VARIAVAN SARASWATHI AND ANR. versus EACHAMPI THEVJ AND ORS.

Citation: [1992] SUPP. 2 S.C.R. 418 · Decided: 13-11-1992 · Supreme Court of India · Bench: R.M. SAHAI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
VARIAVAN SARASWATHI AND ANR. 
v. 
EACHAMPI THEVJ AND ORS. 
NOVEMBER 13, 1992 
B 
[R.M. SAHA! AND B.P. JEEVAN REDDY, JJ.] 
Kera/a Land Reforms Act, 1964 : 
Section 4(A)(l)(aj-Acquisition of right of tenant-Junior member of 
C Tarwad redeeming mortgage and continuing in possession of land for more 
than five years-Whether can be deemed to be a mortgagee-Whether can 
acquire the rights of tenant. 
Two junior members of a Tarwad (somewhat like a joint family) 
redeemed a mortgage execute~ in 1870 by the Karnavan (akin to Manager) 
D of the Tarwad. They paid the amount in 1886, got the property released, 
obtained possession and they or their descendants continued in posses-
sion as such. 
In 1967 a suit for partition was filed by successors, of other mem-
E hers of the Tarwad, in whose favour equity of redemption, of the suit land 
was transferred in a family partition in 1962. The suit was resisted 
amongst others on acquisition of right of tenant under Section 4A(l)(a) 
of the Kerala Land Reforms Act, 1964. 
The trial court and first appellate court held that the junior mem-
F 
hers, as a result of getting the property release~, were holders of special 
right under Marumakkathayam Law and they could not be held to be 
mortgagees and, therefore, they did not acquire any right under the Land 
Reforms Act. 
The High Court, however, held that the junior members being assig-
G nee of mortgage in possession for fifty years, on the date the Kerala Land 
Reforms Act, 1964, was amended and Section 4(1)(a) was added by 
Amendment Act of 1969, were entitled to rights as tenants, and thus, 
accepted the claim of junior members, because the members of the Tarwa<I 
treated the mortgage to be continuing on the date the suit was filed. It also 
H held that a junior member of the Tarwad, paying off the debt of TarwaD, 
418 
I • 
V. SARASWATIII v. E. TIIEVJ 
419 
became a mortgagee of the excess share in his own right. 
Allowing the appeals of the successors of other members of Tarwad, 
this Court, 
A 
HELD: 1. A co-mortgagor c' a junior member of the Tatwad who 
continued in possession over the excess share, got redeemed by him, could B 
not be deemed to be mortgagee so as to acquire right under Section 4A 
(1) (a) of the Kerala Land Reforms Act, 1964. This position does not alter 
either because during partition equity of redemption in respect of proper-
ty redeemed by junior members was transferred or because in the plaint 
it was claimed that mortgage subsisted. None of these actions could affect C 
the operation of law. [425-D-EJ 
2.1 Mortgage is creation of an interest in the property for payment 
of debt. Once the mortgage debt is discharged by a person beneficially 
interested in equity of redemption, the mortgage comes to an end by 
operation of law. Consequently, the relationship of mortgagor and D 
mortgagee cannot subsist. [ 423-E, F] 
2.2. In law, the status of a person paying olT debt to secure the 
property either with consent of others or on own volition is that he 
becomes the owner, entitle to hold and possess the property. But, in equity 
the right is to hold the property till he is reimbursed. In other words, he 
may hold the property in surety or he may bring the claim for contribu-
tion. Similarly, the co-mortgagor whose share has been got redeemed is 
entitled, in equity, to get possession over his share of property on payment 
of the amount of his share. But these rights in equity, either in favour of 
the person who discharges the debt or the person whose debt has been 
discharged, do not result in resumption of relationship of mortgagor and 
mortgagee. [ 423-F, G; 424-B] 
2.3. A plain reading of Section 92 of the Transfer of Property Act, 
1882 does not warrant a construction that the substitutee becomes a 
mortgagee. The expression is, 'right as the mortgagee' and not right of 
mortgagee. The legislative purpose was statutory recognition of the equi-
table right to hold the property till the co-mortgagor was reimbursed. And 
not to create relationship of mortgagor and mortgagee. The section con· 
E 
F 
G 
fers certain rights on co-mortgagor and provides for the manner of its 
exercise as well. The rights are of redemption, foreclosure and sale. And H 
420 
SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R. 
A 
the manner of exercise is as mortgagee. The word, 'as' means, 'in the 
manner prescribed'. [425-B-C] 
B 
2.4. A co-mortgagor in possession, of excess share redeemed by him, 
can thus enforce his claim agains

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