Phukan Ali and Others vs Mt. Sahjadi and Others

Deka, J.—This is a second appeal on behalf of the Defendants against the decree passed by the Additional Subordinate Judge, U.A.D. reversing the decree passed by the Munsiff of Sib-sagar who dismissed the Plaintiffs'' suit.

The Plaintiff brought this suit for enforcing the specific performance of a contract of re-sale of land covered by a deed executed by Akbar Ali--predecessor-in-interest of Defendants, on 22.8.35. It was pleaded on behalf of the Plaintiff that Akbar Ali purchased from her the land in suit on 22.8.35 for a sum of Rs. 300/- and on the same day, he executed a deed of an agreement for reconveyance of the land in favour of the Plaintiff and other persons named in the deed on condition that the sum of Rs. 300/- representing the purchase money be returned to Akbar Ali within three years from the date of execution of the deed by the Plaintiff or the other persons named in the document. The Plaintiff not having been able to pay up the money within three years from the date of the contract, Akbar extended the time for a further period of six years by an endorsement made on the deed on 20.8.38 and that period also expired on 20.8.44 (vide para. 2 of the plaint). In the meantime, Akbar died leaving the Defendants as his heirs. The Defendants were asked by the Plaintiff in the year 1946 to accept the sum of Rs. 300/- and reconvey the property to her by executing a registered sale deed in her favour. The Defendants, however, failed to do so on various pre-texts and on 9.5.46, the Plaintiff remitted by money order the sum of Rs. 300/- in favour of Defendant 1, but the Defendants refused to accept the amount and returned the money to the sender. Hence this suit.

The undertaking given by Akbar Ali for reconveyance of the property was in these words:

If the amount of Rs. 300/- is repaid within three years from this day this land measuring 44B Ok 17L will be reconvened.

And there was a further entry lower down in the document which runs as follows:

Be it stated that if the vendor or his daughters namely (1) Mt. Mama (2) Mt. Akon (3) Mt. Sunajan and Mt. Junti pay the purchase money of Rs. 300/- I shall execute the deed of sale and return the original deed.

The last endorsement on the document purported to be made on 20.8.38 by Akbar Ali runs as follows:

Being unable to pay the amount due on this bond, six years further time is extended from today again.

Though there is some dispute as to whether the period subsequently extended was for six years or for two years, the Courts below held that time was meant to be extended for a period of six years.

It is regrettable that the trial Court did not pay sufficient attention to the wordings of the issues, particularly Issue No. 1. The issue as framed is whether the suit is barred by limitation. From the discussion of the issue, how-ever, it appears that the Munsiff had in his mind the point as to whether the offer was made by the Plaintiff within the time allowed under the contract & indirectly whether time was of the essence of the contract. His material finding is in the following words:

Issue No. 1. There is no iota of evidence that the Plaintiff had willingness to pay the sum of Rs. 300/- to the Defendants for this purpose within the stipulated time. Even if six years'' time be counted, in that case, the Plaintiff has no willingness to pay the sum to the Defendants within that time. There is no evidence as to the fact that the Plaintiff offered the sum to the Defendants within the stipulated time. So, it is barred by limitation.

The learned Additional Subordinate Judge, however, did not apply his mind as to the relevance of the point at issue as to whether time was of the essence of the contract for the purpose of reconveyance of the land in suit and whether the offer was made within time by the Plaintiff. His finding is that Akbar had no intention to back out of his original promises to reconvey the land. But was this offer to be kept open for all time? The learned Subordinate Judge did not make a correct approach and he failed to appreciate the legal position. He should have found on the Plaintiffs'' own admission in the plaint that the offer was not made within the stipulated period nor did the Plaintiff prove that time was not of the essence of the contract the onus resting on the Plaintiff.

Mr. Barua appearing for the Respondents has relied on the authorities of two cases,-- Krishna Chandra Rudrapal Vs. Khan Mamud Bepari and Others, and--''Maung Wala v. Mg. Shwe Gun'' AIR 1924 Rang 57 (B). Both the cases dealt with the payment of earnest money and of a contract for sale of land within a specified time. In Krishna Chandra Rudrapal Vs. Khan Mamud Bepari and Others, . Mitter J. states only a general proposition that in a contract for sale of land, time is not ordinarily of the essence of the contract, but the parties can make it so by express agreement in the contract itself or subsequently by giving reasonable notice to complete the transactions on a day certain if the nature of the property intended to be sold requires it. The principle is deduced from the Privy Council case reported in--''Jamshed Khodaram v. Burjorji Dhunjibhai'' AIR 1915 P.C. 83 (C). In the Rangoon case, the facts make it clear that though there was a stipulation for payment within a reasonable time, the default by the payee was caused by the conduct of the vendor. Here the period of payment was actually stipulated in writing & even extension was so done & there is nothing pleaded on behalf of the Plaintiff that the default was caused either by any action on the part of the Defendants or through their laches. (7) In--''Samarapuri Chettiar v. A. Sutharsanachettiar'' AIR 1919 Mad 544 (D) it has been held that the doctrine that time may not be of the essence of the contract which arises on the construction of contracts of sale of immovable property, is not applicable to contracts of resale of property conveyed. The right to repurchase being an option must be exercised according to the strict terms of the contract. This view applies to the facts of this case.

Mr. Barua has further contended that the pleadings in the Munsiff''s Court should not be given a strict interpretation but should be taken with some degree of commiseration. Assuming it is so, it was for the Plaintiff to justify her conduct that the money was not offered within nine years of grace but she has brought nothing on record to make the Court believe that she enjoyed the privilege or indulgence even after the period of grace had expired. In case of the claim of the earnest money Mitter J. in-- Krishna Chandra Rudrapal Vs. Khan Mamud Bepari and Others, has observed that if the purchaser says that the earnest has not been forfeited though the breach is on his part, he has to show that the agreement prevents the forfeiture. Here also a similar obligation was on the Plaintiff to show that she had not forfeited her right even though she did not make the offer within time. This she has failed. There is sufficient evidence on the record to hold that time was of the essence of the contract and the Plaintiff through her own laches had forfeited her claim for reconveyance of the land. The suit was therefore rightly dismissed by the Munsiff and the appellate Court was wrong in reversing the said decree. The decree passed by the Subordinate Judge is accordingly set aside.

The result is that the appeal is allowed with costs.

Ram Labhaya, Ag. C.J.

I agree.