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PETITIONER: SMT. BISMILLAH BEGUM (DEAD) M BY LRS.

       Vs.

RESPONDENT: RAHMATULLAH KHAN (DEAD) BY LRS.

DATE OF JUDGMENT:       21/01/1998

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M. JAGANNADHA RAO, J.      The appellants  are the  legal representatives  of  the deceased plaintiff.  The suit  was filed on 7.2.1958 seeking specific performance  of a  contract of  reconveyance  dated 8.2.1955.      The brief  facts of  the case  are that the appellants’ predecessor in interest who owned the suit house property in Kanpur executed  a registered  sale deed  dated 8.2.1955 for Rs. 2.000\-  in favour  of the  sole defendant (who has also since died) and also simultaneously obtained an agreement of reconveyance from  the defendant on the same day. It appears that the  said agreement for reconveyance stipulated that in case the  seller was  able to  pay  back  the  consideration within a  period of  three years  and certain  expenses  and other monies  expended by the purchaser towards repairs, the seller would  be entitled to get back the property. It is on the basis  of the  above said agreement of reconveyance that the seller filed the present suit on 7.2.1958.      In the  courts below  the questions  as to whether time was the  essence of  contract and  whether the plaintiff was ready and  willing to  perform her part of the contract were debated. The  courts below  held that  the plaintiff was not ready and willing to perform the contract by way of offering to repay  - what  has quoted in the reconveyance agreement - within the  period stipulated therein. It was also held that time was  the essence  of the contract. When the matter came up in  Second appeal to the High Court it was argued for the appellant -  vendor relying  upon a  decision in the case of A.H.Mama Vs.  Flora Sassoon  (AIR 1928 PC 208) that time was not the  essence  of  the  contract  in  contracts  of  sale regarding immovable  property. However,  the High Court held that a  close scrutiny  of the  plaint did  not reveal  that there was any averment on the part of the plaintiff that she was ready  and willing to  perform her part of the contract. It was  no doubt  averred in  the plaint that the vendor had spoken to  the defendant orally several times to receive the stipulated amount  and execute the reconveyance deed and get it registered,  but no  dates on  which the vendor allegedly spoke to the defendant were mentioned. In fact the plaintiff

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relied only on a notice by telegram dated 6.2.1958 which was referred to  in the  plaint and on the paragraph relating to cause of  action, proposing  to repay.  Apart from  the said notice there  was no other documentary evidence to show that any effort  was made  within the  period of  three years for repayment of  the consideration for the purpose of obtaining reconveyance. The  High Court  has also  observed  that  the above said notice dated 6.2.1958 issued by the vendor to the defendant purchaser  was not addressed to his proper address and in  fact it  never reached  the  defendant.  Under  such circumstances, the  High Court  dismissed the  Second Appeal holding that  there  was  neither  any  plea  nor  proof  of readiness and  willingness on  the part  of the plaintiff to perform her part of the contract.      In this  appeal, learned counsel for the appellants had contended that  time is  not the  essence of the contract in relation to  contracts of  immovable property and that it is also not  necessary to  tender the  amount or to deposit the consideration amount  in court  except when  directed by the Court. It  will be  noticed that  a provision to that effect has now  been incorporated  in Section 16(c) of the Specific Relief Act,  1963 but  there was no such statutory provision before 1963  Act. Learned  counsel for  the appellants  also relied upon  a decision  of the Calcutta High Court in Manik Lal Vs.  Shankar Lal  (AIR 1962 Cal 103) for the proposition that delay  in payment of the sale consideration even in the case of reconveyance contract would disentitle the plaintiff to obtain specific performance if such delay had occurred on account of the defendant’s attitude.      Even assuming  that the  above  said  decision  of  the Calcutta High  Court would  support the  point convassed  by learned counsel  for the  appellant it  will be noticed that the finding  in the  above said  Calcutta case  was that the plaintiff was  unable to  perform his  part of  the contract because of the defendant’s attitude. But in the present case before us  there is  no  proof  that  any  attitude  of  the defendant towards  the  plaintiff  was  the  cause  for  the plaintiff not being able to pay the amount to the defendant. As already  stated, the  findings of  fact arrived at by the courts plaintiff  to  pay  the  sale  consideration  to  the defendant are findings of fact, binding in  Second appeal.      We  may   also  add   that  in  contracts  relating  to reconveyance of  property time  is  always  essence  of  the contract as  laid down  by the  Federal Court in the case of Shanmugam Pillai  & Ors.  Vs. Annalakshmi  Ammal & Ors. (AIR 1950 SC  38) and  also laid  down by  this Court  in  Caltex (India Ltd.  Vs. Bhagwan Devi Marodia (AIR 1969 SC 405). The relevant passage  in the  judgment of  this Court  in Caltex (India) Ltd. at page 407 in para 3 reads as follows:      "At common  law stipulations  as to      time in a contract giving an option      for renewal of a lease of land were      considered to  be of the essence of      the contract  even if they were not      expressed  to   be  so   and   were      construed as  conditions precedent.      Equity followed the common law rule      in respect  of such  contracts  and      did not  regard the  stipulation as      to time  as not  of the  essence of      the   bargain.    As   stated    in      Halsbury’s  Laws  of  England,  3rd      edn.. Vol.  3, Article 281. p. 165:      "An option  for the  renewal  of  a      lease, or  for the  purchase or re-

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    purchase of  property, must  in all      cases be  exercised strictly within      the time  limited for  the purpose,      otherwise  it   will  lapse."  This      passage was quoted with approval by      Danckworts L.J, in Hare Vs. Nicoll,      1966-2  QB   130,  145.  A  similar      statement of  law is to be found in      Foa’s General  Law of  Landlord and      Tenant, 8th  ed., Art.  453 p. 310,      and in  Hill and  Redman’s  Law  of      Landlord and  Tenant, 14th  ed., p.      54. The reason is that a renewal of      a lease  is a  privilege and if the      tenant   wishes    to   claim   the      privilege he  must do  so  strictly      within the  time  limited  for  the      purpose."      The above  passage refers  both to  options for renewal and options  to repurchase  where, in  regard  to  immovable property, as  a matter  of law  time becomes  essence of the contract. Therefore  in regard  to contracts of reconveyance relating to  immovable property, the  principle laid down in A.H. Mama Vs. Flora Sassoon (AIR 1928 PC 208) - that time is not normally  essence of  the contract in contracts relating to immovable  property -  does not  apply. It is in fact, so observed in  Caltex  (India)  Ltd.  case.  In  view  of  the abovesaid decision  of this  Court relating  to contract  of reconveyance, and inasmuch as the amount was not paid within the stipulated  time, the  said  option  in  favour  of  the plaintiff must be deemed to have "lapsed". For the aforesaid reasons, the appeal fails and is dismissed. No costs.