2003(4) ALL MR 1033
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

B.H. MARLAPALLE AND V.G. MUNSHI, JJ.

Pandit Bajirao Wabale (Since Deceased) & Ors Vs. Padmawati Ganpatrao Hule & Ors

Letters Patent Appeal No.17 of 1991

2nd May, 2003

Petitioner Counsel: Mr. A. M. GAIKWAD,Shri. R. N. DHORDE
Respondent Counsel: Mr. M. V. DESHPANDE,Mr. C. K. SHINDE

Specific Relief Act (1963), S.20 - Limitation Act (1963), Art.54(I) - Suit for specific performance - Agreement of sale - Date fixed for performance - Part first of Article 54 of Limitation Act would apply - Cause of action for filing the suit or period of limitation will begin to run from the date fixed for performance - When terms of a document are clear and not ambiguous no external evidence can be allowed to disapprove the contents of the documents. AIR 1990 SC 529 - AIR 2002 SC 960 - Followed. (Paras 6 & 8)

Cases Cited:
Mehboob Pasha Vs. Syed Zeheeruddin, AIR 1988 Karnataka 83 [Para 6]
Ramzan Vs. Smt. Hussaini, AIR 1990 SC 529 [Para 6]
V. G. Hosur Vs. K. r. Kaulgod, AIR 1997 SC 2630 [Para 6]
M.S.R.T.C. Vs. Raoji Hari Lad, AIR 1977 Bom(1) [Para 6]
R. R. Dahyabhai Vs. J. N. Lauubhai (dead) by L. Rs., AIR 1986 SC 912 [Para 6]
Shrimant Shamrao Suryawanshi Vs. P. B. Suryawanshi, dead by L.Rs., AIR 2002 SC 960 [Para 7]


JUDGMENT

V. G. MUNSHI, J.:- Before proceeding with the merits of the case, the points to be decided, it is necessary to acquaint ourselves with the places, personalities and their respective cases, with which we are concerned. Respondent No.1 - Padmavati Ganpatrao Hule (Original plaintiff) is the sister, respondent No.2 (Defendant No.2) is the mother, respondent Nos.3 to 5 (original defendant Nos.3 to 5) are the sons of appellant (Original defendant No.1) Pandit Bajirao Wabale. The landed property of S.No.69 (Block No.71), situated in village Mhatar Pimpri, Taluka Shrigonda, is of the ownership of appellant and respondent Nos.2 to 5. The appellant had taken loans from different co-operative societies and scheduled banks as he was in need of money for repaying the loan amount. This appellant, during relevant time, was not getting sufficient yield or income from the landed property. Therefore, he requested respondent his sister Padmavati Hule to purchase the land in dispute and thereby to help him. It was agreed between the parties that the transfer of the land by way of sale was for consideration of Rs.40,000/- Accordingly, agreement of sale was executed on 22-1-1972 and the document was registered. On the same day, the respondent plaintiff paid Rs.32,200/- towards part of consideration and it was agreed to pay the balance amount of Rs.7,300/- at the time of registration of the document - sale deed before the Sub-Registrar. It was further agreed between the parties that the sale deed should be executed and finalised within a period of three months from 22-1-1972. The appellant put the respondent plaintiff in actual possession of the land in dispute in part performance of the agreement to sale and further undertaken to clear all the encumbrances over the landed property. The respondent - plaintiff during relevant time resided at Bombay alongwith her children and her name was not recorded in record of Rights Register. The appellant taken advantage of this situation and in the meantime, he raised debts from various agencies against this land. The respondent - plaintiff was all the while ready and willing to perform her part in the contract and was anxious to get the sale deed of the landed property executed. Therefore, she always insisted the appellant - her brother, to perform his part in the agreement of sale, and accordingly to execute the document - sale deed. However, the appellant avoided and delayed the execution of the sale deed. Therefore, the respondent - plaintiff was required to issue public notice. In the last, she was compelled to file the Special Civil Suit No.220 of 1976 in the court of Joint Civil Judge, Sr. Division, Ahmednagar for specific performance of the agreement of sale.

2. In this suit, the respondent - plaintiff prayed for decree of specific performance of agreement to sale or in the alternative, claimed the refund of the amount of earnest money of Rs.32,200/- together with damages of Rs.7,800/-. The appellant and respondent Nos.2 to 5 in response to the summon of the lower court, appeared in the court and strongly opposed the claim made in the suit on number of grounds. They denied that they agreed to sell the landed property to the respondent plaintiff for a consideration of Rs.40,000/-, put her in possession of the landed property, received Rs.32,200/- as earnest money and agreed to execute the sale deed within three months from 22/1/1972. On the other hand it was their defence that the appellant was in need of money to pay the old debts and therefore he borrowed loan of Rs.32,200/- from the respondent plaintiff. It was their defence that, appellant executed the document agreement of sale. In token of the receipt of the part amount of Rs.32,200/- and as a security for the amount of loan borrowed from the respondent. It was their defence that the said document of agreement of sale, was never intended to be acted upon. In the last, it was their defence, that the claim of specific performance is barred by time. In short, according to them they have already repaid sum of Rs.27,500/- and now therefore for all these reasons the suit was liable to be dismissed with costs.

3. The learned Joint Civil Judge, in view of the pleadings made by the parties, framed issues, taken trial, heard the parties, delivered judgment and dismissed the suit for specific performance of agreement to sale together with costs.

4. The respondent - plaintiff Padmavatibai feeling herself aggrieved, preferred appeal (First Appeal No.953 of 1980) on number of grounds. The learned Single Judge allowed the said appeal, quashed the judgment and decree passed by the Joint Civil Judge, Senior Division, Ahmednagar on 27-8-1980 and decreed the claim for specific performance of agreement of sale.

5. The appellant (original defendant No.1) vendor - Pandit Wabale, feeling himself aggrieved by the said Judgment and Order, filed present Letters Patent Appeal No.17 of 1991 on number of grounds. The main ground which he has taken in this Letters Patent Appeal, is that, the claim in suit was barred by time and the learned Single Judge was therefore, wrong in decreeing the claim in the suit for specific performance of the agreement of sale. In short according to him, the order thus passed was not only contrary to the principles of law but against the facts and circumstances, which were brought on record.

6. It has already come on record that the parties are in close relations with each other. The appellants. Pandit Wabale was in need of money for paying old debts and he, therefore requested and insisted his real sister respondent Padmavatibai to purchase the field in dispute S. No.69 and accordingly it was agreed between the parties that the said field should be sold and purchased for consideration of Rs.40,000/-. It was agreed between the parties that part amount of consideration Rs.32,200/ was to be paid on the same day, i.e. on 22-1-1972 and remaining amount of the consideration was to be paid at the time of execution of sale deed. It was the condition, which was agreed by both the parties that the sale deed should be executed and finalised within three months from 22-1-1972, i.e. the date of execution of the document agreement of sale. The possession of the landed property was given to the respondent - vendee on the same day and she was put in possession of the field in part performance of the agreement of sale. In view of the recitals of the document, sathekhat - (Exh.104), the final document - sale deed was to be executed within three months from 22-1-1972, i.e. on or before 22-4-1972. In the present case, the suit was filed on 27-8-1976. Thus, according to the appellant, the claim made in the suit, is barred by time. Therefore now the only question arises before the court is whether the claim made in the suit is barred by time. The parties in lower court, entered in witness box and repeated their cases and also produced on record the documentary evidence in support of their respective cases. Therefore now we have to view the case of the parties on this background.

(i) There cannot be any difference of opinion on the point that in the present case before us, Art.54 of the Limitation Act does apply. Article 54 provides that the period of limitation in case of specific performance of the contract is three years. The cause of action for filing the suit or the period of limitation will begin to run, firstly if the date is fixed for the performance then from that date. Secondly, if no such date is fixed in that case when the plaintiff (vendee) has noticed that performance is refused. It was argued by Mr. Gaikwad the learned counsel for the appellant that in the present case, the cause of action for filing the suit arose on 22-4-1972 and the period of limitation will begin to run from that date. The suit in the present case is barred by time and in such cases, Part First of Article 54 does apply. On the other hand, it was argued by Mr. Deshpande the learned counsel for the respondent - vendee that in the present case, Part Second of Article 54 comes into play and therefore, the suit is not barred by time. Therefore, we have to find out whether the case of the parties falls under Part First or Part Second of Article 54.

(ii) The document - agreement of sale (Exhibit 104) recites that the appellant (vendee) being "Karta" or the Manager of the joint family, was in need of money, in order to pay and discharge the old debts. Thus, it appears that and there is ample evidence on record to show that the said document was executed for legal necessity and for the benefit of the family. Therefore, it will not be proper to view the document with suspicion only because the transaction taken place between brother on one hand and real sister on the other. Huge amount of Rs.32,200/- was actually paid before Sub-Registrar on 22-1-1972 as part consideration. Moreover, the document was registered. Therefore, it is to be presumed that, all the formalities, which were required to execute the registered document were duly complied with and the document was executed for due consideration and it was a genuine transaction of sale.

(iii) If we go through the document - agreement of sale - Exh.104 then it will come to the notice that the document was written in a simple and usual language and it clearly exhibits the real intention of the parties to transfer the land for consideration and thus, it was a genuine transaction of sale. When the terms of the document are clear and not ambiguous no external evidence can be allowed to disapprove the contents of the document. The document recited that the sale deed was to be executed within three months, from the date of execution of the document of agreement of sale. If we read the recitals of the document (Exhibit 104) then no other meaning than it was agreed to execute the sale deed within three months from 22-1-1972 can be drawn. We know that generally, time is not the essence of the contract unless it is specifically agreed and mentioned in the document.

(iv) It was argued by Mr. Gaikwad that in the suit for specific performance of agreement of sale, the period of limitation begins to run from the date fixed for performance of the agreement and relied on case, reported in AIR 1988 Karnataka 83 (Mehboob Pasha Vs. Syed Zeheeruddin and ors.) It was further argued by the learned advocate that first part of Article 54 of the Limitation Act applies in present case. In the present case before us, it is specifically mentioned that it was agreed between the parties that the sale deed should be executed within three months from 22-1-1972 i.e. the date of agreement of sale. After pointing out all these things Mr. Gaikwad argued that mentioning of particular date from the calendar in the deed is not essential. In other words, according to the learned Counsel, it is sufficient, if basis of calculation, which makes the date of performance certain, is mentioned in the deed and in support of his contention he relied on the case, reported in AIR 1990 SC 529 (Ramzan Vs. Smt. Hussaini). In the present case before us, the period for execution of the document of sale was fixed by the parties and the document was to be executed within three months from the date of agreement. It was argued by Mr. Gaikwad in view of Article 54 of the Limitation Act, cause of action for filing the suit, accrues from the moment when the specific performance was refused, by the other side and he relied on the case reported in AIR 1997 SC 2630 (V. G. Hosur Vs. K. R. Kaulgod). Thus, the case of the parties falls under Part First of Article 54 of the Limitation Act and cause of action for filing the suit accrues on 22-4-1972.

(v) The learned counsel has taken us through the record and attempt was made to show that the learned Single Judge taken sympathetic view and thus held that the claim was within time and therefore, decreed the claim. It was argued by Mr. Gaikwad in view of the case reported in AIR 1977 Bom. (1) (M.S.R.T.C. Vs. Raoji Hari Lad) that the court has no inherent power to grant exemption except on the grounds specified in Sections 4 to 24 of the Limitation Act. In other words, according to the learned advocate, if the case of the parties falls within the provisions of Sections 4 to 24, then only exemption can be granted. The present case does not fall within the ambit of Section 4 to 24 of the Limitation Act and therefore, such exemption cannot be given.

(vi) It was argued by Mr. Deshpande the learned advocate for the other side in case of suit for specific performance of the agreement of sale of the land, if the sale deed was to be executed after obtaining permission from some Authority as a condition precedent then in that case, the suit for specific performance can be filed within three years after obtaining the permission. The learned Advocate referred case, reported in AIR 1986 SC 912 (R. R. Dahyabhai Vs. J. N. Lauubhai (dead) by L. Rs. and another). However, from the recitals of the document agreement of sale (Exhibit 104) or from the material placed on record it does not appear that the permission was to be sought from some Authority and thereafter the sale deed was to be executed. Therefore, in the present case before us, there arise no such question, of filing the suit within three-years, after obtaining permission.

7. There is no dispute on the point that the respondent - vendee was put in possession of the land in dispute in part performance of the contract on the day of execution of agreement of sale. It was argued by Mr. Deshpande that in such case even if the claim in suit is barred by time, in view of Article 54 of the Limitation Act, in that case also the party in possession can protect the possession or can very well defend the case on such ground and the learned counsel relied on the case, reported in AIR 2002 SC 960 (Shrimant Shamrao Suryawanshi and anr. Vs. P. B. Suryawanshi, dead by L.Rs. and others). In this case, it was held that :

"The Limitation Act does not extinguish defence but only bars the remedy."

Such questions about the defence, protection etc. can be legitimately considered in suit for possession filed by the party. After going through the material on record, it has become very clear that the present case falls within the provision of Part First of Article 54 of the Limitation Act. Admittedly, the suit is not filed within three years from the accrual of cause of action i.e. from 22-4-1972. Therefore the claim in the suit is barred by time.

8. We do not agree with the opinion given by the learned Single Judge, that the suit was within time and, therefore this Letters Patent Appeal must succeed.

9. In the result we allow this Letters Patent Appeal and quash and set aside the order dated 13-9-1991, passed by the learned Single Judge in First Appeal No.757 of 1989 with no order as to costs.

Appeal allowed.