LexRAMZAN versus SMT. HUSSAINI
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
" • RAM ZAN A v. SMT. HUSSAINI NOVEMBER 24, 1989 , [LALIT MOHAN SHARMA AND T. KOCHU THOMMEN, JJ.] B Limitation Act, 1963: Article 54-Specific performance of con- tingent contract-Period of limitation-Determination of. The period of limitation of three years for specific performance of a contract begins to run under the third column of Article 54 of the Limitation Act, 1963 from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. c Under an agreement dated June 23, 1965 the plaintiff-respondent, sister of the defendant-appellant, undertook to redeem the disputed D property under mortgage and the appellant agreed to execute the sale deed of the said property in her favour on the date she took papers of the registry in her possession. She redeemed the property in 1970. The appellant, however, failed to respect the agreement in spite of repeated demands. The respondent served a notice in July 1984 demanding specific performance before filing the suit. The appellant pleaded limitation. The trial court decided the issue in favour of the respondent. That order was confirmed by the High Court on the view that since the cause of action of the suit was dependent on the redemption of the mortgage and E no period was fixed within which it was necessary for the respondent to F have redeemed the mortgage, it could not be said that a date was "fixed" within the meaning of the third column of Article 54. Allowing the appeal by special leave, HELD: 1.1 The requirement of Article 54 of the Limitation Act, G 1963 is not that the actµal day should necessarily be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein.l[29IA-B) 1.2 In the instant case, under the agreement the date for the appellant to execute the sale deed was fixed, although not by mentioning H 287 A B c D E 288 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R. a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the respondent, the appellant became liable to execute the sale deed which the respondent was entitled to enforce. The period of limitation thus started running on that date. The case, is, therefore, · covered by the first part of Article 54 (third column) and not the second part. [291B-C] R. Muniswami Goundar & Anr. v. B.M. Shamanna Gouda & Ors., AIR 1950 Madras 820 and Duncombe v. The Brighton Club & Norfolk Hotel Company, [1875] 10 QB 371, refer~ed to. Sathula Venkanna v. Namuduri Venkatakrishnayya & Anr., AIR 1918 Madras 492; Kruttivenli Mallikharjuna Rao v. Vemuri Pardha- saradhirao, AIR 1944 Madras 218 and Kashi Prasad v. Chhabi Lal & Ors'., AIR 1933 Allahabad 410 (2) distinguished. 2. The agreement in the instant case is a typical illustration of a contingent contract within the meaning of s. 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of redemption happened. The doctrine of id cerium est quod cerium reddi polesl is clearly applicable to the case. [290D-E] · CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4754 of 1989. From the Judgment and Order dated 17.5. 1989 of the Rajasthan High Court in S.B. Civil Revision Petition No 450 of 1988. V.M. Tarkunde, B.L. Kachhawan and Badridas Sharma for the p Appelant. Aruneshwar Gupta and S. Kumar for the Respondent. The Judgment of the Court was delivered by G SHARMA, J. Special leave is granted. 2. This appeal arises out of a suit filed by the respondent against her brother, the appellant, for specific performance of an alleged con- tract of sale dated 23.6.1965 in respect of a house. The property was under a mortgage and according to the plaintiff's case, the defendant H had agreed to execute a deed of sale on the redemption of the mort- •1 ' ·' RAMZAN v. SMT. HUSSAINI [SHARMA, J.[ 289 gage by her, which she did in 1970. In spite of her repeated demands the defendant failed to respect the agreement which necessitated the institution of the suit. 3. The defendant-appellant, besides pleading limitation, denied the agreement as also the plaintiffs allegation that she had redeemed the mortgage. 4. The question of limitation was taken up by the trial court as a preliminary issue and decided in favour of the plaintiff. The order has been confirmed by
Excerpt shown. Read the full judgment & AI analysis in Lexace.