1. This appeal arises out of a suit for specific performance of a contract for the sale of a malguzari village in the Wardha District. The plaintiff, who is an agriculturist of the Yeotmal District in Berar, is the intending vendee, and he claims, as an alternative to specific performance, a refund of Rs. 10,000 paid by him to the defendant, with interest thereon. The defendants is a banker and landlord, resident at Jubbulpore, and carrying on business and holding property there and in numerous other places. On his behalf the claim for specific performance was contested on the ground that the contract had gone off owing to the default of the plaintiff; and in respect of the alternative relief it was pleaded that the defendant is entitled to retain Rs. 2,000 of the Rs. 10,000 paid to him as being earnest money forfeited by the plaintiff. The Court below has refused to order specific performance, and has given the plaintiff a decree for a refund of Rs. 10,000 without any interest thereon. In its judgment it has ordered that the plaintiff should pay all the costs of the suit, but in its decree it has thrown part of the costs on the defendant. The defendant has made the present appeal upon the following grounds:—

(1) That a sum of Rs. 2,000 should have been held as forfeited by the plaintiff to the defendant.

(2) That the Pleader's fee has been incorrectly calculated in the decree of the lower Court.

(3) That part of the costs have wrongly been thrown on the defendant.

2. In answer to this appeal the plaintiff has filed a cross-objection, re-asserting the claim made in the plaint for specific performance. The appeal and cross-objection were heard together, and this judgment will govern the disposal of both of them.

3. The original contract between the parties is embodied in Exhibit D-r, the substance of which is as follows:— Agreement between Paikaji Kunbi of Pipalapur in the Yeotmal District of Berar and Diwan Bahadur Ballabhdas of Jubbulpore through his firm at Hingan-ghat for the purchase by the former from the latter of the malguzari village of Pardi, No. 215 of the Hinganghat Pahsil in the Wardha District, for Rs. 31,000 subject to the following conditions:—

(1) Paikaji to pay the Rs. 31,000 thus:—

(a) Rs. 2,000 to be paid into the defendant's shop at Hinganghat on

(b) Rs. 19,000 to be paid into the same shop on Chaitra Sudi 15, Sambat 1969 (1st April 912 A.D) upon which payment the seller is to execute a deed conveying to the purchaser the whole village, including the cultivating right in the sir land, formal permission for the sale of which it was the duty of the seller to obtain previously, and

(c) The balance of Rs. 10,000 to be payable on Fagun Sudi 15, Sambat 1969 (22nd March, 1913 A.D); and for this sum the purchaser will execute in favour of the seller a mortgage of the village, including the cultivating rights in sir land, binding himself to pay the money on the above date with interest thereon at 8-annas per cent, per mensem, to be compounded in case of default. Sanction to mortgage the sir land will be obtained by the purchaser.

(2) The sale-deed and mortgage-deed to be executed upon payment of Rs. 21,000 in all by the 1st April, 1912; the seller to deliver possession of the sir and khudkasht lands on Chaitra Sudi 1st Sambat, 1969 (23rd March, 1912) after he had gathered his kharif, rabi and unhari crops of Sambat 1968, and to deliver possession of the residue of the village on payment of the price and execution of the sale-deed.

(3) The purchaser agrees to pay the seller cash for all outstandings due to the latter by the tenants of Pardi on book dealings, arrears of rent, bonds, decrees, grain and all other dealings, and take over the same as his own outstandings, the cash payment being made on the

(4) The seller to take all the crops and profits and pay the revenue for Sambat 1968, and the purchaser's rights and liabilities to begin with the Sambat year 1969.

(5) The purchaser to buy such bullocks, grain, and other movable property of the seller at Pardi which the latter may wish to sell, and pay for the same separately.

(6) If Rs. 19,000 are not paid at the stipulated time and the purchaser does not take the village of Pardi, he shall forfeit the Rs. 2,000 paid as earnest money.

4. In conclusion Nos. 5 and 112 area 51.42 acres rented at Rs. 43-8-0 standing in the name of Kanhaiyalal are excluded from the contract above made.

5. This agreement is duly stamped, and is dated the 23rd September, 1911. It is in the usual unilateral form as an agreement by Paikaji in favour of Diwan Bahadur Ballabdas, it is signed by Paikaji and attested by three persons, namely, (1) Lakhmichand, (2) Damodar and (3) Gopal. It will thus be seen that the plaintiff was required to act as follows:

(1) to pay Rs. 2,000 both as part payment and as an earnest of the contract on the 30th September, 1911;

(2) to pay Rs. 19,000 towards the price of the village, and such further sum as might be necessary to buy up the defendant's outstandings in Pardi on the 1st April, 1913, and to execute on that date a mortgage of the village, including the sir land, for Rs. 10,000 payable on the 22nd March, 1913, with interest at 8 annas per cent, per month, being the balance of the purchase-money, and for this purpose to obtain sanction from the Revenue authorities for including the sir land in the mortgage.

6. The defendant was required

(1) to obtain Government sanction to the sale of his occupancy rights in the sir land;

(2) to deliver to the plaintiff possession over the sir and khudkasht lands on the 1st day of Sambat 1969, which corresponded with the 19th March, 1912;

(3) upon payment of Rs. 19,000 on the 1st April, 1912 in addition to Rs. 2,000 paid on the 30th September, 1911, to execute a formal deed conveying the entire village to the plaintiff, and to give him complete possession thereof, subject to his execution of a mortgage as stipulated for the Rs. 10,000 of the price still unpaid. These being the mutual undertakings it is now necessary to see how they were carried out. There is no exaggeration in saying that neither party performed any single one of the parts they undertook to perform, as will appear from the following history of events:—

1. On the 30th September, 1911 the plaintiff paid nothing.

2. On the 7th October, 1911, the plaintiff paid Rs. 115 in cash for which he obtained a receipt in which the money is described as earnest and in part payment of the price of Pardi. At the same time the plaintiff pledged certain ornaments with the defendant's firm. (Vide Exhibit P-i).

3. On the 21st November, 1911 the plaintiff paid Rs. 1,000 to the defendant's Hinganghat firm and redeemed the pledged ornaments. He was given a receipt in which the Rs. 1,000 are described as part price of village and earnest. (Vide Exhibit P-2).

4. On the nth February, 1912 the plaintiff paid to the same firm Rs. 8,885 and obtained a receipt showing this money to have been a further part payment of the price of Pardi. (Vide Exhibit P-3). These three payments complete the Rs. 10,000 which is all that the plaintiff paid.

5. The defendant delivered possession of the sir and khudkasht land to the plaintiff on the 19th March, 1912, but, according to the plaintiff, his agents resumed it forcibly before the time arrived’ for ploughing and sowing the land.

6. The plaintiff failed to pay the money required from him under the agreement on the ist April, 1912, namely, another Rs. 11,000 necessary to make up Rs. 21,000 on account of the price, plus an unascertained sum, afterwards said to have been Rs. 10,000, required to buy out the defendant as the village banker and money-lender.

7. The plaintiff had apparently anticipated this failure and seems to have visited the defendant at Jubbulpore early in March 1912 to obtain fresh terms, for or the 9th March, 1912 the defendant personally wrote Exhibit D-5 to his own firm in Hinganghat thus; —

“Compliments. Paikaji Patel called on me. I have told him clearly that he must act up to the terms of the agreement; but that if he cannot pay according to the terms of the agreement, I will allow Rs. 20,000 to remain outstanding for one year, but will charge interest at nothing less than one per cent, per month; and that I will take in cash all the money due from tenants, and will not allow any balance to remain outstanding. He will now return. Chanbaji, go with him to Badnera, explain to him all the sums which are due to me from tenants, and act according to what is written above. If he keeps Rs. 20,000 unpaid, have a mortgage of the village with sir borkha executed by him. Have the rate of interest entered at 1 per cent, per month, and have registration effected. Prepare and send to me the draft sale-deed of the village. Have the deed written and send it. Have the sir borkha of the village mortgaged. If it be necessary to obtain sanction, take the necessary steps to sanction it.”

7. We pause here for a moment in the narrative of events to discuss the position now set up. This letter, written three weeks before the date on which the plaintiff was to have completed payment of Rs. 21,000, shows beyond doubt that the parties made an alternative contract at Jubbulpore in novation, at the plaintiff's option, of the agreement embodied in Exhibit D-r. It remained open to the plaintiff to act up to the original contract by completing payment of Rs. 21,000, by the 1st April, 1912; but it was also at his option to pay only Rs. 1,000 more and for the balance of Rs. 20,000 to execute a deed of mortgage, undertaking to pay that amount with interest at 1 per cent, per month in one year, the property mortgaged being the village with cultivating rights in sir land. But this offer was now saddled definitely and inseparably with the further condition that the plaintiff should find the cash required to buy up the defendant's investments in the village. Subject to this modification the contract of sale was maintained, and the plaintiff had a clear right to possession of the sir and khudkasht lands. It was just here that the defendant's Hinganghat agents seem to have displayed more astucity than honourable dealing. They undoubtedly resumed possession of those lands. They do not appear to have made any attempt to carry out the orders of their master requiring them to send him the sale-deed or its draft, and to obtain from the plaintiff a deed of mortgage for Rs. 20,000 of the unpaid purchase-money. They applied, however, on the 6th May, 1912 for sanction to sell the sir lands, and sanction was given on the 1st July, 1912. The plaintiff, meanwhile, was set the impossible task of obtaining sanction to mortgage sir lands which did not yet belong to him, and it will cause no surprise when we say that sanction in prospective was refused. The plaintiff would probably have had no difficulty in finding the Rs. 1,000 necessary to reduce the unpaid balance of the purchase-money to Rs. 20,000. But before he could reasonably be expected to do any more, it was the duty of the defendant to put him in possession of the home farm, and to execute a deed transferring the property to him on condition that he mortgaged the same at once for the Rs. 20,000 left unpaid and—if it was a condition precedent to completion of the sale that he paid in cash the sum necessary to transfer to him the defendant's village investments. The plaintiff undoubtedly sold some lands in Berar to raise money for completing the purchase; but the defendant's agents held up the sir and khudkasht lands, despite an unsuccessful effort made by the plaintiff to recover possession by proceedings under Chapter XII of the Code of Criminal Procedure; and the result of this was that the plaintiff held up such money as he had. Negotiations went on, and, on the 14th May, 1913, the defendant's agents obtained an agreement, Exhibit D-4, from Ganpati the son of the plaintiff, Paikaji, the document being executed at Nagpur, where also the defendant has a branch business. This agreement recites that owing to the failure of Paikaji to find the money required under the contract of the 23rd September, 1911, that contract had been rescinded: that Rs. 2,000 as earnest and Rs. 8,000 in part payment had been paid, whereof Rs. 800 being appropriated to another account Rs. 2,000 remained available: that it had now been agreed that the defendant should sell 26 sir and khudkasht fields, specified in the document, for Rs. 21,900 of which Rs. 9,200 had already been paid, and Rs. 12,700 should be paid before the officer registering the deed of sale. The deed repeats the condition as to buying in village investments, and provides that if the defendant refused to sanction this agreement it should be treated as void, and thereupon Rs. 9,200 should be returned to the plaintiff.

8. Nothing came of this agreement, and the plaintiff has repudiated it as a fraud practised on his son. There is no ground for accepting that view of it. What is certain is that both parties were negotiating to come to some fresh agreement by which the plaintiff should get the village and the defendant should get all the money he wanted, including the advantage of having his investments in the village taken over by the plaintiff for their face value paid in cash. Later on the defendant seems to have ignored offers made by the plaintiff to buy the whole village for the original price of Rs. 31,000, some of the remaining Rs. 21,000 having been raised by selling Berar lands and arrangements to borrow the remainder having been made with persons who are said to have promised to lend it. But we agree with the lower Court for the reasons given by it, that the plaintiff never made any valid tender of Rs. 21,000 in cash to the defendant, or to any of his agents authorized to receive it. Moreover, in the confused state of the negotiations there remained no specific agreement under which the tender could be made. Meanwhile, however, the defendant retained possession of the sir and khudkasht lands of Pardi, and also of the Rs. 10,000 paid by the plaintiff in October and November, 1911 and February, 1912. It is said that he was always willing to repay Rs. 8,000 thereof, but there is no proof that any offer to do so was ever made. Eventually on the 27th June, 1913, the plaintiff filed the suit out of which this appeal has arisen with the result already stated.

9. The suit, so far as it is a suit for specific performance of the original contract, was as badly advised as is the cross-objection preferred against the dismissal of the claim for that relief. Though we do not agree with the Court below that the defendant was altogether free from blame in respect of the stipulation for delivery of the sir and khudkasht lands,—-especially after Rs. 10,000 paid up by February 1912, made such delivery, at least for a year, quite safe, even if the sale eventually fell through,—yet, it is manifest that, by his failure to find Rs. 21,000 by the date fixed, or at least for a reasonable time—say two months— after that date, the plaintiff lost all equitable claim to specific enforcement of the contract. That he subsequently negotiated for, and actually obtained, fresh terms is beyond doubt, and we are satisfied that both parties abandoned the original stipulations, and that neither can now claim specific enforcement of any one of them. The cross-objection, therefore, fails, and is dismissed with costs, except so far as we use it for the order we intend to make concerning the costs of the suit.

10. Turning now to the appeal of the defendant claiming Rs. 2,000 as forfeited earnest-money, the law on the subject first calls for consideration. The leading case in England appears to be Howe v. Smith (1884) 27 Ch. D. 89 , 53 L.J Ch. 1055. This decision was followed in Soper v. Arnold (1887) 35 Ch. D. 384 , 56 L.J Ch. 456, which was affirmed by the Court of Appeal, Soper v. Arnold (1888) 37 Ch. D. 96 , 57 L.J Ch. 145, and by the House of Lords, Soper v. Arnold (1889) 14 A.C 429 , 59 L.J Ch. 214. In Howe v. Smith (1884) 27 Ch. D. 89 , 53 L.J Ch. 1055, on a sale of real estate, the purchaser paid £500 which were stated in the contract to be paid “as a deposit, and in part payment of the purchase-money.” There was no stipulation that, on default by the purchaser to complete the purchase, the deposit should be forfeited. The purchaser was not ready with his purchase-money, and, after repeated delays, the vendor re-sold the property for the same price. The original purchaser having brought an action for specific performance, it was found that the purchaser had lost by his delay his right to enforce specific performance. Under these circumstances it was held that the deposit, although to be taken as part payment if the contract was completed, was also a guarantee for the performance of the contract, and that the plaintiff, having failed to perform his contract within a reasonable time, had no right to a return of the deposit. But all the three learned Judges responsible for the decision made it clear that forfeiture of the deposit did not necessarily follow as a result of such default as disentitles the purchaser to specific performance, Cotton, L.J, said:

“I do not say that in all cases where this Court would refuse specific performance, the vendor ought to be entitled to retain the deposit. It may well be that there may be circumstances * * which would require the Court * * * to refuse to order specific performance, in which it could not be said that the purchaser had repudiated the contract, or that he had entirely put an end to it so as to enable the vendor to retain the deposit.”

11. And again,

“In my opinion, without at all laying down that whenever the Court refuses specific performance it will allow the vendor to retain the deposit, in this case and under this contract the purchaser has so acted as to repudiate on his part the contract, and he cannot under those circumstances take advantage of his own default to recover this deposit from the vendor.”

12. Bowen, L.J, said:

“lam of the same opinion” * * It does not follow as a matter of law on principle that because specific performance is refused, therefore the whole contract is at an end in law. We have to look to the conduct of the parties and to the contract itself, and putting the two things together, to see whether the purchaser has acted not merely so as to break his contract, but to entitle the other side to say he has repudiated and no longer stands by it.”

13. Fry, L.J, after making it clear that his observations referred to “the case of money paid on the signing of a contract” both as a deposit and in part payment, and after giving the history of the custom of earnest, said:—

“Such being my view of the nature of the deposit, it appears to me to be clear that the purchaser has lost all right to recover it if he has lost both his right to specific performance in equity and his right to sue for damages for its non-performance at law. That the purchaser has by his delay lost all right to specific performance we have already decided. It remains to inquire whether he has also lost all right to sue for damages for its non-performance.”

14. It is then clear that, assuming there was a deposit made in this case to bind the bargain, the mere fact that the plaintiff has lost the right to enforce specific performance of the contract would not give the defendant any absolute right to retain the deposit. That this is the law of India as well as of England was accepted by a Full Bench of the Bombay High Court in Ibrahimbhai v. Fletcher (1897) 21 Bom. 827. It is true that in Bishan Chand v. Badha Kishan Das (1897) 19 All. 489, a Division Bench held that where a contract for sale goes off by default of the purchaser, he cannot recover any deposit which may have been paid by him to the vendor in pursuance of the contract. But, with due respect for the learned Judges responsible for this decision, we think that the proposition is much too widely stated, going much further than the majority of the Court in Howe v. Smith (1884) 27 Ch. D. 89 , 53 L.J Ch. 1055. The English decisions have been more closely followed in Roshan Lal v. Delhi Cloth and General Mills Company, Limited (1911) 33 All. 166 , 7 I.C 794 and Balvanta Appaji Whatkar v. Bira (1899) 23 Bom. 56 and by Sankaran Nair, J., (differing from Wallis, J.) in Natesa Iyer v. Appavu Padayachi (1910) 33 Mad. 375 , 3 I.C 941.

15. In certain cases, where the deposit was a considerable sum, an agreement for its-forfeiture has been treated as a penalty, from which the Court of Equity will give relief in England, and which, in India, is covered by Section 74 of the Indian Contract Act; it is sufficient to quote In re Dagenham (Thames) Dock Company, Ex parte Hulse (1873) 8 Ch. App. 1022 , 43 L.J Ch. 261 and Srinivasa v. Rathnasabapaihi (1893) 16 Mad. 474, but as to this there is some apparent conflict of authority: see Wallis v. Smith (1882) 21 Ch. D. 243 , 47 L.T 389 and Manian Patter v. Madras Railway Company (1906) 29 Mad. 118. The distinction drawn in England between a penalty and liquidated damages need not be considered here, as Section 74 of the Indian Contract Act, 1872, would apply under whichever of those two heads a sum, named in the contract as payable in case of a breach, might be regarded under the English law. But in Natesa Iyer v. Appavu Padayachi (1910) 33 Mad. 375 , 3 I.C 941 the learned Judges were unable to agree whether or not the deposit of Rs. 4,000 made in that case was governed by Section 64 of the Indian Contract Act. In Subba Bau v. Devu Shetti (1895) 18 Mad. 126 it was held that a person who “puts an end to” a contract under Section 39 of the Indian Contract Act is “the party rescinding a voidable contract” for the purposes of S. 64 of that enactment, and, having regard to the wide significance given to the term ‘voidable’ by S. 2(i), and by its use in Ss. 53, 55, 64 and 66 with reference to contracts which are not necessarily defective in origin, it is difficult to question the soundness of that decision. That being so, it is not easy to see how the advance of a substantial sum in part payment of purchase-money, though also described as a deposit by way of earnest, is to be excluded from the operation of S. 64. The case for excluding it was strongly put by Wallis, J., in Natesa Iyer v. Appavu Padayachi (1910) 33 Mad. 375 , 3 I.C 941, but it is manifest that the learned Judge assumed that the Legislature responsible for the Indian Contract Act must have accepted the English case-law and intended to exclude deposits by way of earnest from the purview of S. 64. To our minds the contrary argument of Sankaran Nair, J., beginning with page 392 of 33 Mad is far stronger, and though the Indian Contract Act, 1872, purports to deal only with “certain parts of the law relating to contract,” it seems to us that; where it does treat with a subject in a way at variance with the law of England, it should be regarded as exhaustive, and binding on the Courts in India. We have deposits by way of earnest varying from a mere symbol of sincerity to as much as one-half of the purchase-money, and we have conditions of forfeiture made applicable to all proportions of the price, from a mere fraction to all but a mere fraction thereof, in the varying circumstances of contracts which have come before the Courts in England. To meet the varying equities arising in these cases we find the Judges resorting to artificial rules of construction for the purpose of deciding whether a sum, deposited and agreed to be forfeited in case of default by the party depositing, was only an earnest of the bargain, or liquidated damages; or a penalty; the real object in each case being to administer equity and relieve parties from their oppressive contracts: and for this purpose a fictitious intention has sometimes been ascribed to the contracting parties by the employment of extremely artificial rules which have preplexed English lawyers themselves, and made it impossible to find any general rule equally applicable to all cases. It is natural to assume that the Indian Legislature sought to resolve this complex question into one simple rule, embodied in Section 74 of the Indian Contract Act, to the provisions of which S. 64 is, of course, subject: and it seems to us, with due respect, that the Indian cases coming from the Allahabad High Court overlook this fact, and apply the English law in supersession of the Indian Contract Act.

16. It may not be out of place to consider the true nature of earnest money, and for that purpose we must enter upon some retrospect. As pointed out by Fry, L.J, in Howe v. Smith (1884) 27 Ch. D. 89 , 53 L.J Ch. 1055 above quoted:

“The practice of giving something to signify the conclusion of the centract, sometimes a sum of money, sometimes a ring or other object, to be re-paid or re-delivered on the completion of the contract, appears to be one of great antiquity and very general prevalence.”

17. It was known as arra, or arrha (and more frequently as arrabo or arrhabo to the Latins; and T. Maccius Plautus, a writer of comedy who lived 200 years before Christ, wrote, ‘arrhaboni has dedit quadraginta minas.’ In Sandars' Institutes of Justinian, iii, 23, we read, ‘Is qui recusat adimplere contractum, si quidemest emptor, per dit quod dedit; si vero venditor duplum restituere compellitur, licet super arrhis nihil expressum est.’ Here there was mutuality if the purchaser broke the contract he lost his deposit; if the vendor was in default he repaid double, even though no sum beyond the earnest was specified. Three contingencies were provided for. If the contract was performed the earnest, as such, was returned. If the purchaser broke the contract, he forfeited the earnest. If the vendor broke the contract, he forfeited an amount equal to the earnest, besides having to return the earnest. From the Roman Law the principles relating to the earnest, passed into the law of England. In Bracton, Lib 11 c. 27 we find, “Item cum arrarum nomine aliquid datum fuerit ante traditionem, si emptorem emptionis poenituerit et a contractu resilire voluerit perdat quod dedit: si autem venditorem, quod arrarum nomine receperit emptori restituat duplicatum.” It is thus clear that, even in English Law, the original custom was for both parties to bind themselves to one another in a stated amount as earnest, the amount being deposited by the purchaser with the vendor. But the liability of the vendor was subsequently excluded — whether by custom or case-law is immaterial,—and the one-sided transaction discussed in Howe v. Smith (1884) 27 Ch. D. 89 , 53 L.J Ch. 1055 remained, with the consequence that the earnest became confused with part payment, liquidated damages, and penalty, and the amount of the deposit became a factor in determining under which category it should be placed. But an earnest remains to the present day something paid or given at the time of the bargain to evidence the fact that the negotiation has ended in an actual and binding contract, and as a pledge for its due performance by the depositor, to be forfeited in case of non-performance by his default. This was the ernes or eernes of Middle English, the ern or ernes of the Welsh, the arles of the Scotch, the arrhes of the French, and the arrhabon of the Greeks. In India it is generally called bayana, and is frequently a very small sum—sometimes a single rupee—which is not taken as anything but a symbol of earnest dealing, and that is its proper character.

18. We are of opinion that in every case governed by the Indian Contract Act, 1872, where a deposit is made by a purchaser with the vendor as part payment in advance of the purchase-money, subject to a stipulation that it shall be forfeited if the purchaser shall make default, S. 74 of that enactment applies, and gives the Court a discretion to deal with the question of forfeiture on equitable principles. We also think that to come within the principles applicable to earnest-money, such a deposit must be something paid over at the time of entering upon the bargain, and that those principles cannot rightly be applied to any future payment to be made under the contract.

19. In the present case the contract was made on the 23rd September, 1911, and was there and then reduced to writing. Under the terms of that contract the purchase-money of Rs. 31,000 was made payable in three instalments, namely, Rs. 2,000 on the 30th September, 1911, Rs. 19,000 on the 1st April, 1912, and Rs. 10,000, with interest at 6 per cent, per annum from the 1st April, 1912 on the 23rd March, 1913. We do not think that any one of these sums can properly be described as earnest-money, governed by the principles laid down by Fry, L.J, in Howe v. Smith (1884) 27 Ch. D. 89 , 53 L.J Ch. 1055 or by the Indian Courts in the cases above cited: and the mere fact that the parties erroneously described as earnest-money the first instalment of Rs. 2,000 does not, we think, make it so. But the written agreement contains an express stipulation that, if the purchaser makes default in payment of the price as stipulated, the first instalment of Rs. 2,000 shall be forfeited. The clause containing this stipulation is obviously and admittedly an interpolation, and it does not bear the special signature or initials of the plaintiff in authorization or ratification of it. The plaintiff has pleaded that it is a subsequent and fraudulent addition to the deed, while the defendant's case is that it was a correction of an omission made before the plaintiff signed the agreement. The lower Court has found on this point in favour of the defendant, but the finding is contested in the cross-objection made before us. It is not necessary to decide the question. We will assume that the finding of the lower Court is correct. The case then is one clearly covered by Section 74 of the Indian Contract Act, and we have no hesitation in coming to the conclusion that the lower Court has exercised a wise discretion in ordering the defendant to restore the whole of the Rs. 10,000 received by him. We do not see why the plaintiff should not have been allowed interest on this sum from the date on which the defendant rescinded the contract; but this part of the lower Court's finding has not been expressly questioned in the cross-objection before us, and we see no reason to interfere. As regards the sum of Rs. 2,000, we have already shown that it would not have been a payment made in earnest of the bargain, even if it had been paid on the 30th September, 1911 as stipulated. But, in fact, that stipulation was abandoned by both parties, and the defendant accepted payments of Rs. 115 and Rs. 1,000, which he treated as belated payments on account of the so-called earnest-money. To these he seeks to add a balance of Rs. 885 out of the Rs. 8,885 paid by the plaintiff on the nth February, 1912, and to treat the Rs. 2,000 so paid as earnest-money forfeited. The claim is absurd on the face of it. Regarding the amount, not as earnest-money, but as a penalty or compensation payable under Clause 6 of the agreement, it is manifest from what we have said that both parties abandoned that agreement and entered upon another, under which the plaintiff was to have full credit for what he had already paid, and was to pay another Rs. 1,000 in 1912, and Rs. 20,000 with interest at 12 percent, per annum in 1913. The defendants have further pleaded another novation made through the plaintiff's son Ganpati. It is also clear that, although by his default the plaintiff has no claim to specific performance, he has always persisted in his effort? to buy the village and to pay for it, and the actual rescission of the agreement to sell was made, however legally and properly, by the defendant. Having regard to all these circumstances, we agree with the lower Court in holding that the defendant has no claim to retain any part of the money deposited with him, and that the decree for payment of Rs. 10,000 must be maintained. We, therefore, confirm it to that extent.

20. The question of costs remains to be decided. In its judgment the lower Court threw all the costs on the plaintiff. In its decree Rs. 761-15-0 of the defendant's costs are thrown on the plaintiff and Rs. 250 on the defendant. Thus the decree is not in accordance with the judgment. Again, the Pleader's fee on Rs. 31,000 is erroneously shown as Rs. 510, whereas the correct figure is Rs. 660; We are not disposed to sustain the judgment and decree in regard to costs. We fail to see why the plaintiff should not get his costs in proportion to his success. There is no proof that the defendant ever offered him Rs. 8,000, and it is beyond doubt that he never offered to pay back to the plaintiff the Rs. 10,000 to which the latter has been found entitled after trial. Taking the value of the suit for the purposes of Pleader's fee to be Rs. 31,000, we think the plaintiff is entitled to get Rs. 220, while he himself bears Rs. 440 of his Pleader's fee, and conversely that the defendant should bear Rs. 220, of his Pleader's fee and receive Rs. 440 thereof from the plaintiff. As regards the Commissioner's fee of Rs. 250, that was a cost incurred mainly for the convenience of the defendant, who obtained the comfort of being examined and having his witnesses examined at his house in Jubbulpore. We think that only Rs. 50 of this sum should be thrown on the plaintiff, and that the defendant should bear the rest. As regards other items of cost, the fair order seems to be that the plaintiff should pay and bear two-thirds and the defendant should pay and bear one-third. We modify the decree of the lower Court in accordance with the above findings. Subject to this we dismiss the appeal and cross-objection, in each case with costs.

P.N/R.K

21. Appeal dismissed;

22. Decree modified.