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Narayan Chitko Juvekar Vs. Vithul Parshotam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom23
AppellantNarayan Chitko Juvekar
RespondentVithul Parshotam
Excerpt:
decree - execution--decree specifying a certain time for execution--construction--condition precedent--limitation. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her - will was not only unnatural but was surrounded by a large number..........at the time of the decree, july, 1882, was occupied with growing crops, the decree deferred the time of fulfillment by saying that 'the plaintiff is to give the defendant possessions &cr;, at the end of next margashirsha (i. e., 9th january, 1883) and on his doing this, the defendant is to remove the hedges, &c;, and make over the land in suit to the plaintiff.' it is now contended that the specification of the end of next margashirsha formed part of a condition precedent, and that having failed to 'satisfy this condition through his delay, the plaintiff has lost the contingent advantage bestowed on him by the decree, and can no longer execute it. the district judge has understood the decree as merely fixing a time from which it was to take effect, so that the meaning was merely that.....
Judgment:

West, J.

1. The District Court in this case adjudged that the defendant should remove certain hedges and sheds by which the plaintiff was injured, but only on the plaintiff's delivering to the defendant two parcels of ground held by the former. As the land, it appears at the time of the decree, July, 1882, was occupied with growing crops, the decree deferred the time of fulfillment by saying that 'the plaintiff is to give the defendant possessions &Cr;, at the end of next Margashirsha (i. e., 9th January, 1883) and on his doing this, the defendant is to remove the hedges, &c;, and make over the land in suit to the plaintiff.' It is now contended that the specification of the end of next Margashirsha formed part of a condition precedent, and that having failed to 'satisfy this condition through his delay, the plaintiff has lost the contingent advantage bestowed on him by the decree, and can no longer execute it. The District Judge has understood the decree as merely fixing a time from which it was to take effect, so that the meaning was merely that nothing was to be done before the end of Margashirsha. 'We think this is the correct view. It is not said that the plaintiff doing what he had to do on or before the end of Margashirsha should then recover from the defendant. He could not demand any fulfillment by the defendant before the end of that month. Thus the operation of the decree as a command was wholly postponed' until the time indicated which was thus prescribed as a term rather than as a condition, See Ev. Poth, Sections 230, 237; Colebr. Obl., Section 228. There is no provision that, failing fulfillment by the plaintiff at the end of Margashirsha, his right under the decree is to fail and such an expression is what one would look for where the precise date was intended to form an essential element of the condition. As the case stands, we think that the specification of the end of Margashirsha has merely the, effect of making the decree speak as from that time, and that conditional as it is with respect to the step to be taken by the plaintiff, the plaintiff had three years from the 9th January, 1883, within which he might seek execution. The construction demanded by the appellant would have this consequence, that, whereas a simple order for reciprocal delivery would have allowed the plaintiff three years from July, 1882, for execution, the postponement of operation of the decree would cut down the time allowed him to six months. The case of Sidney v. Vaughan Bro. P.C., 254 (2nd ed.) shows that the mention of something to be done coupled with an expression of time may but serve to indicate a term not to impose a condition sine qua non. The mention of a term when a particular right is to become enforceable is not a condition whether the enforcement be otherwise subject to a condition or not.

2. We confirm the decree of the District Court with costs.


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