Holding

A stranger who voluntarily pays off a mortgage debt and obtains a deed of release does not acquire the mortgagee's rights, subrogation, or tenancy under the Kerala Land Reforms Act, and the release does not transfer the Ottikuzhikanam interest.

Summary

The case concerned a partition suit over land originally owned by Ummini, whose five sisters inherited his interest and executed an Ottikuzhikanam deed in favour of the first defendant. The first defendant later released his interest to the second defendant, who also obtained a sale deed from a man claiming to be Ummini's son and paid off the mortgage, obtaining a deed of release. The plaintiffs, sons of two of the sisters, sought partition and redemption of the mortgage. Lower courts held the sale deed invalid but differed on whether the release gave the second defendant mortgagee rights or tenancy under the Kerala Land Reforms Act. The Supreme Court held that a stranger who voluntarily pays a mortgage debt and obtains a release does not acquire the mortgagee's rights, subrogation, or tenancy status; the release does not transfer the Ottikuzhikanam interest. Consequently, the appeal was dismissed with costs.

Issues considered

The effect of a deed of release obtained by a stranger who pays off a mortgage debt on the stranger's legal rights under the Kerala Land Reforms Act, 1969.
Whether a volunteer who pays a mortgage debt acquires the mortgagee's rights by subrogation or assignment.
The validity of the sale deed executed by the alleged son of the original owner and its impact on title.
The applicability of Section 4A(1)(b) of the Kerala Land Reforms Act to an Ottikuzhikanamdar who obtained a release deed.

Legislation cited

Transfer of Property Acts. 92

Subjects

OttikuzhikanamMortgageSubrogationRelease deedKerala Land Reforms ActSection 4APartition suitVolunteerAssignment of mortgagee rightsTitle validity

Judgment

A KESAVENCHARI GOPALKRISHNAN ACHARI
v.
VELU ACHARI PAPPUKUTTY ACHARI AND ORS.

JANUARY 17, 1996

B [GN RAY AND G.T. NANAVATI, JJ.]

Tenancy and La11d Laws :

Kera/a La11d Refonns Act, 1964 Sectio11 2(57)(dd) and 4A(J)(b)-Ot-
C tikuzhika11am deed--l11terest tra11sfe11-ecf-Sale deed execute~Stranger
Vo/untee1i11g to pay mmtgagees' debt-Suit for pmtition and redemption of
11101tgage-Dismissed by the T1ial Cowt but allowed by the Lower Appellate
Cowt-High Coult setti11g it aside holdi11g that title claimed under an invalid
sale deed-On appeal held: Release deed not a transfe1~Stranger volunteers
to pay off mortgagee's debt-Does not acquire the status of a
D moJtgagee-Hence no inte1ference with the High CouJt's judgment called for.

Words & Phrases : "Ottikuzhikanam" meaning of i11 the context of Sec.
2(57) (dd) of Kera/a Land Refonns Act, 1969.

One "U" died issueless leaving behind five sisters to inherit his
E
property. The sisters executed "ottikuzhikanam deed" in favour of defen-
dant no. 1. The defendant no. 1 surrendered his interest as Ottikuz·
hikanam in favour of defendant no. 2. One "K" claiming to be the son of
original owner executed a sale deed in favour of defendant no. 2. The
plaintiff who were sons of the sisters of original owner filed a suit for
F partition and redemption of the mortgage. The suit was dismissed by the
Trial Court. The lower appellate court allowed partition and redemption
of mortgage. An appeal preferred to the High Court was dismissed. On a
Revision Petition the High Court set aside the order of the Trial Court
holding that defendant no. 2 was an intruder claiming title under an
G invalid sale deed and is liable to be evicted. Hence the present appeal.

On behalf of the appellant it was contended that defendant no. 2 took
sale deed from "K" claiming to be the son of the original owner and has
also obtained release deed of mortgagee's right. It was contended that a
releaoe is also a transfer of property and a person who obtains release,
H has also right of ownership of property and the two rights indulge in the
670
K.G.ACHAR!v. VELU ACHARI PAPPUKUTfY 671

same person by operation of law. A
The contention of the respondents was that if a stranger to the
mortgage pays the mortgage debt, such stranger does not became
mortgagee and the doctrine of subrogation is not applicable. It was further
contended that it is not the law that any person who volunteers to pay a
mortgage debt will become the mortgagee. B

Dismissing the appeal, this Court

HELD : 1. The case of defendant no. 2 that since she could not
acCJuire any superior interest in the properties in CJUestion by virtue of C
invalid deed of sale execnted by "K" the deed of release obtained by her
from defendant no. 1 will amount to transfer by defendant no.1 of his
Ottikuzhikanamdar's interest in her favour cannot be accepted. [681-G-H]

2.1. 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 D
such mortgagee's interest by paying the mortgage debt. Such stranger who
had volunteered to pay the mortgage debt and obtained a deed of release
from the concerned mortgagee, does neither acquire a right of subrogation
nor of the mortgagee. [682-A-B]

2.2. The assignment of mortgagee's right is possible only on the E
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 mortgagee by the deed of release does not create
an assignment of mortgagee's interest in favour of a person paying off the
mortgage debt when such a person had no obligation to pay off such debt F
and also no interest in the property. [682-B-C]

lallki Nath v. Pranath, (1940) PC 38, held applicable.

Gwudeo Sil!gh v. Chal!d1ikah Singh, ILR Cal. 36 (1909) 193, held
approved in Jankillath v. Ramnath, (1940) 38. G

Vairavan Saraswathi v. Eachamb The1i, [1993] Suppl. 2 SCC 201,
explained.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2053 of
1996. II
672 SUPREME COURT REPORTS [1996] 1 S.C.R.
r'
A From the Judgment and Order dated 9.10.91 of the Kerala High
Court in C.R.P. No. 1239 of 1990-G.

P.S. Poti and Ms. Malini Poduval for the Appellant.

G. Viswanatha Iyer, Dilip Pillai and T.G.N. Nair for the Respon-
B dents.
The Judgment of the Court was delivered by

G.N. RAY, J. Leave granted. Heard learned counsel for the parties. J
C 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 Ap-
plication No. 61 of 1984 in Execution proceedings No. 69 of 1980 arising
out of decree passed in O.S. No. 115 of 1994.

D The appellant was tenth defendant and son of second defendant in
a partition suit (0.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 Urnmini. He died issueless
leaving five sisters who inherited his interest in the said properties. The
E said sisters executed a 'Ottikuzhikanam' deed in favour of the first defen-
dant Kesavan Achari. The said kesavan executed a deed of release in
favour of defendant No. 2 surrendering his interest as Ottikuzhikanarndar.
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 redemption. However, ignoring the
F 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 redemption of mortgage
granting in favour of defendant No. 1.

Defendants 1 and 2 contested the said partition suit by contending
G 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
H by him in favour of defendant No. 2 was therefore, null and void. The suit
{

K.G.ACHAR!v. VELU ACHARIPAPPUKUTTY[G.N. RAY,J.] 673
I.,._

was finally decreed allowing partition and redemption of mortgage as A
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 defen-
dant 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
B
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(l)(b) of Kerala Land Reforms Act (Act 35 of
1969). It was also contended that according to amended provisions of the
said Act. an Ottikuzhikanamdar was a tenant' and therefore the mortgage
was not redeemable. The High Court dismissed the second appeal by C
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 D
application before the executing court being E.A. No. 61 of 1984 claiming
fixity of tenancy right under section 4A (l)(b) of Kerala Land Reforms
Act. The said petition was allowed and the said defendants were found
entitled to fixity of tenure in the disputed property.

The respondents in this appeal preferred a revision petition being E
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 F
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 G
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 H
(
\

674 SUPREME COURT REPORTS [1996] 1 S.C.R.

A 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 IQ as Land Act) tenant means and include an Ottikuz-
hikanamdar. 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
B was inserted by amendment. Section 4A of the Land Act (excluding
explanation thereof, not relevant for the disposal of this appeal) is set out
hereunder :

Section 4A
c "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,
D 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 preceding the commencement of the Kerala Land
E
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
occupymg such building for such purpose for a continuous period
F of not less than twenty years immediately preceding such COil)-
mencement;

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
G 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
H applied if that Act had been in force at the time of mortgage, and-
KG.ACHARlv. VELU ACHARJ PAPPUKUTIY[G.N. RAY.J.] 675

I
(i) the mortgagee or lessee was holding such land for a con- A
" tinuous 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 B

-· f 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 ·c
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 Ottikuz-
hikanamdar by the defendant No. 2 but kept such question open with
... liberty to defendant No. 2 to raise such claim before the executing court.

""l\
~ The plaintiff in the partition suit have 2/5th share in the properties D
in suit. The properties had an outstanding mortgage of 1095 Malabar Era
(1920 A.D.). Such mortgage right had d«volved 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 E
_. 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 in suit hy virtue of the sale deed executed
by the said Kochukesavan. There is however no dispute that the defendant F
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
G
(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 H
r
676 SUPREME COURT REPORTS (1996] 1 S.C.R.

A who is entitled to seek such transfer by virtue of a superior right. If a person J
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
B as subrogation etc. On the other hand, if the mortgagee 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 J
mortgagee had, only devolve on the transferee. Such transferee, therefore,
by the purported release, gets the rights of the mortgagee.

C 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 put mortgage security is kept alive for certain purposes to
D 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
E 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.
F 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 Ottikuzhikana-
G mdar's right in the disputed property. ·

Mr. Poti has submitted that the amended provisions of Land Act
1
'
came into force when the suit for partition was pending. Since the Ottikuz-
hikanam was created in 1905 (Malabar Era) corresponding to 1920 AD
H and the defendant No. 2 had built her residence on the said land under
K.G.ACHARJ v. VELU ACHARIPAPPUKUTIY[l:i.N. RAY.J.] 677

mortgage, she was entitled to claim tenancy right on the said land under A
the Land Act and such mortgage was not redeemable. Mr. Poti has,
therefore submitted that the impugned deci5ion should therefore, be set
aside and the decision of the executing court should be affirmed.

Mr. Iyengar, the learned Senior counsel appearing for the respon-
dent No. 1 has however refuted the contentions of Mr. Poti. Mr. Iyengar
B
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 Ottikuzhikana\n) 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 C
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 (0.S. No. 115 of D
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 E
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 F
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 G
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 H

1
678 SUPREME COURT REPORTS [1996) 1 S.C.R.

A up by the predecessor of the appellant stands, has been allotted to appel-
lant 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
B final decree in favour of the plaintiffs, in the said partition suit, the
defendant No.l 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)
C 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 appel-
lant 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
D 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
E 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 ap-
plicable to a mere stranger who volunteers to pay off the mortgage debt of
F 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
G Calcutta High Court in Gwudeo Singh v. Cha11drika11 Singh, !LR 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 assign-
ment or agreement for subrogation being under no legal obligation
H to make the payment and not being compelled to do so for the
K.G. ACHARI v. VELU ACHARI PAPPUKUTTY [G.N. RAY, J.] 679

preservation of rights or properties of his own." A

'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, satisfies the lien of a prior
creditor, or for the benefit of a purchaser who extinguishes the B
encumbrance upon his estate or of a co-obliger or surety who
discharges the debt, or of an heir who pays the debt of the
succession.

****** ******* ****** c
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 v. Pranath, D
(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 E
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 mortgagee
by such payment.

Mr. Iyengar has also submitted that even if it is assumed that by the F
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 roferred to the
decision of this Court in Vairavan Saraswathi v. Eachamb 77ieri, [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 G
property is duly conserved. Such a right includes a right lo redeem the
property by paying the debt outstanding against the tarward. It is an
incidence of co-ownership or co- proprietorship which flows from the
nature of tarward. But the person who thus conserves the property does
not step into the shoe of the co-mortgagee so as to acquire right under H
(
680 SUPREME COURT REP ORTS [1996) 1 S.C.R.

A Section 4A (i)(a) of Land Act. He is only a surety holding the property on ;.(
behalf of the tarward subject to right of contribution. Therefore, a junior
member of a tarward 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 11 so as to acquire rights of a tenant under Section
B 4A of the Land Act.

Mr. Iyengar has submitted that the defendnat 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
C 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 submission made by the learned counsel for the parties it •
D appears to us that the predecessor-in-interest of the appellant Smt.
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
E from the said Kochikesavan, she obtained a deed of release of Ottikuz-
hikanam 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 validity
acquired from Kochikesavan, free from all incumbrances.
F
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
G partition, it was contended by her that the suit for partition must fall
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 corttended by the
H defendant No. 2 that she had been possessing the said properties openly
K.G. ACHARI v. VELU ACHARI PAPPUKUTfY [G.N. RAY, J.] 681

and as a right by asserting her title as owner and had also constructed her A
residential building on a portion of the properties involved in partition.
Accordingly her title had, in any event, been perfected by adverse posses-
sion. The trial court however 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 B
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
of 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 C
one of the sisters of Ummini was a.Isa 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.
D
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 E
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 raise such conten- F
lion 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 G
acquire any superior interest in the properties in question by virtue of
invalid deed of sale executed by Kochikesevan, the deed of release ob-
tained by her from defendant No. 1 will amount to transfer by defendant
No. 1 of his Ottikuzhikanamdar's interest in favour of defendant No. 2,
though ingeneous, can n?I be accepted. H
(
682 SUPREME COURT REPORTS (1996] 1 S.C.R.

A The defendant No ..2 was stranger to the mortgage. In law, she was
only a volunteer who had obtained a deed of release from a mortgagee 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 mortgagee, does neither acquire a right of a
subrogee nor of the mortgagee. Such stranger volunteering to pay off
B 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 mortgagee
because a deed of release executed by a mortgagee 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
C mortgagee's right is ex facie incompatible with the concept of assignement
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.
D In our view, the principle of law enunciated in Gurndeo Singh's case
(supra) approved by the Privy Council in Janaki Nath's case (supra),
squarely applies in the facts of this case. In Variavam'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 tarward who had
E 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.

S.V.KI. Appeal dismissed.