1. We cannot assume that the lower appellate Court ignored the equitable presumption that time is not of the essence of the contract in cases of contracts for sale and purchase of landed property. Its finding of fact, after a consideration of the evidence and the circumstances, that both parties intendei time to be of the essence of the contract cannot therefore be interfered with in second appeal.
2. We must also accept the finding of the lower appellate Court that the plaintiffs failed to perform that portion of the contract which they had to perform first (namely) the tender of the expenses of the execution and registration of the sale deed to defendants before the plaintiffs could call upon the defendants to execution sale deed.
3. A mere offer by postal letter to tender such expenses is not a legal tender.
4. The question, again, of the right of the defendants (respondents) to a forfeit of the earnest money on plaintiff's failure must be decided in the defendant's favour on the strength of the recent Full Bench ruling in Natesa Aiyar v. Appavu Padayachi(1).
5. The second appeal fails and is dismissed with costs.
S.N/R.K
6. Appeal dismissed.