K. M. Mathew and others v. Thresiamma Mathew and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** ## **THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944** ## **RFA NO. 748 OF 2012** ## **AGAINST THE JUDGMENT AND DECREE DATED 27/02/2012 IN OS 212/2010 OF SUB COURT, PALA** ## **APPELLANT/PLAINTIFF:** - ***1 K.M.MATHEW, AGED 49 YEARS, S/O. MATHEW, MEEMPANAL HOUSE, KANIYAKKAD KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.(DIED)** **ADDL.A2 ALICE MATHEW, W/O MATHEW, AGED 50 YEARS, MEEMPANAL HOUSE, KANIYAKKAD KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **ADDL.A3 AJAY MATHEW, S/O MATHEW, AGED 19 YEARS, MEEMPANAL HOUSE, KANIYAKKAD KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **ADDL.A4 ALOYSIUS MATHEW, S/O MATHEW, AGED 14 YEARS, MEEMPANAL HOUSE, KANIYAKKAD KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT (MINOR), REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN ALICE MATHEW, W/O MATHEW, AGED 50 YEARS, MEEMPANAL HOUSE, KANIYAKKAD KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED IN THE PARTY ARRAY AS ADDITIONAL APPELLANTS 2 TO 4 VIDE ORDER DT.4/7/18 IN I.A.1021/18** **BY ADVS. SRI.P.C.HARIDAS SRI.G.S.REGHUNATH** ## **RESPONDENTS/DEFENDANTS:** - **1 THRESIAMMA MATHEW, AGED 51 YEARS W/O. THOMAS, KANJIRATHUMKUNNEL HOUSE, CHETHIMATTOM P.O., KIZHATHADIYOOR KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 686589** - **2 SWARNA K JOSE, AGED 21 YEARS, D/O.K.M. JOSEPH, MEEMPANAL HOUSE, KANIYAKKAD KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 686589** - **3 K.M.JOSEPH, AGED 54 YEARS, S/O.MATHEW, MEEMPANAL HOUSE, KANIYAKKAD KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADVS. SRI.M.NARENDRA KUMAR SMT.LAYA SIMON** ## **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON** **16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA No.748 of 2012 2 ## **CR** ## **JUDGMENT** Among the points argued by the respective counsel, the impact of second limb of Article 54 of the Limitation Act also came up for consideration. There are two limbs to Article 54 of the Limitation Act. The first limb would come into play when there is a specified date or period agreed into by the parties for its performance. The second limb would come into play when no such period or date fixed or agreed into by the parties. In the latter case, the period of limitation would commence from the date of notice of refusal to perform the part of contract. Does it mean that the contract for sale can be prolonged to an indefinite period under the second limb of Article 54 of the Limitation Act ? Whether the transfer of ownership or alienation effected over the property would stand a valid notice of refusal to perform the part of contract as enumerated under the second limb of RFA No.748 of 2012 3 Article 54 of the Limitation Act ? These questions require elaborate consideration in this appeal. 2. The suit is one for specific performance of the contract for sale, based on Ext.A2 agreement dated 5/8/2006. It is alleged by the plaintiff that the entire sale consideration was adjusted towards the amount due from the plaintiff and as such no amount was either tendered or paid in cash as on the date of Ext.A2 agreement. Though the entire sale consideration was paid as per Ext. A2 agreement, no sale deed was executed on that day. In fact, at that time, nothing was left out to be performed by the first defendant under Ext.A2, except registration of a sale deed. Nothing was also left out to be performed by the plaintiff on that day except getting the sale deed executed. But no sale deed was executed on that day. It is not explained by the plaintiff why an agreement for sale was executed on that day instead of getting a sale deed executed inspite of the fact that the entire sale consideration was paid on that day. Further, no specific period or date was specified in the agreement RFA No.748 of 2012 4 for its performance though the entire sale consideration was alleged to have been adjusted towards the amount due from the defendant. No reason whatsoever was made mentioned or whispered anywhere in the contract, Ext.A2, for not getting a sale deed executed on that day. Further, no reason was made mentioned for not incorporating any specified date/period for its performance. They did not have any case of defective title to the property or anything left out to be performed so as to convey a valid title as on the date of contract. 3. The suit was instituted on 15.11.2010. Ext.A2 contract is dated 05.08.2006. The plaint schedule property is having an extent of 35 cents. It was obtained by the first defendant under Ext.A1 settlement deed. He sold the property under Ext.A3 sale deed in the year 2008. It is after the expiry of more or less two years from the said sale, the present suit was filed, that too, after the expiry of more or less four years three months from the date of Ext.A2 sale deed and the suit was instituted by advancing a case of oral RFA No.748 of 2012 5 demand and refusal thereof as on 01/11/2010 so as to bring the same within the period of limitation under the second limb of Article 54 of the Limitation Act. 4. The act of execution of registered sale deed, Ext.A3, with respect to the plaint schedule property, by itself, amounts to the refusal to perform the part of contract by the first defendant when delivery of possession of property was also given under that document, which amounts to notice to all concerned including the plaintiff even by virtue of operation of the expression “a person is said to have notice” as defined under Section 3 of the Transfer of Property Act. Hence, there is no much merit in the contention that the plaintiff has got notice of refusal only when an oral demand was raised on 01.11.2010. 5. The suit was instituted within a period of two years from the date of alleged execution of Ext.A3 sale deed which would give a constructive notice of refusal of performance of contract from the first defendant. But, even going by Ext.A2 agreement, it is clear that the suit was filed after the lapse of more than four RFA No.748 of 2012 6 years and three months from the date of contract for sale. The contention that the time began to run only from the date of refusal of contract, when no specific date was fixed for its performance, assumes importance at this juncture. Article 54 of the Limitation Act is ## extracted below for reference: |Description<br>of<br>suit|Period<br>of limitation|Time<br>from<br>which<br>period begins to run| |---|---|---| |Art.54.<br>For specific<br>performance of a<br>contract|Three years|The date fixed for<br>the performance or,<br>if no such date is<br>fixed<br>when<br>the<br>plaintiff has notice<br>that performance is<br>refused.| 6. The legal position was very much settled in a catena of decisions in **Sugani (MST) vs. Rameshwar Das** **and Another [AIR 2006 SC 2172] and R.K.Parvtharaj Gupta** **vs. K.C.Jayadeva Reddy [(2002) 2 SCC 428]** that when no date or period was prescribed for the performance of the contract, the period of limitation would start from the date of its refusal. 7. When the contract for sale is in dispute and with respect to what was actually intended by the RFA No.748 of 2012 7 parties brought up by attending circumstances, the doctrine of imputing intention would come into play. The parties to a contract which may at times be at variance with the terms of a contract reduced into writing and when it is brought up by attending circumstance, the doctrine of imputing intention can be applied, which has found acceptance in **Lakshminarayana Reddiar vs. Singaravelu Naicker and Anr. [AIR 1963 Mad. 24]** by a Division Bench of the Madras High Court. This doctrine really rests upon the principle of construing an agreement in reference to the real situation or context in which it was entered into and not relying upon the mere wording of the contract in fixing the real intention of the parties. The fact that no sale deed was executed as on the date of Ext.A2 in spite of the alleged payment of entire sale consideration and that no reason whatsoever was made mentioned for not getting the sale executed on that day and the fact that no period or specified date was fixed for its performance are crucial in the determination of what was actually intended by the RFA No.748 of 2012 8 parties under Ext.A2 agreement. The further fact that the plaintiff had not opted to file a suit within a reasonable time, though the entire sale consideration was alleged to have been paid on the date of the agreement and that he had waited for a long period of four years and three months in filing the present suit would itself take away the very bonafides on his part. Further, the plaintiff had waited for more than two years in instituting the present suit even after the sale of the property under Ext.A3 sale deed and delivery of property in furtherance of the sale. This has to be read and appreciated in the light of the fact that no specific period or date was made mentioned in the contract for sale and no reason whatsoever was incorporated in the contract for not fixing any specific date or period for its performance. The abovesaid facts are self explanatory as to what was actually intended by the parties and would stand against the very case advanced by the plaintiff regarding the payment of entire sale consideration/adjustment towards the amount due as on RFA No.748 of 2012 9 the date of its alleged execution. 8. It is not permissible to prolong the performance of contract for sale to an indefinite period without showing reason for it. Further, the reason, if any, available for not fixing any specified date or period for its performance should be made mentioned in the contract itself or there should be evidence regarding the existence of such reason as on the date of contract. Even in that context, it is not permissible to prolong its performance to an indefinite or uncertain period. Necessarily, there should be a time schedule in reference to the ground/reason, in which the parties have agreed to postpone the performance of the contract, without specifying any date or period. No one can be permitted to prolong the performance of a contract for sale to an indefinite period by simply not specifying any date or period without sufficient reason for it. Hence, in order to bring up the matter within the sweep of the second limb of Article 54 of the Limitation Act, mere non- incorporation of a specified date or period may not be RFA No.748 of 2012 10 sufficient in view of the abovesaid doctrine of imputing intention. In short, by applying the abovesaid doctrine, it must be satisfied that the parties have actually intended to adjourn or postpone the performance of the contract for sale to an indefinite period, for which there should be sufficient grounds and a mere non-incorporation of a period or specific date may not be sufficient to bring the matter within the scope of the second limb of Article 54 of the Limitation Act. The second limb of Article 54 of the Limitation Act hence should not be interpreted so as to prolong the contract to an uncertain period, unless there is sufficient ground for it and it should be made mentioned in the contract for sale or capable of discernment from the attending circumstances existed as on the date of agreement. Further, it must be within the notice of parties the attending circumstances or the sufficient grounds thereof, for not incorporating a fixed date or period for the performance of contract. No such circumstance was brought out or made mentioned in the contract for sale in the instant case and hence RFA No.748 of 2012 11 cannot be brought under the purview of the second limb of Article 54 of the Limitation Act. By applying the abovesaid principle, it cannot be said that the parties have intended to postpone or adjourn the execution of the deed of sale or performance of the contract to an uncertain period and cannot be brought under the second limb of Article 54 of the Limitation Act and hence the suit stood barred by limitation. The plaintiff gave oral evidence as PW1 and examined one of the witnesses to Ext.A2 as PW2, but admittedly she is the sister of plaintiff. As such, the version given by both the witnesses can only be interested version and cannot be relied on. PW3 is the scribe, who prepared the document. But, the pen and the ink used for affixing his signature and the signature of DW1 are different from the pen and ink used for preparing the document and it was not properly explained by PW3, the scribe. In short, no credibility or reliability can be made on the oral deposition of PW1 to PW3 and hence, there is failure to discharge the initial burden to prove the due execution of Ext.A2 RFA No.748 of 2012 12 agreement. Further, no other satisfactory evidence was adduced by the plaintiff regarding the existing liability to the extent of entire consideration made mentioned in Ext.A2 agreement. Hence the decree and judgment of the trial court deserves no interference. The appeal fails, dismissed. No costs. Sd/- ## **P.SOMARAJAN** **JUDGE** sv