Appeal No 87 of 1957
Appeal from the judgment and decree dated December 1 1955 of the Allahabad High Court in Special Appeal No 18 of 1955 arising out of the judgment and order dated November 30 1954 of the  said Court in Civil Misc
Writ No 355 of 1952
H N Sanyal Additional Solicitor General of India G C Mathur and C P Lal for the appellants
P R Das and B P Maheshwari for the respondent
B P Maheshwari for Agra Bullion Exchange Intervener
K Veeraswami and T M Sen for the State of Madras Intervener
R C Prasad for the State of Bihar Intervener
H N Sanyal Additional Solicitor General of India B Gopalakrishnan and T M Sen for the Union of India Intervener
September 23
The Judgment of the Court was delivered by BHAGWATI J
The facts leading up to this appeal lie within a narrow compass
The respondent is a firm registered under the Indian Partnership Act dealing in Bullion Gold and Silver ornaments and forward contracts in Silver Bullion at Banaras in the State of Uttar Pradesh
For the assessment years 1948 49 1949 50 and 1950 51 the Sales Tax Officer Banaras the appellant No 1 herein assessed the respondent to U P Sales Tax on its forward transactions in Silver Bullion
The respondent had deposited the sums of Rs 150 12 0 Rs 470 0 0 and Rs 741 0 0 for the said 1352 three years which sums were appropriated to wards the payment of the sales tax liability of the firm under the respective assessment orders passed on May 31 1949 October 30 1950 and August 22 1951
The levy of sales tax on forward transactions was held to be ultra vires by the High Court of Allahabad by its judgment delivered on February 27 1952 in Messrs Budh Prakash Jai Prakash vs Sales Tax Officer Kanpur 1 and the respondent by its letter dated July 8 1952 asked for a refund of the amounts of sales tax paid as aforesaid
The appellant No 2 the Commissioner of Sales Tax U P Lucknow however by his letter dated July 19 1952 refused to refund the same
The respondent thereafter filed in the High Court of Allahabad the Civil Misc
Writ Petition No 355 of 1952 under article 226 of the Constitution and asked for a writ of certiorari for quashing the aforesaid three assessment orders and a writ of mandamus requiring the appellants to refund the aforesaid amounts aggregating to Rs 1365 12 0
The judgment of the Allahabad High Court was confirmed by this Court on May 3 1954 in Sales Tax Officer Pilibhit vs Budh Prakash Jai Prakash  and the writ petition aforesaid was heard by Chaturvedi J
The learned judge by an order dated November 30 1954 quashed the said assessment orders in so far as they purported to assess the respondent in respect of forward contracts in silver and also issued a writ of mandamus directing the appellants to refund the amounts paid by the respondent
The appellants filed a Special Appeal No 18 of 1955 in the High Court of Allahabad against that order of the learned Judge
A Division Bench of the said High Court heard the said appeal on December 1 1955
It was argued by the Advocate General on behalf of the appellants that the amounts in dispute were paid by the respondent under a mistake of law and were therefore irrecoverable
The Advocate General also stated categorically that in that appeal he did not contend that the respondent ought to have 1 1952 ALJ 332
2 I955 1 SCR 243
1353 proceeded for the recovery of the amount claimed otherwise than by way of a petition Under article 226 of the Constitution
The High Court came to the conclusion that section 72 of the applied to the present case and the State Government must refund the moneys unlawfully received by it from the respondent on account of Sales Tax
It accordingly dismissed the appeal with costs
The appellants then applied for a certificate under article 1331b of the Constitution which certificate was granted by the High Court on July 30 1956 on the Advocate General s giving to the Court an undertaking that the State will in any event pay the costs charges and expenses incurred by or on behalf of the respondent as taxed by this Court
This appeal has accordingly come up for hearing and final disposal before us at the instance of the Sales Tax Officer Banaras appellant No 1 the Commissioner Sales Tax UP Lucknow appellant No 2 and the State of UP appellant No 3
The question that arises for our determination in this appeal is whether section 72 of the applies to the facts of the present case
The learned Additional Solicitor General appearing for the appellants tried to urge before us that the procedure laid down in the UP Sales Tax Act by way of appeal andor revision against the assessment orders in question ought to have been followed by the respondent and that not having been done the respondent was debarred from proceeding in the civil courts for obtaining a refund of the monies paid as aforesaid
He also tried to urge that in any event a writ petition could not lie for recovering the monies thus paid by the respondent
Both those contentions were however not available to him by reason of the categorical statement made by the Advocate General before the High Court
The whole matter had proceeded on the basis that the respondent was entitled to recover the amount claimed in the writ petition which was filed
No such point had been taken either in the grounds of appeal or in the statement of case filed before us in this Court and we did not feel justified in allowing the 1354 learned Additional Solicitor General to take this point at this stage
Section 72 of the is in the following terms  A person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it
 As will be observed the section in terms does not make any distinction between a mistake of law or a mistake of fact
The term  mistake  has been used without any qualification or limitation whatever and comprises within its scope a mistake of law as well as a mistake of fact
It was however attempted to be argued on the analogy of the position in law obtaining in England America and Australia that money paid under a mistake of law could not be recovered and that that was also the intendment of section 72 of the 
The position in English law is thus summarised in Kerr on  Fraud and Mistake  7th Edn at p 140  As a general rule it is well established in equity as well as at law that money paid under a mistake of law with full knowledge of the facts is not recoverable and that even a promise to pay upon a supposed liability and in ignorance of the law will bind the party
 The ratio of the rule was thus stated by James L J in Rogers vs Ingham1   If that proposition were trite in respect of this case it must be true in respect to every case in the High Court of Justice where money has been paid under a mistake as to legal rights it would open a fearful amount of litigation and evil in the cases of distribution of estates and it would be difficult to say what limit could be placed to this kind of claim if it could be made after an executor or trustee had distributed the whole estate among the persons supposed to be entitled every one of them having knowledge of all the facts and having given a release
The thing has never been done and it is not a thing which in my opinion is to be encouraged
Where people have a 1 356
1355 knowledge of all the facts and take advice and whether they get proper advice or not the money is divided and the business is settled it is not for the good of mankind that it should be reopened  See also National Pari Mutual Association Ltd vs The King 1 and Pollock on Contract 13th Edn at pp
367  374
The American doctrine is also to the same effect as appears from the following passage in Willoughby on the Constitution of the United States Vol 1 p 12  The general doctrine that no legal rights or obligation can accrue under an unconstitutional law is applied in civil as well as criminal cases
However in the case of taxes levied and collected under statutes later held to be unconstitutional the tax payer cannot recover unless he protested the payment at the time made
This however is a special doctrine applicable only in the case of taxes paid to the State
Thus in transactions between private individuals moneys paid under or in pursuance of a statute later held to be unconstitutional may be recovered or release from other undertakings entered into obtained
 The High Court of Australia also expressed a similar opinion in Werrin vs The Commonwealth 2 where Latham C J and MacTiernan J held that money paid voluntarily under a mistake of law was irrecoverable
Latham C J in the course of his judgment at p 157 relied upon the general rule as stated in Leake on Contracts 6th Edn
1911 p 63  that money paid voluntarily that is to say without compulsion or extortion or undue influence and with a knowledge of
all the facts cannot be recovered although paid without any consideration
 It is no doubt true that in England America and Australia the position in law is that monies paid voluntarily that is to say without compulsion or extortion or undue influence and with a knowledge of all facts cannot here covered although paid without any consideration
Is the position the same in India  1 2 172 1356 It is necessary to observe at the outset that what we have got to consider are the plain terms of section 72 of the as enacted by the Legislature
If the terms are plain and unambiguous we cannot have resort to the position in law as it obtained in England or in other countries when the statute was enacted by the Legislature
Such recourse would be permissible only if there was any latent or patent ambiguity and the courts were required to find out what was the true intendment of the Legislature
Where however the terms of the statute do not admit of any such ambiguity it is the clear duty of the courts to construe the plain terms of the statute and give them their legal effect
As was observed by Lord Herschell in the Bank of England vs Vagliano Brothers 1   I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law and not to start with enquiring how the law previously stood and then assuming that it was probably intended to leave it unaltered to see if the words of the enactment will bear an interpretation in conformity with this view  If a Statute intended to embody in a code a particular branch of the law is to be treated in this fashion it appears to me that its utility will be almost entirely destroyed and the very object with which it was enacted will be frustrated
The purpose of such a statute surely was that on any point specifically dealt with by it the law should be ascertained by interpreting the language used instead of as before by roaming oyer a vast number of authorities in order to discover what the law was extracting it by a minute critical examination of the prior decision  
This passage was quoted with approval by their Lordships of the Privy Council in Narendranath Sircar vs Kamal Basini Dasi 2 while laying down the proper mode of dealing with an Act enacted to codify a particular branch of the law
1  144
2 Cal
563 571
1357 The Privy Council adopted a similar reasoning in Mohori Bibee vs Dhurmodas Ghose 1 where they had to interpret section 11 of the 
They had before them the general current of decisions in India that ever since the passing of the the contracts of infants were voidable only
There were however vigorous protests by various judges from time to time and there were also decisions to the contrary effect
Under these cir cumstances their Lordships considered themselves at liberty to act on their own view of the law as declared by the Contract Act and they had thought it right to have the case reargued before them upon this point
They did not consider it necessary to examine in detail the numerous decisions above referred to as in their opinion the  whole question turns upon what is the true construction of the Contract Act itself 
They then referred to the various relevant sections of the and came to the conclusion that the question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the Act and cannot arise in the base of an infant who is not  competent to contract
 In Satyabrata Ghose vs Mugneeram Bangur  Co 2 section 56 of the came up for consideration by this Court
B K Mukherjea J as he then was while delivering the judgment of the Court quoted with approval the following observations of Fazl Ali J in Ganga Saran vs Ram Charan 3  It seems necessary for us to emphasise that so far as the courts in this country are concerned they must look primarily to the law as embodied in sections 32 and 56 of the 
and proceeded to observe   It would be incorrect to say that section 56 of the Contract Act applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principle of English law on the subject of frustration
It must be held also that to the extent that the deals 1 1902 LR 30 IA 114
2  3   52 1358 with a particular subject it is exhaustive upon the same and it is not permissible to import the principles of English law dehors these statutory provisions
The decisions of the English courts possess only a persuasive value and may be helpful in showing how the courts in England have decided cases under circumstances similar to those which have come before our courts
 It is therefore clear that in order to ascertain the true meaning and intent of the provisions we have got to turn to the very terms of the statute itself divorced from all considerations as to what was the state of the previous law or the law in England or elsewhere at the time when the statute was enacted
To do otherwise would be to make the law not to interpret it
See Gwynne vs Burnell 1 and Kumar Kamalranjan Roy vs Secretary of State 2
The courts in India do not appear to have consistently adopted this course and there were several decisions reached to the effect that section 72 did not apply to money paid under a mistake of law eg Wolf  Sons vs Dadyba Khimji  Co 3 and Appavoo Chettiar vs section 1
Co 4
In reaching those decisions the courts were particularly influenced by the English decisions and also provisions of section 21 of the which provides that a contract is not voidable because it was caused by a mistake as to any law in force in British India
On the other hand the Calcutta High Court had decided in Jagdish Prasad Pannalal vs Produce Exchange Corporation Ltd 5 that the word  mistake  in section 72 of the included not only a mistake of fact but also a mistake of law and it was further pointed out that this section did not conflict with section 21 because that section dealt not with a payment made under a mistake of law but a contract caused by a mistake of law whereas section 72 dealt with a payment which was either not under a contract at all or even if under a contract it was not a cause of the contract
1 2 L R 66 I A 1 10
3 Bom
631 649
4 AIR 1929 Mad
5 AIR 1946 Cal
1359 The Privy Council resolved this conflict in Shiba Prasad Singh vs Srish Chandra Nundi1
Their Lordships of the Privy Council observed that the authorities which dealt with the meaning of  mistake  in the section were surprisingly few and it could not be said that there was any settled trend of authority
Their Lordships were therefore bound to consider this matter as an open question and stated at p 253  Those learned judges who have held that mistake in this context must be given a limited meaning appear to have been largely influenced by the view expressed in Pollock and Mulla s commentary on section 72 of the  where it is stated Indian Contract  Specific Relief Acts 6th Edn p 402  Mistake of law is not expressly excluded by the words of this section but section 21 shows that it is not included 
For example Wolf  Sons vs Dadyaba Khimji  Co 2
Macleod J said referring to section 72  on the face of it mistake includes mistake of law
But it is said that under section 21 a contract is not voidable on the ground that the parties contracted under a mistaken belief of the law existing in British India and the effect of that section would be neutralized if a party to such a contract could recover what he had paid by means of section 72 though under section 21 the contract remained legally enforceable
This seems to be the argument of Messrs Pollock and Mulla and as far as I can see it is sound
 In Appavoo Chettiar vs South Indian Rly 3 Ramesam and Jackson JJ say  Though the word  mistake  in section 72 is not limited it must refer to the kind of mistake that can afford a ground for relief as laid down in sections 20 and 21 of the Act 
Indian law seems to be clear namely that a mistake in the sense that it is a pure mistake as to the law in India resulting in the payment by one person to another and making it equitable that the payee should return the money is no ground for relief Their Lordships have found no case in which an opinion that mistake in section 72 must be given a limited meaning has been based on any other ground
In their 1 1949 LR 76 IA 244
2 Bom
3 AIR 1929 Mad
1360 Lordships  opinion this reasoning is fallacious
If a mistake of law has led to the formation of a contract section 21 enacts that that contract is not for that reason voidable
If money is paid under that contract it cannot be said that that money was paid under mistake of law  it was paid because it was due under a valid contract and if it had not been paid payment could have been enforced
Payment  by mistake  in section 72 must refer to a payment which was not legally due and which could not have been enforced  the  mistake  is thinking that the money paid was due when in fact it was not due
There is nothing inconsistent in enacting on the one hand that if parties enter into a contract under mistake in law that contract must stand and is enforceable but on the other hand that if one party acting under mistake of law pays to another party money which is not due by contract or otherwise that money must be repaid
Moreover if the argument based on inconsistency with section 21 were valid a similar argument based on incon sistency with section 22 would be valid and would lead to the conclusion that section 72 does not even apply to mistake of fact
The argument submitted to their Lordships was that section 72 only applies if there is no subsisting contract between the person making the payment and the payee and that the does not deal with the case where there is a subsisting contract but the payment was not due under it
But there appears to their Lordships to be no good reason for so limiting the scope of the Act
Once it is established that the payment in question was not due it appears to their Lordships to be irrelevant to consider whether or not there was a contract between the parties under which some other sum was due
Their Lordships do not find it necessary to examine in detail the Indian authorities for the wider interpretation of  mistake  in section 72
They would only refer to the latest of these authorities Pannalal vs Produce Exchange Corp Ltd 1 in which a carefully reasoned judgment was given by Sen J
Their Lordships agree with this judgment
It may be well to add that their 1 AIR 1946 Cal
1361 Lordships  judgment does not imply that every sum paid under mistake is recoverable no matter what the circumstances may be
There may in a particular case be circumstances which disentitle a plaintiff by estoppel or otherwise
 We are of opinion that this interpretation put by their Lordships of the Privy Council on section 72 is correct
There is no warrant for ascribing any limited meaning to the word I mistake  as has been used therein and it is wide enough to cover not only a mistake of fact but also a mistake of law
There is no Conflict between the provisions of section 72 on the one hand and sections 21 and 22 of the on the other and the true principle enunciated is that if one party under a mistake whether of fact or law pays to another party money which is not due by contract or otherwise that money must be repaid
The mistake lies in thinking that the money paid was due when in fact it was not due and that mistake if established entitles the party paying the money to recover it back from the party receiving the same
The learned Additional Solicitor General however sought to bring his case within the observations of their Lordships of the Privy Council that their judgment did not imply that every sum paid under mistake is recoverable no matter what the circumstances might be and that there might be in a particular case circumstances which disentitle a plaintiff by estoppel or otherwise
It was thus urged that having regard to the circumstances of the present case i in so far as the payments were in discharge of the liability under the UP Sales Tax Act and were voluntary payments without protest and also ii inasmuch as the monies which had been received by the State of U P had not been retained but had been spent away by it the respondent was disentitled to recover the said amounts
Here also we may observe that these contentions were not specifically urged in the High Court or in the statement of case filed by the appellants in this court but we heard arguments on the same as they were necessarily involved in the question whether section 72 of 1362 the applied to the facts of the present case
Re i The respondent was assessed for the said amounts under the U P Sales Tax Act and paid the same but these payments were in respect of forward transactions in silver
If the State of U P was not entitled to receive the sales tax on these transactions the provision in that behalf being ultra vires that could not avail the State and the amounts were paid by the respondent even though they were not due by contract or otherwise
The respondent committed the mistake in thinking that the monies paid were due when in fact they were not due and that mistake on being established entitled it to recover the same back from the State under section 72 of the 
It was however contended that the payments having been made in discharge of the liability under the U P Sales Tax Act they were payments of tax and even though the terms of section 72 of the applied to the facts of the present case no monies paid by way of tax could be recovered
We do not see any warrant for this proposition within the terms of section 72 itself
Reliance was however placed on two decisions of the Madras High Court reported in 1 Municipal Council Tuticorin vs Balli Bros 1 and 2 Municipal Council Rajahmundry vs Subba Rao 2
It may be noted however that both these decisions proceeded on the basis that the payments of the taxes there were made under mistake of law which as understood then by the Madras High Court was not within the purview of section 72 of the 
The High Court then proceeded to consider whether they fell within the second part of section 72 viz whether the monies had been paid under coercion
The court held on the facts of those cases that the payments had been voluntarily made and the parties paying the same were therefore not entitled to recover the same
The voluntary payment was there considered in contradistinction to payment under coercion and the real ratio of the decisions was that there was no coercion or duress exercised by the authorities for 1 AIR 1934 Mad
2 AIR 1937 Mad
1363 exacting the said payments and therefore the payments having been voluntarily made though under mistake of law were not recoverable
The ratio of these decisions therefore does not help the appellants before us
The Privy Council decision in Shiba Prasad Singh vs Srish Chandra Nandi 1 has set the whole controversy at rest and if it is once established that the payment even though it be of a tax has been made by the party labouring under a mistake of law the party is entitled to recover the same and the party receiving the same is bound to repay or return it
No distinction can therefore be made in respect of a tax liability and any other liability on a plain reading of the terms of section 72 of the  even though such a distinction has been made in America vide the passage from Willoughby on the Constitution of the United States Vol 1 p 12 opcit
To hold that tax paid by mistake of law cannot be recoverd under section 72 will be not to interpret the law but to make a law by adding some such words as  otherwise than by way of taxes  after the word  paid 
If this is the true position the fact that both the parties viz the respondent and the appellants were labouring under a mistake of law and the respondent made the payments voluntarily would not disentitle it from receiving the said amounts
The amounts paid by the respondent under the U P Sales Tax Act in respect of the forward transactions in silver had already been deposited by the respondent in advance in accordance with the U P Sales Tax Rules and were appropriated by the State of U P towards the discharge of the liability for the sales tax on the res pective assessment orders having been passed
Both the parties were then labouring under a mistake of law the legal position as established later on by the decision of the Allahabad High Court in Messrs Budh Prakash Jai Prakash vs Sales Tax Officer Kanpur 2 subsequently confirmed by this Court in Sales Tax Officer Pilibhit vs Budh Prakash Jai Prakash 3 not having been known to the parties at the relevant 1 1949 L R 76 1
A 244
2 3 1955 I SCR 243
173 1364 dates
This mistake of law became apparent only on May 3 1954 when this Court confirmed the said decition of the Allababad High Court and on that position being established the respondent became entitled to recover back the said amounts which had been paid by mistake of law
The state of mind of the respondent would be the only thing relevant to consider in this context and once the respondent established that the payments were made by it under a mistake of law and it may be noted here that the whole matter proceeded before the High Court on the basis that the respondent had committed a mistake of law in making the said payments it was entitled to recover back the said amounts and the State of U P was bound to repay or return the same to the respondent irrespective of any other consideration
There was nothing in the circumstances of the case to raise any estoppel against the respondent nor would the fact that the payments were made in discharge of a tax liability come within the dictum of the Privy Council above referred to
Voluntary payment of such tax liability was not by itself enough to preclude the respondent from recovering the said amounts once it was established that the payments were made under a mistake of law
On a true interpretation of section 72 of the the only two circumstances there indicated as entitling the party to recover the money back are that the monies must have been paid by mistake or under coercion
If mistake either of law or of fact is established he is entitled to recover the monies and the party receiving the same is bound to repay or return them irrespective of any consideration whether the monies had been paid voluntarily subject however to questions of estoppel waiver limitation or the like
If once that circumstance is established the party is entitled to the relief claimed
If on the other hand neither mistake of law nor of fact is established
 the party may rely upon the fact of the monies having been paid under coercion in order to entitle him to the relief claimed and it is in that position that it becomes relevant to consider whether the payment has been a voluntary payment or a payment under coercion
The 1365 latter position has been elaborated in English law in the manner following in Twyford vs Manchester Corporation 1 where Romer J observed  Even so however I respectfully agree with the rest of Walton J s judgment particularly with his statement that a general rule applies namely the rule that if money is paid voluntarily without compulsion extortion or undue influence without fraud by the person to whom it is paid and with full knowledge of all the facts it cannot be recovered although paid without consideration or in discharge of a claim which was not due or which might have been successfully resisted
 The principle of estoppel which has been adverted to by the Privy Council in Shiba Prasad Singh vs Srish Chandra Nandi 2 as disentitling the plaintiff to recover the monies paid under mistake can best be illustrated by the decision of the Appeal Court in England reported in Holt vs Markham 3  here it was held that as the defendant had been led by the plaintiffs  conduct to believe that he might treat the money as his own and in that belief had altered his position by spending it the plaintiffs were estopped from alleging that it was paid under a mistake and this brings us to a consideration of point No 2 above stated
Re ii Whether the principle of estoppel applies or there are circumstances attendant upon the transaction which disentitle the respondent to recover back the monies depends upon the facts and circumstances of each case
No question of estoppel can ever arise where both the parties as in the present case are labouring under the mistake of law and one party is not more to blame than the other
Estoppel arises only when the plaintiff by his acts or conduct makes a representation to the defendant of a certain state of facts which is acted upon by the defendant to his detriment it is only then that the plaintiff is estopped from setting up a different state of facts
Even if this position can be availed of where the representation is in regard to a position in law no 1  241
2 1949 L R 76 I A 244
3 1366 such occasion arises when the mistake of law is common to both the parties
The other circumstances would be such as would entitle a court of equity to refuse the relief claimed by the plaintiff because on the facts and circumstances of the case it would be inequitable for the court to award the relief to the plaintiff
These are however equitable considerations and could scarcely be imported when there is a clear and unambiguous provision of law which entitles the plaintiff to the relief claimed by him
Such equitable considerations were imported by the Nagpur High Court in Nagorao vs G G in Council where Kaushalendra Rao J observed  The circumstances in a particular case disentitle the pltf
to recover what was paid under mistake  If the reason for the rule that a person paying money under mistake is entitled to recover it is that it is against conscience for the receiver to retain it then when the receiver has no longer the money with him or cannot be considered as still having it as in a case when he has spent it on his own purposes which is not the case here different considerations must necessarily arise
 We do not agree with these observations of the Nagpur High Court
No such equitable considerations can be imported when the terms of section 72 of the are clear and unambiguous
We may in this context refer to the observations of their Lordships of the Privy Council in Mohori Bibee vs Dhurmodas Ghose 2 at p 125
In dealing with the argument which was urged there in regard to the minor s contracts which were declared void viz that one who seeks equity must do equity and that the minor against whom the contract was declared void must refund the advantage which he had got out of the same their Lordships observed that this argument did not require further notice except by referring to a recent decision of the Court of Appeal in Thurstan vs Nottingham Permanent Benefit Building Society 3 1 AIR 1951 Nag
372374
2 19O2 L R 30 I A 114
3 I9O2 1 Ch
1 1367 since affirmed by the House of Lords and they quoted with approval the following passage from the judgment of Romer L J at p 13 of the earlier report  The short answer is that a Court of Equity cannot say that it is equitable to compel a person to pay moneys in respect of a transaction which as against that person the Legislature has declared to be void
 That ratio was applied by their Lordships to the facts of the case before them and the contention was negatived
Merely because the State of U P had not retained the monies paid by the respondent but had spent them away in the ordinary course of the business of the State would not make any difference to the position and under the plain terms of section 72 of the the respondent would be entitled to recover back the monies paid by it to the State of UP under mistake of law
The result therefore is that none of the contentions urged before us on behalf of the appellants in regard to the non applicability of section 72 of the to the facts of the present case avail them and the appeal is accordingly dismissed with costs
Appeal dismissed


Summary:
The period of limitation of three years for specific performance of a contract begins to run under the third column of Article 54 of the from the date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance is refused
Under an agreement dated June 23 1965 the plaintiff respondent sister of the defendant appellant undertook to redeem the disputed property under mortgage and the appel lant agreed to execute the sale deed of the said property in her favour on the date she took papers of the registry in her possession
She redeemed the property in 1970
The appellant however failed to respect the agreement in spite of repeated demands
The respondent served a notice in July 1984 demanding specific performance before filing the suit
The appellant pleaded limitation
The trial court decided the issue in favour of the respondent
That order was confirmed by the High Court on the view that since the cause of action of the suit was dependent on the redemption of the mortgage and no period was fixed within which it was necessary for the respondent to have redeemed the mortgage it could not be said that a date was  fixed within the meaning of the third column of Article 54
Allowing the appeal by special leave HELD 11 The requirement of Article 54 of the Limita tion Act 1963 is not that the actual day should necessarily be ascertained upon the face of the deed but that the basis of the calculation which was to make it certain should be found therein
291A B 12 In the instant case under the agreement the date for the appellant to execute the sale deed was fixed al though not by mentioning 288 a certain date but by a reference to the happening of a certain event namely the redemption of the mortgage and immediately after the redemption by the respondent the appellant became liable to execute the sale deed which the respondent was entitled to enforce
The period of limitation thus started running on that date
The case is therefore covered by the first part of Article 54 third column and not the second part
291B C R Muniswami Goundar  Anr
BM Shamanna Gouda  Ors and Duncombe vs The Brighton Club Sathula Venkanna vs Namuduri Venkatakrishnayya  Anr  Kruttiventi Mallikharjuna Rao vs Vemuri Pardhasaradhirao AIR 1944 Madras 218 and Kashi Prasad vs Chhabi Lal  Ors  AIR 1933 Allahabad 410 2 distin guished 2
The agreement in the instant case is a typical illustration of a contingent contract within the meaning of section 31 of the