AHMADASAHAB ABDUL MULLA (D) BY PROPOSED LRS.versusBIBIJAN & ORS.

                          [2008) 6 S.C.R. 716


A AHMADASAHAB ABDUL MULLA (D) BY PROPOSED LRS.
                                   v.
                           BIBIJAN & ORS.
                  (Civil Appeal No. 4190 of 2000)

                           APRIL 21, 2008
B
    [DR. ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.]

         Limitation Act, 1963 - s. 14 and Art. 54 of the Schedule -
  Limitation Act, 1908 - s. 113 - Suit for specific performance of
c agreement of sale - Pendency of other suit, filed by
  defendant's wife and children, questioning the said agreement
  of sale and in which plantiff's husband was made a party -
  Effect of - Question as to whether cause of action for filing the
  suit in question arose only when the other suit was over - High
  Court, with reference to s. 113 of the Limitation Act, 1908 (which
D
  was in pari materia with Article 54 of the Schedule to the
  Limitation Act, 1963) held that the suit in question was within
  time - Contention of Appellant that the true import of s. 113 of
  the Limitation Act, 1908 was not kept in view by High Court -
  Need for clarifying the legal position - Matter referred to larger
E Bench - Specific Relief Act, 1963 - s. 20.

       Respondents filed suit for specific performance of
  an agreement of sale. The suit was decreed by the Trial
  Court but dismissed by the First Appellate Court on the
F ground of limitation. The First Appellate Court held that
  pendency of the other suit, filed by the defendant's wife
  and children, questioning the said agreement of sale and
  in which Respondent No.1 's husband was made a party,
  did not save the limitation within the meaning of s.14 of
  the Limitation Act, 1963. Respondents filed second appeal
G
  before High Court which was admitted on the question of
  law as to whether the cause of action for filing the suit in
  question arose only when the other suit was over. High               ..
  Court, with reference to s.113 of the Limitation Act, 1908

H                                716
     AHMADASAHAB ABDUL MULLA (D) BY PROPOSED                 717
              LRS. v. BIBIJAN & ORS.

    (which was in pari materia with Article 54 of the Schedule      A
    to the Limitation Act, 1963) held that the suit was within
    time.
         The contention of the Appellant is that the true import
    of s.113 of the Limitation Act, 1908 was not kept in view
    by the High Court.                                              B
>
         Referring the matter to a larger Bench, the Court
         HELD: 1.1 In S. Brahmanand's case, this Court inter
    alia observed that though, at first blush, it may appear that
    use of the expression "date" in Article 54 of the Schedule      c
    to the Limitation Act, 1963 is suggestive of a specific date
    in the calendar, the judicial interpretation of this
    expression over a long period of time cannot be ignored.
    The Court observed that different High Courts took
    different views of .the matter, which has been a subject-       D
    matter of controyersy; that some interpreted the
    expression strictly and literally, while others took an
    extended view. [Para 5] [720-C-D, 720-G-H, 721-A]
         1.2. It appears from the judgment in S.Brahmanand's
    case, this Cou~ felt that there was a need for clarifying       E
    the legal position, but declined to refer the matter to a
    larger Bench because of the different factual scenario and
    the fact that there were decisions of co-ordinate Bench
    taking a particular view. [Para 7] [725-B-C]
                                                                    F
         1.3. In view of the importance of the issues involved,
    it would be proper if the present case is heard by a Bench
    of three Hon'ble Judges. [Para 8] [725-C-D]
        S. Brahmanand v. K.R. Muthugopal (2005) 12 SCC 764;
    Ramzan v. Hussaini (1990) 1 SCC 104; Tar/ok Singh v. Vijay G
    Kumar Sabharwa/ (1996) 8 SCC 367 and Lakshminarayana
    Reddiar v. Singaravelu Naicker & Anr AIR 1963 Mad.24-
    referred to.
         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
                                                                    H
    718        SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A 4190 of 2000.
         From the final Judgment and Order dated 31.08.1998 of
    the High Court of Karnataka at Bangalore in R.S.A. No. 1225 of
    1996

B         Rajesh Mahale and R.C. Kohli for the Appellant.
        Javed M. Rao and Ashok Kumar Sharma for the
    Respondents.
          The Judgment of the Court was delivered by
c       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
D 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:
E
        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
  consideration of Rs.6,000/-. A sum of Rs.1000/- was paid and
F 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
G
  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.
H         The defendant contended that the suit house belonged to
       AHMADASAHAB ABDUL MULLA (D) BY PROPOSED                      719
        LRS. v. BIBIJAN & ORS. [DR. ARIJIT PASAYAT, J.]

      his deceased father and his deceased father made an oral gift A
      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 B
      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 c
      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 D
 ••   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       E
      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 short 'Limitation Act') dismissed the        F
      suit.
           The second appeal was admitted on the following
      questions of law:
           "Whether the contention taken that the cause of action for G
           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".
                                                                        H
    720        SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A         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
s   to Section 113 of the Limitation Act, 1908 (in short the 'Old Act')
    this suit was within time.
          3. Learned counsel for the appellant submitted that the true
    import of Section 113 of the Limitation Act has not been kept in
    view.
c
        4. Learned counsel for the respondent on the other hand
    supported the order of the High Court.
       5. In S. Brahmanand v. K.R. Muthugopa/ (2005 12) SCC
  764) after noticing the decisions rendered by various High
D Courts, this Court inter alia observed as follows:
          "16. It would be useful to set out the provisions of Article
          54 before critically appraising the arguments presented
          to us on both sides.
E   "Description             period of      Time from
      of suit                limitation     which period begins
                                            to run
    54. For specific       Three years     The date fixed for the
    performance of a                       performance, or, if no
F   contract                               such date isfixed, when
                                           the plaintiff has notice
                                           that performance
                                           is refused."

G
          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-
H
     AHMADASAHAB ABDUL MULLA (D) BY PROPOSED                      721
      LRS. v. BIBIJAN & ORS. [DR. ARIJIT PASAYAT, J.]

        matter of controversy. Some interpreted the expression           A
        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   8
        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           C
        oral or in writing.

        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 D
~·      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 quad certum reddi potest ("That E
        i.s 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 F
        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. G
        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            H
    722       SUPREME COURT REPORTS                      [2008] 6 S.C.R.

                                                                             •
A         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
B         must be computed from the date of refusal to perform".             •
          21. In R. Muniswami Goundarv. B.M. Shamanna Gouda
          interpreting the expression "date fixed" in Article 113 of
          the Limitation Act, 1908 the doctrine of id certum est quad
          certum reddi potest was pressed into service along with
c         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.
D
          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.
E
          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
F         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
G         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
H
          AHMADASAHAB ABDUL MULLA (D) BY PROPOSED                    723
           LRS. v. BIBIJAN & ORS. [DR. ARIJIT PASAYAT, J.]
    ..
             Kulkarni the agreement for sale of a property stated that A
             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 B
             and, therefore, falling within the second part of Article 54
             of the Limitation Act, 1963.
             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.     c
             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 D
    >-·
             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 E
             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 F
~
             deemed to have run only from the date when the plaintiffs
             had notice that the performance had been refused by the
             defendants.
             27. In Ramzan v. Hussaini a suit was filed for specific
             performance of a contract of sale in respect of a house. G
             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 H
    724        SUPREME COURT REPORTS                      [2008] 6 S.C.R.

                                                                              •
A         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
8         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.
c         Muniswami Goundar and held that the doctrine id certum
          est quad 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
D         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
E         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
F         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
G
          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 limitation."             ...
       6. This court took the view that judgments of different High
H Courts have taken different views and were at variance with the
  AHMADASAHAB ABDUL MULLA (D) BY PROPOSED                        725
   LRS. v. BIBIJAN & ORS. [DR. ARIJIT PASAYAT, J.]

decision of the Privy Council. However, in view of the decisions        A
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 ih S.Brahmanand's case B
 (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 C
 a particular view.
      8. In view of the importance of the issues involved, we feel
it would be proper if this qise is heard by a Bench of three
Hon'ble Judges. We, therefore, refer the matter to a larger D
Bench. The records be placed before the Hon'ble Chief Justice
of India for necessary directions.
B.B.B.                                Referred to a larger Bench