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Second Appeal No. 891 of 1958, decided on 27th July 1960.
Art. 113‑Agreement to recon vey property sold, on tender of consideration money‑No period fixed for tender and reconveyance‑Suit for specific performance of contract to reconvey‑Provisions of Art." 113 applicable‑Tender within reasonable time‑Three years held, reasonable.
Abdul. Khadir and another v. Nagasarupu and another 17 I C 399 ; Kalappa Kamthi and another v. Kachur Sakha Ram Rao and another 29 I C 898 and Laxman Madhavrao Jahagirdar v. Bhagvansingh Narsinghbau Navalukar 60 I C 581 ref.
Fisher and Lightwood's law of Mortgage, Part 11, p. 12. ref.
B. C. Shaha for Appellant.
S. R. Pal and Abu Bakhar for Respondents Nos. 1 and 3.
This is an appeal by the plaintiff against the judgment of Subordinate Judge, 1st Court, Faridpur in Title Appeal No. 30 of 1958. The suit was decreed by the Munsif and the judgment and decree of the Munsif were reversed by the learned Subordinate Judge.
2. The plaintiff's case, in short, is this that he on 9‑12‑1359 B. S. sold the suit land to the defendants for a consideration of Rs. 400. It was an out‑and‑out sale. On the same day an agree ment was entered into between the plaintiff and the defendants which is Exhibit I to the effect that the defendants will re‑convey the suit land to the plaintiff for the same consideration, i.e., for Rs. 400 when the plaintiff will tender the said consideration money of Rs. 400. There was no time fixed in the said agreement for tender by the plaintiff This agreement was executed on the same day, i.e., 9‑12‑1359 B. S., but eras registered two days thereafter. The plaintiff in Chaitra 1362 B. S., tendered the consideration money of Rs. 400 to the defendants, but the defendants refused to convey the suit land. The plaintiff there after in Chaitra 1363 B. S., corresponding to 11‑4‑57 deposited in Court the said consideration money and prayed for re‑conveyance of the suit lands to him by the defendants.
3. The plaintiff's case was that although there was no time fixed in the agreement for tender and re‑conveyance, yet it was agreed that the tender could be made within 5 years from the date of execution of the sale deed.
4. The defendants 1 and 3 appeared to contest the suit with a joint written statement. The defence was that the defendants never agreed to the period being fixed for more than one year for re‑conveyance from the date of execution of the sale‑deed, and as the parties could not come to a settlement with regard to the date for tender, no date was mentioned in registered agreement.
The following issues were framed by the learned Munsif.
"(1) Is the suit barred by limitation
(2) What was the period if at all agreed upon to .get the reconveyance
(3) To what relief is the plaintiff entitled "
(5) The learned Munsif found that since there was no period fixed in the registered agreement for tender and re‑conveyance the plaintiff was entitled to the benefits of Article 113 of the Limitation Act. The demand for reconveyance having been made in 1302 B. and the suit having been filed in 1 63 B. S., it was held that the plaintiff was within the period of limitation as contemplated by the second part of Article 113 of the Limitation Act and as such the suit was not barred by Limitation. He, therefore, decreed the suit in favour of the plaintiff.
6. The learned Subordinate Judge; on appeal by the defen dants, dismissed the suit holding that the plaintiff was not entitled to enforce the specific performance of the agreement: of re‑convey ance as contained in Exhibit 1. He did not at all consider the question of limitation.
(7) Mr. B. C. Saha, the learned Advocate for the appellant, has argued that, as the suit was tried on the basis of limitation, the learned Subordinate Judge was wrong in not dealing with that question and his judgment is not a proper judgment of reversal as he has dismissed the suit on a ground which was not before the Trial Court and for which no issue was framed or tried. Mr. Saha argues that there are only two terms in the agreement, Exhibit 1, the first of which is that the defendants agreed to re convey or re‑sell the suit land to the plaintiff for a consideration of Rs. 400 and the second one was that the consideration for that re sale was fixed at Rs. 400. He argues that there being no time fixed for re‑conveyance, the plaintiff' was entitled to tender the considera tion money and demand a re‑coveyance with a reasonable period, and if his tender has been made within a reasonable period and the suit filed within three years from the date of the tender, his client is entitled to the benefits of the second part of Article 113 of the Limitation Act.
8. In support of his contention, he has cited three decisions, first of which is Abdul Kahdir and another v. Nagasarupu and another (17 I C 399). This is a decision of a Division Bench of the Madras High Court. In this case, mentioned above, the facts were that the suit was for specific performance of a contract for sale entered into by plaintiff's father with the defendants in September or October 1899. Plaintiff's case was that there was an agreement that the Gale deed should be executed in July 1906. It was found by both the Courts in that case that such a condition was not attached to the contract. The consideration was as to whether the suit was filed within time. The Munsif held the suit to be barred by limitation but the District Judge reversed his judgment holding that it was within time. On appeal, the High Court of Madras held :
"With regard to the question of limitation, the finding is that there was no time fixed for the execution of the conveyance and that time, therefore, ran from the time when demand was made and defendant refused performance."
The question of the delay in filing of the suit was also considered by the Court and their Lordships held
" . . . . .it has not been shown that the delay has in any way prejudiced the. defendant."
9. The second case cited by Mr. Saha is a decision of the Madras High Court, Kalappa Kamthi and another v. Kachur Sakha Ram Rao and another (29 I C 898). In that case also there was a contract for re‑conveyance on payment of a sum of Rs. 400 by the plaintiffs to the defendants. Their Lordships held :
"The claim for reconveyance would, therefore, be a claim to enforce specific performance of contract to reconvey and would fall under Article 113 of the. 2nd Schedule to the Limitation Act, which provides a period of three years from the date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance is refused."
In that case also there was no date fixed in the agreement to re convey and their Lordships held that the second part of Article 113 was applicable.
10. The third case cited by Mr. Saha is the Division Bench judgment of the Bombay High Court, Laxman Madhavrao Jahagir dar v. Bhagvansingh Narsinghbau Navalukar (60 I C 581). In this case also it was held that where there is no period fixed for tender and re conveyance the provisions of Article 113 of the Limitation Act will apply.
11. Article 113 of the Limitation Act is in the following terms
"For specific Three years. The date fixed for the perfor
performance of mance, or, if no such date is
a contract. fixed, when the plaintiff has
notice that performance is
refused."
12. In the present case, the plaintiff had notice of the refusal by‑ the defendants in Chaitra, 1361 B. S. and he filed the suit in Chaitra 1363 B. S. Therefore, he is within three years from the date of notice of refusal.
13. Mr. S. R. Pal, the learned Advocate for the defendant -respondents, in the beginning, very earnestly tried to argue that the judgment of the learned Subordinate Judge was correct and that he need not have decided the question of limitation at all. He wanted to argue that there was no right for the plaintiff to ask for specific performance and therefore the question of limitation would not arise at all. He next tried to argue that Exhibit 1 did not con stitute a contract at all because his clients, the defendants, had no right under the said agreement corresponding to the right given to the plaintiff. He retied on a passage occurring at page 12 in Part II of Fisher & Lightwood's Law of Mortgage in support of his second condition. The sentence that he relied upon is as follows
"But in the case of a defeasible purchase, forfeiture is out of the question, the estate being absolutely vested in the grantee ; and the power of re‑purchase, not arising from the nature of the contract, but being a special privilege given to one of the parties without any corresponding right in the other, must be strictly exercised."
He has not, for reasons best known to him cited the entire passage of which the last sentence only, as quoted above, was cited. The first sentence of the passage is in the following terms :
"Although in certain cases conveyances apparently absolute, may be construed as mortgages, an absolute conveyance within an agreement for re‑purchase, or that the conveyance shall be void upon payment of a certain sum at a fixed time, will create a mere right of re‑purchase to be exercised according to the strict terms of the power, and not such a right of redemption as is incidental to a mortgage."
This passage of Fisher, occurring in Fisher & Lightwood's Law of Mortgage, is definitely related to the law of mortgage and not to the law of simple purchase or agreement to re‑purchase. Even then, this passage itself shows that there can be a contract to re purchase apart from the deed of sale by which the property sought to be re‑purchased is conveyed and the party who is given the right to re‑purchase can enforce that contract, but in doing so the terms of the contract have strictly to be considered.
14. Mr. Pal, finding himself in difficult situation, had to agree that the agreement, Exhibit 1, is enforceable by the plaintiff, but it must be construed strictly.' No one controverts this pro position that a written agreement has got to be construed strictly. As I have already indicated that there are two terms in this agreement Exhibit 1, one is the defendants' agreeing to re‑convey and the second was the fixation of the 'consideration money for the reconveyance of the suit lands. There was no time fixed in this agreement. Therefore, there is no scope for any speculation as to the tune by which the plaintiff was to tender and demand the re conveyance.
Mr. Pal did not cite any case in support of his contentions.
15. I am of opinion that Exhibit 1, the agreement to re convey, is a document which was enforceable by the plaintiff, and that there being no time fixed for the tender. he had a right to tender the money within a reasonable time and if he had done so he is entitled to the benefits of the second part of Article 113 of Schedule 2 of the Limitation Act. In this case, as I have already said, the conveyance by which he sold the suit land was executed and registered on 9‑12‑1359 B. S., corresponding to 23‑3‑1953 and he tendered the consideration money to the defendants in Chaitra, 1362 B. S., and he filed the suit on 11‑4‑57 corresponding to Chaitra, 1363 B. S. From 9‑12‑1359 B. S., to Chaitra, 1363 B. S. it is only three years. This period of three years is not considered by me to be an undue delay and therefore unreasonable. He filed the suit a year thereafter, i.e., within one year from the date of tender when the defendants refused to re‑convey and therefore he is within 3 years from the date of refusal as contemplated by the second part of Article 113 and therefore his suit is within time.
16. The learned Subordinate Judge has not at all dealt with the question that was actually before the Court, that is, the question of limitation. I, therefore, hold that his judgment is not a proper judgment of reversal and the same cannot be sustained.
I, therefore, allow this appeal with costs, set aside the judg ment and decree of the learned Subordinate Judge and restore the judgment and decree of the learned Munsif.
K. B. A.
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