1

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY SABBAVARAM,

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE:
A STUDY ON LEGAL MAXIMS

SUBJECT:
LEGAL LANGUAGE AND LEGAL WRITING

NAME OF THE FACULTY:

DR. ARUNA K

NAME OF THE CANDIDATE

MANSI MISHRA
ROLL NO.
2019053
Semester
2nd Semester
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ACKNOWLEDGEMENT

We take this opportunity to express my profound gratitude and deep regards to my Professor
Dr. Aruna K for her exemplary guidance, monitoring and constant encouragement throughout
the course of this project. The blessing, help and guidance given by her time to time shall carry
me a long way in the journey of life on which I am about to embark.

I have taken efforts in this project. However, this would have not been possible without kind
support and help of my Professor.
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ABSTRACT

The project is mainly focused on explaining the application of legal maxims in various Indian
and foreign judgements. The project will be focusing on detailed description and analysis of
cases to understand three maxims that are Boni jndicis est ampliare judisdiction, Utile per
inutile non vitiatur and Cerum est quod certum redid potest.

The doctrine in the maxim utile per inutile non vitiatur is What is useful is not vitiated by the
useless. Cases related to this maxim are Suber v. Fountain and French v. Clinchfield Coal
Corporation. The maxim Boni judicis est ampliare jurisdictionem means it is the duty of the
judge to enlarge its jurisdiction. This maxim has been used in cases such as Brij Mohan Lal v.
Union of India and Birendra Singh v. State of Uttarakhand and others. The maxim certum est
quod certum reddi potest which literally means if something is capable of being made certain,
it should be treated as certain was used in cases like Ahmadasahab Abdul Mulla (D) by
proposed LRs v Bibijan & Ors and Ramzan v. Hussaini and Alopi Parshad v. Court of Wards.

The circumstances under which all the legal maxims have been used will be analysed. How
these old but fundamental principles of law find themselves in present judgements will be
studied. Application of legal maxims in the judgements is the focal point of this judgement.
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CONTENT

INTRODUCTION……………………………………………………

UTILE PER INUTILE NON VITIATUR……………………………7

Suber v. Fountain……………………………………………………7

French v. Clinchfield Coal Corporation…………………………….9

Conclusion……………………………………………………..…..10

BONI JUDICIS EST AMPLIARE JURISDICTIONEM…………....11

Brij Mohan Lal v. UOI……………………………………………..12

Brirendra Singh v. State of Uttarakhand…………………………….13

Conclusion…………………………………………………………..15

CERTUM EST QUOD CERTUM REDDI POTEST………………..16

Ahmedasahab Abdul Mulla v Bibijan and Others…………………..16

Ramzan v. Hussaini…………………………………………………19

BIBLIOGRPHY………………………………………………………21
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INTRODUCTION:

An established principle or proposition is called a legal maxim. A principle of law universally

admitted as being just and consonant with reason. Maxims in law are somewhat like axioms in
geometry. They are principles and authorities, and part of the general customs or common law
of the land; and are of the same strength as acts of parliament, when the judges have determined
what a maxim is which belongs to the judges and not the Jury. Maxims of the law are held for
law, and all other cases that may be applied to them shall be taken for granted. The application
of the maxim to the case before the court is generally the only difficulty. The true method of
making the application is to ascertain how the maxim arose, and to consider whether the case
to which it is applied is of the same character, or whether it is an exception to an apparently
general rule.

Legal maxim, a broad proposition (usually stated in a fixed Latin form), a number of which
have been used by lawyers since the 17th century or earlier. Some of them can be traced to
early Roman law. Much more general in scope than ordinary rules of law, legal maxims
commonly formulate a legal policy or ideal that judges are supposed to consider in deciding
cases. Maxims do not normally have the dogmatic authority of statutes and are usually not
considered to be law except to the extent of their application in adjudicated cases. It seems to
put so much wisdom in so few words and with such conclusive effect. The research is
concerned with three Latin legal maxims namely

Boni jndicis est ampliare judisdiction

Utile per inutile non vitiatur

Cerum est quod certum redid potest.

OBJECTIVE OF THE STUDY:

To study about the historical background of the use of these maxims and cases related to them.
This study aims to:

1. To know about the doctrines/maxims.

2. To understand the applicability of the doctrine under respective law(s).

3. To determine the views of the Judiciary on the doctrine through judicial pronouncements.
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SIGNIFICANCE OF THE STUDY:

The study would help us to understand how these maxims are used in law and legal profession.
The study will help to give a better idea through observation of case studies.
The research project will be of a great use in understanding the application of legal maxims
while deciding cases. The project will hence help in simplifying the meaning of legal maxims
and the circumstances under which it will be applied. The project will be of great significance
to have a good understanding about the above-mentioned legal maxims.

SCOPE OF THE STUDY:

The study is limited to the observation of these three legal maxims and the related case laws.
Limited period of time was the biggest limitation of the study. Territorial and monetary
limitations were also present. The researcher had a limited period of time to complete the
analytical analysis of the given topics that is the three legal maxims and the related case laws.

LITERATURE REVIEW:

The research project is largely based on electronic and secondary sources of data. Data has
been collected from various books, articles, papers and web sources. Footnotes have been
provided wherever needed, either to acknowledge the source or to point to a particular
provision of law.

HYPOTHESIS:

These legal maxims are effective as they are constantly applied in case laws across the world.

RESEARCH METHODOLOGY:

The research methodology used in this project is analytical and descriptive. It is largely based
on electronic and secondary sources of data. Data has been collected from various books,
articles, papers and web sources. Footnotes have been provided wherever needed, either to
acknowledge the source or to point to a particular provision of law.

RESEARCH QUESTION:

Whether legal maxims are significant in legal language.

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Utile per inutile non vitiatur

The meaning of the maxim utile per inutile non vitiatur is What is useful is not vitiated by the
useless.

This Latin maxim is well settled as a general rule of pleading, in criminal as well as civil cases,
that mere surplusage will not vitiate. This maxim means one which is otherwise useful is not
rendered invalid by a useless one. A deed or any instrument in writing, which is otherwise valid
and effective, cannot be invalidated by a useless addition to it. . The addition must be a
superfluous one. However, a part or condition of an instrument which is necessary for its
existence cannot be disregarded by merely saying it as superfluous.

This rule is chiefly applicable to what is called surplusage, or the introduction of useless and
unnecessary words in deeds, contracts, pleadings, &c., which words, under this rule, may be
rejected, and will not be allowed to vitiate, or render useless, the instrument in which they are
so introduced.

Deeds and other writings, good in part and bad in part, whether through defect in the
consideration, the drawing of the instrument, or otherwise, come within this rule

Cases related to this maxim are:-

1. Suber v. Fountain
2. French v. Clinchfield Coal Corporation
3. Statler v. United States

Related cases

Suber v. Fountain1

In this case the plaintiff appeals from a jury verdict for defendant in an action for malicious
prosecution, and also judgment for the defendant on his counterclaim for damages to his
personal property and punitive damages.

This is a continuing dispute which arose from a land line disagreement and has resulted in two
prior appellate cases Fountain v. Suber and Fountain v. Bryan. Thereafter, defendant Fountain
filed an action in 1973 against plaintiff Suber to enjoin the plaintiff from interfering with the

1
225 Ga. 361 (169 SE2d 162) (1969)
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defendant marking off the boundaries of a road which went through defendant's property to the
plaintiff's property. The line between the two adjoining property owners had been thought to
be settled in a processioning proceeding and marked by the county surveyor in 1968. Defendant
alleged the surveyor's stakes had been removed and when the defendant attempted to erect a
fence 6 inches inside his property line, plaintiff pulled up a fence post, threw it further back
onto defendant's property and stopped the fence contractor from continuing to erect a fence,
stating that it was not the property line and that he'll kill any-damned-body that tries to put up
a fence there. Defendant Fountain asked a deputy sheriff to come to that location. Mr. Suber
could not be located. The deputy was said to have advised the defendant to see the Justice of
the Peace and swear out a warrant. Defendant admitted he signed the warrant and came to the
hearing but was never permitted to call any witnesses.

The justice of the peace testified that he dismissed the warrant when advised by the district
attorney to dismiss the case because it was a civil matter and not a criminal [matter.] No formal
hearing was held but the justice of the peace talked to the plaintiff and the defendant and then
dismissed the case.

Plaintiff then brought this action for malicious prosecution. Defendant denied the prosecution
was maliciously carried on and was without probable cause. Defendant alleged that plaintiff's
action was but a continuation of harrassment, damages and threats done to the lives and
property of the defendant and his son commenced, and continued down to date." Defendant
entered a counterclaim in the amount of $1,253 for fence damages alleged to have been caused
by plaintiff, and additional damages of $75,000 to deter plaintiff "from repeating his
trespasses."

JUDGEMENT

The maxim utile per inutile non vitiatur – surplusage does not spoil the remaining part if that
is good in itself is relevant for the verdict complained of civil fine for punitive damages.
The jury did not award a civil fine and punitive damages. They awarded a civil
fine for punitive damages. Thus, the words civil fine is surplusage as they were used to
describe punitive damages which the jury was authorized to award if they found aggravating
circumstances. With the surplusage omitted the verdicts not subject to the objection made.”
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French v. Clinchfield Coal Corporation2

Plaintiffs, Harold and Wanda French ("the Frenches") own real property located in Dickenson
County, Virginia. The Frenches are citizens and residents of Virginia, living on the parcel
which they own. The defendant, Clinchfield Coal Co. ("Clinchfield"), is a corporation
chartered by the States of Delaware and Virginia, and owns the mineral rights to coal, gas and
oil lying under the Frenches' property.[2] These rights were being exercised by Clinchfield to
the extent that it operates a coal mine in the area. The Frenches' complaint alleged that the
mining operations have destroyed the water supply to their farm by lowering the levels of the
springs which feed it; and that continued mining operations may make it impossible to replace
the existing water supply with another, since most or all of the wells in the area have been
similarly affected. The Frenches also claimed that as a part of the mining operations,
Clinchfield transports coal through tunnels underneath their property, thereby entitling them to
the payment of "wheel-right royalties".[3]

The defendant did not answer the complaint but filed a motion to dismiss the action for lack of
diversity jurisdiction. Clinchfield also asserted that even if the Court should find jurisdiction,
the action is local in character and therefore, under the doctrine of Livingston v. Jefferson and
its progeny, venue exists only in Virginia where the action has already been dismissed and thus,
the complaint failed to state a claim upon which relief could be granted.

This case presents questions which have not been authoritatively dealt with in this Circuit on
the meaning of certain amendments. The Court, after carefully considering the argument of
counsel, has determined that the action, although transitory in character, must be dismissed for
lack of diversity.

JUDGEMENT

In this case court mentioned that “Admittedly the instrument would have been free from
objection if the words of the court had been omitted. Those words, it will be observed, are not
necessary to give meaning to the paper, and neither their presence nor absence can affect its
validity. They are, in short, merely superfluous, and may be rejected. Utile per inutile non
vitiatur. In this case the rule is thus stated: ‘If the jury give a verdict of the whole issue and of
more, that which is more is surplusage, and shall not stay judgment, for Utile per inutile non
vitiatur”

2
French v. Clinchfield Coal Corp., 171 Va. 211 (Va. 1938)
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CONCLUSION

Surplusage in pleading does not vitiate the plea, unless it is such as is contrary to the matter
before pleaded, and then it is said to do so, because it cannot be known what answer to make
to the plea. To obviate uncertainty in pleadings, however, and pleadings framed to embarrass,
it was recently enacted that, if any pleading be so framed as to prejudice, embarrass, or delay
the fair trial of the action, the opposite party may apply to the court or a judge to strike out or
amend such pleading, and this is now of common practice.
In divisible contracts, where there are several considerations for separate and distinct contracts,
one legal and the other illegal, the contract supported by the legal consideration may stand,
though the other may not. The invalidity of the consideration for the one does not necessarily
imply the invalidity of the consideration for the other. And where there are separate and
independent covenants in the same deed the same rule applies, and the invalidity of the one
covenant does not necessarily invalidate the other. For, it is said, that when a good thing and a
void thing are put together in the same grant, the law shall make such a construction as that the
grant shall be good for that which is good, and void for that which is void, under this maxim
Utile per inutile non vitiatur and also in accordance with the rules, " Benigne faciendse sunt
interpretationes, propter simplicitatem laicorum, ut res magis valeat quam pereat" "Falsa
demonstratio non nocet," and "De minimis non curat lex."
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Boni judicis est ampliare jurisdictionem

The meaning of the maxim Boni judicis est ampliare jurisdictionem is the part of a good judge
to enlarge his jurisdiction, i.e. remedial authority.
This maxim states that it is the duty of the judge to enlarge its jurisdiction.

The word "jurisdictionem" should be, according to Lord Mansfield, "justitiam" and the
meaning of the maxim in such case is, that to be a good judge is to amplify in his office the
remedies the law gives, so as, in the most perfect manner, to do the most complete justice, not
letting substantial justice be frittered away by nice and unmeaning technicalities, or himself
to lay hold of such technicalities as a means of avoiding giving a decision according to very
right, in broad and substantial justice. And this he has the power and opportunity to do in all
those cases which, by the common law, the practice of his court, and by legislative enactment,
are left to his discretion— meaning by discretion the exercise of a sound judgment upon the
facts, or, as it is stated by Lord Mansfield to be : sound discretion guided by law, governed by
rule, not humor; not arbitrary, vague, and fanciful, but legal and regular ; according to the
maxim, " Discretio est discernere per legem- quid sit justum." But the maxim does not mean
that a good judge will exceed the limits of his jurisdiction, or that he will do anything other
than that which by the law and practice of his court he is authorized to do.
Recent legislation has greatly extended the jurisdiction of the judges of the superior courts of
common law, by giving them power to amend at all times all defects and errors in any
proceeding in civil causes, and whether there be anything in writing to amend by or not, and
whether the defect or error be that of the party applying to amend or not, and upon such terms
as to them shall seem fit ; and all such other amendments as may be necessary for determining,
in the then exist ing suit, the real question in controversy between the parties.
And the proper exercise of the power thus given is an application of the maxim under
consideration. With this maxim should be considered the following : "Bonus judex secundum
sequum et bonum judicat, et aequitatem stricto juri prsefert ".
A good judge judges according to equity and right, and prefers equity to strict law ; and which
equity so considered is the construction which judges put upon the letter of the law in the
decision of cases within the mischief, yet not within the letter, that there may be no failure of
justice, inasmuch as it is impossible that the Legislature should foresee and set. down
in express terms every evil to be provided against. The practice of courts of equity, and the
principles governing the decisions of the judges of those courts, are apt instances of the
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amplification thereby of the remedies given by the law ; and so is the manner in which justice
is administered in those courts. The recent application of equitable to strict legal proceedings,
as the permitting equitable pleas, and the liberal manner in which that equitable jurisdiction is
applied by the common-law judges to strict legal proceedings, is another instance of the
application of the maxim. So also are the equitable powers given to the judges of the county
courts, and the free and independent manner in which they in equity administer the law, further
instances. The maxim is also as well applied in preventing evil as in amplifying the remedies
given instances of which are the discountenancing petty and vexatious suits, the refusal of
applications for unnecessary amendments of proceedings, adjoui-nment of hearings,
postponements of trials, references to arbitration, new trials, all of which are fruitful sources of
unnecessary and vexatious costs and litigation.
This maxim has been used in various cases such as:-
1. Brij Mohan Lal v. Union of India
2. Birendra Singh v. State of Uttarakhand and others

RELATED CASES

Brij Mohan Lal v. Union of India3

Brij Mohan Lal v. Union of India and Ors. was filed in the High Court of Punjab Haryana
Chandigarh under Article 226/227 of the Constitution of India praying for issuance of a writ in
the nature of quo warranto and prohibition, requiring the respondents to stop the scheme and
policy of appointment of the retired District and Sessions Judges as ad hoc Judges of the Fast
Track Courts (hereinafter referred to as the FTCs) in the State Judicial Services.
It was also prayed in that petition that in order to maintain the standards of judicial system, the
scheme of appointing the retired Judges, as opposed to the regular appointment of Judges to
the posts of District and Sessions Judges from the members of the Bar or from the lower
judiciary, should be given up. The principal submission made in the writ petition was that the
constitutional scheme contained under Articles 233 to235 read with Articles 308 and 309 of
the Constitution do not contemplate and permit appointment of retired judges as ad hoc District
and Sessions Judges. Even otherwise, there is no constitutional provision which empowers the
authorities concerned to make such appointments. The purpose of this petition obviously was

3
(2012) 6 SCC 502
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to ensure that only the members of the Bar are appointed by direct recruitment to the post of
ad hoc District and Sessions Judges

JUDGEMENT
Keeping in view its constitutional duty, the constitutional rights of the citizens of the country
at large and with reference to the facts of a instant case, this court may be duty bound to amplify
and extend the arm of justice in accordance with the principle Boni judicis est ampliare
jurisdictionem. The arguments that matters of policy are, as a rule, beyond the power of judicial
review has to be dispelled in light of consistent view of the instant court.
In the case (Brij Mohan Lal versus Union of India), the Supreme Court instructed that one
shouldn’t disband FTCs overnight. Hence, the Union government approved Rs. 509 crore for
the 1,562 functional FTCs to continue till March 31, 2010, a deadline later extended till March
31, 2011. In 2012, in the Brij Mohan Lal case, the Supreme Court said, “The Union of India
has stated that it would not, in any case, finance expenditure of the FTC Scheme beyond 30th
March, 2011, but some of the States have resolved to continue the FTC Scheme up to 2012,
2013 and even 2016. A few States are even considering the continuation of the FTC Scheme
as a permanent feature in their respective States. This, to a large extent, has created an anomaly
in the administration of Justice in the States and the entire country. Some of the States would
continue with the FTC Scheme while others have been forced to discontinue or close it because
of non-availability of funds… Being a policy decision which has already taken effect, we
decline to strike down the policy decision of the Union of India vide letter dated 14th
September, 2010 not to finance the FTC Scheme beyond 31st March, 2011. The States which
wee in the process of taking a policy decision on whether or not to continue the FTC Scheme
as a permanent feature of administration of justice in the respective States are free to take such
a decision.”

Birendra Singh v. State of Uttarakhand and others4

Writ Petitioner 1 was posted as Platoon Sergeant at District Magistrate Office, Dehradun. Writ
Petitioner 2 is posted as Home Guard at the Nagar Nigam Force, Dehradun. The Uttar Pradesh
Home Guards Adhiniyam, 1963 (hereinafter referred to as the 'Act') came into force. The said

4
2015 SCC OnLine Utt 1809
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Act was adopted after the State of Uttarakhand came into force and it is applicable in the State
of Uttarakhand also.
The writ petitioners are being paid only a meager amount as honorarium to the extent of Rs.
400/- per day, although they are required to work against the duties mentioned above more than
eight hours a day. It is contended that the writ petitioners have been discharging their duties as
Home Guards and are also assigned to work like a police personnel and the similar duty at par
with the police personnel from time to time. They are to maintain traffic, control law and order,
assist police officers in the local police stations in their day to day work, discharge duties in
the court premises including the High Court.
3. In the counter affidavit filed by the first respondent in the writ petition, it is, inter alia, stated
as follows:
"The constable of the police department cannot be equated with the voluntary Home Guards as
their work and duty and responsibilities are different. It is further submitted that the work area,
duty, source of recruitment process, educational qualification etc. are all different. It is further
submitted that the State of Uttarakhand is a newly created State and the sources of revenue are
also limited.
The Home Guards are enrolled as volunteer and their duty is of assisting the police according
to the Uttar Pradesh Home Guard Act, 1963.
The Home Guard volunteers are paid the allowances on the basis of the per day duty done by
the concerned Home Guards. The sources of recruitment and the process of recruitment of the
police constable and the Home Guards are entirely different. Only on the basis of the duty done
by the Home Guards, the Home Guards cannot be granted the same emolument/salary like the
police personnel."
It is stated that all the volunteers are paid the allowances on the basis of the per day duty done
by the concerned Home Guards.
.

JUDGEMENT
In this case the learned Government pleader drew support from a maxim Boni judicis est
ampliare jurisdictionem. And the court in the judgement mentioned that ‘It is the duty of a
judge to extend this jurisdiction. This maxim, as above-worded and literally rendered, is
erroneous. Lord Mansfield suggested that for the word jurisdictionem, justitiam should be
substituted; and Sir R. Atkyns had previously remarked: “it is indeed commonly said Boni
judicis est ampliare jurisdictionem but I take that to be better advice which was given by Lord
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Chancellor Bacon to Mr. Justice Hutton upon the swearing him one of the Judges of the Court
of Common Pleas,-that he should take care to contain the jurisdiction of the Court within the
ancient mere-stones without removing the mark”. The true maxim of our law is “to amplify its
remedies, and, without usurping jurisdiction, to apply its rules, to the advancement of
substantial justice” the principle upon which our Courts act is, to enforce the performance of
contracts not injurious to society, and to administer justice to a party who can make his claim
to redress appear, by enlarging the legal remedy, if necessary, in order to do justice; for the
common law is the birthright of the subject and bonus judex secundum aequum et bonum
judicat, et aequitatem stricto juri praefert.

CONCLUSION
This maxim is to amplify the remedies and to apply its rules to the advancement of substantial
justice. It denotes that a good judge’s duty is to develop the remedies of the law.
If a party to the case drew support of the maxim Boni judicis est ampliare jurisdictionem, a
judge has the power to develop the remedies and to provide remedial justice.
If we set aside this illustration, in general court has the power to develop or to amplify the
remedies, even without the plea filed by the parties.
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Certum est quod certum reddi potest

The meaning of the maxim certum est quod certum reddi potest is that if something is capable
of being made certain, it should be treated as certain.
So where a deed identifies the parties in whose favor it is made, it is sufficient, though it does
not name them. (Gates v. Graham). So, when a rule for the commitment of a person did not
specify the sum for non-payment of which the commitment was ordered, but directed a referee
therein named to estimate it, it was declared, on the principle, id certum est, that the rule was
sufficiently definite in respect to the amount, for the referee's report, when filed and confirmed,
became part of the rule and the act of the court, (People v Nevins; People v Cavanaugh). Upon
the authority of this maxim, it has been held that rent, payable in wheat, is to be treated as a
liquidated demand (Van Rensselaer v. Jones), and so where rent, though
payable in cash, was subject to a deduction for repairs. (Smith v. Fyler)

Cases in which the maxim certum est quod certum reddi potest was used are:-
1. Ahmadasahab Abdul Mulla (D) by proposed LRs v Bibijan & Ors ;
2. Ramzan v. Hussaini and
3. Alopi Parshad v. Court of Wards

Related Cases

Ahmadasahab Abdul Mulla (D) by proposed LRs v Bibijan & Ors5

Challenge in this appeal is to the order passed by a learned Single Judge of the Karnataka High
Court allowing the Second appeal filed by the respondents under Section 100 of the Code of
Civil Procedure, 1908 (in short the 'CPC'). The present respondents are the plaintiffs. They had
filed the suit for specific performance of the contract on sale which was decreed by the trial
court but was dismissed on the ground of limitation by the first Appellate Court and therefore
the Second Appeal was filed.
The plaintiff No.1's husband entered into an agreement of sale of house property of Mudhol
for consideration of Rs.6,000/-. A sum of Rs.1000/- was paid and subsequently two sums of
Rs.300/- and Rs.600/- were paid. But in the mean time, a suit was filed by the defendant's wife

5
(2008)5SCC361
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and children, wherein the plaintiff's husband was made a party. questioning the agreement of
sale, and the suit came to be dismissed. Therefore the present suit is filed for specific
performance of agreement of sale.
The defendant contended that the suit house belonged to his deceased father and his deceased
father made an oral gift of the suit, property in favour of himself and his wife, and minor
children by delivery of possession. As he had no source of income to meet his family needs,
the deceased husband of the plaintiff promised to lend him money and the defendant agreed to
give the property as security. Under such circumstances he executed the suit agreement and
received loan from Modinsaheb. He has not parted with the possession. He further contended
that the suit is barred by limitation and the plaintiff was never ready and willing. Ultimately,
he resisted the suit by contending that the suit house is the only shelter for him and his family
members he cannot be directed to comply with agreement of sale.
The trial Court accepted the agreement as to the payment made thereon as correct, and holding
that the defendant is not a debtor within the meaning of the relevant Act, granted the decree for
specific performance rejecting the plea of non- joinder and loan raised by the defendant. The
appellate Court found that the trial court is right in accepting the case of the plaintiff regarding
the agreement and parting with the possession by way of part performance and also that no
hardship would be caused to the defendant by grant of specific performance as provided
under Section 20 of the Specific Relief Act, 1963 (in short 'the Act'). But on the ground of
limitation, holding that the pendency of the other suit will not save the limitation within the
meaning of section 14 of the Limitation Act, 1963 (in short 'Limitation Act') dismissed the suit.
The second appeal was admitted on the following questions of law:Whether the contention
taken that the cause of action for filing the suit arises only, when the other suit questioning the
title of his own wife and children6.
The High Court noticed that as held by the Madras High Court in Lakshminarayan's case
(supra) the time taken for redemption wherein the title deed was primarily involved has to be
excluded under Section 14 of the Limitation Act. It was held that no contra decision was cited
and, therefore, with reference to Section 113 of the Limitation Act, 1908 (in short the 'Old Act')
this suit was within time.
Learned counsel for the appellant submitted that the true import of Section 113 of the
Limitation Act has not been kept in view. Learned counsel for the respondent on the other hand
supported the order of the High Court.

6
Lakshminarayana Reddiar v. Singaravelu Naicker & Anr. AIR 1963 Mad.24
 18

It would be useful to set out the provisions of Article 54 before critically appraising the
arguments presented to us on both sides.
"Description of suit Period of limitation Time from which period begins to run
For specific Three years The date fixed performance of a contract for the performance, or, if
no such date is fixed, when the plaintiff has notice that performance is refused."
Though, at first blush, it may appear that the use of the expression "date" used in this article of
the Limitation Act, 1963 is suggestive of a specific date in the calendar, we cannot forget the
judicial interpretation of this expression over a long period of time. Different High Courts took
different views of the matter, which has been a subject-matter of controversy. Some interpreted
the expression strictly and literally, while others have taken an extended view.
In Kashi Prasad v. Chhabi Lal the High Court dealing with Article 113 of the Limitation Act,
1908, which was in pari materia with Article 54 of the Schedule to the Limitation Act, 1963,
took the view that the force of the word "fixed" implies that the date should be fixed definitely
and should not be left to be gathered from the surrounding circumstances of the case. It must
be a date clearly mentioned in the contract whether the said contract be oral or in writing.
The judgment of the Allahabad High Court in Kashi Prasad was approvingly referred to and
followed. This judgment was taken in appeal before the Privy Council and approved by the
Privy Council in Lala Ram Sarup v. Court of Wards.
In Ramzan v. Hussaini7 a suit was filed for specific performance of a contract of sale in respect
of a house. The property was mortgaged and according to the plaintiff, the defendant had agreed
to execute a deed of sale on the redemption of the mortgage by the plaintiff herself, which she
did in 1970. In spite of her repeated demands, the defendant failed to perform his part, which
resulted in a suit being filed. The question that arose before this Court was whether the
agreement was one in which the date was "fixed" for the performance of the agreement or was
one in which no such date was fixed. This Court answered the question in the affirmative by
holding that, although a particular calendar date was not mentioned in the document and
although the date was not ascertainable originally, as soon as the plaintiff redeemed the
mortgage, it became an ascertained date. This Court also agreed with the view expressed in the
Madras High Court in R. Muniswami Goundar and held that the doctrine id certum est quod
certum reddi potest is clearly applicable. It also distinguished Kruttiventi Mallikharjuna Rao
and Kashi Prasad as cases that arose out of their peculiar facts.

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 19

28. In Tarlok Singh v. Vijay Kumar Sabharwal the parties by agreement determined the date
for performance of the contract, which was extended by a subsequent agreement stipulating
that the appellants shall be required to execute a sale deed within 15 days from the date of the
order vacating the injunction granted in a suit. The suit was initially dismissed and, thereafter,
a review application was also dismissed as withdrawn on 22- 3-1986. On 23-12-1987 a suit
was filed for perpetual injunction. In that suit, an application came to be made under Order 6
Rule 17 CPC for converting it into a suit for specific performance of an agreement dated 18-8-
1984. This amendment was allowed on 25-8-1989. It was held that since the amendment was
ordered on 25-8-1989, the crucial date for examining whether the suit was barred by limitation
was 25-8-1989. Since the injunction was vacated when the original suit was initially dismissed
and the review application came to be dismissed on 22-3-1986, it was held that it was a situation
covered by the first part of Article 54 and, in any event, on 25-8-1989 the suit was barred by
limitation."
6. This court took the view that judgments of different High Courts have taken different views
and were at variance with the decision of the Privy Council. However, in view of the decisions
in Ramzan v. Hussaini (1990(1) SCC 104) and in Tarlok Singh v. Vijay Kumar
Sabharwal (1996(8) SCC 367) there was no necessity to go into the larger issue as the plaintiffs
were entitled to succeed in that case in altogether on different grounds.
7. It appears from the judgment in S.Brahmanand's case (supra) this court felt that there was a
need for clarifying legal position. But declined to refer the matter to a larger Bench because of
the different factual scenario and the fact that the decisions were holding field for long time
and there were decisions of the co-ordinate Bench of two Hon'ble Judges taking a particular
view.
8. In view of the importance of the issues involved, we feel it would be proper if this case is
heard by a Bench of three Hon'ble Judges. We, therefore, refer the matter to a larger Bench.
The records be placed before the Hon'ble Chief Justice of India for necessary direction
Ramzan v. Hussaini8
In Ramzan v. Hussaini a suit was filed for specific performance of a contract of sale in respect
of a house. The property was mortgaged and according to the plaintiff, the defendant had agreed
to execute a deed of sale on the redemption of the mortgage by the plaintiff herself, which she
did in 1970. In spite of her repeated demands, the defendant failed to perform his part, which
resulted in a suit being filed. The question that arose before this Court was whether the

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 20

agreement was one in which the date was "fixed" for the performance of the agreement or was
one in which no such date was fixed. This Court answered the question in the affirmative by
holding that, although a particular calendar date was not mentioned in the document and
although the date was not ascertainable originally, as soon as the plaintiff redeemed the
mortgage, it became an ascertained date. This Court also agreed with the view expressed in the
Madras High Court in R. Muniswami Goundar (supra) and held that the
doctrine id certum est quod certum reddi potest is clearly applicable. It also distinguished
Kruttiventi Mallikharjuna Rao (supra) and Kashi Prasad (supra) as cases that arose out of their
peculiar facts.
Alopi Parshad v. Court of Wards
In Alopi Parshad v. Court of Wards also the Court was concerned with Article 113 of
the Limitation Act, 1908. A suit for specific performance was brought on an agreement of sale
where the time for performance of the contract was "after passing of a decree". Though no date
for performance was fixed for the agreement, the trial court had opined that time must be held
to have begun to run from the date on which the decree was passed in view of the
maxim id certum est quod certum reddi potest ("That is sufficiently certain which can be
made certain".) The Lahore High Court was of the view that statutes of limitation must be
strictly construed and that the respondents before it had failed to bring a case specifically within
the purview of the first part of Article 113 and that the case did not fall within the first part but
fell within the second part of Article

BIBLIOGRAPHY
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3. https://www.scconline.com/
DICTIONARY
Merriam Webster