# Mohd. Iliyas & Ors v. Smt. Ram Dulari & Ors

- **Citation:** (2016) 8 ILRA 138
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-24
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-iliyas-ors-v-smt-ram-dulari-ors-44229
- **Pages:** 20

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138 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 138
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2016

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.

Second Appeal No.- 231 Of 2008

Mohd. Iliyas & Ors. ...Appellants
Versus
Smt. Ram Dulari & Ors. ...Respondents

Counsel for Appellants:
Mr. Mohiuddin Khan, Mr. Mohd. Aslam Khan, Mr. Mohd. Adil Khan, Mr. Ghaus Beg, Mr. Mohd. Arif Khan, Sr.
Advocate

Counsel for Respondents:
Apoorva Tiwari & Sunil Pandey
Held

The Court held that the suit for specific performance filed in 1990 on the basis of agreement dated
07.01.1983 was barred by limitation under Article 54 of the Limitation Act, as the period commenced from the
date of knowledge of permission (24.01.1983) and not from alleged refusal. It further held that extension of
time or oral agreement was not proved and Section 15 of the Limitation Act was inapplicable in absence of
any stay/injunction. The Court also held that the plaintiff failed to establish continuous readiness and
willingness as required under Section 16(c) of the Specific Relief Act, and mere pleading without evidence is
insufficient. Consequently, the appellate court erred, and the trial court's dismissal was upheld while setting
aside the decree for specific performance.

CASE LAW CITED

Ramzan vs. Smt. Hussaini (AIR 1990 SC 529)

Damodaran Pillai vs. South Indian Bank Ltd. (2005) 7 SCC 300

Director of Inspection of Income Tax vs. Pooran Mall & Sons (1975 AIR SC)

Ahmadsahab Abdul Mulla vs. Bibijan (2009) 5 SCC 462

Panchanan Dhara vs. Monmatha Nath Maity (2006) 5 SCC 340

Badat & Co. vs. East India Trading Co. (AIR 1964 SC 538)

Muddasani Venkata Narsaiah vs. Muddasani Sarojana (2016)

Faquir Chand vs. Sudesh Kumari (2006) 12 SCC 146
8 All. Mohd. Iliyas & Ors. Vs Smt. Ram Dulari & Ors.
139
Pushparani S. Sundaram vs. Pauline Manomani James (2002) 9 SCC 582

Smt. Raj Rani Bhasin vs. S. Kartar Singh Mehta (1975 Delhi 139)

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Heard Mr. Mohd. Arif Khan, learned Senior Advocate assisted by Mr. Mohiuddin Khan,
learned counsel appearing on behalf of the appellants as well as Mr. Sunil Pandey and Mr. Apoorva
Tewari, learned counsel appearing on behalf of the contesting respondents i.e., respondents no. 1 to
8.

2. No one has put in appearance on behalf of respondents no. 9 to 13. During pendency of
appeal, respondents no. 6, 8 and 13 have died. They have been substituted by their legal heirs.

3. The instant second appeal has been filed by the defendants-appellants against the
judgment and decree dated 31.5.2008 passed in Regular Civil Appeal No. 154 of 2005 (Smt. Ram
Dulari and others vs. Mohd. Ayyub Khan and others) by learned Special Judge (E.C.) Act,
Lucknow setting aside the judgment and decree dated 6.10.2005 passed in Regular Suit No. 86 of
1990 (Ram Dulari and others Vs. Mohd. Ayyub Khan and others) by the learned Additional Civil
Judge (Junior Division), Lucknow by means of which the Trial Court had dismissed the suit of the
respondents-plaintiffs for Specific Performance of Contract for sale.

4. The appeal has been admitted on the following substantial questions of law:

"(i) Whether the suit filed by the respondents on 20.3.1990 on the basis of an
agreement for sale dated 7.1.1983 was within limitation?.

(ii) Whether in the absence of any pleadings and evidence on record that the
respondents no. 1 to 8 possessed of and are capable of performing their part of contract, the lower
appellate Court was justified in law in decreeing the suit, ignoring the law laid down in that behalf
by this Hon'ble Court as well as Apex Court?

(iii) Whether there being no order of stay granted by District Judge, Gonda, staying
filing of the suit by Tulsi Ram, the learned lower appellate Court was justified in law in granting
benefit of Section 15 of the Limitation Act in decreeing the suit filed by him beyond three years?

(iv) Whether the learned lower appellate Court was justified in law in granting the
decree for specific performance of contract, ignoring the provisions of Sections 12 and 15 of the
Specific Relief Act?"

5. As per the given facts, a registered agreement for sale dated 07.01.1983 of plot
measuring 8000 square feet was entered into between late Tulsi Ram (original plaintiff who is now
represented by his legal heirs respondents no. 1 to 8) and one Farooq, Mohd. Matin (father of
140 INDIAN LAW REPORTS ALLAHABAD SERIES

respondents no. 11 & 12) and Jameeluddin (respondent no. 13) - prospective purchasers as first
party and Mohd. Ayyub Khan and Mohd. Shoaib Khan (respondents no. 9 & 10) - sellers as second
party. A suit for specific performance of contract for sale was filed on 20.3.1990 by Tulsi Ram
impleading Mohd. Ayyub Khan and Mohd. Shoaib Khan as defendants who were the owners of the
plot in dispute. Respondents no. 11 to 13 and the present appellants were also impleaded as
defendants.

6. Respondents no. 9 and 10 were the owners of the plot in dispute on the basis of
registered sale-deed dated 25.7.1957. It was the case of the plaintiff that as per said agreement for
sale a sum of Rs.50,000/- was paid by the purchasers out of which, Rs.20,000/- was paid by Tulsi
Ram, Rs.10,000/- was paid by Farooq, Rs.10,000/- was paid by Mohd. Mateen and Rs.10,000/- was
paid by Jameeluddin. They had agreed to purchase definite portions of the plot in dispute by getting
individual and separate sale-deeds executed in favour of each individual purchaser.

7. It was also the term of agreement for sale dated 07.01.1983 that the seller would obtain
necessary permission from the competent authority under the Act1 and the sale-deed would be
executed within a month from grant of permission by the competent authority. The agreement
stipulated that the seller would intimate the buyers and call upon them to execute the sale-deed.

8. It was the case of respondents-plaintiffs that sellers had not acted upon their solemn
undertaking and despite repeated request and demands to execute the registered sale-deed, the
respondents no. 9 and 10 avoided to execute the sale-deed, hence they had filed a suit for specific
performance. It was also the case of respondents-plaintiffs that respondents no. 9 & 10 had filed a
collusive suit (Regular suit no. 81 of 1981) at Gonda in which the plot in dispute was got attached
due to which they had shown their inability to execute the sale-deed.

9. It was also case of the respondents-plaintiffs that subsequent to the agreement for sale,
the respondents no. 9 and 10 had delivered actual possession and he was always ready and willing
to perform his part of contract and is still ready to pay sale consideration but the respondents no. 9
and 10 avoided to execute the sale-deed which necessitated for filing the suit.

10. It was the case of the respondents-plaintiffs that the respondents no. 9 & 10 (sellers)
had not given any intimation to get the sale-deed executed and had extended the period of
limitation through oral agreement.

11. The suit was contested by the appellants (defendants no.6 to 10), who were subsequent
purchasers from respondents no. 9 and 10 for valuable sale consideration on the ground that the
respondents no. 9 and 10 who were arrayed as defendants no. 1 and 2 were in actual possession and
they had transferred the actual possession to the present appellants.

12. It has been vehemently contended by the learned counsel for appellants that the first
appellate Court has grossly erred in reversing the finding recorded by the Trial Court. The suit was,
admittedly, filed beyond the period of limitation as specified under Article 54 of Schedule to
8 All. Mohd. Iliyas & Ors. Vs Smt. Ram Dulari & Ors.
141
Limitation Act. The respondents-plaintiffs have failed to establish their case before the Trial Court.
The Trial Court has given its categorical finding that the suit is barred by limitation. The
respondents-plaintiffs have not been able to establish their possession over the plot in dispute. The
respondents-plaintiffs have not been able to show that they were ready and willing to execute their
part of agreement. The Trial Court, relying on the statement of examination-in-chief of Mohd.
Farooq, had come to conclusion that the plaintiffs had knowledge of the notice sent by the sellers,
however, they had not produced any evidence to show that they were ready to get the sale-deed
executed, from the conduct and circumstances, it is evident that the plaintiffs had failed to perform
their part of agreement.

13. It is submitted that the first appellate Court has held that the respondents no. 9 & 10
(sellers) had not contested the suit and there is no specific denial that there was an agreement for
sale between the respondents-plaintiffs (purchasers) and respondents no. 9 and 10 (sellers), the
respondents no. 9 & 10 accepted part of the amount of consideration paid by the plaintiffs along
with three other persons, since the plaintiffs had not received the intimation about the permission
granted by the urban ceiling authority and the plot in dispute being under attachment in the Court of
District Judge, Gonda, there was legal difficulty in execution of sale-deed and respondents no. 9 &
10 had kept on taking time from the plaintiff, hence the extension of period of performance of the
contract extends the period of limitation. The said finding of the first appellate Court are not
sustainable in the eyes of law. The first appellate Court has erred in coming to conclusion that since
there is no specific denial of the appellants who were contesting as respondents in first appeal and
rather; it has been admitted by one of the appellants in his statement that the plaintiff has put a
wooden kiosk in part of the plot in dispute, hence the finding of the Trial Court that the plaintiffs
have failed to establish their possession over the plot in dispute is wrong.

14. It is submitted that the first appellate Court has grossly erred in ignoring the material
fact that the permission from urban ceiling authority was applied jointly by sellers and purchasers,
it was duly received by M. Hamza, Advocate who was engaged by respondents-plaintiffs
themselves and the knowledge of the said permission cannot be denied by the plaintiffs. The first
appellate Court has also erred in coming to conclusion that no notice was served on the
respondents-plaintiffs for getting the sale-deed executed. Mohd. Farooq, who was also a party to
the agreement being one of the purchasers, has stated before the Trial Court that they had received
notice sent by the respondents no. 9 & 10, as such, it was evidently clear that the plaintiff along
with other prospective purchasers had received notice sent by the respondents no. 9 and 10 (sellers)
and, as such, it cannot be said that the respondents no. 9 & 10 had not sent the notice to the
plaintiff.

15. It is contended by counsel for the appellants that in absence of any evidence on record
the first appellate Court has grossly erred in concluding that respondents-plaintiffs were ready and
willing to perform their part of contract.

16. In support of his submissions, learned counsel for appellants has placed reliance on the
judgment of the Delhi High Court in the case of Smt. Raj Rani Bhasin & others vs. S. Kartar
142 INDIAN LAW REPORTS ALLAHABAD SERIES

Singh Mehta2, wherein a distinction has been drawn between the readiness to perform the contract
and willingness to perform the contract. Readiness may be meant the capacity of the plaintiff to
perform the contract which includes his financial ability to pay the purchase price but for
determining his willingness to perform his part of contract, his conduct has to be scrutinized. From
the evidence on record, the respondents-plaintiffs could not prove their willingness to perform their
part of contract.

17. It is also contended that there was no order or injunction passed against the respondents
no. 9 and 10, hence the suit filed by Tulsi Ram, predecessor-in-interest of the respondents no. 1 to 8
on 20.3.1990, in pursuance to the agreement for sale dated 07.01.1983, was admittedly barred by
limitation and Trial Court was correct in law in dismissing the suit.

18. In this regard, the appellants have relied upon the judgment of the Apex Court in the
case of Director of Inspection of Income Tax (Investigation), New Delhi and another vs. M/s
Pooran Mall and Sons and another3 in which it has been laid down by the Apex Court that it is
well established principles of judicial procedure that wherein proceedings are stayed by an order of
a court, or by an injunction issued by any court only that period should be excluded in computing
any period of limitation laid down by law.

19. The appellants have contended that from a bare reading of the submissions made in the
plaint, it is very much clear that Tulsi Ram in order to overcome the bar of limitation as the suit
was admittedly filed beyond the period of 3 years, had set up a case of oral agreement.

20. It is submitted that the plaintiff has to succeed on the strength of his own case and
could not rely upon the weakness of the defence. The case of oral agreement extending the period
of limitation, pleaded was not proved by the plaintiff by leading any positive evidence on record,
hence the theory as set up regarding extension of the period of limitation is also unequivocal and
the finding recorded by the Trial Court could not be held to be perverse.

21. Learned counsel for the respondents no. 1 to 8, on the other hand, vehemently
submitted that it was specifically stated in the plaint that the sellers i.e. defendants no. 1 and 2 had
applied for permission from the competent authority under the Act but the plaintiff had no
knowledge about the grant of any such permission. The plaintiff had not received any notice for
getting the sale-deed executed. The sellers i.e., defendants no. 1 & 2 had orally informed their
inability to execute the sale-deed as the plot in dispute was under attachment in a case before the
District Judge, Gonda. It was further stated in the plaint that the plaintiff was always ready and
willing to perform his part of the agreement to sell but the defendants no. 1 and 2 repeatedly
extended the period for performance of the contract on the pretext that they were in legal difficulty
in executing the sale-deed as the entire property was under attachment as per the order passed in
Regular Suit No. 81 of 1981.

22. It is contended that the extension of the period of performance of the contract extends
the period of limitation and the cause of action for filing the suit arose to the plaintiff on
8 All. Mohd. Iliyas & Ors. Vs Smt. Ram Dulari & Ors.
143
31.12.1989 when the plaintiff demanded the execution and registration of sale-deed from
defendants no. 1 and 2.

23. It is submitted that defendants no. 1 and 2 despite sufficient notice never appeared
before the Trial Court to contest the suit and, thus, the suit was proceeded ex-parte against them. It
is submitted that in absence of specific denial of the defendants no. 1 and 2 the contention of the
present appellants, who was also defendants in the suit, could not have been accepted as the
appellants are the subsequent purchasers and cannot plead before the Trial Court that the plaintiff
was not ready and willing to perform his part of agreement for sale and the agreement for sale was
cancelled by defendants no. 1 and 2 before the plot in dispute was sold to the present appellants. It
is contended that the Trial Court had erred in coming to conclusion that the provision of first part of
Article 54 of Schedule to the Limitation Act would be applicable. It is also contended that no
specific date was fixed for execution of the sale-deed in the agreement for sale. The said agreement
for sale stipulated that the sale-deed would be executed within one month from the date of grant of
permission from the competent authority under the Act. In absence of any date fixed in the
agreement for sale which was also not ascertainable from the terms of the agreement for sale for the
execution of the sale-deed, the second part under Article 54 would apply and the period of
limitation shall commence from the date when the plaintiff had the knowledge that performance is
refused.

24. In support of his submissions, learned counsel for respondents has relied on the
judgment of the Apex Court in the case of Ahmadsahab Abdul Mulla (2) (Dead) vs. Bibijan and
others4, particularly Paragraph 10, 11 & 12 where it has been held that the expression date fixed for
performance in Article 54 of the Schedule to Limitation Act, 1963 is a crystallized notion which is
not subject to any change or fluctuation and in the absence of any such stipulation only the second
part of Article 54 shall apply and the period of limitation shall commence from the date when the
plaintiff has noticed that the performance is refused.

25. It is contended by learned counsel for respondents that the legal position as regards the
notices sent ''Under Certificate of Posting' is no longer res integra and stands concluded by a recent
decision of this Court in West Watch Company vs. Additional District Judge, Court No. 5 and
others5, particularly Paragraphs 17 & 18, wherein it has been held that in order to raise
presumption of service of notice ''Under Certificate of Posting, the employee of the post and
telegraph department has to be examined to prove the factum of posting of the notice. It is held that
in absence of proof of posting of notice no presumption of service can be drawn.

26. It is submitted that since the defendants no. 1 and 2 had accepted part of the sale
consideration after institution of the suit it has to be presumed that they did not refuse their part of
performance and had not cancelled the agreement to sale till the filing of the suit. It is further
submitted that the first appellate Court has also recorded a finding of fact to the effect that the
plaintiff and the defendants no. 1 and 2 had extended the period of performance on account of the
plot in dispute being under attachment before the Court i.e., Regular Suit No. 81 of 1981.
144 INDIAN LAW REPORTS ALLAHABAD SERIES

27. It is submitted that in view of the law laid down by the Apex Court in the case of
Panchanan Dhara and others vs. Monmatha Nath Maity (Dead) Through LRS. And another6,
particularly Paragraphs 21 and 22, wherein it has been held that the time for performance of an
agreement would extend the period of limitation and it would begin to commence when plaintiff
has noticed that performance has been refused.

28. It is also contended that in view of the judgment of the Apex Court in the case of Badat
& Co. v. East India Trading Co. 7, in the absence of specific denial the pleadings shall be treated to
be admitted. Thus, in the absence of the denial of the plaintiff's assertion by the defendants no. 1
and 2 they shall be deemed to have been admitted by them. It is submitted that the plaintiff has
proved his assertions regarding extension of time for performance by way of his evidence and the
defendants no. 6 to 11 while cross examining him did not controvert or challenge his version.

29. The Apex Court in the case of Muddasani Venkata Narsaiah (D) Th. Lrs. vs.
Muddasani Sarojana8, has held that if the version of plaintiff in his examination-in-chief is not
challenged in the cross examination the same shall amount to admission.

30. Learned counsel for respondents has also submitted that the application for permission
from the competent authority under the Act is required to be applied jointly by the vendor and
vendee. In view of the aforesaid, the plaintiff had signed the application along with defendants no.
1 and 2 and also executed Vakalatnama in favour of Mr. M. Hamza, Advocate.

31. It is submitted that the defendants no. 6 to 11 did not lead any evidence to prove that
the signatures or the receiving of Mr. M. Hamza, Advocate on the ceiling permission. It was
incumbent on the defendants to have proved the signatures by virtue of Section 67 of the Indian
Evidence Act and having failed to do so no presumption or inference can be raised against the
plaintiff on the said score. Thus, the finding of the first appellate court that the suit for specific
performance preferred by the plaintiff was within limitation suffers from no error and the question
of law framed in the second appeal is liable to be answered in favour of the respondents-plaintiffs.

32. It is also submitted that the plaintiff has specifically pleaded in the plaint that the
plaintiff has been throughout ready and willing to perform his part of agreement. The said assertion
was not denied by the defendants no. 1 and 2, therefore, shall stand admitted against them. The
defendants no. 6 to 11 have denied the statement in the plaint vaguely and in their evidence
admitted to not having any knowledge of the transaction which took place prior to execution of
sale-deed in their favour. In the absence of requisite denial and rebuttal or challenge to the evidence
of PW-1, the readiness and willingness of the plaintiff to perform his part of the agreement would
stand proved.

33. I have considered the submissions made by the parties' counsel and gone through the
records.
8 All. Mohd. Iliyas & Ors. Vs Smt. Ram Dulari & Ors.
145
34. It is the admitted fact that a joint agreement to sale dated 07.01.1983 was executed
between the sellers i.e., respondents no. 9 and 10 and the purchasers, namely, Tulsi Ram, Mohd.
Farooq, Mohd. Mateen and Jameeluddin for a common piece of land measuring 8000 square feet.
As per the understanding between the purchasers, they had agreed to get the sale-deed executed of
the separate portions of the plot in favour of individual purchasers. As per the terms of the said
agreement for sale, the respondents no. 9 and 10 (sellers) had to obtain the permission from the
competent authority under the Act and intimate the purchasers to get the sale-deed executed which
was to be done within one month from the date of grant of permission by the competent authority.
It is evident from the records that the suit for specific performance was filed by predecessor-ininterest of respondents no. 1 to 8 i.e., late Tulsi Ram on 20.3.1990. Article 54 of Schedule to the
Limitation Act provides the period of limitation as three years and the date from which the period
of limitation would begin to run would be the date fixed for the performance or, if no such date is
fixed, when the plaintiff has noticed that performance is refused. Article 54 of Schedule to the
Limitation Act, for convenience, is reproduced below:

THE SCHEDULE

PERIOD OF LIMITATION ACT

Description of Suit
Period
of
Limitation
Time from which period begins
to run
54
For
specific
performance
of
a
contract.
Three Years
The
date
fixed
for
the
performance, or, if no such date
is fixed, when the plaintiff has
notice
that
performance
is
refused.

35. Learned Trial Court while deciding the suit filed by the respondents-plaintiffs had
framed certain issues translation of which on reproduction read as under:

"(1) Whether any agreement between the plaintiff as well as defendants no. 3 to 5
and defendants no. 1 and 2 was entered into for sale of the disputed property, as pleaded in para 5
of the suit?

(2) Whether the possession was delivered by the defendants no. 1 and 2 to the
plaintiff of the agreed property in compliance of the agreement to sale?

(3) Whether the plaintiff has followed the agreement to sale and defendants no. 1
and 2 have cancelled the same?

(4) Whether the suit is time barred?

(5) Whether the suit is not maintainable as per the reasons pleaded in para 33 of the
written statement?
146 INDIAN LAW REPORTS ALLAHABAD SERIES

(6) Whether the plaintiff is entitle to get any relief?"

36. The issue no. 4 relates to whether suit is barred by limitation. The Trial Court while
deciding the said issue has held that since as per the terms of the agreement for sale the sellers after
obtaining the permission from the competent authority was required to intimate the purchasers and
the purchasers were required to get the sale-deed executed within one month from the date of
intimation, as such, the period of limitation would be governed by the first part of Article 54 of
Schedule to Limitation Act. The learned Trial Court has come to conclusion that the suit for
specific performance filed by the respondent-plaintiff was filed beyond period of limitation, hence
barred by limitation. The first appellate Court dealing with the said issue has opined that the
intimation about the permission from the urban ceiling Authority was to be given by the purchasers
and since the land in question was under attachment in a case i.e., Regular Suit No. 81 of 1981,
pending before the District Judge, Gonda, as such, there was legal impediment in the execution of
the sale-deed, as such, the sellers (respondents no. 9 and 10) had kept on taking time and ultimately
after not getting the sale-deed executed the suit was filed by the respondent-plaintiff. The sellers
had received Rs. 20,000/- from Tulsi Ram on 26.3.1990, although they had already entered into an
agreement to sale dated 09.03.1990 with appellants (defendants no. 6 to 11). The suit for specific
performance, as such, was filed within time from the date of refusal.

37. As per the agreement to sale although no specific date was mentioned for execution of
sale-deed, however, by reference to the happening of an event, namely, the permission from the
competent authority and thereafter intimation by the purchasers to the sellers for execution of the
sale-deed within one month clearly would mean that the date of limitation is to be determined as
per first part of Article 54 of Schedule to the Limitation Act. The permission from the competent
authority is dated 22.1.1983 which was received by Mr. M. Hamza, Advocate on 24.1.1983.

38. The counsel for respondents, Mr. Apoorva Tewari, has argued that in absence of any
date fixed in the agreement for sale, which was also not ascertainable from the terms of the
agreement for sale for execution of the sale-deed, the second part of Article 54 of Schedule to
Limitation Act would apply and the period of limitation shall commence from the date when the
plaintiff had the knowledge that performance is refused. In this regard he has relied on the
judgment of Apex Court in the case of Ahamdsahab Abdul Mulla (2) (Dead) (supra) where it has
been held that the expression date fixed for performance in Article 54 of the Limitation Act, 1963
is a crystallized notion which is not subject to any change or fluctuation and in the absence of any
such stipulation only the second part of Article 54 shall apply and the period of limitation shall
commence from the date when the plaintiff has noticed the refusal of performance of the contract.

39. In the present case, as has been noted above, by a reference to the happening of a
certain event, namely, the date of permission and the date of knowledge about such permission by
the plaintiff-purchasers would clinch the issue about the period of limitation and the same would be
counted from the date of knowledge. The permission from the competent authority was granted on
22.1.1983 which was received by counsel for the plaintiff Mr. M. Hamza on 24.1.1983, as such, the
period of limitation for filing of suit for specific performance would commence from the date of
8 All. Mohd. Iliyas & Ors. Vs Smt. Ram Dulari & Ors.
147
knowledge i.e., 24.1.1983. In this regard, I am supported in my view by the judgment of the Apex
Court in the case of Ramzan Vs. Smt. Hussaini9 wherein it has been held that in the agreement the
date for defendant-seller to execute the sale-deed was fixed, although by not mentioning a certain
date but by a reference to the happening of a certain event, namely, the redemption of the
mortgage; and, immediately after the redemption by the plaintiff purchaser, the defendant became
liable to execute the sale-deed which the plaintiff was entitled to enforce. The period of limitation
thus started running on that date. The case was, therefore, covered by the first part of Article 54 and
not by the second part of Article 54. The suit was, admittedly, filed in the year 1990, hence barred
by limitation. Relevant paragraph 6 of the judgment on reproduction reads as under:

" 6. The relevant provisions in the alleged agreement of sale as quoted in the
judgment of the trial court reads as follows:-

"This house is under mortgage with Jethmal Bastimal for Rs. 1000/-. When you will
get this house, the description of which is given below, redeemed from M/s Jeth Mat Bastimal and
take the papers of the registry in your possession, on that day I will have the sale deed of the said
house, written, executed and registered in your favour."

(Emphasis supplied)

The question is whether a date was 'fixed' for the performance of the agreement and
in our view the answer is in the affirmative. It is true that a particular date from the calendar was
not mentioned in the document and the date was not ascertainable originally, but as soon as the
plaintiff redeemed the mortgage, it became an ascertained date. If the plaintiff had, immediately
after the redemption, flied the suit, could it be thrown out on the ground that she was not entitled to
the specific performance asked for? We do not think so. She would have been within her rights to
assert that she had performed her part of the contract and was entitled to insist that her brother
should complete his part. The agreement is a typical illustration of a contingent contract within the
meaning of S. 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of
redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in
R. Muniswami Goundar and Another v. B.M. Shamanna Gouda and Others, AIR 1950 Madras 820
expressed in slightly different circumstances. The doctrine of id certum est quod certum reddi
potest is clearly applicable to the case before us which in the language of Herbert Broom (in his
book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the
fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question
had arisen in Duncombe v. The Brighton Club and Norfolk Hotel Company, [1875] 10 QB 371,
relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to
the defendant for which payment was made but after some delay. He claimed interest. The rule at
Common Law did not allow interest in such a case, and the plaintiff in support of his claim relied
upon a statutory provision which could come to his aid only if the price was payable at a certain
time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the
agreement contemplated a particular day, which, when the goods were delivered would be
ascertained, and then the money would be payable at a certain time; but rejected the plaintiff's
148 INDIAN LAW REPORTS ALLAHABAD SERIES

demand on the ground that the price did not become payable by the written instrument at a certain
time. The other learned Judges did not agree with him, and held that the statute did not require that
the document should specify the time of payment by mentioning the day of payment. If it specified
the event upon which the payment was to be made, and if the time of event was capable of being
ascertained, the requirements of the section were satisfied. The same is the position in the case
before us. The requirement of Article 113 is not that the actual day should necessarily be
ascertained upon the face of the deed, but that the basis of the calculation which was to make it
certain should be found therein. We, accordingly, hold that under the agreement the date for the
defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a
reference to the happening of a certain event, namely, the redemption of the mortgage; and,
immediately after the redemption by the plaintiff, the defendant became liable to execute the sale
deed which the plaintiff was entitled to enforce. The period of limitation thus started running on
that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the
second part."

40. It is to be noted that in the application for permission the purchasers had also made
their signature along with sellers and Mr. M. Hamza, Advocate was engaged by the plaintiffs for
that purpose. The power of attorney of Mr. M. Hamza indicates the signature of purchasers
including plaintiff, Tulsi Ram. The said permission from the competent authority was received by
Mr. M. Hamza, counsel for the plaintiff. The fact that the permission from the competent authority
having been received by Mr. M. Hamza is on record, hence it is the admitted fact that Mr. M.
Hamza, Advocate had received the permission on behalf of the purchasers as well as sellers and the
said fact has not been denied by the plaintiff. The knowledge of the permission from the competent
authority to Mr. M. Hamza, the counsel for the plaintiff would clearly mean that the plaintiff had
the knowledge about the grant of permission by the competent authority.

41. The learned Trial Court in its finding has noted that Mr. M. Hamza, Advocate was
engaged by the plaintiff. He had accepted the permission from the competent authority issued under
Section 26 of the Act dated 22.1.1983 and the same advocate in another case i.e., Regular Suit No.
20 of 1988, Mohd. Mateen vs. Mohd. Ayyub had brought the said documents C-19 and C-20
showing that the same were sent by registered post, which indicates that M. Hamza, Advocate was
the lawyer for the plaintiff since 1983 and had sent the same to the plaintiff in the year 1983.

42. The fact that the defendants did not lead any evidence to prove the signature of Mr. M.
Hamza, Advocate or the receiving by him would not make any difference as it is the admitted case
of parties that Mr. M. Hamza, Advocate was engaged by the respondents for getting permission
from the ceiling authorities and the documents relied in this regard by the defendants such as
application for permission bearing signature of plaintiff and the power of attorney of M. Hamza,
Advocate which also borne the signature of plaintiff, Tulsi Ram, and other purchasers are not
denied, as such, the period of limitation for the purpose of filing of a suit for specific performance
in the instant case would commence from the date of knowledge of the permission which was duly
received by Mr. M. Hamza on 24.1.1983, therefore, the suit filed by the plaintiff on 20.3.1990 on
the basis of agreement for sale dated 07.01.1983 was beyond the period of limitation as prescribed
8 All. Mohd. Iliyas & Ors. Vs Smt. Ram Dulari & Ors.
149
under Article 54 of the Schedule to the Limitation Act. The Apex Court in the case of Damodaran
Pillai and others vs. South Indian Bank Ltd. 10 has observed that knowledge of any proceedings to
the Advocate implies presumption of such knowledge on the part of the party.

43. So far as the question of service of notice sent by the sellers to the purchasers (plaintiff)
is concerned, it is to be noted that the examination-in-chief Mohd. Farooq (DW-2) in his statement
has stated that he as well as other purchasers including plaintiff had received the said notice on
05.03.1983. As per said notice, the sellers had informed that the sale-deed may be executed. Mohd.
Farooq had also informed that as per said notice dated 05.03.1983, the suit was to be filed before
05.06.1986.

44. Mohd Farooq was party to the agreement to sale being one of the purchasers. He had
also filed a suit for specific performance but had subsequently withdrawn the same after entering
into a compromise with the present appellants. However, the fact remains that Mohd. Farooq, who
was party to the said agreement for sale and one of the prospective purchasers had admitted that he
had received the notice dated 05.03.1983 sent by the sellers along with other purchasers. The
statement of Mohd. Farooq can not be set-aside simply because he had subsequently entered into a
compromise with the present appellants, particularly in absence of any other evidence contradicting
the statement of Mohd. Farooq. It is to be noted that Mohd. Mateen and Jameeluddin, two other
persons, who were also party to the agreement to sale along with plaintiff Tulsi Ram, were not
produced by Tulsi Ram to contradict the statement of Mohd. Farooq. It is said that the said notice
dated 05.03.1983 was sent by respondents no. 9 and 10 (sellers) to the prospective purchasers under
certificate of posting. The learned Trial Court on the basis of statement of Mohd. Farooq has
accepted the service of said notice on the plaintiff.

45. Learned counsel for respondents has argued that presumption of service of notice sent
by 'Under Certificate of Posting' cannot be made and the employee of the post and telegraph
department was required to be examined to prove the factum of posting of the notice which was not
done. In support his submissions, he has relied on the judgment of the this Court in the case of West
Watch Company (supra) wherein it has been held that in order to raise presumption of service of
notice 'Under Certificate of Posting', the employee of the post and telegraph department has to be
examined to prove the factum of posting. It is held that in absence of proof of posting of notice no
presumption of service can be drawn.

46. There is no dispute to the aforesaid legal proposition. In the present case, the Trial
Court relying on the statement of Mohd. Farooq has presumed the service of notice on the plaintiff.
As observed above, the statement of Mohd. Farooq cannot be set-aside and has to be given
weightage. The learned Trial Court was right in coming to conclusion that the plaintiff had received
the notice dated 05.03.1983 and as per the said notice the sale-deed was required to be executed by
05.06.1983. The suit instituted in the year 1990 was, therefore, time barred.

47. It has been submitted by the counsel for respondents that the first appellate Court has
come to conclusion that the land in question was under attachment in a case pending before the
150 INDIAN LAW REPORTS ALLAHABAD SERIES

District Judge, Gonda and, therefore, there was legal impediment in execution of the sale-deed and
the sellers, as such, had extended time for performance of the contract which had resulted into
extension of period of limitation.

48. Learned counsel for the appellants, on the other hand, has contended that the plaintiff
has very cleverly and intentionally mentioned in the plaint that by oral agreement the time for
performance of contract was extended as the sellers had shown their inability to execute the saledeed because the land in question was under attachment in a case pending before the District Judge,
Gonda. There was no such oral agreement and there was no legal impediment.

49. Section 15 of Limitation Act, 1963 relates to the exclusion of time in certain cases.
Section 15 of the Act, for ready reference, is quoted below:

"15.