VISHVESHVAR SUBRAO KULKARNI Vs. SADASHIV VENKATRAMANAYYA HARITE

JUDGEMENT

(1.) In the early part of 1900 a darkhast was filed against the plaintiff for recovery of certain amount under a mortgage decree He approached the defendant, who is his father's sister's son, for the necessary amount, and as a result it was arranged that the defendant should bid for the mortgaged property, which should be taken to include a certain house, provided that the amount he had to bid was not more than Rs. 1,200. The defendant actually did purchase that property at that sum; and it has been held proved by both the lower Courts that there was a simultaneous agreement under which the defendant was to re-convey the suit land to the plaintiff whenever he tendered the sum of Rs. 1,268. The plaintiff sued in 1921 for specific performance of this agreement. The Subordinate Judge granted him specific performance subject to his paying not only the sum of Rs. 1,268, but also Rs. 1,220 on account of improvements made to the property by the defendant. The District Judge in appeal has reversed that decree and dismissed the plaintiff's suit. The main ground on which he has done this is that there was no consideration for the agreement, BO that it was unenforceable. He also held that the suit was barred by limitation under Art. 113 of the Indian Limitation Act.

(2.) Taking first the question of consideration, which has boon fully argued before us, I can see no sufficient reason to differ from the conclusion of the lower appellate Court, It was con tended by Mr. Shingne that the plaintiff's promise to pay Rs. 1.268 was legal consideration for the defendant's agreement to sell, in view of Section 2 (d) of the Indian Contract Act. But the agreement is one of an exceptional kind. It is not a case where the plaintiff was himself selling the property to the defendant and where it was part of the terms on which he was willing to sell the property to the defendant, that he should have a right of repurchase of the kind now under consideration. Nor is it a case where the owner of property independently enters into a contract to sell it to another person. In the former case there obviously is consideration for the covenant to repurchase as part of the general terms of the transaction. The purchaser finds that he cannot obtain the property he wants to buy, un less he concedes this right as part of the terms on which the purchase is made, and ho agrees accordingly. Again when a person agrees to sell his property as an independent transaction he has a say in fixing the price, and obviously the consideration for the agreement to Bell is the promise of the other patty to pay the amount agreed upon. The owner may want to sell for special reasons and be willing to take less than the property is really worth; or he may be wanting to make a profit by selling at the price agreed upon. In either case he desires the other party to promise to pay the amount agreed upon and the case is one which falls under the definition of consideration in Clause (d) of Section 2 of the Indian Contract Act-But in the present case I find it difficult to say that the plaintiff's promise to pay Rs. 1,268 at some-indefinite time was a promise made " at the desire of the promisor" within the meaning of this Clause (d). The way in which this option to repurchase was arrived at is pretty clear from the letters of 1900 that have been put in and particularly Exhibit 20, wherein the defendant says: " And I will have no objection to deliver possession back unto you of the lands, house and garden immediately the amount that will have cost me therefor if received by me in one lamp sum. Rest assured about it. I can assure you that no further assistance can be rendered, I am willing to do that much." Again in the letter Exhibit 65, which was written in 1912, he expresses disgust that the property was taken by him and says that he would be satisfied if he got back the amount expended by him and that he had no desire to make a profit. A case of that kind seems to me very different from a case like the one I have mentioned where the main motive actuating the agreement to sell is a desire to get a certain monetary payment. Here it seems perfectly clear that the operative motive for the defendant making this agreement was, as the District Judge has put it, the affection which existed between close relations like plaintiff and the defendant No 1, and that there is no real consideration in the present case, merely because the plaintiff undertook to pay Rs. 1,263 if he exercised his option of repurchasing the property. I think the words " at the desire of the promisor" in Clause (d) imply a promise which has a real effect in conducing to the contract, Here all that the defendant said was that he had no objection to favour the plaintiff by giving him this particular option. An "option" to buy is not equivalent to an " agreement" to buy; it only becomes such an agreement, if and when the option is exercised : cf. Helby V/s. Matthews [1895] A. C. 471 and Rumav V/s. Kurel (1921) 37 Bom. I. R. 349. If this is borne in mind, it becomes clear that, at any rate in a case like the present, the question is what was the consideration for the defendant's giving the plaintiff this option of repurchase, which imposed on defendant an obligation not to sell to any one else; and the mere fact that, should the option be exercised, there would be consideration for the actual sale is immaterial, Therefore I think the view that the District Judge has taken is correct, and as the agreement was not expressed in writing and registered, it is not enforceable against the defendant.

(3.) Then, on the point of limitation, I can see no adequate answer to the argument of the District Judge. It is no doubt true that the defendant's written statement did not specifically plead that the suit was barred because there had been a refusal prior to the defendant's refusal mentioned in the plaint. But that does not prevent the suit being time-barred, if the evidence establishes that the plaintiff had notice of refusal prior to the date that he asserted. The evidence of the plaintiff is quite clear on the point, and although the vernacular record is not as clear as the notes of the learned Judge, it does not contradict the latter and appears to mean the same thing. The plaintiff thus admitted that he made a request to have the property reconveyed to him a month before he made his written request, and that the defendant refused to reconvey according to the agreement that he set up, namely for the sum of Rs. 1,268. The plaintiff did not bring his suit till the very last day available even on his own case, and therefore his admission makes the suit time-barred. The Court has to act suo motu, if necessary, should it appear that a suit is barred by limitation; but here the point of limitation was taken. For both these reasons I would dismiss the appeal with costs. Madgavkar, J.