JUDGMENT K.L. Pandey, J. 1. This appeal under the Letters Patent is directed against the decree of the learned Single Judge by which he reversed the decree of the first appeal Court and restored that of the Court of first instance. Under the last mentioned decree, while the defendant I was directed to refund Rs. 2,000/-received by him as ea money, the defendant 3 was directed to pay Rs. 2,300/-and the defendant 4 was directed to pay Rs. 2,145/-. It may be mentioned here that Rs. 2,000/- of the amounts directed to be paid by the defendants 3 and 4 was the earnest money which the defendant 1 had received. To the extent of this amount of Rs. 2,000/- there was, in effect, a joint decree against the defendants 1, 3 and 4. 2. The two questions which have been pressed for our consideration are these: (i) In the circumstances of this case, neither the vendor (defendant 1) nor any one of the two sureties (including defendant 3) was liable to refund the earnest money of Rs. 2,000/- (ii) The claim as laid was barred by time. 3. In order to appreciate the questions it is necessary to state a few facts. The defendant 1 owned three houses situate in Jawahar Gunj, Jabalpur. On 6 July 1948, he made through his agent (defendant 2) a contract for sale of those houses to the plaintiff for a sum of Rs. 56,000/-and received from him Rs. 2,000/-as earnest money. The contract provided inter alia that a sale deed in respect of the houses would be executed in 15 days after the defendant 1 had secured consent of the Income Tax Officer and that, if he failed so to do by about 15 August 1948, the plaintiff would be at liberty to rescind the contract and claim refund of the earnest money. The defendants 3 and 4 were sureties for the performance of the contract and they also undertook to pay Rs. 2,000/-if the defendant I did not execute the required sale deed. It transpired that subsequently the houses were declared to be evacuee property and the Custodian actually took possession of the houses. In the circumstances, the plaintiff claimed inter alia a refund of Rs. 2,000/-together with interest from the defendants 1 to 4. Since we are not concerned with the claims other than the one relating to the refund of Rs. It transpired that subsequently the houses were declared to be evacuee property and the Custodian actually took possession of the houses. In the circumstances, the plaintiff claimed inter alia a refund of Rs. 2,000/-together with interest from the defendants 1 to 4. Since we are not concerned with the claims other than the one relating to the refund of Rs. 2,000/-, it is not necessary to refer to them. 4. It is admitted before us that, within the time limited by the agreement, the defendant 1 failed to obtain clearance certificate from the Income Tax Officer or to execute the required sale deed. That clearly entitled the plaintiff to rescind the contract and to claim refund of the earnest money. It is, however, argued that in the suit as laid, the plaintiff did not base his claim on that ground. We do not agree. We may refer to paragraph 3 of the plaint and issue No. 2B framed by the court of first instance. It is, however, urged that the contract for sale was not void and the plaintiff, who stated in the witness-box that he was willing to purchase the houses even at that stage, was himself guilty of breach of the contract. Even apart from the consideration that the appealing defendant 3 urged in the first appeal Court that the contract became void and succeeded on that basis, the finding is that the plaintiff was all along willing to perform his part of the contract and that it was he vendor who did not carry out his part and thereby committed a breach of that contract. That being so, this contention does not help the appealing defendant, who alone contested the claim throughout. 5. The learned Single Judge and the first appeal Court considered the plaintiff's claim on the footing that the contract for sale which was valid when it was made, was discovered to be void on account of the supervening events. We think that that was not the correct position. 5. The learned Single Judge and the first appeal Court considered the plaintiff's claim on the footing that the contract for sale which was valid when it was made, was discovered to be void on account of the supervening events. We think that that was not the correct position. At the material time, the relevant provisions governing this matter were contained in Sections 40 and 41 of the Administration of Evacuee Property Act, as then in force, which are reproduced below:- "40 (1) No transfer of any right or interest in any property made in any manner what-soever after 14th day of August, 1947 by on behalf of any person whose property is notified or declared to be evacuee property, shall be effective so as to confer any rights or remedies on the parties such transfer or on any person claiming under them unless it is confirmed by the Custodian. (2) An application for confirmation of such transfer may be made by the transferor or the transferee or any person claiming under, or lawfully authorised by, either of them to the Custodian within two months from the date of transfer or within two months from the commencement of this Act or within two months from the date of the notification or declaration referred to in sub-section (1), whichever is later, (3). The provisions of Section 5 of the Indian Limitation Act, 1908 (IX of 1908) shall apply to an application under sub-section (2). (4) The Custodian shall hold an inquiry into the application in the prescribed manner and may reject the application, it he is of opinion that- (a) the transaction has not been entered into in good faith or for valuable consideration, or. (b) the transaction is prohibited under any law for the time being in force, or (c) the transaction ought not to be confirmed for any other reason. (b) the transaction is prohibited under any law for the time being in force, or (c) the transaction ought not to be confirmed for any other reason. (5) If the application is not rejected under subsection (4), the Custodian may confirm the transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose." 41 (1) Where any document required to be registered under the Indian Registration Act, 1908 (XVI of 1908) purports to transfer any right or interest in any property in contravention of the provisions contained in Section 20 or Section 40, no Registering Officer shall register any such document and no Revenue Officer shall sanction any mutation of names in respect thereof, unless the party presenting the document for registration produces a certificate from the Custodian declaring that the property is not property belonging to an intending evacuee or that it is not evacuee property or that the transaction has been confirmed or that the Custodian has given his provious approval to the transfer. (2) Save as otherwise expressly provided herein, nothing contained in sub-section (1) shall be deemed to affect the provisions contained in the payment of taxes (Transfer of Property) Act, 1949 (XXII of 1949) or in any other law for the time being in force relating to the registration of documents." It would appear that there is in these provisions no prohibition against any contract for sale of property and, so far as any transfer actually made is concerned, all that is required is that it should be confirmed by the Custodian before it could take effect. It may also be noted that the Custodian was required to confirm such transfers unless they were not made in good faith or for valuable consideration or were prohibited under any law then in foroe or there was any other reason against adopting that course. Further, when confirmed, these transfers became effective from the dates when they were made. It was, therefore, permissible to specifically enforce a contract for sale of a house made on 18th January 1949 by a Muslim, who subsequently migrated to Pakistan, with the result that his property was thereupon declared to be evacuee property: Kirodimal Ganeshlal vs. Haji Suleman ( 1960 JLJ 96 ). It was, therefore, permissible to specifically enforce a contract for sale of a house made on 18th January 1949 by a Muslim, who subsequently migrated to Pakistan, with the result that his property was thereupon declared to be evacuee property: Kirodimal Ganeshlal vs. Haji Suleman ( 1960 JLJ 96 ). In this view, we are of opinion that the Courts below were not right in treating the contract as frustrated or in determining on that basis the liability of the sureties or the question of limitation. 6. Since we have found that the contract for sale did not cease to subsist before it was reacinded by the plaintiff for the breach committed by the vendor, there can be no question that the vendor and the sureties are liable to refund the earnest money. Also, in that view, it is no longer necessary for us to consider whether the claim laid on 14 August 1951 could be in time if the contract were frustrated by reason of the fact that houses promised to be sold were declared evacuee property even before the time for performance of the contract arrived. 7. The result is that the appeal fails and is dismissed with the modification that, instead of the decree of the Courts below, there shall now be a decree for Rs. 2,000/-with costs according to success against the defendants 1, 3 and 4 in addition to a decree for Rs. 300- with costs according to success against the defendant 3 and a decree for Rs. 145-with costs according to success against the defendant 4. The rest of the claim is dismissed and all other costs in the court of first instance shall be borne by the parties as incurred. The defendant 3 shall pay all the costs of the first appeal, second appeal and this appeal. Counsel's fee here according to schedule. Appeal dismissed