IMPORTANT POINT
The extinction of mortgage by the deed of release 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 has also no interest in the property.

JUDGMENT

G.N. Ray, J.-Leave granted. Heard learned counsel for the parties.

2. 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.

3. 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 inherited 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 Ottikuzhikanamdar. 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 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.

4. 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 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 mortgaged 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 Ottikuzhikanamdar 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 defandant 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 fixiity of tenancy right under Section 4A (1) (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.

5. The respondents in this appeal preferred a revision petition being C.R.P. No. 1239 of 1990-3 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 on his heirs. Consequently, defendant No.2 had no right to secure r