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PETITIONER: RAMZAN

       Vs.

RESPONDENT: SMT. HUSSAINI

DATE OF JUDGMENT24/11/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) THOMMEN, T.K. (J)

CITATION:  1990 AIR  529            1989 SCR  Supl. (2) 287  1990 SCC  (1) 104        JT 1989  Supl.    354  1989 SCALE  (2)1310

ACT:     Limitation Act, 1963: Article 54 Specific performance of contingent contract--Period of limitation--Determination of.

HEADNOTE:     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.     Under  an agreement dated June 23, 1965  the  plaintiff- respondent, sister of the defendant-appellant, undertook  to redeem  the disputed property under mortgage and the  appel- lant 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  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 Article 54. Allowing the appeal by special leave,     HELD:  1.1 The requirement of Article 54 of the  Limita- tion 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 therein. [291A-B]     1.2  In the instant case, under the agreement  the  date for  the appellant to execute the sale deed was  fixed,  al- though 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,

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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 JUDGMENT:      Sathula Venkanna v. Namuduri Venkatakrishnayya &  Anr., AIR 1918 Madras 492; Kruttiventi Mallikharjuna Rao v. Vemuri Pardhasaradhirao,  AIR 1944 Madras 218 and Kashi  Prasad  v. Chhabi  Lal  &  Ors’., AIR 1933 Allahabad  410  (2)  distin- guished-      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  enforce- able  as soon as the event of redemption happened. The  doc- trine  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.      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 Appelant. Aruneshwar Gupta and S. Kumar for the Respondent. The Judgment of the Court was delivered by SHARMA, J. Special leave is granted.     2.  This  appeal arises out of a suit filed by  the  re- spondent  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 mort- 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 plaintiff’s 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 the High Court by the impugned judgment.     5. The 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 count- ing 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  neces- sary  for the respondent to have redeemed the  mortgage,  it

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cannot be said that a date was ’fixed’ within the meaning of the third column of Article 54, which reads thus: Description          period of      Time from which of suit              limitation     period begins to run "54. For specific      three years   The date fixed for  the per- performance.                          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.     6.  The relevant provisions in the alleged agreement  of sale  as quoted in the judgment of the trial court reads  as follows: 290               "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  pos-               session,                          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  perform- ance  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  contin- gent  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  circum- stances.  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, [1875] 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

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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. The  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 require- ments  of the section were satisfied. The same is the  posi- tion 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  calcu- lation which was to make it certain should be found therein. We, 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.     7.  The  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. Without  expressing their final opinion the  learned  Judges observed  that it might be right to apply the  doctrine  be- tween  the actual parties to the contract who would get  the benefit  and be subject to the liabilities under  that  con- tract;  "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  ques- tion 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  there- after 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

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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.     8.  For the reasons mentioned above, the impugned  judg- ments  of the High Court and the trial court are  set  aside and  the  suit is dismissed. The appeal is  accordingly  al- lowed, but the parties are directed to bear their own  costs throughout. P.S.S.                                                Appeal allowed. 293