Hari Lal Agrawal, J.:— This appeal is by the plaintiffs who had instituted a suit for specific performance of a contract for sale of certain lands against defendants first and second parties. The properties in question are described in Schedules 3 and 4 to the plaint. They also claimed a decree for Rs. 1000 as damages on account of the non-fulfilment of tile contract by the defendants. The agreement for sale of the lands in question was executed between the defendants first and second parties who are the principal defendants and the defendants third and fourth parties who have been in pleaded as proforma defendants, on 7-9-1963. The agreement was for sale of 471 acres of raiyati land situate in village Manpura appertaining to khaki No. 493 which is on the fringe of the town of Patna and is fully described in Schedule 2 of the plaint. The said land belongs to the four sets of defendants, each having 1/4th share in the same. The total consideration for the transaction was Rupees 91,932/- out of which a sum of Rupees 4,000/- was paid by the plaintiffs on the date of the execution of the deed of agreement on 7-9-1963, itself. The sale deed was to be executed by 31-12-1963.

2. According to the allegations made in the plaint which are not disputed, all the four sets of defendants are descendants of one Lakhraj Mahton and they formed four separate branches. According to the plaintiffs' case, defendant No. 1 is the Karta of the first branch, defendant No. 4 of the second branch and defendant No. 6 of the third branch. Defendant fourth party is only, one Mossommat Dukhni (defendant No. 12) who was the one member of her branch.

The further case of the plaintiffs is that none of the defendants took any initiation till 29-12-1963 and thereupon they sent a telegram to them on 30-12-1963 followed by a registered letter, calling upon them to execute the sale deed within the stipulated fame, i.e, 31-12-1963, but none of the defendants paid any heed and when they learnt that the plaintiffs were contemplating to file a suit they (defendants) requested them by a letter dated 5-5-1964 to purchase necessary stamps. The plaintiffs accordingly purchased necessary stamps and drew up the draft of the sale deed and after the draft was examined by defendant No. 6 and shown to the other defendants concerned, the sale deed was drawn up on the stamp paper.

The plaintiffs' further case is that the defendants were themselves responsible for the delay as certain mutation proceedings were pending, whereas they (plaintiffs) were always ready to perform their part of the contract. However, on 18-8-1964 save and except defendants third party, the other defendants did not turn up to execute the sale deed. The plaintiffs paid them their shares of the consideration and the sale deed was presented for registration before the District Sub-Registrar, Patna. Subsequently defendant No. 12 also executed the sale deed on 7-9-1964 and received her share of the consideration. The other defendants, however, did not turn up to execute the sale deed and accordingly the plaintiffs bad to file the suit.

8. The suit was contested fey all the major defendants, namely, defendant Nos. 1 and 2 of the first set and defendant Nos. 4 and 5 who were the defendants second party. Defendant No. 3, the minor son of defendant No. 2 did not appear and was represented by a guardian ad litem. One Gopal Krishna, claiming him self to be a minor son of defendant No. 5, was added as an intervenor defendant (defendant No. 13). The plaintiffs' case with respect to this intervenor defendant was that he was not the son of defendant No. 5 and, if at all, he was not born on the date off the contract. The minor defendants pleaded that the agreement for sale in question was executed without any legal necessity and accordingly was not enforceable against them.

4. The contesting defendants mentioned above who filed a joint written statement, set out a large number of defence, inter ilia, that the plaintiffs themselves were an default and not ready and willing to carry out their part of the contract in spite of demands, presumably for want of fund. It was specifically stated by them that they were land brokers on 31-12-1963, the date mentioned for execution of the safe deed, was of the essence of the contract and on the failure of the plaintiffs they became liable to forfeiture of the advance amount and rescission of the contract. They denied the allegations of the plaintiffs that they were evading or delaying the execution of the sale deeds.

5. On the above pleadings of the parties, the trial court framed the following issues:

1. Is the suit as framed maintainable?

2. Have the plaintiffs any cause of action for the suit?

3. Is the suit properly valued and the court-fee paid sufficient?

4. Is the contract for sale dated 7-9-1963, any longer enforceable against the contesting defendants for purposes of specific performance?

5. Is Gopal Krishna the son of Laliteshwar Prasad Singh and is the and for that matter the other minor defendants, Abound by the contract?

6. Are the plaintiffs entitled to a decree for Rs. 1,600/- as damages?

7. To what reilef or reliefs, if any, are the plaintiffs entitled?

The main issues were issue Nos. 4 and 5. The plaintiffs examined five witnesses and the defendants examined thirteen witnesses in support of their respective cases beside one Sharda Devi, wife of defendant No. 5, who was examined on com-mission. A large number of documents were also filed by the parties. The learned Subordinate Judge, on the materials produced in the case, recorded the following findings:

1. The plaintiffs were not really earnest to fulfil their obligation.

2. Time was of the essence of the contract and, therefore, the plaintiffs being defaulters were not entitled to the relief of specific performance of the contract in question.

3. Gopal Krishna, defendant No. 13, was in existence at the time the agreement for sale in question was executed and the transaction being not for any legal necessity, was not binding on the minor defendants, namely, defendant Nos. 3 and 15.

He accordingly dismissed the suit.

6. Three questions, therefore, primarily arise for decision by this Court, on the arguments advanced before us, namely (1) whether the plaintiffs were ready and willing to perform their part of the contract, (2) whether time was of the essence of the contract, and (3) whether the contract an question was enforceable also against the minor defendants.

7. So far as the third question, namely, as to the binding nature of the contract on the minor defendants, viz., defendants 3 and 15, is concerned, it was contended by learned Counsel for the appellants that the question, if at all, could be raised by the minors in an independent and properly constituted suit and could not be agitated in this suit. I do not propose to record any concluded opinion on this question as Mr. Prabha Shanker Mishra, who appeared as senior counsel representing the minor respondents conceded that this question may be left open to be agitated by the minors in a properly constituted suit in case this Court ordered or specific performance of the contract by the contesting defendants. In this view of the matter, I would set aside the finding recorded by the learned trial Judge with respect to the absence of legal necessity for the transaction of sale in question, leaving it open so that the minor respondents advised to file a separate suit, may impugn the sale of the properties by their guardians as being not supported by legal necessity and binding on them.

8. With respect to the other two questions just referred to above, in my view, the answer to the first question and its significance will very much depend upon the answer to the second question. In other words, if time is held to be of the essence of the contract, then alone the first question would assume some importance; otherwise it will lose its importance. I will, therefore, first proceed to answer the second question, namely, as to whether time was of the essence of the contract. This at once necessitates to first refer to the agreement for sale itself which has been marked Ext. 1 in this case. The reasons for selling the lauds in question, as stated in this document are that it was situated at quite a distance from the residence of the executants which always caused inconvenience and botheration to them and they were also in need of money for payment of some oral loan, repair of house, performance of the marriage of daughter and for education and looking after of the minor children. These grounds, however, in view of the third question being left open, are not of any importance for the present purpose. I may now state the other relevant items in seriatim.

(1) “Mamla bai ke hone men kuch samay ki darkar hai”.

(2) “Muqiran …… wasiqa bai banisbat erazi motsarhe bala ta tarikh 31 December 1963 banam who bahaq muqir aleh tahrir wo tamil karunga.”

(3) “Ba waqt tahrir wo tamil wasiqa bai, zar bai beyana, zar summon men minha hoga wo baqia zar summon naqd muqir aleh se wasool pawenge.”

(4) “Baqia zar summon moblig 87,932/- wasiqa bai ba nisbat erazi motsarhe bala tarikh 31 December 1963 man muqiran se tahrir wo tamil nahi kara lenwen to waise surat men moblig 4,000 rupiya bai beyana go rafta man muqiran sokht ho jayega.”

(5) “Muqir aleh mausoof batarikh 30 mah September 1963 bai beyana ke elawah moblig 6,000 rupiya aur bhi ba akhaz rasid man muqiran ko adaya kama hoga wo adaye kama paband hain wo honge.”

(6) “Muqir aleh kharidar …. chand ashkbas ke naarn men chha martaba kar ke registry karawen to man muqiran ko usmen kuchh uzur wo itaraz na hoga.”

(7) “Rupiya ba akhaz rasid wo bai beyana ka rupiya akhri bai ke kagaz men mojra hoga.”

9. From the above stipulation it is evident that the defendants themselves foresaw that some time was required for completion of the transaction and it was left open to the plaintiffs, if they so desired, to get as many as six sale deeds executed from the defendants in names of persons different from themselves. Defendant No. 2 who examined himself as D.W 2, has stated in his evidence that the plaintiffs were brokers of land and taking of sale deeds in their own names was not their intention as they had the mind to get the deeds in the names of their vendees. The plaintiff No. 1 who examined himself as P.W 5, however, contradicted this case of the defendants and said that the lands in question would have been purchased in his name and in the names of his brothers and Hari Narain (plaintiff No. 2). He has further said that time was not of the essence of the contract to his estimation.

The bulk of the evidence in this case as adduced by both sides is directed towards the other question, namely, as to who was actually in default. I would, therefore, refer that aspect of the evidence hereinafter. But the defendants have not led any evidence as to whether on account of the failure of the plaintiffs to take the document within the stipulated time, any of the purposes mentioned by them in the agreement in question had in any way been frustrated or, for that matter, they had to make any alternative arrangement for carrying out the said purposes.

10. So far the legal position is concerned, the rule of equity which is now the general rule of English Jurisprudence, is to look at the whole scope of the transaction to see whether the parties really meant the time named to be the essence of the contract. This principle is fully engrafted in Section 55 of the Indian Contract Act. The position in law is that even where the time is not of the essence of the contract, the court may infer that in the circumstances of the case it has to be performed within a reasonable time, and it will depend upon the intention of the parties which has to be ascertained (1) from the expressed stipulation of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances. I may at this stage itself observe that there are a large number of decisions to hold that where there is nothing in the surrounding circumstances from which such an intention can be inferred, the fact that the contract is for the sale of land does not import such an intention and the mere fact that a date has been mentioned for the purpose of the agreement does not conclusively prove that time was intended to be of the essence of the contract. Further, whether time is of the essence of the contract or not, very much depends upon the nature of the property, upon the construction of the contract and upon the objects which the parties had in entering into it. In equity, if the contract relates to sale of immoveable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default, does not by itself evidence an intention to make time of the essence. Reference in support of these propositions can be at once made to a decision of the Supreme Court in the case of G. Pillai v. Palani Swami, (AIR 1967 SC 868). It is in this background that the case in hand has to be examined.

Then there are also two well settled propositions in law, namely, (1) When the time was not originally of the essence of the contract, it could be made so by a later notice, either before or after the day named in the contract requiring completion by a particular day, if time allowed is reasonable. The question of reasonableness, however, must be determined as on the date when the notice is given, as the time specified by the notice must be reasonable in the sense that enough time should be given to the other party for the doing of the things required in a proper manner. (2) If time is of the essence of the contract, that may be waived by the conduct of the parties.

11. Having thus examined the position in law, let us now examine the relevant facts and the circumstances which may have a bearing on the question. I may first briefly notice some of the facts of the above Supreme Court case. In that case on March 5, 1959, the appellants 1 and 2 had verbally agreed to sell certain landed properties to the respondent for certain sum. A part of the consideration was also received. No time, however, was fixed for completion of the sale. Later on, on 4th April, the appellants received Rs. 2,000/- from the respondent and executed agreement in writing stipulating that the sale deed would be executed on or before April 15, 1959. The agreement also incorporated a default clause imposing a penalty on the party failing to carry out the terms of the contract. The sale deed was not executed, by April 15, 1959. Different reasons were given by the parties for not completing the same. Appellants 1 and 2 then addressed a letter to the respondent on July 30, 1959, stating that time was of the essence of the agreement and since the respondent had failed twice to carry out the agreement, the agreement stood cancelled and the amount paid by the respondent stood forfeited. The respondent then informed them that time was not of the essence of the contract and lip was ready and willing to carry out his part, calling upon the appellants to execute the sale deed within three days. Ultimately on their failure he instituted the suit. The trial Judge dismissed the suit holding that time was of the essence and the respondent was never ready and willing to perform his part of the contract. On appeal the High Court reversed the decree on the finding that time was not of the essence. When the matter came to the Supreme Court it was observed, relying upon the decision of the Judicial Committee in the case of Jamshed Kodaram Irani v. Burjorji Dhunjibhai (AIR 1915 PC 83), that “under that law equity which governs the rights of parties in cases of specific performance of contract to sell real estate, looks not at the letter but at the substance of the agreement” and “prima facie equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin a specific performance notwithstanding that from the point of view of a court of law the contract has not been literally performed by the plaintiff as regards the time limit specified”. The learned Judges of the Supreme Court further observed that the surrounding circumstances to displace the ordinary presumption that in a contract of sale of land, stipulation as to time is not of the essence should be there and they found that in the case before them there was neither any express stipulation nor were the circumstances such as to indicate that it was the intention of the parties that time was of the essence of the contract. They also took into account the absence of any notice being served by the appellants making time of the essence, calling upon the respondent requiring him within a reasonable time fixed thereby to carry out the terms. Bachawat, J., who gave his separate judgment, has observed that the finding with regard to the readiness and willingness of the respondent was linked up with the finding that the time was of the essence of the contract. A similar view was taken by a learned single Judge of the Rajasthan High Court in the case of Pakhar Singh v. Kishan Singh (AIR 1974 Raj 112).

12. Courts have also laid down the view in several cases, with which, however we are not very much concerned on the facts of the present case, that although where time is not of the essence of me contract, unreasonable delay and laches on the part of the plaintiff would disentitle him to get the relief, as granting of relief under Section 22 of the Specific Relief Act was discretionary. Mr. Balbhadra Prasad Singh appearing for the respondents had, however, cited before us the case of Rameshwar Prasad Sahi v. Mossomat Anandi Devi (ILR 39 Pat 79) : (AIR 1960 Pat 109). In that case the plaintiff who had brought his suit for specific performance after undue delay and remained inactive for about 12 months from the date of the contract was held to be disentitled for the relief as the delay amounted to an abandonment of the contract and waiver of his right to sue for specific performance. The facts of the present case are, however, quite distinguishable which have already been partly stated and the other relevant parts thereof indicating the seriousness and continued insistence, efforts and activities performed by the plaintiffs, will foe stated hereinafter.

13. Therefore, the circumstance that a time-limit followed by a default clause was fixed in the agreement for sale in question (Ext. 1), cannot be regarded as a positive element to conclusively hold that the parties intended that it must be literally performed within the time-limit specified i.e, 31-12-1963.

14. Now let us examine the other stipulations and the surrounding circumstances as to whether the ordinary presumption was displaced and on their consideration it can be safely held that time was of the essence.

In my view, the stipulations and the surrounding circumstances are rather pointer just to the contrary. In other words, instead of rebutting the ordinary persumption they support it. I may once again refer to them. Firstly, the defendant-vendors themselves said in the agreement that some time was necessary for completing the transaction. The names of the different branches had not been separately mutated and according to the plaintiffs' case they had to take steps for splitting up the Jama and get themselves separately mutated according to the different branches. The court below has not accepted this part of the plaintiffs' case in the absence of sufficient materials and, therefore, I will also not take very much assistance from this part of the plaintiffs' case, but may refer to other circumstances which have been found as a fact.

Secondly the defendants knew that the plaintiffs were brokers in land and permitted the plaintiffs to find out purchasers and get sale deeds executed by them directly in the names of their purchasers at their choice. D.W 2 has clearly stated that taking sale deeds in the names of different members of plaintiffs' family was not their intention. He has further said in his evidence that the plaintiffs had given out that they had not fixed up purchasers and had no ready cash money and that the defendants had apprehensions in their mind on this account. This factor is also very important as the defendants were clearly given to understand that the plaintiffs were not themselves inclined to take the sale deeds in their own name and block their own money. In these circumstances, i.e, the plaintiffs' finding out purchasers for the entire land was bound to take indefinite time.

A situation of uncertainty, therefore, was already well understood and known to both the sides. Then D.W 2 has further said in his cross-examination that the necessities mentioned in the agreement for sale, namely, house repairs, marriage of daughter and educational expenses etc. of children were wrongly incorporated. From this statement also it is evident that the defendants were not in any urgent need of money which could have impelled them to intend to make time of the essence of the contract failing which their purpose for disposing of the lands would have been frustrated. Then again, when the plaintiffs did not pay the sum of Rs. 6,000/- which was to be paid by the 30th of September, 1963, the defendants did not treat that as a default on the part of the plaintiffs.

The facts and circumstances discussed above in my view, as already said earlier, instead of rebutting the ordinary presumption that time was not of the essence of the contract for sale of immoveable property, lend support to the said presumption and, therefore, as observed by their Lordships of the Privy Council in the case already noticed earlier, the time-limit fixed in the agreement in question was subordinate to the main purpose of the parties.

15. Now let us see as to whether it was made so later on. The first document that has been brought on the record in this regard by the defendants is a pleaders notice dated 26-12-1963 (Ext. D) and that was on behalf of defendants 1, 2, 4, 5, 6 and 12. The plaintiffs, however, denied the receipt of this notice. D.W 2 has also admitted that defendant No. 6 Ram Prakash Singh, a member of the defendants third party, was the eldest among them. This notice also states that earlier a telegram notice was sent by the defendants on 23-12-1963. A copy of the telegram which was proved by D.W 2 has been marked Ext. E and purports to have been sent by defendant No. 6 to plaintiff No. 1 but no date appears from the said document nor the connecting postal receipt appears to have been filed in this case. However, it was a deal for about Rs. 92,000/- and the necessary stamps for drawing up the sale deed were to be purchased from the treasury. During the period when the telegram or the pleader's notice is issued, there were also various public holidays such as the Christmas and fast year's closing day etc. Therefore, the time allowed by the defendants to the plaintiffs cannot be said to be reasonable in the sense that enough time was given to the plaintiffs for the doing of things required in proper manner namely, purchasing the stamps, getting the document, scribed, executed an registered by finding out ready purchasers to purchase the lands in question as, according to the definite case of the defendants, the plaintiffs were not to invest their own money and take the sale deeds for their ownselves but were to sell it to others and make some profit out of the transaction. I would, therefore, further hold that the defendants have also failed to prove that time was made of the essence by the notice in question.

16. The plaintiff No. 1 who has examined himself as P.W 5, stated that the plaintiffs had the necessary funds and demanded execution of the sale deed but it were the defendants who went on putting off the same on some or other pretext and, therefore they sent a telegram on 30-12-1933 to each of the four sets of the defendants and thereafter they had sent a pleader's notice (Ext. 6.e). The court below in paragraph 20 of its judgment has attributed the despatch of this notice as a counter-blast to the telegram and the notice sent by the defendants. The plaintiffs also filed a copy of the telegram (Ext. 11) dated 30-12-1963 addressed to the defendants asking them to execute the document within the stipulated time on payment of the consideration failing which legal action would be taken. To this part of the case of the plaintiffs the evidence of D.W 2 is that on receipt of the above notice they sent a telegram (Ext. F/1) to fee plaintiffs that since 31-12-1963 and 1-1-1964 were holidays, they would be in the office of the District Sub-Registrar, Patna, on 2-1-1964 for execution of the sale deed, and, according to his evidence they accordingly remained present on 2-1-64, in support of which fact the defendants have also filed a copy of the petition (Ext. H) which was filed by them in the office of the Sub-Registrar showing their presence but the plaintiffs did not turn up.

The plaintiffs' case, on the other hand, is that the defendants did not give any reply. The plaintiffs' further case however, is feat in spite of all the notices the defendants did not become agreeable and allowed the time to pass away and therefore, another Advocate's notice dated 10-12-1964 (Ext. 6.f) was sent by them to fee defendants calling upon them to perform their part of the contract, failing which a suit for specific performance would be instituted. A reply dated 5-3-1964 (Ext. D/1) was given on behalf of defendants Nos. 1, 2, 4, 5 and 12 refuting the plaintiffs' allegation and stating feat fee bai-beyana amount stood already forfeited on account of the plaintiffs' default. The plaintiffs thereafter received a letter dated 5-5-1964 (Ext. 2) written by defendant No. 6 addressed to the father of plaintiff No. 1 to purchase the necessary stamps for execution of fee sale deeds by them, stating “Ham log khet likhne ko taiyar hain”. It was thereafter that the necessary stamps were purchased by fee plaintiffs soon thereafter on 14-5-1964 the sale deeds were scribed to be executed on behalf of all the four sets and were presented for registration on 18-8-1964, but were executed only by two sets of the defendants, as already said earlier. With respect to this letter, D.W 2 has said in his evidence that it was sent by defendant No. 6 and not on behalf of the contesting defendants and that defendants Nos. 6 and 12 had gone in collusion with the plaintiffs. We have seen that Ram Prakash Lal was the eldest member of the defendants' family and it is not possible to accept this part of the defendants' case feat he had gone in collusion with the plaintiffs. The letter (Ext. 2) therefore, not only supports the case feat time was not of essence but also amounts to a complete waiver of the defendants' case that time was of the essence of the contract and on its expiry they were entitled to forfeit the bai beyana amount in any view of the matter. Although I have specifically held that time was not of the essence, this circumstance would have also gone against the defendants even if I would have taken, a contrary view for granting the relief.

17. Having thus cleared the deck for answering the first proposition, namely, as to whether the plaintiffs were ready and willing to perform their part of the contract, as I have aleady said earlier, the importance of that question was linked up with the finding of the other question. The plaintiffs, on the facts indicated above cannot be said to be guilty of any undue delay or inaction and thereby deemed to have abandoned the contract in question, particularly when the sale deed duly drawn up on the requisites stamp duty purchased on 14-5-64 for the whole transaction, was filed to be executed by the contesting defendants as well and were executed only by two sets of them. In my opinion, therefore, the plaintiffs have made out a case where a decree for specific performance of the remaining part of the contract against defendants first and second parties ought to be granted in their favour. I will accordingly set aside the judgment and decree of the Court below and allow this appeal. The principal defendants are directed to execute the sale deeds in question within a period of three months from today on receipt of their proportionate quota of the amount of consideration from the plaintiffs. It is further ordered that if the defendants fail to carry out the above direction, the trial court will execute the same in favour of the plaintiffs in respect of the lands covered by Schedules 3 and 4 to the plaint in accordance with law, and order delivery of possession thereof.

18. I would, however, reject the claim of the plaintiffs for damages as they are likely to be adequately compensated and benefited due to manifold rise in the price of the lands during the intervening period. For the same reason, I would also disallow any cost either of the suit or this appeal in their favour.

Chaudhary Sia Saran Sinha, J.:— 19. I agree. I would however, like to add one more circumstance in favour of the plaintiffs' case that time was not essence of the contract. The four sets of the defendants hailed from a common ancestor namely Lekhraj Mahton. In spite of the expiry of the time-limit fixed for the execution of the sale deed, that is to say, 31-12-1963, and the undisputed rise in the price of lands in the period intervening between 31-12-1963 and August/September of the year 1964 when the two sets of defendants executed the sale deed in favour of the plaintiffs, the latter namely defendants 3rd party and 4th party executed the sale deed in favour of the plaintiffs as initially agreed. It was a circumstance against the case of the contesting defendants that time was the essence of the contract and to explain the same it was stated in the written statement filed on behalf of defendants 1, 2, 4 and 5 that the plaintiffs had been wooing the pro forma defendants namely defendants 3rd party and 4th party since their failure to complete the sale deed by 31-12-1963 and ultimately they had succeeded in bringing them in their collusion by bribery and graft. It was also stated that the family of the pro forma defendants Ram Prakash Singh had always been actuated by malice of animosity against the contesting defendants. Although D.W 2 made a bald statement in his evidence that Ram Prakash Singh and Most. Dukhni were in collusion with the plaintiffs, which has been denied by P.W 3 Deep Narain Sinha, one of the plaintiffs, he (D.W 2) did not give any reason as to why these two defendants would come in collusion with the plaintiffs against their own interest. D.W 2 did not state in his evidence a word about defendant Ram Prakash Singh being actuated by malice or animosity against the contesting defendants. This apart, on the own showing of the contesting defendants we find Ram Prakash Singh sending the notice (Ext. D) on behalf of defendant No. 2 also which does not fit in with the story of his (Ram Prakash Singh) being actuated by malice or animosity against the contesting defendants. True it is that at the earlier stage Ram Prakash Singh gave a notice to the plaintiffs about the agreement being treated as cancelled after the expiry of the due date but the possibility is that on getting reply from the plaintiffs he might nave realised the actual state of affairs. Thus the action of defendant Ram Prakash Singh and defendant No. 12 in executing the sale deed even after the expiry of the time fixed in the agreement indicates that time was not the essence of the contract.

Appeal allowed.