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2009 DIGILAW 2307 (MAD)

V. Kaliaperumal Udayar v. T. Krishna Naicker

2009-07-10

M.DURAISWAMY

body2009
J u d g e m e n t:-The above Second Appeal arises against the Judgement and decree in A.S.No.266 of 1993 on the file of the learned Principal District Judge, Salem confirming the judgement and decree in O.S.No.167 of 1988 on the file of the Principal District Munsif Court, Salem. 2. The plaintiff in the suit is the appellant in the Second Appeal. The respondents herein are the defendants in the suit. The plaintiff filed the suit in O.S.No.167 of 1988 on the file of Principal District Munsif, Salem for specific performance. 3. The brief case of the plaintiff is as follows: The suit properties originally belong to one A.Marimuthu Udayar. The said Marimuthu Udayar sold the suit properties to the first defendant on 8.2.1993 and on the same day, the first defendant executed an agreement of reconveyance to reconvey the properties within a period of 5 years if the sale price of Rs.3,500/- is repaid by the said Marimuthu Udayar to the first defendant. The said Marimuthu Udayar assigned the above said right of reconveyance in favour of the plaintiff on 29.4.1983 for proper and valid consideration of Rs.10,000/-. The said assignment dated 29.4.1983 was informed to the first defendant by the plaintiff in person and the plaintiff has also requested the first defendant to receive the sum of Rs.3,500/- and reconvey the properties to him. 4. Pending suit, the first defendant viz. Nagammal died intestate on 8.9.1988 leaving behind her legal heirs and they were brought on record as defendants 2 and 3. The plaintiff is always ready, willing and to perform his part of the contract and get the reconveyance deed executed in his favour by paying the amount of Rs.3,500/-. The plaintiff issued a legal notice dated 3.7.1983 to the first defendant. He also issued another legal notice on 12.10.1987. Since the first defendant failed to reconvey the property, the plaintiff filed the suit. 5. The brief case of the defendants are as follows: The second defendant admitted that Marimuthu Udayar sold the suit properties to the first defendant on 8.2.1983. The second defendant denied execution of reconveyance agreement dated 8.2.1983 to reconvey the properties. The said reconveyance deed is forged one. The sale deed dated 8.2.1983 is true, valid and binding on the plaintiff and the vendor. The defendants are in possession and enjoyment of the suit property. The second defendant denied execution of reconveyance agreement dated 8.2.1983 to reconvey the properties. The said reconveyance deed is forged one. The sale deed dated 8.2.1983 is true, valid and binding on the plaintiff and the vendor. The defendants are in possession and enjoyment of the suit property. The patta also stands in the name of the first defendant. The assignment in favour of the plaintiff dated 29.4.1983 is not true, valid and binding on the defendants. The defendants were not informed about the alleged assignment deed dated 29.4.1983. According to the defendants, the vendor Marimuthu Udayar borrowed Rs.5,000/- from one Venkataraman and executed a mortgage deed in favour of the said Venkataraman. Though the sale deed was executed for Rs.3,500/- in favour of the first defendant, Marimuthu Udayar actually received Rs.10,000/- and undertook to discharge the mortgage debt. Since the defendants are disputing the very reconveyance deed, the question of readiness and willingness to perform the plaintiff's part of the contract does not arise. Therefore, the defendants prayed for dismissal of the suit. 6. Before the trial court, six witnesses were examined as P.W.1 to P.W.6 and six documents were marked as Exs.A1 to A6 on the side of the plaintiff. On the side of the defendants, three witnesses were examined as D.W.1 to D.W.3 and five documents were marked as Exs.B1 to B5. 7. The trial court after taking into consideration the oral and documentary evidences of both parties, found that Exs.A1-assignment deed dated 29.4.1983 and Ex.A6-reconveyance agreement dated 8.2.1983 are not true and genuine. Therefore, the trial court dismissed the suit. Aggrieved over the judgement and decree of the trial court, the plaintiff filed an appeal in A.S.No.266 of 1993 on the file of the Principal District Court, Salem. The Lower Appellate Court though found that Ex.A1-Assignment deed and Ex.A6-reconveyance deed are true and genuine, however, dismissed the appeal on the ground of limitation that the plaintiff should have filed the suit on or before 7.2.1988, but the suit was filed only on 8.2.1988. The lower appellate Court confirming the judgement and decree of the trial court, dismissed the appeal. Aggrieved over the judgement and decree of the Courts below, the plaintiff filed the above Second Appeal. 8. Heard Mr.R.Krishnan, learned counsel appearing for the appellant and Mr.S.Krishnasamy, learned counsel for the respondents and perused the materials available on record. 9. The lower appellate Court confirming the judgement and decree of the trial court, dismissed the appeal. Aggrieved over the judgement and decree of the Courts below, the plaintiff filed the above Second Appeal. 8. Heard Mr.R.Krishnan, learned counsel appearing for the appellant and Mr.S.Krishnasamy, learned counsel for the respondents and perused the materials available on record. 9. At the time of admission of the Second Appeal, the following substantial questions of law are arisen for consideration: a. Whether the Courts below are right in law in dismissing the suit on the ground of limitation? b. Have not the Courts below committed error in law by dismissing the suit on the ground of limitation when the suit was filed immediately on the next day after the date of breach committed by the respondents? c. Is the Lower Appellate Court justified in law in holding that the suit is barred by limitation when in fact it was filed 1 day after the breach committed by the respondents? d. Has not the Lower Appellate Court committed illegality in dismissing the suit on the ground of limitation as if the limitation is for 5 years from the date of Exhibit A6 and not from the date of breach of the agreement under Exhibit A6? 10. On careful consideration of the materials available on record and the submission made by both the counsel, it could be seen that by Ex.B1-sale deed dated 8.2.1983, one Marimuthu Udayar sold the suit properties to Nagammal who is the first defendant in the suit. The first defendant died on 8.9.1988 pending suit and her legal heirs are the respondents in the above Second Appeal. 11. According to the learned counsel appearing for the appellant, on the same day viz. 8.2.1983, the said Nagammal executed an agreement of reconveyance which was marked as Ex.A6 to reconvey the properties within a period of 5 years if the sale price of Rs.3,500/- is repaid by the said Marimuthu Udayar to her. According to the learned counsel appearing for the appellant, in Ex.A1 assignment deed dated 29.4.1983, Ex.A6-reconveyance agreement was assigned in favour of the appellant. The suit was filed on 8.2.1988. The respondents have denied the execution of Ex.A6-agreement of reconveyance and Ex.A1-Assignment deed in favour of the appellant. 12. According to the learned counsel appearing for the appellant, in Ex.A1 assignment deed dated 29.4.1983, Ex.A6-reconveyance agreement was assigned in favour of the appellant. The suit was filed on 8.2.1988. The respondents have denied the execution of Ex.A6-agreement of reconveyance and Ex.A1-Assignment deed in favour of the appellant. 12. The trial court found that though the respondents are disputing the Ex.A6 document as forged one, the appellant/plaintiff did not take any steps to prove the signature found in Ex.A6 agreement. The trial court also rightly found the contradictions found in the evidence of D.W.6. Admittedly, the suit property was purchased by Nagammal under Ex.B1 dated 8.2.1983, a registered sale deed. The trial court came to the conclusion that Exs.A1 and A6 are not true, genuine documents and that they were made for the purpose of filing the suit. The Lower Appellate Court after taking into consideration the evidences of P.Ws.4 to 6 found that Ex.A6 is a true document and thump impression found in Ex.A6 is Nagammal. 13. In the judgement reported in AIR 2003 SC 1989 (Banarsi and others vs. Ram Phal), the Apex Court held that "No appeal lies against mere finding and Sections 96 and 100 C.P.C. provide for an appeal against decree and no against judgement. The Apex Court also held that any respondent though he may not have appealed particularly any part of the decree may not still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgement against him. In view of the above judgement, the respondents need not file a separate appeal against the adverse finding of the Lower Appellate Court. However, they can argue on the adverse findings given by the Lower Appellate Court. 14. Learned counsel for the respondents contended that the trial court has categorically found that Exs.A1 and A6 are not true and genuine documents and that the appellant/plaintiff failed to prove the signature found in Ex.A6-Reconveyance agreement is that of Nagammal. He also contended that the suit is barred by limitation in view of the judgement reported in 1998-1-L.W.825 (Smt.Bismillah Begum (dead) by Lrs. v. Rahmatullah Khan (dead) by Lrs.) which reads as follows: In contracts relating to reconveyance of property time is always essence of the contract. He also contended that the suit is barred by limitation in view of the judgement reported in 1998-1-L.W.825 (Smt.Bismillah Begum (dead) by Lrs. v. Rahmatullah Khan (dead) by Lrs.) which reads as follows: In contracts relating to reconveyance of property time is always essence of the contract. The findings of fact arrived at by the Courts below that no effort has been made by the plaintiff to pay the sale consideration to the defendant are findings of fact, binding in Second Appeal. 15. Learned counsel for the respondents further relied on judgement reported in 1961 (1) MLJ 445 (N.Pattay Goundar v. P.L.Bapuswami) which reads as follows: "Where the condition for repurchase has under the terms of the agreement to be performed within the stipulated time and the time limit has not been adhered to with the result that the right is lost, I fail to see what the Limitation Act has to do with it. Sri K.S.Desikan, the learned counsel for the plaintiff-respondent referred me to section 4 and Article 113 of the Limitation Act and contended that as the Court remained closed on 28th May 1953, the suit filed on the date of the reopening should be considered to be within time. In my opinion the argument has only to be stated to be rejected. The period fixed in the document is a condition for the performance and after the expiry of the period, the right reserved is itself at an end. The period fixed in the deed is not the period of limitation prescribed for any suit. Section 4 of the Limitation Act can, therefore, have no application to the present case. No offer was made at any time within the stipulated period by tendering the required amount for repurchase. There is nothing in Exhibit A8 to which my attention was drawn by Sri.K.S.Desikan to show that any offer or tender was made by the plaintiff within the stipulated time to repurchase the property. That being the case and the right to repurchase having been lost after the expiry of the period, by reason of the very terms of the covenant, it seems to me that Article 113 of the Limitation Act can have no application. The plaintiff having defaulted and as a result lost the right to repurchase, he cannot resurrect and save the right by resort to the Limitation Act. 16. The plaintiff having defaulted and as a result lost the right to repurchase, he cannot resurrect and save the right by resort to the Limitation Act. 16. Learned counsel for the appellant relied on judgement reported in 1957 S.C.R. 208 (H.H.Raja Harinder Singh v. S.Karnail Singh) wherein, it is held as follows: "The last day for filing the election petition was a Sunday and the day following was a public holiday. The petition was presented on the next day after the public holiday. Held, that S.10 of the General Clauses Act was applicable and that the petition was presented within time". 17. Learned counsel for the appellant relied on judgement reported in (1996) 8 SCC 365 (D.S.Thimmappa v. Siddaramakka) wherein, it is held as follows: 6.It is settled law that unless the deed of agreement of sale stipulated a date for performance, time is not always of the essence of the contract. It would be seen that Thimmappa had the land purchased from the respondent and there was an agreement of reconveyance on the condition that the respondent should return the consideration paid under the sale deeds, viz. Rs.5000 within eight years from that date. The appellant had gone to the extent of even denying the executing of reconveyance. Therefore, the High Court has gone into the question of the probability of the respondent approaching the appellant for reconveyance before the expiry of the limitation. The High Court has, therefore, rightly gone into the question whether there was an agreement of reconveyance and whether the respondent had performed her part of the contract in seeking reconveyance. That being the material question which hinges upon the discretion to be exercised by the court to enforce for specific performance of the contract, the appellate court had not adverted to that material part. But merely it relied upon the plea of limitation. That being the material question which hinges upon the discretion to be exercised by the court to enforce for specific performance of the contract, the appellate court had not adverted to that material part. But merely it relied upon the plea of limitation. Under those circumstances, the High Court has not committed any error of law in interfering with the decree of the appellate court and considering relevant circumstantial evidence that unless the respondent had in the first instance approached and the appellant avoided the receipt of the consideration and execution of sale deed, the respondent had no occasion to approach an advocate to get the notice issued asking the appellant to be present before the Sub-Registrar for execution of sale deed under Article 54 of the Schedule to the Limitation Act, 1963 (21 of 1963). Limitation for specific performance begins to run from the date fixed in the contract or from the date of refusal to execute the sale deed. Since time is not the essence of the contract, the respondent had offered the payment of the amount before the expiry of the date of reconveyance but the appellant had refused to reconvey the same. The cause of action arose on expiry of eight years from the date of execution of the later sale deed, i.e.,20.7.1973. The appellant by conduct refused to execute the sale deed on 19.7.1976, the suit was filed on 20.7.1976. The suit was filed within limitation from the date of refusal, i.e. 19.7.1976 i.e. next day. It is not a case of appreciation of evidence by the High Court in second appeal but one of drawing proper inference from proved facts which the first appellate court has failed in law to draw proper inference from proved facts and non-application of law in the proper perspective. We, therefore, hold that the suit was filed within limitation. We do not find any illegality warranting our interference. 18. Learned counsel for the appellant relied on judgement reported in 2001 (3) MLJ 637 (Ayisha Beevi v. Dhanalakshmi and others) wherein, it is held as follows: In the case of an agreement of reconveyance, the Court cannot adopt the same stringent standards which are applicable to a case of enforcement of other agreements. 18. Learned counsel for the appellant relied on judgement reported in 2001 (3) MLJ 637 (Ayisha Beevi v. Dhanalakshmi and others) wherein, it is held as follows: In the case of an agreement of reconveyance, the Court cannot adopt the same stringent standards which are applicable to a case of enforcement of other agreements. The provisions of section 16 of the Specific Relief Act, 1963 are applicable to the suits filed based on agreement for sale as well as agreement of reconveyance. 19. Learned counsel for the appellant relied on judgement reported in 2005 (2) TLNJ 41 (SC) (HUDA and another v. Dr.Babeswar Kanhar and another) wherein, it is held as follows: The underlying object of the principle is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that law does not compel the performance of an impossibility. (See Hossein Ally vs. Donzelle) ILR 5 Calcutta 906). Every consideration of justice and expediency would require that the accepted principle which underlies Section 10 of the General Clauses Act should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex non cogit ad impossibilia (the law does not compel a man to do the impossible) and actus curiae nemi nem gravabit (the act of Court shall prejudice no man). Above being the position, there is nothing infirm in the orders passed by the Forums below. However, the rate of interest fixed appears to be slightly on the higher side and is reduced to 9% to be paid with effect from 03.12.2001, i.e., the date on which the letter was received by HUDA. 20. With regard to genuineness of Exs.A1 and A6 documents, the appellant/plaintiff failed to prove the thump impression found in Ex.A6 is that of Nagammal. When the defendants have taken a specific stand that Ex.A6 agreement is a forged document, the appellant/plaintiff should have proved the genuineness of the document and also thump impression of Nagammal. 20. With regard to genuineness of Exs.A1 and A6 documents, the appellant/plaintiff failed to prove the thump impression found in Ex.A6 is that of Nagammal. When the defendants have taken a specific stand that Ex.A6 agreement is a forged document, the appellant/plaintiff should have proved the genuineness of the document and also thump impression of Nagammal. The trial court found that there are contradiction in the evidence of P.W.6 and P.W.4. Further, Ex.B2 notice dated 6.2.1988 also does not support the case of the appellant/plaintiff. The trial court has rightly came to the conclusion that Exs.A1 and A6 are not true and valid documents. There is no error in the findings of the trial court with regard to Ex.A1 and Ex.A6. The findings of the Lower Appellate Court with regard to Ex.A6 agreement cannot be sustained. 21. With regard to question of limitation, the judgement reported in 1961 (1) MLJ 445 squarely applies to the facts and circumstances of the case on hand. In the present case, the alleged agreement of reconveyance was executed on 8.2.1983 to reconvey the property within a period of 5 years, if the sale price of Rs.3,500/- is repaid by the said Marimuthu Udayar to the first defendant. The suit was filed on 8.2.1988. According to the learned counsel appearing for the appellant, 7.2.1988 fell on Sunday, therefore, the suit was filed on 8.2.1988. In the judgement reported in 1998-1-L.W.825 the Apex Court clearly held that in contracts relating to reconveyance of property, time is always essence of the contract. In the case on hand, the period of 5 years mentioned in Ex.A6 agreement expires on 7.2.1988. The period fixed in the document is a condition for the performance and after expiry of the period, the right reserved is itself at an end. The period fixed in the deed is not the period of limitation prescribed for any suit. That being the case and the right to repurchase having been lost after expiry of the period, by reason of very terms of the covenant, the appellant/plaintiff cannot save the right by resort to the Limitation Act. Therefore, by applying the principles laid down in the above judgements, I find no ground much less substantial question of law to interfere with the judgement and decree of the Courts below. Hence, the Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. No costs.