Madras High Court
S. Gopinathan vs Mannangatti Pillai on 20 August, 1997
Equivalent citations: 1998(1)CTC54, 1998 A I H C 2232, (1998) 1 MAD LW 173 (1998) 1 CTC 54 (MAD), (1998) 1 CTC 54 (MAD)
ORDER
1. The appellant in this appeal is the defendant in O.S.No.14 of 1982, on the file of the Sub-Court, Villupuram. The respondent in this appeal is the plaintiff in that suit. In this judgment parties to this appeal are referred to in the rank in which they are described in the suit.
2. The plaintiff filed the suit O.S.No.14 of 1982 in the court of Sub-Judge, Villupuram (which was originally taken on file as O.S.No.156 of 1979 by the Sub-Court, Tindivanam) against the defendant claiming a decree for specific performance of the agreement dated 27.5.70. In fact this agreement referred to in the plaint and relied upon by the plaintiff is as an agreement for reconvenyance. This suit was decreed by the learned Subordinate Judge by judgment and decree dated 29.10.82. The defendant filed an appeal which was taken on file as A.S.No.28 of 1983 by the Additional District Judge, South Arcot, Cuddalore. The Appellate Judge by judgment and decree dated 15.9.83 affirmed the decree of the trial judge and dismissed the appeal. In this second appeal the defendant is questioning the correctness of the Judgment of the courts below and referred to above.
3. I heard Mr.V.N. Krishna Rao learned counsel appearing for the appellant as well as Mr.V. Raghavachari, learned counsel appearing for the respondent. The facts relating to this case have been fully set out in the judgments of the courts below. Yet, for a better appreciation of the controversy at issue, I have decided to extract in this Judgment the minimum facts required as put forward by the parties.
4. One Loganathan for himself and as guardian of his minor son sold the properties forming the subject matter of the suit (hereinafter referred to as the suit properties) under a registered deed of sale dated 25.7.70 for a consideration of Rs.20,000 in favour of the defendant. The defendant himself was a minor at that time and he was represented by his father and natural guardian in that document. On the same date of sale the defendant the then minor represented by his father and natural guardian entered into an agreement of reconveyance dated 27.5.70 with the said Loganathan. This agreement of reconveyance is marked as Ex.A.l in this case and the suit is laid on it.
5. The essential condition mentioned in the agreement of reconveyance is that, if Loganathan pays a sum of Rs.20,000/- after a period of 7 years and within a period of 9 years, the purchaser would reconvey the property conveyed to him earlier by another Registered sale deed at the expenses of the agreement holder. By a registered document dated 4.3.75, the agreement holder Loganathan assigned all his rights under Ex.A.1 in favour of the present plaintiff. The case of the plaintiff is that after the assignment he had been regularly approaching the defendant for getting the sale deed executed in his favour and he offered the sum of Rs.20,000 and expressed his readiness and willingness to have the sale deed executed by the defendant. However the defendant was evading. Under those circumstances the plaintiff issued a notice through his lawyer dated 3.5.79 which is marked as Ex.A.3 in this case, to the defendant calling upon him to execute the sale deed. Ex.A.4 is the reply sent by the defendant through his counsel to the plaintiff's counsel. Under Ex.A.4 the defendant directed the plaintiff to come over to the Sub-Registrar's Office at Valavanur at 10.00 A.M. on 26.5.79 with the money and the necessary stamp papers for engrossing the sale deed; that after getting the consideration he would execute the sale deed at that time. The case of the plaintiff is that he went to the Sub-Registrar's Office with Rs.20,000 and the stamp papers on the day and time fixed and though he waited for the whole day, the defendant did not come. This forced the plaintiff to send the rejoinder on 26.5.79 itself through his counsel stating what had happened on 26.5.79. Thereafter the suit came to be filed before the Court on 11.6.79 only, since the Civil Courts reopened only on that day after summer recess.
6. The defendant contended among other things that Ex.A.l came to be executed when he was a minor and since the court's permission as provided for under Section 8 of the Hindu Minority and Guardianship Act of 1956, was not obtained Ex.A.l was not valid. He also pleaded that the suit is barred by the limitation and the truth and genuineness of the assignment was also challenged. According to him since Ex.A.l is an agreement of reconveyance, every term in it should be construed strictly. It is his further case that he was present in the Sub-Registrar's Office at Valavanur on 26.5.79 till 5.00 p.m. but he plaintiff did not turn up at all. Since the last day for performing the respective obligations under the agreement of reconveyance was 26.5.79 and since the plaintiff did not turn up and pay the consideration, it has to be held that the plaintiff is guilty of breach of the covenant in Ex.A.l which in turn would disentitle him from having the contract specifically enforced. He would also add that the plaintiff was never ready to perform his part of the contract at any point of time and never tendered the amount at any point of time.
7. In support of the plaintiff's case, besides examining himself as P.W.1 he had examined three other witnesses. As many as 15 exhibits were marked on his side as exhibits A.1 to A.15. The defendant examined himself as D.W.1 and also examined another witness on his side as D.W.2. He marked one exhibit on his side which is marked as Ex.B.1 in this case. As already stated, the trial court after analysing the entire evidence placed before it held that the plaintiff was entitled to the relief as prayed for and decreed the suit and the judgment was also affirmed by the appellate court.
8. The question of law that were framed by this Court when the second appeal was admitted are as follows:-
1. Whether the lower courts are justified in decreeing the suit for specific performance in view of the fact that the contract of reconveyance dated 27.5.70 is void being one entered into by a minor?
2. Whether the contract dated 27.5.70 entered into by the defendant as minor is enforceable in view of the fact it is contrary to the provisions of Section 11 of the Indian Contract Act?
3. Whether the lower courts are justified in their interpretation of the principles laid down in N. Pattay Gounder v. P.L. Bapuswami, 1961 (I) M.L.J. 445 ?
4. Whether the suit for specific performance laid on 11.6.79 after 9 years agreed dated 27.5.69 between the parties is maintainable in view of the decision laid down in N. Pattay Gounder v. P.L. Bapuswami, 1961(I) M.L.J.445 ?
9. The learned counsel for the appellant on the questions of law framed by this Court addressed arguments setting forth the following points:
(a) As the agreement of reconveyance has to be construed strictly in accordance with each and every term contained in it the courts below failed to notice that there is no proof at all that the plaintiff has tendered the money which he is bound to do under the terms of Ex.A1 on any day either prior to 26.5.79 or even on 26.5.79. Therefore, when this basic requirement is not established by acceptable evidence the plaintiff has to be necessarily non-suited. While elaborating this point the learned counsel argued that the evidence of P.W.s 1 to 3 no way establishes that fact. It is also stated that the evidence of D.W.1 and D.W.2 clinchingly establishes the fact that the plaintiff did not turn up on 26.5.79 as put forward by him.
(b) The agreement of reconveyance marked as Ex.A.1 in this case was entered into at a time when the defendant was a minor represented by his father. Since no permission as provided for under Section 8 of the Hindu Minority and Guardianship Act, 1956 was obtained this agreement is voidable at his instance and he has infact avoided it. On such avoidance Ex.A.l becomes void from the date of its execution i.e., 27.5.70.
10. As against these broad submissions made, by the learned counsel for the appellant. Mr.V. Raghavachari learned counsel for the respondent would argue that the evidence of P.Ws.l to 3 read with Exs.A.3 to A.5 and the failure of the defendant to reply to Ex.A.5 would clinchingly establish that the plaintiff had performed his obligation under the plaintiff had performed his obligation under the contract of reconveyance. Besides, he would also rely upon Ex.A.6 the stamp papers which are purchased and filed by the plaintiff for engrossing the sale deed as an additional fact to substantiate his case. According to him, the evidence of D.W.1 and 2 before this Court is an afterthought and when tested in the light of the evidence of P.Ws 1 to 3 and Exs.A.3 to A.6, it has to be rejected and the courts below rightly rejected it.
11. I have carefully applied my mind to the arguments advanced by the learned counsel on either side as well as went through the Judgments cited at the Bar. While dealing with a case arising out of a contract for reconveyance, the Hon'ble Judges of the Supreme Court in their judgment in K. Simrathmull v. Nanjalingiah Gowder, have cited with approval the passage from Halsbury's Laws of England Vol.14, 3rd Edition, Page 622, paragraph 1151 wherein it is stated as follows:
"Where under a contract, reconveyance or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner or at a stated time the act must be performed accordingly in order to obtain the enjoyment of the right and in the absence of fraud, accident or surprise equity will not relieve against a breach of the terms."
In the same judgment, the Supreme Court quoted with approval the judgment of the Federal Court Shanmugam Pillai v. Annalakshmi Ammal, AIR 1950 F.C. 38 held by a majority of three to two wherein it was held that:
"Where under an agreement an option to a vendor is reserved for repurchasing the property sold by him the option is in the nature of a concession or a privilege and may be exercised on strict fulfilment of the conditions on the fulfilment of which it is made exercisable, if the original vendor fails to act punctually according to the terms of the contract, the right to repurchase will be lost and cannot be specifically enforced. Refusal to enforce the term specifically for failure to abide by the conditions does not amount to enforcement of a penalty and the court has ho power to afford relief against the forfeiture arising as a result of breach of such a condition. A majority of the Judges of the Court in that case followed the principle set out in Davis v. Thomas, 1830 (39) ER 195" We accept the view of the majority enunciated in Shanmugam Pillai's case. AIR 1950 FC 38.
The Division Bench of this Court in a judgment reported in Mangalam Pilai & other v. C.S. Appavoo Udayar & others, 1976 (89) LW 272 held as follows:
"In cases where the parties contemplate to reconvey property purchased by them and such an agreement of reconveyance is contemporaneous with the primary sale of the property, and there is a stipulation in the agreement of reconveyance that certain things have to be performed within a certain time and in accordance with certain stipulations, then, such covenants including the stipulation as to time have to be respected to the last letter, and equity will not interfere and extend its arm of sympathy by varying or modifying the express stipulations, conditions and covenants of such a contract of reconveyance. In such cases, equity arrays itself with common law and enforces such agreements of reconveyance in accordance with its tenor and strict conditions. The reason behind this leaning of equity towards the common law is but too clear. If a specific time is agreed upon under the terms of the reconveyance, within which the parties who could claim performance of such an agreement could claim it, then, he can do so only within the prescribed time. The right to re-purchase is equitable to an option or a privilege granted to the vendor in the primary sale to seek for each reconveyance. As privileges cannot be gained at the whim and fancy of the grantee, he should be alert and seek for it's performance. A prescription as to time in an agreement of reconveyance cannot be made elastic, as by the end, of the definite time fixed for it's performance, there is an automatic lapsing of that privilege and the loss of the option in the grantee, of the name. By reason of such a stipulation, the title of the purchaser under the primary sale is kept in abeyance till the expiry of the period within which time, the grantee of the privilege can obtain reconveyance of the property by seeking for specific performance of the agreement of reconveyance. This nebulous state of affairs in the title of the purchaser under the primary sale cannot be kept in abeyance for a length of time beyond the prescribed period of time agreed upon between the parties. This would result in the purchaser being asked to wait without justification, and look to the convenience of the grantee of the privilege to seek for specific performance of the agreement of reconveyance."
12. On the basis of the above three judgments, the learned counsel for the appellant advanced two arguments, namely, if the terms of the agreement of reconveyance are strictly construed as it ought to be, then it can be seen that the plaintiff in the suit had not performed his obligations strictly in terms of the said agreement. In this context, he drew my attention to the recital in Ex.A.l reading as follows:
The English translation of this recital is as follows:
"if during the period commencing after the seventh year from today and before the 9th year, if the amount is paid to him, then he would at the expenditure of the purchaser execute the deed of reconveyance."
Therefore the counsel would state that there must be actual payment of the sum reserved under this agreement of reconveyance by the plaintiff to the defendant which would have been either accepted or refused and the mere tender is not a sufficient compliance of this obligation. According to the counsel if the tender is not accepted, then the payment could have been sent either by Money Order or by any other mode which has not been done in this case. To decide whether the plaintiff had acted strictly in compliance with the terms of Ex.A.l or not, it has become necessary for me to refer to the notice dated 3.5.79 marked as Ex.A.3 in this case sent on behalf of the plaintiff to the defendant. After referring to the terms of Ex.A.l as well as the assignment in favour of the plaintiff, it is stated in Ex.A.3 as follows:
"My client has approached you and your father with necessary funds to execute the sale deed, but you are evading. My client is ever ready and willing to perform his part of the contract. Hence you are here by called upon to fix date and place so that my client can come with necessary stamp papers and funds to get the reconveyance from you, failing which my client will be obliged to file, a suit against you for specific performance."
The defendant had sent the reply dated 8.5.79 i.e., A.4 through his lawyer to the plaintiff's counsel and it reads as follows:
"My client is willing to execute the sale deed in your client's favour, as my client has gone to Madras for Medical Treatment, he is not in a position to do it immediately. My client will execute the sale deed accordingly on 26.5.79 if your client come with requisite stamp papers and money. You may be pleased to direct your client to be present at the Sub-Registrar's Office, Valavanur with necessary stamp papers to endorse the sale deed. If any contravention of this, if your client chooses to file any suit, my client is not liable for costs. Once again my client state that he will be present at the Sub-Registrar's Office, Valavanur at 10.00 A.M. on 26.5.79 to complete the sale transaction."
It is seen from Ex.A.3 that there is a statement to the effect that the plaintiff had approached the defendant and his father several times with funds to have the sale deed executed and the defendant was evading. This positive statement made in Ex.A3 was not even denied by the defendant in his reply notice Ex.A.4. On the other hand Ex.A.4 would show that the defendant had affirmed his commitment under Ex.A.1 and fixed the date, which date is incidentally noted as the last date fixed under Ex.A.1 being the outer limit. Therefore I am fully satisfied to hold that the plaintiff had tendered the sum reserved under Ex.Al to the defendant and his father even before the issue of Ex.A.3.
13. The question then is whether the plaintiff or the defendant was present on the day fixed, which happens to be the last date under Ex.A.l? To decide this issue in controversy, we have Ex.A.5 the rejoinder dated 26.5.79 issued on behalf of the plaintiff to the defendant's counsel; the pleadings in this case; the evidence of P.Ws. 1 to 3 and the evidence of D.Ws. 1 and 2. The plaintiff issued a rejoinder on the same day at 5.00. P.M. i.e., on 26.5.79 through his lawyer and this notice was served on the defendant's counsel on 28.5.79. In this rejoinder, it is stated as follows:
"Accordingly my client went to the Sub-Registrar's Office, Valavanur at 9.00 A.M. along with the following witnesses with money and stamp papers. My client was in the Sub-Registrar's Office, Valavanur till 4.30 p.m. on 26.5.79. Your client did not come. Thereupon, the office of the Sub-Registrar was closed and then my client and his witnesses came to his vakil and issued this rejoinder stating that on account of your client's absence, the sale deed could not be pushed through."
Five persons have been named at the foot of this rejoinder as witnesses who have been present with the plaintiff in the Sub- Registrar's Office from 9.00 A.M. till 4.30 P.M. on 26.5.79. Their names are Muthu Konda Raddiyar, Appanna Gounder, Govindasamy, N.Govindasami Pillai and Karnam of Panchamma Devi Village. Govindasamy Pillai and Muthu Konda Reddyar have been examined in this case as P.Ws. 2 and 3 besides the plaintiff. To this rejoinder the defendant had not sent any reply at all. As already pointed out by me, this rejoinder was served on the defendant's counsel on 28.5.79 itself and it had been issued at 5.00 P.M. on 26.5.79 itself. The plaint itself came to be filed on 11.6.79 in the court of the sub-judge, Tindivanam. The courts were closed for summer recess upto 10.6.79 is the information given and is a known fact.
14. In the plaint the plaintiff made all the allegations which are in line with the contents of Ex.A3 to Ex A.5, Ex.A.6 are the stamp papers standing in the name of the plaintiff and they are to the value of Rs.2,200. Two stamp papers of the denomination of Rs.500 each were purchased on 22.5.79 and the other three stamp papers of the denomination of Rs.500, Rs.500 and Rs.200 respectively were purchased on 23.5.79. These stamp papers were also filed along with the plaint on 11.6.79 itself besides, Ex.A.1 the agreement of reconveyance, Ex.A2 the assignment deed and Ex.A.3 to Ex.A.5 exchange of notices referred to above. The written statement in this case was filed in the Court on 10.1.80. Only for the first time in the written statement the defendant has put forward the case that he was present till 5.00 P.M. on 26.5.79 in the Sub-Registrar's Officer with his witness Kalia Perumal who is examined as D.W.2 in this case and that the plaintiff had not appeared at all the scene for the whole day. It is further stated that the plaintiff being a shrewd litigant had caused Ex.A.5 to be issued making it to appear as though he was present and thrown the blame upon the defendant. It is his further case that the value of the stamp papers necessary for executing the sale deed is Rs.2,200 whereas the plaintiff had filed stamp papers in court only to the value of Rs.700. Even at this stage, I want to point out that this portion of the defence is contrary to record since Ex.A.6 stamp papers are to the value of Rs.2,200.
15. Now let me consider the oral evidence with reference to the question as to whether who was present on 26.05.79 in the Sub- Registrar's Office, P.W.1 in his evidence had categorically state that he was present with money and the stamp papers in the Sub- Registrar's Office from 9.00 A.M. till 4.30. P.M. with five witnesses which included P.W.2 and P.W.3 and that defendant did not come there at all. The learned counsel for the defendant wanted to read one line in the evidence of P. W. 1 in cross examination out of context to show that the plaintiff had admitted that he had difficulties regarding finance. To my mind, the evidence has been misread by the learned counsel for the defendant. No doubt it seems that while the evidence was recorded the learned Judge had recorded it in such a manner that it could be read in the manner suggested by the learned counsel for the appellant. But a careful reading of the entire evidence shows that the argument advanced by the learned counsel for the appellant cannot be sustained. Therefore I am convinced that the plaintiff had nowhere admitted in his evidence that he was in financial difficulties. He had categorically denied the suggestion as false at the end of the cross examination that he was a man of no means and then he did not go to the Sub-Registrar's Office on 26.5.79 P.W.2, who admits that he was related to the plaintiff, had given evidence that he was present with P.W.1 and P.W.3 in the Sub-Registrar's Office from 9.00 A.M. till 4.30 P.M. on 26.5.79. He had given evidence about the approach made by the plaintiff on the earlier occasions with money for getting the sale deed executed. It is no doubt true that he does not say anything about the plaintiff having money or not with him on 26.5.79 and no question was in a cross examination suggesting that the plaintiff was not in possession of any funds on that day. This witness admits the presence of P.W.3 on that day. P.W.3 in his evidence corroborates the evidence of P.W.1 that he had stamp papers with him as well as cash of Rs.20,000. A suggestion was put to him in cross examination that he did not count the money in the hands of P.W.1 which he admitted. As against the evidence of P.Ws. 1 to 3, there is the evidence of D.Ws.l and 2. As already referred to by me, Ex.A.5 was served on the defendant's counsel on 28.5.79 and the plaint itself was filed on 11.6.79. The written statement came to be filed only on 10.1.80. If the evidence of D.W.1 is tested in the background of the failure to send a reply to Ex.A.5 and the delay in filing the written statement, it can be easily visualised that the entire oral evidence spoken to by D.W.1 is an afterthought and he had projected for the first time D.W.2 as a witness. The courts below were not satisfied with the evidence of D.W.1 and D.W.2. The courts below have preferred the evidence of P.W.2. and P.W.3 which appears to be for good reasons.
16. After going through the oral evidence let in on both sides, I am in entire agreement with the conclusion of the courts below that it is not safe to rely upon the evidence of D.W.1 and D.W.2 to non-suit the plaintiff. Therefore I am of the opinion that the plaintiff had established beyond doubt that he had performed his obligation under Ex.A.1 not only on 26.5.79 but also even on previous dates when he approached the defendant and his father with money for getting the reconveyance deed executed. The learned counsel for the appellant made a faint argument that the plaintiff had not expressed in his plaint his readiness and willingness to; have the sale deed executed at any point of time prior to 26.5.79 and also on 26.5.79 and therefore he should be non-suited. There is a lot of difference between an agreement of sale and an agreement of reconveyance. In an agreement of sale the agreement holder is definitely bound to plead and prove that he had been ready and willing to perform his part of the contract not only from the date of the agreement till the filing of the plaint, but also even after that. But such a strict requirement of pleading and proof is not necessary in the case of enforcing an agreement of reconveyance. In an agreement for reconveyance, normally a period is fixed for the performance of the obligation and that period has to be strictly construed, while in an agreement of sale normally time is not the essence of the contract. What all an holder of an agreement of reconveyance should prove is that before the expiry of the time fixed for performance, he discharges his obligations under the contract. It is not necessary that he must plead and prove that he had always been ready and willing to perform his obligation under the contract from the date of the agreement of reconveyance till the expiration of the period fixed for the performance of the contract under the agreement. However in this case, the plaintiff has proved even that as could be seen from the averments contained in Ex.A.3 which were not at all denied by the defendant in Ex.A.4 and the evidence by P.W.1 and P.W.2 as well. Therefore, looking from any angle, I am of the opinion that the plaintiff had adhered strictly to the terms of the agreement of reconveyance and there are no latches at all on his part. The fact remains that for the first time a written request was made by the plaintiff by a registered notice dated 3.5.79 and the defendant sent a reply dated 8.5.79. The very fact that the defendant under Ex.A.4 had fixed 26.5.79 as the date for performance itself make me suspect his move. Because there is no reason as to why he chose the lasts day fixed under Ex.A.l for the performance of the contract by the plaintiff. It is seen from his conduct that the defendant acted very cleverly and out-smarted the plaintiff and made him believe that the defendant would appear on that day and execute the sale deed. Since it is found that on 26.5.79 the defendant was not present, his intention or his state of mind as on 8.5.79 when he gave the reply Ex.A.3 appears crystal clear. Since I have concurred with the judgment of the courts below that the plaintiff had performed his part of the contract by being ready to tender the amount on 26.5.79 the date fixed under the contract and by the defendant for performance, the decree of the courts below granting the relief as prayed for by the plaintiff to him cannot be easily interfered with.
17. However since the learned counsel for the appellant has put forward the plea of limitation as well, I am bound to consider that point also and give my answer. According to the learned counsel for the appellant, the time for performance of the obligations under Ex.A.l was fixed 26.5.79 and it cannot be extended because the nature of the contract does not permit. On the basis that the plaintiff has not established that he had paid the money to the defendant, the learned counsel for the appellant would submit that the time-limit fixed under Ex.A.1 had not been adhered to with the result that the right of re-purchase is lost. Relying upon the Judgment of a Learned Single Judge of this Court reported in N. Pattav Gounder v. P.L. Bapuswami, 1961 (I) MLJ 445 : 1961 (74) L.W. 23, wherein it has been held that once the time-limit for the agreement of re-purchase has not been adhered to the right of re-purchase provided under the document is lost, the learned counsel argued that since the plaintiff has not established that he had performed his obligation under the contract before the dead line, all his rights under Ex.A.1 came to an end on the expiry of the period i.e. 26.5.79 and nothing further remained to be enforced. This argument cannot be sustained as there is proof that the plaintiff had performed his obligation within the prescribed time under the contract of reconveyance. In this case there is overwhelming evidence to show that the plaintiff had performed his only and only obligation, namely ready to tender the amount immediately to the defendant which the defendant very cleverly avoided. Both the courts below on appreciating the evidence found so, with which I am in full agreement.
18. The learned counsel for the appellant next argued that in this case the last date for the performance of the obligation fixed under Ex.A.1 is 26.5.79 and since the plaintiff in the present suit had not discharged his obligations within the time schedule, he had forfeited his right under the document by the expiry of 26.5.79. Therefore nothing remains to be enforced from the expiry of 26.5.79 and as such the suit filed on 11.6.79 is not maintainable. Alternatively he would contend that in any event the suit should have been filed on or before 26.5.79 itself irrespective of the fact whether the plaintiff had performed his obligations under the contract or not, since all rights flowing under the agreement Ex.A.1 comes to an end on that date itself.
I carefully applied my mind to the arguments of the learned counsel for the appellant. The materials available before court clinchingly establish that the plaintiff had performed his obligations under Ex.A.1 within the time-limit provided for therein. In such cases when the promisor fails to execute the sale deed, is the right of the plaintiff to file a suit to enforce the contract after the dead line available or not would be the question to be answered by me.
Recently the Hon'ble Supreme Court of India had an occasion to consider a similar argument in it's judgment reported in D.S. Thimmappa v.
Siddaramakka, and it had been held as follows:
"It is settled law that unless the deed of agreement of sale stipulated a date for performance, time is not always 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 condition that the respondent should return the consideration paid under the sale deeds, viz., Rs.5,000 within eight years from the date. The appellant had gone to the extent of even denying the executing of reconveyance. Therefore, the High Court has come 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 questions which hinge 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 Art.554 of the schedule to the Limitation Act 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 later sale deed, i.e., July 20, 1973. The appellant by conduct refused to execute the sale deed on July 19, 1976, the suit was failed on July 20, 1976. The suit was filed within limitation from the date of refusal, i.e., July 19, 1976, i.e., next day."
Therefore the argument advanced by the learned counsel for the appellant do not survive even for a minute and it is accordingly rejected.
19. The next point argued by the learned counsel for the appellant was that admittedly when Ex.A.1 came into existence, the defendant was a minor and there is nothing on record to show that the court's permission as contemplated under Section 8 of the Hindu Minority and Guardianship Act was obtained. Therefore the contract is voidable at his instance. It is true that Section 8 of the 1956 Act referred to above, permits a minor to avoid a contract and if he so avoids, then the contract becomes void from the date when it came info existence. To answer this point, it is necessary to refer to Ex.A.3, the notice of demand issued by the plaintiff to the defendant. The defendant was aged 13 years on the date of Ex.A.1 and presumably he attained majority in the year 1979. Ex.A.3 is addressed to him in his individual capacity and he had sent his reply in his own name through his counsel. It is needless to state that a minor, whose property had been dealt with in violation of section 8 of 1956 Act, can elect to affirm or avoid the said transaction. In this case, the defendant, on receipt of Ex.A.3 notice, elected to stand by his commitment reflected in Ex.A.1 by sending a reply in Ex.A.4 starting therein that he is prepared to execute the sale deed in favour of the plaintiff on 26.5.79. Thus the contract or reconveyance, which is voidable at his instance, had lost it's character of voidable nature on the defendant electing to affirm it and becomes enforceable. For the first time in the written statement only the defendant had come forward with a plea that the transaction is hit under Section 8 of the Hindu Minority and Guardianship Act and therefore he is not bound by it. A minor, who, on attaining majority had a choice to affirm or avoid a transaction which affects him decides to affirm the transaction then legally it is not permissible for him to turn around at a later stage and say that he is avoiding the contract. When the defendant in this case had agreed to abide by the terms of the contract reflected in Ex.A.1 and since such acceptance had reached the agreement holder, then it becomes a concluded contract as against him and thus becomes enforceable. An election, once it has been unequivocally made whether in favour of affirmation or of recession, is determined for ever. It cannot be revived. (See Cheshire and Fifoot on the Law of Contract, 7th Edition, Page 250).
20. In the result, I find that none of the questions of law raised on behalf of the appellant in this appeal by his learned counsel deserve any merit and accordingly they are rejected. Under these circumstances, I am of the opinion that there are no merits in this appeal and accordingly it is dismissed however, there shall be no order as to costs.