KESAVENCHARI GOPALKRISHNAN ACHARI versus VELU ACHARI PAPPUKUTTY ACHARI AND ORS.

Citation: [1996] 1 S.C.R. 670 · Decided: 17-01-1996 · Supreme Court of India · Bench: G.N. RAY · Disposal: Dismissed
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Judgment (excerpt)

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. 
E 
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 
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. 
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. 
Dismissing the appeal, this Court 
A 
B 
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. 
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 
r 
' 
G.N. RAY, J. Leave granted. Heard learned counsel for the p
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