be secured as part of the maximum amount intended to be secured by the bond.

            (5) Except as authorized by any other law or by order of the court, debts or obligations to more than one creditor arising from different causes may not be secured by one bond.

49.     Requirements in case of bonds intended to secure future debts

            (1) No bond attested or registered after the commencement of this Act shall be of any force or effect for the purpose of giving preference or priority in respect of any debt incurred after the registration of the bond, unless-

     (a)     it is expressly stipulated in the bond that the bond is intended to secure future debts generally or some particular future debt described therein; and

     (b)     a sum is fixed in the bond as an amount beyond which future debts shall not be secured by the bond.

            (2) If a bond purports to secure payment by the mortgagor of the costs of preserving and realizing the security or of fire insurance premiums, cost of notice or bank exchange, such costs and charges shall not be deemed to be future debts within the meaning of subsection (1).

50.     Cession of bond securing future debts

            A cession of a bond passed to secure future advances may be registered and the registration of such a cession shall not affect the provisions of the bond relating to future advances up to the amount stated in the bond.

51.     Exclusion of general clause in mortgage bonds

            (1) Except as provided in any other law, the Registrar shall not attest any mortgage bond which purports to bind movable property or which contains the clause, commonly known as the general clause, purporting to bind generally all the immovable or movable property of the debtor or both and shall not register any notarial bond which purports to bind immovable property.

            (2) No mortgage bond shall be passed by two or more mortgagors unless it purports to bind immovable property of each mortgagor:

            Provided that land held subject to a condition that, on the happening of a certain event, such land shall revert to a person named in such condition, may be mortgaged by the owner thereof and such person by means of a bond passed by them jointly and severally, or may be mortgaged by the owner of such land with the consent of such person.

52.     No bond to be passed in favour of an agent

            No bond shall be passed in favour of any person as the agent of a principal.

53.     Requirements in case of bonds passed by or in favour of two or more persons

            (1) If a bond is passed by two or more mortgagors, no release from the bond-

     (a)     of any mortgagor and his property, or of a portion of the property of any mortgagor may be registered without the written consent of the other mortgagor or mortgagors; or

     (b)     of all the property of any mortgagor may be registered unless such mortgagor is also released.

            (2) No bond may be passed in favour of two or more persons in which it is stipulated that the share of one holder shall rank prior in order of preference to the share of another, nor may any transaction be registered which would have the effect of giving preference to one share in a bond over another share.

Rights of Mortgagees (ss 54-58)

54.     Transfer of hypothecated immovable property

            (1) No transfer of mortgaged land shall be attested or executed by the Registrar, and no cession of a mortgaged lease of immovable property or of any mortgaged real right in land, shall be registered until the bond has been cancelled or the land, lease or right has been released from the operation of the bond with the consent in writing of the holder thereof or unless, in the case of any such mortgage bond which has been lost or destroyed, the Registrar has on application by the registered holder thereof, cancelled the entry in his register in respect of such bond:

            Provided that no such cancellation or release shall be necessary if the transfer or cession is made-

      (i)     in execution of the judgment of any court by the competent officer;

      (ii)     by the trustee of an insolvent estate, an executor administering and distributing an estate under section 43(3) to (7) of the  Administration of Estates Act, the liquidator of a company which is unable to pay its debts and which is being wound up by or under the supervision of the court; or

     (iii)     in any other circumstances in this Act or in any other law specially provided or as ordered by the court.

            (2) A consent to the release from the operation of a bond of all the property mortgaged thereunder shall, except where the debt secured by such bond is further secured by a collateral bond, be deemed to be a consent to the cancellation of that bond.

55.     Substitution of debtor in respect of a bond

            (1) If the owner (in this section referred to as the "transferor") of land which is hypothecated under a registered mortgage bond (not being a person referred to in proviso (ii) to section 54(1)) transfers to another person the whole of the land hypothecated thereunder, and has not reserved any real right in such land, the Registrar may, notwithstanding the provisions of subsection (1) of the said section, register the transfer and substitute the transferee for the transferor as debtor in respect of the bond where there is produced to him, in duplicate, the written consent in the prescribed form of the holder of the bond and the transferee to the substitution of the transferee for the transferor as the debtor in respect of the bond.

            (2) In registering the transfer the Registrar shall-

     (a)     make, in the appropriate register in the prescribed form-

           (i)       an entry setting forth that the debt of the transferor secured by the bond is cancelled; and

          (ii)       an entry setting forth that the transferee has become the debtor in respect of the bond;

     (b)     annex one duplicate of the written consent referred to in subsection (1) to the bond and file the other with the registry duplicate thereof;

     (c)     endorse upon the bond in the prescribed form-

           (i)       the name of the transferee;

          (ii)       the date and number of the transfer;

          (iii)       a reference to the said written consent; and

         (iv)       that the transferee has been substituted for the transferor as debtor in respect of the bond; and

     (d)     make on the transfer deed an endorsement of mortgage containing the date and number of the bond and the amount due in terms thereof.

            (3) As from the date of the transfer deed the transferor shall be absolved from any obligation secured by the bond and the transferee shall be substituted for him as the debtor in respect of such bond and shall be bound by the terms thereof in the same manner as if he had himself passed the bond and had renounced therein the benefit of all relevant exceptions.

            (4) The provisions of this section shall not apply if the mortgaged land is to be transferred-

     (a)     to a person who would not himself be competent to mortgage it;

     (b)     to two or more persons, unless they take transfer of the land in undivided shares and renounce, in the written consent referred to in subsection (1) the exception de duobus vel pluribus reis debendi; or

     (c)     to a woman, unless she renounces, in the said written consent, any special legal exceptions which she would otherwise be entitled to raise.

            (5) Subsections (1) to (4), inclusive, shall mutatis mutandis apply in respect of immovable property other than land which is hypothecated under a registered mortgage bond.

56.     Returns by Master in connection with insolvent estates and further provisions relative to insolvent estates

            (1) If it appears from the liquidation account of any estate which has been sequestrated or from the vouchers relating thereto that a payment has been made to any creditor on account of a registered bond, the Master shall notify the payment to the Registrar who shall thereupon write off the amount thereof in the appropriate register, on the registry duplicate of the bond and also if possible on the original bond.

            (2) The holder of the bond shall deliver the bond to the Master who shall forward it to the Registrar in order that the amount may be written off thereon.

            (3) Except in cases where an insolvent has been rehabilitated in pursuance of a composition made by him with his creditors, the Master shall from time to time transmit to the Registrar a return specifying-

     (a)     the name and address of every person who has been rehabilitated after the sequestration of his estate; and

     (b)     the immovable property and registered bonds appearing in the schedules lodged with the Master by or on behalf of such person or in the liquidation account of his estate,

and upon receipt of that return the Registrar shall, in accordance therewith, cancel in the appropriate registers all bonds registered therein against the property of the said person prior to the sequestration of his estate and endorse the registry duplicates and, if possible, also the bonds themselves as cancelled.

            (4) The holders of such bonds shall when requested to do so by the Master, deliver the bonds to him, and the Master shall forward them to the Registrar for cancellation.

            (5) If any of the immovable property mentioned in the return has not yet been transferred by the trustee, the Registrar shall further note on the registry duplicate of the title deed of such property and in the appropriate registers that such property has in terms of the law relating to insolvency vested in the trustee.

            (6) Immovable property which has vested in a trustee in accordance with the provisions of the law relating to insolvency and which has not in terms of that law been revested in the insolvent may, whether before or after rehabilitation of the insolvent, be transferred only by the trustee, and may not after such rehabilitation be transferred, mortgaged or otherwise dealt with by the insolvent until it has been transferred to him by the trustee:

            Provided that if after rehabilitation, the trustee has been discharged or there is no trustee in existence, the Master shall, if satisfied that the rehabilitated insolvent is entitled to the property, give him transfer thereof in such manner as may be prescribed.

            (7) If by virtue of the provisions of the law relating to insolvency an insolvent has been re-invested with the ownership of any property, such property may not be transferred, mortgaged or otherwise dealt with by the insolvent until an endorsement, in the manner prescribed, that the property has been restored to him, has been made by the Registrar on the title deed of the property.

            (8) Nothing in this section shall be construed as modifying any provision of the law relating to insolvency.

            (9) The provisions of this section shall apply mutatis mutandis in respect of-

     (a)     estates administered and distributed under section 43(3) to (7) of the  Administration of Estates Act;

     (b)     companies which are unable to pay their debts and are liquidated or wound up by or under the supervision of the court under the law relating to companies.

57.     Endorsement of bond after sale in execution

            (1) Whenever any mortgaged immovable property has been sold in execution of a judgment of a competent court or under express authority contained in a special law, to satisfy any debt due in respect of a registered bond or otherwise, and the proceeds of the sale have been paid to the legal holder of the bond, the sheriff or deputy-sheriff or messenger concerned or the person acting under the authority of such special law shall notify to the Registrar how much of the capital sum due in terms of the bond has been paid, and shall transmit the bond to the Registrar.

            (2) The Registrar shall thereupon write off the amount so paid in the appropriate registers and on the bond and registry duplicate thereof.

58.     Consent of bondholder to registration of merger of rights of mortgagor

            If the holder of a mortgaged lease of land or of mortgaged real rights in land acquires the ownership of that land, or if the holder of a mortgaged lease of real rights in land acquires those rights, or if the owner of mortgaged land which is entitled to rights of servitude over other land, acquires the ownership of that other land, such acquisition of the additional land or rights shall not be registered without the consent in writing of the holder of the bond.

Notarial Bonds (s 59)

59.     Registration of notarial bonds

            (1) Every notarial bond executed before or after the commencement of this Act shall be tendered for registration in the deeds registry within the period of two months after the date of its execution or within such extended period as the court may on application allow.

            (2) Unless so tendered, or if so tendered and rejected by the Registrar and not retendered within the said period, a notarial bond shall not be registered except upon an order of court within such further period as the court may direct:

            Provided that if the Registrar suspends or refuses registration pending the submission of further information in order to enable him to determine whether any person mentioned in the bond is or is not a person whose name appears in any register or document in the deeds registry, such suspension or refusal shall not be deemed to be a rejection of the bond.

            (3) Every notarial bond shall disclose-

     (a)     the place at and the date on which it was executed, as well as the place where the notary practises; and

     (b)     the place where the debtor resides and the place or places, if any, where he carries on business.