JUDGMENT S.N. Katju , J. - This is a plaintiff's appeal arising out of suit for specific performance of an agreement of repurchase in respect of a house. The appellant Harmandil Pathak executed a deed of transfer of his house in favour of the respondent Sankatha Singh on or before the 31st December, 1960, the house shall be reconveyed to him. He alleged that he had repeatedly offered to pay the aforesaid amount to Sankatha Singh on 19-12-1954 for Rs. 1,700/-. The deed stipulated that if Hardil Pathak paid Rs. 1,700/- to Sankatha singh on or before the 31st December 1960, the house shall be conveyed to him, He alleged that he had repeatedly offered to pay the said amount to Sankatha but the later hade refused to accept it. He executed a deed of transfer of his interest in the house on 23-12-1960 in favour of Lalji and Ram Adhar Singh for Rs. 2,000/-. They are plaintiffs 2 and 3 in the present suit. The appellant Harmandil Pathak was, therefore, compelled to institute the suit in appeal. 2. The suit was resisted by Sankatha Singh and the other defendant on the ground that the transaction was an outright sale. It was open to Harmandil Pathak to get the reconveyance of the house if he had paid the amount of Rs. 1,700/- on or before the 31st of December, 1960, but in fact the amount was deposited in court under Sec. 83 of the Transfer of Property Act on 2nd January, 1961. Consequently the plaintiff was not entitled to ask for the reconveyance of the house back to him. It was further contended that the deed of 9-12-1954 was a sale with a condition of repurchase and it was not a mortgage by conditional sale. Lastly it was contended that the judgment of the Munsif's court, Mirzapur dated the 31-8-1956 in civil suit No. 902 of 1955 operated as res judicata in the present suit. 3. The trial court decreed the suit but its decision was reversed on appeal by the lower appellate court. It repelled the contention of the plaintiffs that the amount was offered to Sankatha Singh on 23-12-1960 and he had refused to accept the amount. It further held that the deposit in court was made on 2-1-1961 and it was a payment which was made beyond time. It repelled the contention of the plaintiffs that the amount was offered to Sankatha Singh on 23-12-1960 and he had refused to accept the amount. It further held that the deposit in court was made on 2-1-1961 and it was a payment which was made beyond time. It may be mentioned that a tender was filed by the plaintiffs on 23-12-1960 offering to deposit Rs. 1,700/- in court. They could not get the tender back for making the actual deposit on account of the closure of the courts for winter vacations. They got back the tender on 2-1-1961 when the actual deposit was made in court. The lower appellate court expressed the view that "saving of limitation on account of vacations can be available to an applicant only in the case of his statutory limits of limitation and not in contractual limits so agreed upon", and, therefore, the deposit of the money in court on 2-1-1961 could not constitute a legal tender. Lastly it held that the suit was not barred by res judicata. On was not barred by res judicata. On the aforesaid findings the lower appellate court dismissed the plaintiffs suit. 4. It was contended by the learned counsel for the plaintiff-appellants that the court below had erred in holding that the plaintiffs had not gone to Sankatha Singh on 23-12-1960 with and offer to make the payment to him. The trial court believed the plaintiffs' version and expressed the view that the offer had been made to Sankatha Singh which was refused by him. The lower appellate court reversed the aforesaid finding on the ground that Harmandil Pathak had alleged that he had offered to pay the amount on several occasions before 23-12-1960 to Sankatha Singh but such a plea could not be accepted because Harmandil Pathak had no money with him and mere offer to make the payment could not mean that there was in fact any offer to make the payment as alleged by Harmandil Pathak before 23-12-1960. Following that line of reasoning it held that it could not be believed that money was actually offered to Sankatha Singh on 23-12-1960 as alleged by Harmandil Pathak. Admittedly Sankatha Singh himself did not come in the witness box to contradict the version of the plaintiffs that they had gone to his house and had offered to pay him Rs. 1,700/- which he had refused to accept. Admittedly Sankatha Singh himself did not come in the witness box to contradict the version of the plaintiffs that they had gone to his house and had offered to pay him Rs. 1,700/- which he had refused to accept. The lower appellate court expressed the view that even if Sankatha Singh had come in the witness box his evidence would have been of a negative character and, therefore, the mere fact that he did not give evidence could not lead to any adverse inference as against him. It may be mentioned that the court below was in error in thinking that Harmandil Pathak had no money on or before 23-12-1960. Admittedly the money was deposited in court on 2-1-1961. The material question was not whether Harmandil Pathak had money on or before 23-12-1960 but whether the plaintiffs were in a position to make the payment to Sankatha Singh as was alleged by them. Since there had been a transfer in favour of Lalji and Ram Adhar Singh the later were interested in making the payment to Sankatha Singh and since the deposit was made on 2-1-1961 it would appear that the money came not from Harmandil Pathak but from Lalji and Ram Adhar. 5. Learned counsel contended that the fact that Sankatha Singh did not come in the witness box would lead to an inference against him and the court below had erred in not giving proper consideration to the absence of Sankatha Singh from the witness box. He relied on Sardar Gurbux Singh v. Sardar Gur Dayal Singh, A.I.R. 1927 P.C. 230. It was observed: "At the Bar of the Board it was admitted by the respondents that she, Bhagwan, had been present in Court when the evidence was being taken, and that she did not go into the witness box, and was not examined as a witness on her own or her alleged son's behalf." 6. Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the order partly to call him, and so suffer the discomfiture of having him treated as his, the other party's own witness. 7. This is though to be clever, but it is a bad and degrading practice . . . . . 7. This is though to be clever, but it is a bad and degrading practice . . . . . But in any view her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case. 8. How did the High Court deal with this ? They say : "It is true that she has not gone into the witness-box, but she made a full statement before Chaudhary Kesar Ram, and it does not seem likely that her evidence before the Subordinate Judge would have added materially to what she had said in the statement." Their Lordships disapprove of such reasoning. The true object to be achieved by a Court of justice can only be furthered with propriety be the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicious attaching to it. The story can then be subjected in all its particulars to cross-examination." 9. In Martand Pandharinath Chaudhery v. Radha Bai Krishnarao Deshmukh, 1931 Bom. 97, Shingne, J. following the observation of the Judicial Committee in Sardar Bux Singh, A.I.R. 1927 P.C. 230 observed :- "It is the bounden duty of a party personally knowing the facts and circumstances to give evidence on his own behalf and submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case." 10. In the present case no explanation was put forward as to why Sankatha Singh did not come in the witness box and contradict the statement of the plaintiffs that they had gone to him with an offer to make the payment and he had refused to accept it. He was the person who could contradict the aforesaid allegations made by the plaintiffs. The court below was certainly in error in observing that it was immaterial whether he came in the witness box or not because his evidence was very likely to be of a negative character. The plaintiff's version was accepted by the trial court and the lower appellate court reversed its finding on the ground that it was an improbable story because Harmandil Pathak was no solvent and he was not in a position to make the payment. The plaintiff's version was accepted by the trial court and the lower appellate court reversed its finding on the ground that it was an improbable story because Harmandil Pathak was no solvent and he was not in a position to make the payment. Learned counsel for the respondents strenuously argued that the question whether an offer was made as alleged by the plaintiffs to Sankatha Singh was a question of fact and the finding of the court below on the aforesaid question could not be assailed in second appeal. It cannot be denied that the mere question whether an offer to make a payment has been made to another person or not is a question of fact and generally a finding on such a question could not be disturbed in second appeal. In the present case, however, the finding of the lower appellate court is vitiated by the fact the a very material witness who was the best person to contradict the allegations of the plaintiffs did not care to come in the witness box. This was a circumstance which must lead no an inference adverse to the defendants. I must, therefore, hold that the finding of the lower appellate court on the aforesaid question was vitiated. 11. I hold that it was sufficiently established that an offer to pay Rs. 1,700/- was made by the plaintiffs to Sankatha Singh on 23-12-1960 which was refused by him. Such as offer having been refused the plaintiffs had no other option but to deposit the money in court which they attempted to do. The tender had first been offered on 23-12-1960 and the fact that the amount could not be actually deposited earlier was due to the closure of the court for the winter vacations. Under these circumstances it could not be said that the amount had been paid beyond time. In this view of the matter I need not consider the other questions raised in the case. 12. I, therefore, set aside the decree of the lower appellate court and decree the suit in terms of the decree passed by the trial court. It is not necessary for me to go into the rights of the plaintiffs 2 and 3 and defendant No. 2 under the deed executed by Harmandil Pathak on 23-12-1960 in favour of Lalji and Ram Adhar. 13. The appeal is allowed with costs.