Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
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.