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PETITIONER: KESAVANCHARI GOPALAKRISHNAN ACHARI

       Vs.

RESPONDENT: VELU ACHARI PAPPUKUTTY ACHARI AND ORS.

DATE OF JUDGMENT:       17/01/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) NANAVATI G.T. (J)

CITATION:  1996 AIR 1075            JT 1996 (1)   431  1996 SCALE  (1)450

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.N. RAY.J.      Leave granted. Heard learned counsel for the Parties.      This  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.      The 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 No. 1.      Defendants 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

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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. The 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.      The 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 invalid. Therefore, 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.      For 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:      Section 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

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    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 -      (a)  the 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      (b)  the   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:           Provided 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      (c)  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.      The 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.      Mr. Poti  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

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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 defendant No.1.      Mr. Poti  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 mortgagee.      Mr. Poti  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.      Mr. Poti  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.      Mr. Poti  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.      Mr. Iyengar,  the learned  Senior counsel appearing for the respondent  No.1 has  however refuted the contentions of

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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.      Mr. Iyengar  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).      Mr. Iyengar  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.      Mr. Iyengar  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

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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.      In 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:      "The  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.      Mr. Iyengar  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

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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 Act.      Mr. Iyengar  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.      After 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.      It was  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. Later 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,

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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.      It was  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.      In our  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.      The 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. Hence.  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.      In our 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.      In the  aforesaid facts,  no interference is called for in this appeal and the same is dismissed with costs.