1995(1) ALL MR 83
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.L. DUDHAT, J.
Laxman Kesu Sabale Vs. Waman Kesu Sabale And Others
Second Appeal No.120 of 1987
15th March, 1995
Petitioner Counsel: Mr.V.A.THORAT, Mr.C.S.SHIDHORE and Mr.U. B. MIGHOT
Respondent Counsel: Mr. K. J. ABHYANKAR, Mr. A. K. ABHYANKAR, Mr.B.S.GAIKWAD
(A) Specific Relief Act (1963) S.20 - Contract of sale for Rs.700/- in 1951 - Agreement of reconveyance executed on same day agreeing to reconvey the property by the end of any year if Rs.700 returned - Agreement to recovery construed as agreement to reconvey within reasonable time - On evidence plaintiff had demanded reconveyance in 1961 - Failure on part of plaintiff to press for reconveyance till the efflux of 20 years held unreasonable and resulting in prejudice to defendants - Suit for specific performance of agreement of reconveyance filed in 1981 dismissed.
Plaintiff sold suit properly to Kesu grandfather of defendants for Rs.700/-, the market value of the property, on 16-1-1951. Kesu on same day executed an agreement to reconvey the said property on return of Rs. 700 by end of any year. The plaintiff sued for reconveyance in 1981.
Held right to reconveyance accrued in December 1951 and thereafter in month of December very year. Since original sale was for market value, right of purchaser cannot be clogged indefinitely in an unreasonable manner and therefore the agreement of reconveyance is to be construed as an agreement to reconvey the suit property within a reasonable time and " reasonable time" in each particular case is a question of fact. In the present case, plaintiff had to call upon the purchaser of the property to recovery the same within reasonable time. In his deposition plaintiff stated that during lifetime of Maruti, father of defendants 4 & 5, he asked Maruti to reconvey the property. This happened at any time prior to 1961 as Maruti expired in 1961. The conduct of Plaintiff in not insisting upon Maruti or his heirs reconvey the suit properly for about 20 years shows that virtually plaintiff had abandoned the claim of reconveyance. Therefore failure on part of the plaintiff to press upon the claim of reconveyance till the efflux of 20 years is definitely beyond limitation, unreasonable and therefore the suit for specific performance, if allowed, the same is bound to result in great prejudice to the defendants. Hence this is a fit case wherein decree for specific performance should be refused, more particularly under S.20 of Specific Relief Act. [Para 9]
(B) Contract Act (1872), S.46 - Contract to reconvey property in any year at the end of that year - Demand for reconveyance must be made within reasonable time.
On the same day on which a property was sold, purchaser executed an agreement to reconvey the same in any year at the end of the year. The agreement to reconvey should be construed as an agreement to recovery the suit property within a reasonable time. Specific performance of agreement to reconvey refused where suit filed after 30 years. [Para 9]
(C) Limitation Act (1963), Art. 54 - Suit for specific performance of an agreement to reconvey property executed in 1951 - Agreement not providing any definite time for reconveyance - Suit for reconveyance filed in 1981 after demanding reconveyance in same year - Plaintiff deposing to have made a demand in 1961 which he did not pursue - Suit in 1981 held barred by limitation - When no definite time provided for reconveyance demand for reconveyance must be made within reasonable time. (Para 9)
JUDGMENT : This second appeal is preferred against the judgment and decree dated 23rd November 1986 passed by the II Additional District Judge, Satara, in Regular Civil Appeal No.113 of 1984 dismissing the appeal preferred by the present appellant.
2. In this second appeal the only important question to be decided is as to whether the suit filed for specific performance being Regular Civil suit filed for specific performance being Regular Civil Suit No.519 of 1981 is barred by limitation.
The suit property consists of agricultural land admeasuring about 9 gunthas situated at Shinthar, Taluka Satara, District Satara. It is the case of the plaintiffs that plaintiff no.1 executed sale deed dated 16th January 1951 in favour of Kesu Dhondi Sabale, the grand-father of defendants nos.2 to 6 and 8 for consideration of Rs.700/- and handed over possession of the land along with the sale deed. The said sale deed is at Exh.26. On the same day the said Kesu Dhondi Sabale ( who died in the year 1963 ) agreed to reconvey the said property with possession in favour of plaintiff no.1 for amount of Rs.700/- to be paid by plaintiff no.1. After the said sale deed Kesu expired in the year 1963 leaving behind his two sons Maruti and Laxman. Maruti expired in the year 1961 leaving behind his widow defendant no.1 and his two sons defendants nos.2 and 3. Laxman had in all four sons one Ashok and three others. However, it appears that the aforesaid suit property was mutated in the name of Ashok and, therefore, the plaintiffs have jointed the said Ashok as defendant no.8 and other three brothers viz., Dilip, Ravindra and Avinash were not joined as party to the suit. From the evidence it appears that somewhere in 1975 there was a partition in the family and the suit property was allotted to Laxman and just prior to the suit the aforesaid property was mutated in the name of Ashok. It is the case of the plaintiffs that by notice dated 11th August 1981 they called upon the defendants to recovery the property as per the agreement, Exh.41, dated 16th January 1951. Since the defendants refused to comply with the said notice, the plaintiffs filed the aforesaid suit for the grant of decree of specific performance in respect of the suit land.
4. As against the aforesaid contentions raised by the plaintiffs, it was contended on behalf of the defendants that in fact Kesu never executed any agreement of reconveyance as contended by the plaintiffs. It was also contended on behalf of the defendants that the suit filed by the plaintiffs for specific performance was time barred. It was also contended that the relief of specific performance is an equitable relief and the same cannot be granted in view of the fact that the plaintiffs failed to take any action for last 30 years and further in view of the fact that it is going to cause great hardships to the defendants. Lastly it was also contended on behalf of the defendants that they have improved upon the land by spending about Rs.3000/-.
5. The trial Court, by its Judgment dated 6th December 1983 passed the decree of specific performance in favour of the plaintiffs on the plaintiffs depositing amount of Rs.700/- in the Court within one month from the said decision.
6. Being aggrieved by the aforesaid Judgment and decree dated 6th December 1983 passed by the IV Joint Civil Judge, Senior Division, Satara, in Regular Civil Suit No.519 of 1981, the present appellant preferred appeal before the II Additional District Judge, Satara, being Regular Civil Appeal No.113 of 1984. The II Addl. District Judge, by his Judgment and decree dated 28-11-1986 dismissed the appeal filed by the present appellant and confirmed the decision of the trial Court.
8. Mr.Thorat, the learned Counsel on behalf of the appellant, contended that both the lower Courts erred in granting the relief of specific performance without appreciating the fact that the suit for specific performance is hopelessly barred by the limitation. It was contended by him that in this case admittedly the sale deed, Exh.26, was executed by plaintiff no.1 in favour of Kesu after obtaining Rs.700/- which was the market value of the said property on the date of the execution of the sale deed. According to him, taking into consideration that the respondents-plaintiffs were Bhauband, Kesu executed the agreement of reconveyance on 16th January 1951 i.e. on the same day on which the sale deed at Exh.26 was executed as and by way of concession. According to Mr.Thorat, presuming for a while that the sale deed contained the clause of reconveyance, then under section 58(c) of the Transfer of Property Act the same would have been termed as mortgage and the plaintiffs could have redeemed the property within 30 years i.e. on or before 16th January 1981 under Article 61 of the Limitation Act. In the present case, according to Mr.Thorat the said term is not included in the sale deed which was executed after receiving full market value and concession was just granted by the said Kesu whereby he agreed to reconvey the property in favour of the plaintiffs. Admittedly the present suit is filed on 23rd October 1981 i.e. after the expiry of thirty years from the date of the execution of the sale deed as well as the agreement and, therefore, in any case both the lower Courts ought to have held that the said suit filed by the plaintiffs was beyond time. It was also argued on behalf of the appellant that limitation period for specific performance under Article 54 of the Limitation Act is three years from the date of the refusal. According to Mr.Thorat, the learned Counsel appearing on behalf of the original defendants, as per the term of agreement, Ex.41, in any year at the end of that year the plaintiff can claim reconveyance of the property on payment of the amount of consideration and the defendants agreed to reconvey the said property in that event. Admittedly, the agreement is dated January 16, 1951. Therefore, as per the aforesaid term of the reconveyance the plaintiff could have asked for reconveyance in December 1951. Therefore, according to the plaintiff, the plaintiff could have asked for specific performance within a reasonable time i.e. three years from December 1951. This is especially keeping in view of the fact that in his deposition plaintiff No.1 has admitted that he asked Kesu in his life-time to reconvey the property. However, Kesu replied that "he will see". In view of this Mr.Thorat, the learned Counsel appearing on behalf of the defendants contended that on or before December 1954 the plaintiffs could have sought decree for specific performance by filing the suit.
8A. As against this Mr.Abhyankar, the learned Counsel for the plaintiffs, contended that there is no limitation period fixed for demanding the reconveyance on the part of the plaintiffs. By plain reading of the agreement the plaintiffs can sought reconveyance by the end of any year and that being the position, as per the plaintiffs, since the defendants refused to comply with the notice dated August 11, 1981 the plaintiffs could have filed the suit any time before August 11, 1984 and in fact the suit filed by the plaintiffs on October 23, 1981 is well within time.
9. From the aforesaid rival arguments the only question to be decided in this second appeal is whether the suit filed by the plaintiffs on October 23, 1981 is within limitation period or not. Admittedly, plaintiff No.1 sold the suit property on January 16, 1951 vide Ex.26 to Kesu (now deceased) and admittedly on the same day agreement of reconvayance was entered into whereby Kesu agreed to reconvey the suit property to plaintiff No.1 by the end of any year if the plaintiff agreed to return the amount of consideration of Rs.700/-. It is also admitted that for the first time on August 11, 1981 the plaintiffs called upon the defendants to reconvey the said property and thereafter filed the suit on October 23, 1981. That means, the present suit is filed after more than thirty years from the date of the agreement i.e. January 16, 1951. On these facts it is contended on behalf of the defendants that the suit is barred by limitation. As per well decided cases the agreement of reconveyance is to be construed strictly. In the present case the sale entered into between plaintiff No.1 and Kesu was for Rs.700/- which was the market value of the suit property, and it appears that taking into consideration that the Vendor was Bhaubandh, Kesu agreed to reconvey the said property in the event plaintiff No.1 fulfills the terms of reconveyance which is at Ex.41. As per the deed of reconveyance the right of reconveyance for the first time accrued to plaintiff No.1 in December 1951 and thereafter in the month of December of each subsequent year. However, since plaintiff No.1 sold the property to Kesu on January 16, 1951 by accepting the market value of the property the right of the purchaser cannot be clogged indefinitely in an unreasonable manner and therefore the agreement of reconveyance which is at Ex.41 is to be construed as an agreement of reconveyance wherein purchaser Kesu agreed to reconvey the suit property within a reasonable time. As per section 46 of the Indian Contract Act, where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time and as per the explanation "The question "what is a reasonable time" is, in each particular case, a question of fact. In the present case in the said agreement of reconveyance dated January 16, 1951 no time for reconveyance was fixed. As per the agreement purchaser agreed to reconvey the property on demand made by plaintiff No.1 but there is no time limit fixed on the part of plaintiff No.1 to enforce the right of reconveyance. As pointed out earlier, sale at Ex.26 dated January 16, 1951 is an absolute sale after receipt of the market value of the said property and not a mortgage or a sale with a condition to repurchase. In view of this plaintiff No.1 has to call upon the purchaser to reconvey the property within a reasonable time. In the deposition plaintiff No.1 has stated that during the life-time of Maruti he had asked Maruti to reconvey the suit property. Admittedly, the said Maruti expired in the year 1961. That means the plaintiff must have asked Maruti to reconvey the property somewhere prior to 1961 to which Maruti replied that "he will see afterwards". From the evidence it appears that plaintiff No.1 was required to sell the property for Rs.700/- on January 16, 1951 because he was in need of money and it appears that being Bhaubandh, the purchaser Kesu agreed to reconvey the suit property in favour of plaintiff No.1 in the event he returns the money which he received by way of total consideration towards the suit property. The fact that plaintiff No.1 asked Maruti to reconvey the suit property clearly shows that plaintiff No.1 had money when he made the demand of reconveyance. This must have happened any time prior to 1961 because in 1961 Maruti expired. That means, in any case in the year 1961 the plaintiff had money to repay the consideration which he had received at the time of the sale of suit property and the suit was filed on October 23, 1981 i.e. after a lapse of about 20 years. The conduct of the plaintiff not insisting upon Maruti or his successor to reconvey the suit property as per Ex.41 for about 20 years shows that virtually plaintiff had abandoned the claim of reconveyance. Therefore failure on the part of the plaintiffs to press upon the claim of reconveyance till the efflux of 20 years is definitely beyond limitation, unreasonable and, therefore, the suit for specific performance, if allowed, the same is bound to result in great prejudice to the defendants. Hence, this is a fit case wherein decree of specific performance should be refused, more particularly under section 20 of the Specific Reliefs Act. In the present case after demanding reconveyance from Maruti, had plaintiff No.1 filed the suit within a reasonable time of three years from 1961 he would have been entitled to get relief by way of specific performance. But, in the present case plaintiff No.1 virtually did nothing for a period of about twenty years.
Hence, this appeal is allowed. Judgment and decree passed by the IInd Additional District Judge, Satara, in R.C.Appeal No.113 of 1984 passed on November 23, 1986 and the judgment and decree passed by the IVth Jt.Civil Judge, Junior Division, Satara, in R.C.Suit No.519 of 1981 on December 6, 1983 is set aside. The suit filed by the respondents is dismissed with no order as to costs.
Certified copy be furnished forthwith.