M.M. Ismail, J.
1. In this second Appeal, the matter lies within a very narrow compass. Admittedly, the appellant herein had sold the suit property to the respondent under the original of Exhibit A-1 dated 9th March, 1955. Her case was that the property on the date of sale was more valuable than the consideration she received from the respondent herein namely Rs. 3,000 and the understanding between the parties was that the respondent should reconvey the property whenever the appellant paid an amount of Rs. 3,000 and asked for such a reconveyance. There was a further case that she was allowed to be in possession of the property paying Rs. 300 per year as rent, the said sum of Rs. 300 having been calculated on the basis of interest at 10 per cent, for Rs. 3,000 and that she had leased the coconut trees to others, but subsequently carried on personal cultivation. In 1965, she demanded reconveyance on payment of Rs. 3,000 but the-respondent refused to reconvey the property and hence she filed the suit for specific performance of the agreement to reconvey. According to her, the agreement of reconveyance was oral.
2. The respondent in his written statement : contended that the transaction was an outright sale and that there was no oral agreement of reconveyance of the suit property.
3. Both the Courts below have concurrently come to the conclusion that there was an oral agreement to reconvey the property. In view of this conclusion, the trial Court decreed the suit. However, on appeal preferred by the respondent herein, the learned Additional District Judge of Salem reversed the conclusion. His view was that no doubt there was an oral agreement, but according to the oral agreement as claimed by the appellant herself, no time was fixed for obtaining the reconveyance and consequently the agreement is neither valid nor enforceable in law. The learned Additional District Judge accepted the contention of the respondent and held that the agreement of reconveyance pleaded by the appellant was rather vague and as per the terms of the oral agreement pleaded by the appellant, there was no chance for the respondent to know at what particular point of time, his title would become absolute or when the appellant would exercise her option to re-purchase the suit property. In view of this, the learned Judge took the view that, time being the essence of the contract and in the absence of stipulation of time within, which the suit property is to be reconveyed by the respondent to the appellant it must necessarily be held that the agreement in this case, although true, was not valid and enforceable in law. In view of this conclusion, he allowed the appeal and dismissed the suit instituted by the appellant. Hence the second appeal by the plaintiff.
4. Both the Courts below have concurrently held that there was an oral agreement of reconveyance and that finding, being one on a question of fact, will stand in the second appeal. Notwithstanding this, I am of the opinion that the learned Additional District Judge was not right in holding that the agreement in question was not valid and enforceable in law. As I pointed out already, the only ground the learned Judge assigned for coming to the conclusion that the agreement was not valid and enforceable in law is that the agreement, even according to the appellant, did not prescribe the period for execution of the reconveyance and time being the essence of the contract, this uncertainty and vagueness would vitiate the contract. In my view, when the parties who entered into such an agreement did not provide for the period within which such exercise of option should be made by one party, the contract itself cannot be said to be invalid. Decisions have taken the view that, when the parties did not prescribe a time-limit and actually provided for one party demanding the enforcement of the right any time, the Courts must consider the contract as having provided for the exercise of the option within a reasonable time. Of course what constitutes a reasonable time will always be a question of fact.
5. In this particular case, I most proceed on the basis that there was an oral agreement to reconvey the property and the parties agreed that the right to demand reconveyance should be exercised within a reasonable time. On the facts of this case, there has been nearly an interval of eleven years from the date of the sale under the original of Exhibit A-1 to the date of the demand made by the appellant for reconveyance. The question for consideration is whether, under these circumstances, the appellant would be entitled to a decree for specific performance of the oral agreement for reconveyance at all.
In Arjuna Mudaliar v. Lakshmi Ammal and Ors. : (1948)2MLJ271 , a Bench of this Court observed as follows:
It is now well-established that mere delay does not by itself preclude the plaintiff from obtaining specific performance if his suit is otherwise in time. The delay must be such that it may be properly inferred that the plaintiff has abandoned his right or on account of the delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant.
In that particular case, the delay was 22 years. Still the learned Judges held that the plaintiff was entitled to a decree for specific, performance, because if was probable that the parties thought that the transaction amounted to a mortgage and had a period of 60 years to redeem the mortgage and recover possession and, if that was likely to be the consciousness of the parties, then certainly the delay of 22 years cannot lead to an inference of an abandonment of his rights by the plaintiff. In this particular case, the specific and categorical case of the appellant was that the original of Exhibit A-1 was only a sale deed and she never put forward a case that the transaction amounted to a mortgage.
7. In Madan Setty Satyanarayana v. G. Yelloji Rao and Ors. : 2SCR221 , the Supreme Court observed as follows:
While in England mere delay or laches will be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression 'waiver' in its legally accepted, sense namely, 'waiver' is contractual and may constitute a cause of action it is an agreement to release or not to assert a right.
8. On the basis of this judgment, Mr. M. Srinivasan appearing for the respondent, contended that waiver and abandonment are not the only grounds on which relief can be denied to a plaintiff who comes to the Court with a prayer for specific performance of the agreement, but even on the ground of delay or conduct which would have the effect of causing prejudice to the defendant in the event of the suit being decreed, relief can be declined.
There is a subsequent Bench decision of this Court on the question of delay in Kantilal C. Shah v. Devarajulu Reddiar : (1977)2MLJ484 . That was concerned with a suit for specific performance of 5 an agreement to sell. The agreement was dated 28th May, 1962 and the suit itself was filed in the year 1968. One of the pleas put forward on behalf of the defendant was the delay. In connection with that contention, the learned Judges observed as follows:
It is no doubt true that mere delay in seeking for the relief of specific performance by itself cannot be a ground for the Court to refuse Co exercise its judicial discretion to grant the equitable relief. But wanton delay and unexplained silence cannot be equated to mere delay and in such cases the burden is very heavy on the plaintiff to show that he had a purpose and not a design when he kept silent and did not demand performance. It is by now established that the delay simpliciter without any breach caused to the defendant or which would not amount to abandonment or waiver does not empower the Court to refuse specific performance. But what then is abandonment? Proof of abandonment or waiver of right could be established by a course of conduct demonstrated in a given case or an attitude of wanton drift adopted by the plaintiff which by itself is an indicia of his unwillingness to involve himself further in the bargain.
On general principles, it is clear that title to any property cannot be allowed to hang in the air indefinitely creating uncertainty. If it is therefore held that in the case of an agreement to reconvey, the original vendor can demand specific performance of the agreement for reconveyance at any time he pleases, it will merely have the effect of preventing the vendee from knowing the point of time when he would become the absolute owner of the property. In other words, the agreement would be hanging as a Damocle's Sword over the head of the vendee indefinitely. It is settled law that there should not be uncertainty in relation to the title to a property. When the Court is called upon to exercise its discretion, since the decree for specific performance is only an equitable relief, though the exercise of that discretion is a judicial one, the Court will have to take into account the effect of the delay, and the consciousness of the parties as to their rights and obligations with reference to the property arising from the agreement governing the property. In this particular case, as I pointed out already, there has been a delay of 11 years and more from the date of the agreement. In the plaint, the appellant had not put forward any case as to why she did not choose to exercise the right earlier. She merely narrates that there was an oral agreement in her favour and she was put in possession of the property as a lessee and she bad leased out the coconut trees to other persons and thereafter she herself was in possession of the property. In the present case it is unnecessary to consider whether she was in possession of the property or the respondent was in possession of the property. All that is necessary to consider is what exactly is the reason for the inaction on the part of the appellant herein in not demanding her right under the agreement of reconveyance for more than a period of ten years. From such supine indifference on the part of a person, who is clothed with a right which she can enforce against the other side, for such a long time, certainly an inference can be drawn that the party concerned did not retain the intention to enforce the right. Waiver will stand on a different footing. But abandonment can be more readily, inferred from the conduct of a party under such circumstances. Here is a case where there has been an unexplained delay of ten years and more during which time the appellant herein had merrily kept quiet without giving any inkling whatever to the respondent herein that she intended to enforce her right under the oral agreement of reconveyance. It is worthwhile pointing out the difference between an agreement to sell the property and an agreement of reconveyance. In the case of an agreement to sell the property, so long as the person who agreed to sell the property had not disposed of the property in favour of third parties or had not altered his position on the basis that the other party had decided to abandon his right, there is nothing inequitable in granting the relief of specific performance in favour of the other party. On the other hand, in the case of an agreement for reconveyance, it is a privilege conferred on the original vendor and a concession shown to him. In the exercise of that concession or privilege, a greater degree of strictness in ascertaining the intention of the parties as to whether he meant to enforce the privilege or concession granted in his favour has to be applied in coming to the conclusion whether a decree for specific performance should be granted even after a lapse of long periods. In the present case, as I pointed out already, the appellant had not whispered any reason for not having exercised her right earlier and in such a context, following the observations of the Bench of this Court in Kantilal C. Shah v. Devarajulu Reddiar : (1977)2MLJ484 , extracted already, I must hold that it is not a question of mere delay in the present case, but a supise indifference on the part of the appellant herein from which an abandonment of right to enforce the agreement of recoveyance can be readily inferred. Hence I dismiss the second appeal and uphold the dismissal of the suit instituted by the appellant herein not on the ground mentioned by the learned Additional District Judge, but for the reasons given by me in this judgment. There will be no order as to costs in this second appeal.