Gopalakrishnan Achari Vs. Velu Achari Pappukutty Achari & Ors  INSC 85
(17 January 1996)
G.N. (J) Ray, G.N. (J) Nanavati G.T. (J) G.N. Ray.J.
1996 AIR 1075 JT 1996 (1) 431 1996 SCALE (1)450
learned counsel for the Parties.
appeal is directed against judgment dated 9.10.1991 passed by the Kerala High
Court in C.R.P. No. 1239 of 1990-G setting aside order dated 17.1.1990 passed
by the learned Munsif. Attingal in Execution Application No. 61 of 1984 in
Execution Proceedings No. 69 of 1980 arising out of decree passed in O.S. No.
115 of 1994.
appellant was tenth defendant and son of second defendant in a partition suit
(O.S. No. 115 of 1964) in the court of the learned Munsif at Attingal. In the
plaint of the said partition suit, it was contended that the properties in suit
originally belonged to one Ummini. He died issueless leaving five sisters who innerited
his interest in the said properties. The said sisters executed a `Ottikuzhikanam'
deed in favour of the first defendant Kesavan Achari. The said Kesavan executed
a deed of release in favour of defendant No.2 surrendering his interest as Ottikuzhikanamoar.
One Kochukeshavan claiming to be the son of original owner Ummini executed a
sale deed of the property in suit in favour of second defendant purporting to
be transfer of equity of redemotion. However, ignoring the said document
executed by Kochukesavan and the deed of release by defendant No.1, the
plaintiffs being sons of two of the five sisters prayed for partition of their
2/5th share and also for redemotion of mortgage granting in favour of defendant
1 and 2 contested the said partition suit by contending inter alia that in view
of document executed by Kochukesavan, the plaintiffs have no interest in the
suit properties. The second defendant also claimed title by adverse possession
in respect of the properties in suit. The said suit was dismissed by the trial
Court. The lower appellate court, however, held that Kochukesavan was not the
son of Ummini and the document executed by him in favour of defendant No.2 was
therefore, null and void. The suit was finally decreed allowing partition and
redemption of mortgage as prayed for by the plaintiffs. The Appeal No.117 of
1967 filed by the second defendant against the final decree was also dismissed.
The second defendant thereafter preferred a second appeal (S.A. No.619 of 1970)
before the High Court of Kerala assailing the judgment and decree passed in the
said Appeal No. 117 of 1967. The second defendant contended before the High
Court that as the mortgagee had constructed a building on the mortgaged
property for residence, the mortgagee must be deemed to be a tenant under
Section 4A (1)(b) of Kerala Land Reforms Act (Act 35 of 1969). It was also
contended that according to amended provisions of the said Act, an Ottikuzikanamdar
was a `tenant' and therefore the mortgage was not redeemable.
High Court dismissed the second appeal by keeping the said question of right of
Ottikuzhikanamdar as a tenant under the Kerala Land Reforms Act open and
granting liberty to the said defendant to raise such question in the execution
proceeding. The second defendant died leaving behind her, defendants Nos. 3 to
10 as heirs and legal representatives. The tenth defendant, a son of defendant
No.2 filed application before the executing court being E.A.No. 61 of 1984
claiming fixity of tenancy right under section 4A (i) (b) of Kerala Land
Reforms Act. The said petition was allowed and the said defendants were found
entitled to fixity of tenure in the disouted property.
respondents in this appeal preferred a revision petition being C.R.P. No.1239
of 1990-G before the Kerala High Court challenging the said decision of the
executing court. By the impugned judgment, the High Court has set aside the
order of the learned Munsif in E.A. No. 61 of 1984. The High Court has held
that defendant No.2 based her right on a sale from Kochukesavan which was found
she had not acquired any right in the property of Ummini or his heirs.
Consequently, defendant No.2 had no right to secure release of the interest of
her husband and her act of securing release or surrender was unauthorised and
unlawful. The High Court has held that defendant No.2 was an intruder claiming
title under the invalid sale and is therefore liable to be evicted by the
decree holders whose right in the property had been established. The appellant
namely the tenth defendant and son of defendant No.2 has challenged the
correctness of the decision of the High Court by filing a special leave
petition before this Court.
the purpose of appreciating the rival contentions of the learned counsel for
the parties it will be appropriate to note that under the amended provision of
Section 2(57) (dd) of the Kerala Land Reforms Act (hereinafter referred to as
Land Act) tenant means and include an Ottikuzhikanamdar. It may be stated here
that Ottikuzhikanam is a tenure relating to land in Kerala which partakes both
the characteristics of a mortgage (otti) and improvement lease (Kuzhikanam).
Section 4A of the Land Act was inserted by amendment. Section 4 A of the Land
Act (excluding explanation thereof, not relevant for the disposal of this
appeal) is set out hereunder:
4A "4A, Certain mortgages and lessees of mortgagees to be deemed tenants -
(1) Notwithstanding anything to the contrary contained in any law or in any
contract, custom or usage, or in any judgment decree or order of court, a
mortgagee with possession of land, other than land principally planted with
rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land
shall be deemed to be a tenant if –
mortgagee of lessee was holding the land comprised in the mortgage for a
continuous period of not less than fifty years immediately proceeding the
commencement of the Kerala Land Reforms (Amendment) Act. 1969. or
mortgagee or lessee has constructed a building for his own residence in the
land comprised in the mortgage and he was occupying such building for such
purpose for a continuous period of not less than twenty years immediately
preceding such commencement:
that a mortgagee or lessee falling under this clause shall not be deemed to be
a tenant if he, or, where he is a member of a family, such family was holding
any other land exceeding two acres in extent on the date of publication of the Kerala
Land Reforms (Amendment) Bill, 1968, in the Gazette; or
the land comprised in the mortgage or land to which the Madras Preservation of
Private Forests Act, 1949, would have applied if that Act had been in force at
the time of mortgage, and - (i) the mortgagee or lessee was holding such land
for a continuous period of not less than thirty years immediately preceding the
commencement of the Kerala Land Reforms (Amendment) Act, 1969 and (ii) the
mortgagee or lessee has effected substantial improvements on such land before
such commencement." Mr.Poti, learned Senior counsel appearing for the
appellant has contended that the question that arises for consideration by this
Court is whether the appellant, a son of second defendant is entitled to claim
tenure right as Ottikuzhikanamdar in view of amended provisions of Kerala Land
Reforms Act when such amendment has come into force with effect from 1.1.1970
when the partition suit was pending. Mr. Poti has submitted that in the second
appeal arising from the decree passed in the said partition suit, the High
Court did not disallow the claim of tenancy right as Ottikuzhikanamdar by the
defendant No.2 but kept such question open with liberty to defendant No.2 to
raise such claim before the executing court.
plaintiff in the partition suit have 2/5th share in the properties in suit. The
properties had an put standing mortgage of 1095 Malabar Era (1920 A.D.). Such
mortgage right had devolved on the first defendant. The Second defendant took a
sale deed from Kochukesavan claiming to be son of original owner Ummini. The
second defendant also obtained a release deed of mortgagee's right from the first
defendant who was husband of second defendant.
has submitted that it has been held by the court that as Kochikesavan was not
the son of Ummini, the defendant No.2 did not acquire any title to the
properties in suit by virtue of the sale deed executed by the said Kochukesavan.
There is however no dispute that the defendant No.2 obtained a deed of release
from her husband, the defendant no.1 surrendering his interest as Ottikuzhikanamdar.
Accordingly, even if the defendant No.2 had failed to obtain any proprietary
right in respect of the said properties, her right as Ottikuzhikanamdar did not
disappear. There is no dispute that the suit properties had an outstanding
mortgage of 1095 (Malabar Era). Such mortgage right must be held to have
devolved on defendant No.2 in view of the said deed of release executed by
has contended that a release is also a transfer of property and is termed as
release only because it is executed in favour of a person who is entitled to
seek such transfer by virtue of a superior right. If a person who obtains a
release, has also right of ownership of the property, the two rights merge in
the same person by operation of law. When the two rights devolve on the same
person, there is merger of mortgage in the ownership right and the mortgage
does not survive except for certain purposes such as subrogation etc. On the
other hand, if the mortgage conveys whatever rights he has to a person who has
no title to the property, there is no question of merger by operation of law
and whatever the rights the mortgagee had, only devolve on the transferee. Such
transferee, therefore, by the purported release, gets the rights of the
has submitted that in the facts of the case, there is no question of
subrogation. Subrogation arises only when a person who has interest in the
property such as owner or a superior mortgagee pays of a mortgage. Normally,
there would be extinction of the mortgage right in such a case but mortgage
security is kept alive for certain purposes to protect the interests of the
person who discharges the mortgage debt. In this connection, Mr. Poti has
referred to Section 92 of the Transfer of Property Act. Mr. Poti has submitted
that when a person who purports to take a release has no superior title to the
property, there is no question of subrogation because subrogation under Section
92 of Transfer of Property Act arises only when any person referred to in
Section 91 redeems property subject to mortgage.
has submitted that in this case the defendant No.2 has no ownership or prior
interest in the property. She however purported to redeem the property although
it was found that she had no right to redeem. In such a case, by discharging
the liability under the usufructuary mortgagee, the defendant No.2 did not get
any title other than that of the usufructuary mortgagee since held by defendant
No.1. Mr. Poti has, submitted that unfortunately the High Court failed to
appreciate the facts of case and came to a wrong finding that by the deed of
release executed by defendant No.1, the defendant No.2 did not get the Ottikuzhikanamdar's
right in the disputed property.
has submitted that the amended provisions of Land Act came into force when the
suit for partition was pending. Since the Ottikuzhikanam was created in 1905
(Malabar Era) corresponding to 1920 AD and the defendant No.2 had built her
residence on the said land under mortgage, she was entitled to claim tenancy
right on the said land under the Land Act and such mortgage was not redeemable.
Mr. Poti has, therefore submitted that the impugned decision should therefore,
be set aside and the decision of the executing court should be affirmed.
the learned Senior counsel appearing for the respondent No.1 has however
refuted the contentions of Mr. Poti. Mr. Iyengar has submitted that on the
death of Ummini, his five sisters inherited the right, title and interest of Ummini
in the properties in suit. They executed a deed of usufructuary mortgage
(locally known as Ottikuzhikanam) in favour of a son of one of the sisters
namely defendant No.1 in 1095 M.E. While the first defendant was in possession,
his wife namely defendant No.2 took a sale deed of the equity of redemption
from one Kochikesavan in 1124 M.E. (1949 A.D) and on the strength of such sale
deed, paid off the mortgage amount and obtained a deed of release in 1124 M.E.
itself from the first defendant and remained in possession. The two sons of two
deceased sisters are the plaintiffs in the Partition Suit (O.S. No.115 of 1964)
who claimed their 2/5th share on payment of proportionate mortgage amount
borrowed under the said mortgage of 1095 M.E. The said suit was resisted by
defendants Nos. 1 and 2 on two grounds namely (a) sale deed taken by second
defendant from Kochukesavan was valid and defendant No.2 having extinguished
the mortgage by paying off the mortgage debt to the first defendant, she became
absolute owner and (b) defendant No.2 had perfected her title by adverse
possession. The trial court, though found that the sale deed executed by Kochikesavan
was invalid, dismissed the suit on the ground of adverse possession. The appeal
court however negatived the finding of adverse possession in favour of
defendant no.2 and passed a preliminary decree for partition of 2/5th share and
for consequential relief. The second appeal was also dismissed by the High
Court by keeping the claim of the alleged tenancy right of defendant No.2 under
the amended provisions of Land Act open.
has submitted that the plaintiffs applied for the issue of a commission and
separate allotment of 2/5th share decreed in their favour by the preliminary
decree. The commissioner also ascertained the value of improvements payable to
defendants. On the basis of commissioner's report and plan, final decree was
passed by the trial court on 18.8.1979. Such plan has been filed as Annexure II
to the counter affidavit of the respondent in the special leave petition. The
land where the building put up by the predecessor of the appellant stands, has
been allotted to appellant and other heirs of defendant No.2 and what has been
allotted to the respondents is only the southern west portion measuring 25.40
cent (ABCDE plot).
has submitted that only with an intention to frustrate the final decree in favour
of the plaintiffs, in the said partition suit, the defendant No.1 filed an
application before the executing court claiming tenancy right under the amended
provisions of Land Act although such contention was not at all tenable in law. Mr.
Iyengar has submitted that the possession of the appellant was not under the
mortgage of 1095 (ME) because that mortgage did not subsist after the release
was taken by defendant No.2 Lakshmi Kalyani. That apart, the plot where the
building stands has not been sought to be recovered by the tenth defendant
appellant because the same was allotted to the appellant and other heirs of
defendant Nos.1 and 2 and final decree having been allowed to be passed
allotting the specific plot to the plaintiffs and giving them the right to
recover possession thereof, it is not open to the appellant to object to the
recovery of possession in execution.
has submitted that the High Court has held that the sale taken by defendant
No.2 from Kochikesavan being invalid, she had not got any title to redeem.
Hence, she having paid off the mortgage debt and by taking a release from the
first defendant, has not became a mortgagee on account of taking the said
release. Mr. Iyengar has submitted that if a stranger to the mortgage pays off
the mortgage debt, such stranger does not become mortgagee and the doctrine of
subrogation is also not applicable to a mere stranger who volunteers to pay off
the mortgage debt of another without any assignment or agreement for subrogation
when such stranger was under no legal obligation to make payment or under any
compulsion to make payment for possession of the property.
support of this contention Mr. Iyengar has relied on a decision of Calcutta
High Court in Gurudeo Singh versus Chandrikah Singh (ILR 36 (1909) 193). It has
been held in the said decision that:
doctrine of subrogation is not applied for a mere stranger - a volunteer who
has paid the debt of another without any assignment or agreement for
subrogation being under no legal obligation to make the payment and not being
compelled to do so for the preservation of rights or properties of his
own." "That principle is, that subrogation as a matter of right is
never applied in aid of a mere volunteer. Legal substitution into the rights of
a creditor for the benefit of a third person takes place only for his benefit,
who being himself a creditor, satisifies the lien of a prior creditor, or for
the benefit of a purchaser who extinguishes the encumbrance upon his estate or
of a coobliger or surety who discharges the debt, or of an heir who pays the
debt of the succession.
********** ********** Any one who is under no obligation or liability to pay
the debt is a stranger and if he pays the debts he is a mere volunteer."
Mr. Iyengar has submitted that the said decision of the Calcutta High Court has
been approved by the Privy Council in Janki Nath versus Pranath (1940 PC 38).
It has also been contended by Mr. Iyengar that the position of defendant No.2
was that of a volunteer paying off of mortgage debt. But by such payment, she
had not become the mortgagee. The contention that the defendant No.2 had in law
become an assignee of the mortgagee right of the defendant No.1. is not at all
tenable because release brings about extinguishment of an encumbrance but an
assignment is a transfer of encumbrance of one person to another. Moreover, it
is not the law that any person who volunteers to pay off a mortgage debt will
be a mortagage by such payment.
has also submitted that even if it is assumed that by the release, the
defendant No.2 was subrogated to the rights of a mortgagee, the legal
consequence of such a transaction is not that a subrogee becomes a mortgagee.
In support of this contention Mr. Iyengar has referred to the decision of this
Court in Vairavan Saraswathi versus Eachamb Theri (1993 Suppl (2) SCC 201). It
has been held in the said decision that one of the rights which vest in the
junior member of a tarward is to see that the property is duly conserved. Such
a right includes a right to redeem the property by paying the debt outstanding
against the tarward. It is an incidence of ownership or co-proprietorship which
flows from the nature of toward. But the person who thus conserves the property
does not step into the shoe of the co-mortgagee so as to acquire right under
Section 4A (i)(a) of Land Act. He is only a surety holding the property on
behalf of the toward subject to right of contribution. Therefore, a junior
member of a toward in Kerala who redeems the mortgage and is in possession for
more than 50 years, is not a mortgagee holding the land comprised in a
mortgage" so as to acquire nights of a tenant under Section 4A of the Land
has submitted that the defendant No.2 by paying off the mortgage debt to
defendant No.1 in taking release from him, may have a claim in equity which a
stranger volunteering to pay off a mortgage debt may claim but by no stretch of
imagination, she gets assignment of mortgagee's right. Mr. Iyengar has,
therefore, submitted that this appeal should be dismissed with cost.
giving careful consideration of the facts and circumstances of the case and the
submissions made by the learned counsel for the parties it appears to us that
the predecessor-in-interest of the appellant Sm. Lakshmi Kalyani (defendant
No.2) intended to purchase the superior interest of the landlord in respect of
the properties involved in the said partition suit. She obtained a sale deed
executed by one Kochikesavan on the footing that the said Kochikesavan was the
son of the admitted owner of the aforesaid properties namely Ummini. After
obtaining such sale deed from the said Kochikesavan, she obtained a deed of
release of Ottikuzhikanam interest of her husband the respondent No.1. Such
action of obtaining a deed of release from the defendant No.1 was presumably
taken to make the superior title to the properties, purported to have been
validly acquired from Kochikesavan, free from all incumbrances.
not the case of the defendant No.2 Lakshmi Kalyani that she had in reality
obtained a deed of assignment of Ottikuzhikanamdar's interest from her husband
the defendant No.1 by the said deed of release or that she had intended to
obtain such assignment. As a matter of fact, in the written statement filed by
the defendant No.2 in the said suit for partition, it was contended by her that
the suit for partition must fail because the predecessors-in- interest of the
plaintiffs namely two sisters of Ummini had no interest in the property and she
having purchased the properties in suit from Kochikesavan the son of the
admitted owner Ummini, had derived title to the property. It was also contended
by the defendant No.2 that she had been possessing the said properties openly
and as a right by asserting her title as owner and had also constructed her
residential building on a portion of the properties involved in partition.
Accordingly her title had, in any event, been perfected by adverse possession.
The trial court nowever did not accept her case of acquisition of title on the
strength of sale deed executed by Kochikesavan because it was found that the
said kochikesavan was not the son of Ummini. Her title by adverse possession
was however found by the trial court and the partition suit was dismissed. The
court of appeal, however, did not accept the case or adverse possession found
in favour of the defendant No.2 and the plaintiffs being sons of two sisters of
the said Ummini, their 2/5th share in the properties in suit was decreed.
on, by the final decree, specific plot has been allotted to the plaintiff and
defendant No.1 being a son of one of the sisters of Ummini was also held to be
a co-sharer and the plot where the family residential building stands, has been
allotted in the share of the successors-in- interests of defendants Nos. 1 and
2 after taking note of the improvements effected on the plot allotted to them.
only when the claim of title to the properties in suit as made by the defendant
No.2 on the strength of the sale deed executed by Kochikesavan was negatived by
the courts below, the defendant No.2 claimed tenancy right by contending that Ottikuzhikanamdar's
right of defendant No.1 having devolved on her by obtaining a deed of release
from the defendant No.1, she became a tenant under the amended provisions of
the Land Act, which came into force during the pendency of the Partition Suit.
The High Court, although dismissed the second appeal preferred by the defendant
No.2 against final decree in the Partition Suit, did not go into such contention
raised by the defendant No.2 and keeping such question open, granted liberty to
the defendant to ra se such contention before the executing court.
view, the contention raised on behalf of the appellant, the tenth defendant in
Partition Suit (a son of defendants Nos. 1 and 2), by Mr. Poti, the learned
senior counsel, that since defendant No.2 could not acquire any superior
interest in the properties in question by virtue of invalid deed of sale
executed by Kochikesavan, the deed of release obtained by her from defendant
No.1 will amount to transfer by defendant No.1 of his Ottikuznikanamdar's
interest in favour of defendant No.2, though ingeneous, can not be accepted.
defendant No.2 was a stranger to the mortgage. In law, she was only a volunteer
who had obtained a deed of release from a mortgage of such mortgagee's interest
by paying off mortgage debt. Such stranger, who had volunteered to pay off the
mortgage debt and obtained a deed of release from the concerned mortgage, does
neither acquire a right of a suprogee nor of the mortgage. Such stranger
volunteering to pay off mortgage deed may have a claim in equity against the
mortgagor but by such action the said stranger does not step into the shoe of
the mortgage because a deed of release executed by a mortgage on satisfaction
of mortgage debt, only extinguishes the mortgage. Assignment of mortgagee's
right is possible only on the existence of such right.
extinction of mortgagee's right is ex facie incompatible with the concept of assignment
of such right in favour of another. The extinction of mortgage by the deed of
release therefore, does not create an assignment of mortgagee's interest in favour
of the person paying off mortgage debt when such person had no obligation to
pay off such debt and had also no interest in the property.
view, the principle of law enunciated in Guruded Singh's case (supra) since
approved by the Privy Council in Janaki Nath's case (supra), squarely applies
in the facts of this case. In Variavarn's case (supra) this court has also held
that simply on account of paying off mortgage debt and obtaining release from a
mortgagee, a Junior member of a toward who had obtained such release, does not
step into the shoe of the mortgagee.
aforesaid facts, no interference is called for in this appeal and the same is
dismissed with costs.