P L D 1961 Dacca 675 (PLP)

The question of the delay in filing of the suit was also considered by the Court and their Lordships held " . . . . .it has not been shown that the delay has in any way prejudiced the. defendant."

9. The second case cited by Mr. Saha is a decision of the Madras High Court, Kalappa Kamthi and another v. Kachur Sakha Ram Rao and another (29 I C 898). In that case also there was a contract for re‑conveyance on payment of a sum of Rs. 400 by the plaintiffs to the defendants. Their Lordships held : "The claim for reconveyance would, therefore, be a claim to enforce specific performance of contract to reconvey and would fall under Article 113 of the. 2nd Schedule to the Limitation Act, which provides a period of three years from the date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance is refused." In that case also there was no date fixed in the agreement to re convey and their Lordships held that the second part of Article 113 was applicable.

10. The third case cited by Mr. Saha is the Division Bench judgment of the Bombay High Court, Laxman Madhavrao Jahagir dar v. Bhagvansingh Narsinghbau Navalukar (60 I C 581). In this case also it was held that where there is no period fixed for tender and re conveyance the provisions of Article 113 of the Limitation Act will apply.

11. Article 113 of the Limitation Act is in the following terms "For specific Three years. The date fixed for the perfor performance of mance, or, if no such date is a contract. fixed, when the plaintiff has notice that performance is refused."

12. In the present case, the plaintiff had notice of the refusal by‑ the defendants in Chaitra, 1361 B. S. and he filed the suit in Chaitra 1363 B. S. Therefore, he is within three years from the date of notice of refusal.

13. Mr. S. R. Pal, the learned Advocate for the defendant -respondents, in the beginning, very earnestly tried to argue that the judgment of the learned Subordinate Judge was correct and that he need not have decided the question of limitation at all. He wanted to argue that there was no right for the plaintiff to ask for specific performance and therefore the question of limitation would not arise at all. He next tried to argue that Exhibit 1 did not con stitute a contract at all because his clients, the defendants, had no right under the said agreement corresponding to the right given to the plaintiff. He retied on a passage occurring at page 12 in Part II of Fisher & Lightwood's Law of Mortgage in support of his second condition. The sentence that he relied upon is as follows "But in the case of a defeasible purchase, forfeiture is out of the question, the estate being absolutely vested in the grantee ; and the power of re‑purchase, not arising from the nature of the contract, but being a special privilege given to one of the parties without any corresponding right in the other, must be strictly exercised." He has not, for reasons best known to him cited the entire passage of which the last sentence only, as quoted above, was cited. The first sentence of the passage is in the following terms : "Although in certain cases conveyances apparently absolute, may be construed as mortgages, an absolute conveyance within an agreement for re‑purchase, or that the conveyance shall be void upon payment of a certain sum at a fixed time, will create a mere right of re‑purchase to be exercised according to the strict terms of the power, and not such a right of redemption as is incidental to a mortgage." This passage of Fisher, occurring in Fisher & Lightwood's Law of Mortgage, is definitely related to the law of mortgage and not to the law of simple purchase or agreement to re‑purchase. Even then, this passage itself shows that there can be a contract to re purchase apart from the deed of sale by which the property sought to be re‑purchased is conveyed and the party who is given the right to re‑purchase can enforce that contract, but in doing so the terms of the contract have strictly to be considered.

14. Mr. Pal, finding himself in difficult situation, had to agree that the agreement, Exhibit 1, is enforceable by the plaintiff, but it must be construed strictly.' No one controverts this pro position that a written agreement has got to be construed strictly. As I have already indicated that there are two terms in this agreement Exhibit 1, one is the defendants' agreeing to re‑convey and the second was the fixation of the 'consideration money for the reconveyance of the suit lands. There was no time fixed in this agreement. Therefore, there is no scope for any speculation as to the tune by which the plaintiff was to tender and demand the re conveyance. Mr. Pal did not cite any case in support of his contentions.

15. I am of opinion that Exhibit 1, the agreement to re convey, is a document which was enforceable by the plaintiff, and that there being no time fixed for the tender. he had a right to tender the money within a reasonable time and if he had done so he is entitled to the benefits of the second part of Article 113 of Schedule 2 of the Limitation Act. In this case, as I have already said, the conveyance by which he sold the suit land was executed and registered on 9‑12‑1359 B. S., corresponding to 23‑3‑1953 and he tendered the consideration money to the defendants in Chaitra, 1362 B. S., and he filed the suit on 11‑4‑57 corresponding to Chaitra, 1363 B. S. From 9‑12‑1359 B. S., to Chaitra, 1363 B. S. it is only three years. This period of three years is not considered by me to be an undue delay and therefore unreasonable. He filed the suit a year thereafter, i.e., within one year from the date of tender when the defendants refused to re‑convey and therefore he is within 3 years from the date of refusal as contemplated by the second part of Article 113 and therefore his suit is within time.

16. The learned Subordinate Judge has not at all dealt with the question that was actually before the Court, that is, the question of limitation. I, therefore, hold that his judgment is not a proper judgment of reversal and the same cannot be sustained. I, therefore, allow this appeal with costs, set aside the judg ment and decree of the learned Subordinate Judge and restore the judgment and decree of the learned Munsif. K. B. A. Appeal accepted.