Ahmadasahab Abdul Mulla (D) By Proposed LRS Vs. Bibijan & Ors  INSC 664
(21 April 2008)
Dr. ARIJIT PASAYAT & TARUN CHATTERJEE REPORTABLE CIVIL APPEAL NO. 4190 OF 2000 Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by a learned Single Judge
of the Karnataka High Court allowing the Second appeal filed by the respondents
under Section 100 of the Code of Civil Procedure, 1908 (in short the 'CPC').
The present respondents are the plaintiffs. They had filed the suit for specific
performance of the contract on sale which was decreed by the trial court but
was dismissed on the ground of limitation by the first Appellate Court and
therefore the Second Appeal was filed.
2. Background facts in a nutshell are as follows:
The plaintiff No.1's husband entered into an agreement of sale of house
property No.CTS 2565, Ward No.5, of Mudhol corresponding Municipal No. 536, on
15-11-1974 for consi- deration of Rs.6,000/-. A sum of Rs.1000/- was paid and
subsequently two sums of Rs.300/- and Rs.600/- were paid on 21-12-1974 and
13-8-1975. But in the mean time, a suit was filed by the defendant's wife and
children in 0. S.
No.72/76, wherein the plaintiff's husband was made a party.
questioning the agreement of sale, and the suit came to be dismissed on
4-8-1977. The first appeal preferred in R.
A.84/77 subsequently numbered as R, A, 83/79 came to be dismissed on
18-8-1979 and the second appeal preferred in RSA No.385/80 also came to be
dismissed on 5-6-1980.
Therefore the present suit is filed on 15.9.1981 for specific performance of
agreement of sale.
The defendant contended that the suit house belonged to his deceased father
and his deceased father made an oral gift of the suit, property in favour of
himself and his wife, and minor children by delivery of possession. As he had
no source of income to meet his family needs, the deceased husband of the
plaintiff promised to lend him money and the defendant agreed to give the
property as security. Under such circumstances he executed the suit agreement and
received loan from Modinsaheb. He has not parted with the possession.
He further contended that the suit is barred by limitation and the plaintiff
was never ready and willing. Ultimately, he resisted the suit by contending
that the suit house is the only shelter for him and his family members he
cannot be directed to comply with agreement of sale.
The trial Court accepted the agreement as to the payment made thereon as
correct, and holding that the defendant is not a debtor within the meaning of
the relevant Act, granted the decree for specific performance rejecting the
plea of non- joinder and loan raised by the defendant.
The appellate Court found that the trial court is right in accepting the
case of the plaintiff regarding the agreement and parting with the possession
by way of part performance and also that no hardship would be caused to the
defendant by grant of specific performance as provided under Section 20 of the
Specific Relief Act, 1963 (in short 'the Act'). But on the ground of
limitation, holding that the pendency of the other suit will not save the
limitation within the meaning of section 14 of the Limitation Act, 1963 (in
Act') dismissed the suit.
The second appeal was admitted on the following questions of law:
"Whether the contention taken that the cause of action for filing the
suit arises only, when the other suit questioning the title of his own wife and
children, was over as per dictum of Lakshminarayana Reddiar v. Singaravelu
Naicker & Anr. AIR 1963 Mad.24".
The High Court noticed that as held by the Madras High Court in
Lakshminarayan's case (supra) the time taken for redemption wherein the title
deed was primarily involved has to be excluded under Section 14 of the Limitation Act.
It was held that no contra decision was cited and, therefore, with reference to
Section 113 of the Limitation Act, 1908 (in short the 'Old Act') this suit was
3. Learned counsel for the appellant submitted that the true import of
Section 113 of the Limitation Act has not been kept in view.
4. Learned counsel for the respondent on the other hand supported the order
of the High Court.
5. In S. Brahmanand v. K.R. Muthugopal (2005 12) SCC 764) after noticing the
decisions rendered by various High Courts, this Court inter alia observed as
"16. It would be useful to set out the provisions of Article 54 before
critically appraising the arguments presented to us on both sides.
"Description of suit Period of limitation Time from which period begins
54. For specific Three years The date fixed performance of a contract for
the performance, or, if no such date is fixed, when the plaintiff has notice
that performance is refused."
17. Though, at first blush, it may appear that the use of the expression
"date" used in this article of the Limitation Act,
1963 is suggestive of a specific date in the calendar, we cannot forget the
judicial interpretation of this expression over a long period of time.
Different High Courts took different views of the matter, which has been a
subject-matter of controversy. Some interpreted the expression strictly and
literally, while others have taken an extended view.
18. In Kashi Prasad v. Chhabi Lal the High Court dealing with Article 113 of
the Limitation Act, 1908, which was in pari materia with Article 54 of the
Schedule to the Limitation
Act, 1963, took the view that the force of the word "fixed"
implies that the date should be fixed definitely and should not be left to be
gathered from the surrounding circumstances of the case. It must be a date
clearly mentioned in the contract whether the said contract be oral or in
19. In Alopi Parshad v. Court of Wards also the Court was concerned with
Article 113 of the Limitation Act, 1908. A suit for specific performance was brought
on an agreement of sale where the time for performance of the contract was
"after passing of a decree". Though no date for performance was fixed
for the agreement, the trial court had opined that time must be held to have
begun to run from the date on which the decree was passed in view of the maxim
id certum est quod certum reddi potest ("That is sufficiently certain
which can be made certain".) The Lahore High Court was of the view that
statutes of limitation must be strictly construed and that the respondents
before it had failed to bring a case specifically within the purview of the
first part of Article 113 and that the case did not fall within the first part
but fell within the second part of Article 113. The judgment of the Allahabad
High Court in Kashi Prasad was approvingly referred to and followed. This
judgment was taken in appeal before the Privy Council and approved by the Privy
Council in Lala Ram Sarup v. Court of Wards.
20. In Kruttiventi Mallikharjuna Rao v. Vemuri Pardhasaradhirao a contract
was entered into on 18-7-1934 and the vendor promised to execute the sale deed
when both his brothers who were studying elsewhere returned to the village for
the next vacation i.e. in May-June 1935. The High Court held (AIR p. 218h) that
this was "too indefinite to be regarded as fixing a 'date' for the
performance of the contract and the period of limitation must be computed from
the date of refusal to perform".
21. In R. Muniswami Goundar v. B.M. Shamanna Gouda interpreting the
expression "date fixed" in Article 113 of the Limitation Act, 1908
the doctrine of id certum est quod certum reddi potest was pressed into service
along with its exposition in Broom's Legal Maxims and it was held that it was
wide enough to include a date which though at the time when the contract was
made was not known, but could be ascertained by an event which subsequently was
certain of happening.
22. In Hutchegowda v. H.M. Basaviah upholding the view in Muniswami Goundar
it was held that an agreement to execute the sale deed after the "Saguvali
chit" is granted fell within the first part of Article 113 of the
Limitation Act, 1908.
23. In Purshottam Sava v. Kunverji Devji the judgment of the Madras High
Court in R.
Muniswami Goundar was followed and it was held that the expression
"date fixed" can be interpreted as meaning either the date fixed
expressly or a date that can be fixed with reference to a future event which is
certain to happen.
24. In Lakshminarayana Reddiar v. Singaravelu Naicker it was held that the
phrase occurring in the third column of Article 113 of the Limitation Act, 1908
"the date fixed for the performance" must not only be a date which
can be identified without any doubt as a particular point of time, but it
should also be a date which the parties intended should be the date when the
contract could be performed.
25. In Shrikrishna Keshav Kulkarni v. Balaji Ganesh Kulkarni the agreement
for sale of a property stated that the sale was to be executed after the
attachment which the creditors had brought, was raised. Noticing the fact that
there was absence of any indication as to when the attachment would be raised,
the Court treated it as a case in which no date was fixed for performance of
the contract and, therefore, falling within the second part of Article 54 of
26. P. Sivan Muthiah v. John Sathiavasagam arose from a suit for specific
performance with an alternative prayer for recovery of advance paid under the
agreement of sale. Referring to Article 54 of the Limitation Act,
1963 the Court took the view that the expression "date fixed"
could mean either the date expressly fixed or the date that can be fixed with
reference to a future event, which is certain to happen. If the date is to be
ascertained depending upon an event which is not certain to happen, the first
part of Article 54 would not be applicable, and in such an eventuality, it is only
the latter part of Article 54 that could be invoked by treating it as a case in
which no date had been fixed for performance and the limitation would be three
years from the date when the plaintiff had notice that performance is refused.
This was a case where performance was due after the tenants in the property had
been vacated. The Court took the view that since eviction of the tenants was an
uncertain event, the time must be deemed to have run only from the date when
the plaintiffs had notice that the performance had been refused by the
27. In Ramzan v. Hussaini a suit was filed for specific performance of a
contract of sale in respect of a house. The property was mortgaged and
according to the plaintiff, the defendant had agreed to execute a deed of sale
on the redemption of the mortgage by the plaintiff herself, which she did in
1970. In spite of her repeated demands, the defendant failed to perform his
part, which resulted in a suit being filed. The question that arose before this
Court was whether the agreement was one in which the date was "fixed"
for the performance of the agreement or was one in which no such date was
fixed. This Court answered the question in the affirmative by holding that,
although a particular calendar date was not mentioned in the document and
although the date was not ascertainable originally, as soon as the plaintiff
redeemed the mortgage, it became an ascertained date. This Court also agreed
with the view expressed in the Madras High Court in R. Muniswami Goundar and
held that the doctrine id certum est quod certum reddi potest is clearly
applicable. It also distinguished Kruttiventi Mallikharjuna Rao and Kashi
Prasad as cases that arose out of their peculiar facts.
28. In Tarlok Singh v. Vijay Kumar Sabharwal the parties by agreement
determined the date for performance of the contract, which was extended by a
subsequent agreement stipulating that the appellants shall be required to
execute a sale deed within 15 days from the date of the order vacating the
injunction granted in a suit. The suit was initially dismissed and, thereafter,
a review application was also dismissed as withdrawn on 22- 3-1986. On
23-12-1987 a suit was filed for perpetual injunction. In that suit, an
application came to be made under Order 6 Rule 17 CPC for converting it into a
suit for specific performance of an agreement dated 18-8-1984. This amendment
was allowed on 25-8-1989. It was held that since the amendment was ordered on
25-8-1989, the crucial date for examining whether the suit was barred by
limitation was 25-8-1989. Since the injunction was vacated when the original
suit was initially dismissed and the review application came to be dismissed on
22-3-1986, it was held that it was a situation covered by the first part of
Article 54 and, in any event, on 25-8-1989 the suit was barred by
6. This court took the view that judgments of different High Courts have
taken different views and were at variance with the decision of the Privy
Council. However, in view of the decisions in Ramzan v. Hussaini (1990(1) SCC
104) and in Tarlok Singh v. Vijay Kumar Sabharwal (1996(8) SCC 367) there was
no necessity to go into the larger issue as the plaintiffs were entitled to
succeed in that case in altogether on different grounds.
7. It appears from the judgment in S.Brahmanand's case (supra) this court
felt that there was a need for clarifying legal position. But declined to refer
the matter to a larger Bench because of the different factual scenario and the
fact that the decisions were holding field for long time and there were
decisions of the co-ordinate Bench of two Hon'ble Judges taking a particular
8. In view of the importance of the issues involved, we feel it would be
proper if this case is heard by a Bench of three Hon'ble Judges. We, therefore,
refer the matter to a larger Bench. The records be placed before the Hon'ble
Chief Justice of India for necessary directions.
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