Vs. Smt. Hussaini  INSC 359 (24 November 1989)
L.M. (J) Sharma, L.M. (J) Thommen, T.K. (J)
1990 AIR 529 1989 SCR Supl. (2) 287 1990 SCC (1) 104 JT 1989 Supl. 354 1989
Act, 1963: Article 54 Specific performance of contingent contract--Period of
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.
an agreement dated June 23, 1965 the plaintiffrespondent, sister of the
defendant-appellant, undertook to redeem the disputed 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.
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 no period was fixed within which it was
necessary for the respondent to have redeemed the mortgage, it could not be
said that a date was ''fixed" within the meaning of the third column of
the appeal by special leave,
1.1 The requirement of Article 54 of the Limitation Act, 1963 is not that the
actual 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
the instant case, under the agreement the date for the appellant to execute the
sale deed was fixed, although not by mentioning 288 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
Venkanna v. Namuduri Venkatakrishnayya & Anr., AIR 1918 Madras 492; Kruttiventi Mallikharjuna Rao
v. Vemuri Pardhasaradhirao, AIR 1944 Madras 218 and Kashi Prasad v.
Lal & Ors'., AIR 1933 Allahabad 410
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 certum est quod certum reddi potest is clearly applicable to the case. [290D-E]
& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4754 of 1989.
the Judgment and Order dated 17.5.1989 of the Rajasthan High Court in S.B.
Civil Revision Petition No 450 of 1988.
B.L. Kachhawan and Badridas Sharma for the Appelant.
Gupta and S. Kumar for the Respondent.
Judgment of the Court was delivered by SHARMA, J. Special leave is granted.
This appeal arises out of a suit filed by the respondent against her brother,
the appellant, for specific performance of an alleged contract 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 had agreed to execute a deed
of sale on the redemption of the mort289 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.
defendant-appellant, besides pleading limitation, denied the agreement as also
the plaintiff's allegation that she had redeemed the mortgage.
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 the
High Court by the impugned judgment.
plaintiff served a notice in July 1984 demanding specific performance before
filing the suit. It has been contended on behalf of the appellant that since
the alleged agreement is said to have been executed in June 1965, the suit is
barred by limitation, and alternatively, even counting the period of limitation
from the alleged redemption in 1970, the suit has been filed after more than 14
years, that is, long after the expiry of three years' period prescribed under
Article 54 of the Limitation Act of 1963. The High Court has rejected the
argument holding that since the cause of action of the suit was dependent on
the redemption of the mortgage and no period was fixed within which it was
necessary for the respondent to have redeemed the mortgage, it cannot be said
that a date was 'fixed' within the meaning of the third column of Article 54,
which reads thus:
period of Time from which of suit limitation period begins to run "54. For
specific three years The date fixed for the perperformance. formance, or, if no
such date is fixed, when the plaintiff has notice that performance is
refused." As the notice preceding the suit was admittedly served within
three years, the defendant's plea of limitation was rejected.
relevant provisions in the alleged agreement of sale as quoted in the judgment
of the trial court reads as follows:
"This house is under mortgage with Jethmal Bastimal for Rs. 1000. When you
will get this house, the description of which is given below, redeemed from M/s
Jeth Mat Bastimal and take the papers of the registry in your possession, on
that day I will have the sale deed of the said house, written, executed and
registered in your favour." (emphasis supplied The question is whether a
date was 'fixed' for the performance of the agreement and in our view the
answer is in the affirmative. It is true that a particular date from the calander
was not mentioned in the document and the date was not ascertainable
originally, but as soon as the plaintiff redeemed the mortgage, it became an
ascertained date. If the plaintiff had, immediately after the redemption, flied
the suit, could it be thrown out on the ground that she was not entitled to the
specific performance asked for? We do not think so. She would have been within
her rights to assert that she had performed her part of the contract and was
entitled to insist that her brother should complete his part. The agreement 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 (by the plaintiff hereself) happened. We agree with the view of the
Madras High Court in R. Muniswami Goundar and Another v.B.M. Shamanna Gouda and
Others, AIR 1950 Madras 820 expressed in slightly different
circumstances. The doctrine of id certurn est quod certum reddi potest is
clearly applicable to the case before us which in the language of Herbert Broom
(in his book dealing with legal maxims) is that certainty need not be
ascertained at the time; for if, in the fluxion of time, a day will arrive
which will make it certain, that is sufficient. A similar question had arisen
in Duncombe v. The Brighton Club and Norfolk Hotel Company,  10 QB 371,
relied upon in the Madras case. Under an agreement, the
plaintiff had supplied some furniture to the defendant for which payment was
made but after .some delay. He claimed interest. The rule at Common Law did not
allow interest in such a case, and the plaintiff in support of his claim relied
upon a statutory provision which could come to his aid only if the price was
payable at a certain time. Blackburn, J. observed that he did not have the
slightest hasitation in saying that the agreement contemplated a particular
day, which, when the goods were delivered would be ascertained, and then the
money would be payable at a certain time; but rejected the plaintiff's demand
on the ground that the price did not become payable by the written instrument
at a certain time.
other learned Judges did not agree with him, and held that the statute did 291
not require that the document should specify the time of payment by mentioning
the day of payment. If it specified the event upon which the payment was to be made,
and if the time of event was capable of being ascertained, the requirements of
the section were satisfied. The same is the position in the case before us. The
requirement of Article 54 is not that the actual 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.
accordingly, hold that under the agreement the date for the defendant to
execute -the sale deed was fixed, although not by mentioning 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 plaintiff, the
defendant became liable to execute the sale deed which the plaintiff 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.
learned counsel for the respondent relied on several decisions in support of the
opinion of the High Court in the impugned judgment but they do not appear to
help him. In Sathula Venkanna v. Namuduri Venkatakrishnayya and Another, AIR
1918 Madras 492, it was observed that in cases where a right to enforce
specific performance vests in a third party to whom the ascertainment of the
date on which performance becomes due need not necessarily be known, the
doctrine certum est quod certum reddi potest does not apply.
expressing their final opinion the learned Judges observed that it might be
right to apply the doctrine between the actual parties to the contract who
would get the benefit and be subject to the liabilities under that contract;
"but in cases where a person is entitled to bring a suit on the contract
who may not and need not, and very likely may not be aware of the date becoming
fixed", the doctrine could not apply. In Kruttiventi Mallikharjuna Rao v. Vemuri
Pardhasaradhirao, AIR 1944 Madras 2 18,
the vendor promised to execute the sale deed when both of his brothers, who
were studying elsewhere, returned to the village. It was held that it was not a
case where it could be said that a date was fixed for the performance of the
contract as the event mentioned therein was too indefinite to be regarded as
fixing a date. The performance was dependant on both the brothers of the vendor
coming to the village, in which the intending purchaser had no say at all.
Apart from the question of limitation, the defendant could not effectively rely
upon such a clause to defeat the very contract. In Kashi Prasad v. Chhabi Lal
and Others, AIR 1933 Allahabad 410(2), the plaintiff created two usufructuary
mortgages and thereafter a third mortgage in 292 favour of the defendants for a
sum of Rs.8,500. Out of this sum an amount of Rs.6,000 was left with the
mortgagees for payment to the earlier creditors. The suit was instituted on the
allegation that the defendants had failed to redeem the earlier mortgages. The
plaintiff prayed for a direction to the defendants to redeem the mortgages. The
document did not indicate as to the time when the defendants were obliged to
redeem the earlier mortgages, and a plea of limitation was taken on the ground
that the date was fixed by necessary implication and could be ascertained by
reference to the surrounding circumstances. In this background the court
observed that the use of the word 'fixed' implies that it should be fixed
definitely and should not be left to be gathered from surrounding circumstances
of the case. All these cases are clearly distinguishable.
the reasons mentioned above, the impugned judgments of the High Court and the
trial court are set aside and the suit is dismissed. The appeal is accordingly
allowed, but the parties are directed to bear their own costs throughout.