JUDGMENT : ( 1. ) THIS is an appeal by some of the defendants against the decree, dated 6-5-1967, passed by the Additional District Judge, East Nimar, khandwa, in Civil Appeal No. 24-A of 1966, reversing the decree, dated 19-1 1966, passed by the Civil Judge, Class I, Burhanpur, in Civil Suit No. 3-A of 1965. ( 2. ) THE respondents 1 and 2 filed a suit for specific performance of an agreement of conveyance of property, dated 17-6-1964 (Ex. P/l ). There were earlier transactions between the parties in respect of which there were documents, but which were not filed for one reason or the other. It was alleged by respondents 1 and 2 in their plaint that they had agreed to sell their bungalow with an open field attached to it to Jwalaprasad, the predecessor of the appellants, for a consideration of Rs. 14,000 by an agreement, dated 25-2-1955. Simultaneously on that very day, there was an agreement of re-sale and the condition was that if the plaintiffs re-paid an amount of Rs. 14000 within any time upto 10 years, they would be entitled to a re-conveyance of the property. It appears that the plaintiffs depended on their sons and daughter for supply of the necessary funds. But the funds could partly be available and, therefore, the plaintiffs on 17-6-1964 re-purchased the bungalow only with a small compound for a consideration of Rs. 6,000 On th it very day there was an agreement (Ex. P/l) providing that the plaintiffs could repurchase the attached field for rs. 8,000 till the expiry of the period fixed by the original agreement, namely, till 25-2-1965. ( 3. ) THE plaintiffs in their plaint further alleged that as they did not see any prospects of funds being made available to them by their children, they decided to raise the amount by taking a loan from one, Shrikishandas (P. W. 2 ). Having secured the necessary loan, the plaintiffs contacted Jwalaprasad on 23-2-65 and told him that they were ready with the money and that they wanted a re-conveyance of the field for a consideration of Rs. 8 000. Thereupon jwalaprasad showing sympathy for the plaintiffs expressed that it was not necessary to take a loan on such a high rate of interest as 25%. 8 000. Thereupon jwalaprasad showing sympathy for the plaintiffs expressed that it was not necessary to take a loan on such a high rate of interest as 25%. He stated that he would give up his right about time limit and that the plaintiffs might secure funds from their children and he would be willing to execute a deed of reconveyance even if the amount was tendered within two months of the expiry of 25-2-1965. On that assurance, the plaintiffs claimed that they did not incur loan from Shrikishandas and they got the necessary funds from their children in the first week of April, 1965. Bat when they demanded re-conveyance of the field, Jwalaprasad flatly denied to abide by that assurance. Hence on 16-7-1965 the present suit was filed. ( 4. ) THE defence was that time was of the essence of the contract and the stipulation of re-conveyance being a concession could not be enforced after the expiry of the period stipulated by the contract. It was contended on behalf of the defendants that section 92 of the Evidence Act was a bar to the proof of any oral agreement varying or modifying the terms of the contract. ( 5. ) THE trial Judge dismissed the suit holding that section 92 of the Evidence act was a bar to the proof of any oral agreement so as to vary the terms of a written contract. On the other hand, the learned appellate Judge reversed that decree expressing the view that time was not of the essence of the contract and that the proviso 4 to section 92 of the Evidence Act permitted the proof of a subsequent oral agreement amounting to waiver on the part of the defendant so as to create an estoppel against him. In that view of the matter, the plaintiffs suit was decreed. ( 6. ) IN the present appeal, I propose to take the finding of fact arrived at by the learned appellate Judge as concluded, which calls for no interference in the absence of an illegality or a misapprehension. The finding of the learned appellate Judge is that on 23-2-1965 the plaintiffs had made preparation for taking a loan from Shrikishandas (P. W. 2 ). The testimony of the said witness coupled with the testimony of Mrs. Blossom Peters (P. W. 1) was Relied on by the appellate Judge. The finding of the learned appellate Judge is that on 23-2-1965 the plaintiffs had made preparation for taking a loan from Shrikishandas (P. W. 2 ). The testimony of the said witness coupled with the testimony of Mrs. Blossom Peters (P. W. 1) was Relied on by the appellate Judge. Therefore, it has to be taken as established that by 23-2-1965 the plaintiffs were ready with the necessary amount of Rs. 8,000 by incurring a loan from Shrikishandas on a high rate of interest at the rate of rs. 25 % per annum. Thereafter, the plaintiffs approached Jwalaprasad and demanded a re-conveyance Jwalaprasad, after showing sympathy, stated that the plaintiffs need not incur a loan on a high rate of interest and that he would waive his right of time limit and that the plaintiffs might arrange for the necessary funds from their children within two months of 25-2-1965. Acting on that representation of Jwalaprasad, the plaintiffs decided not to incur a loan from shrikishandas and waited for the necessary funds to be sent by their children. The funds were available in the first week of April and on 8-4-1965 the plaintiffs again made a demand for a re-conveyance. On these findings the question of law arises whether the proof of such an oral agreement was barred by section 92 of the Evidence Act and whether the plaintiffs could avail of the proviso 4 to section 92 of the Evidence Act for proving such an oral agreement. ( 7. ) AT the outset, I may observe that there is a misapprehension regarding what look place on 23-2-1965. The plaintiffs in their pleadings have not pleaded any subsequent oral agreement, But they have pleaded the waiver on the part of Jwalaprasad of exercising an option of time limit and on such representation, the plaintiffs acting t0 their prejudice, decided not to incur loan from Shrikishandas and, therefore, what the plaintiffs pleaded was an estoppel against the defendants on account of this conduct. ( 8. ) THE learned appellate Judge in his lengthy judgment has expressed some opinions, which it is not possible to accept. The learned appellate Judge held that time was not of the essence of the contract. ( 8. ) THE learned appellate Judge in his lengthy judgment has expressed some opinions, which it is not possible to accept. The learned appellate Judge held that time was not of the essence of the contract. It is true that in contracts for sale of immovable property, ordinarily time is not of the essence of the contract, but it can be made so by a specific term embodied in the deed itself. Such a term would be a contract to the contrary. On a reference to the agreement (Ex. P/1), it is clear that the time limit was mentioned as 25-2-1965 and if that time limit was not adhered to, the plaintiffs were to lose their right of re-conveyance. As such, by specific term embodied in the deed, the parties had nude time of the essence of the contract. The finding of the learned appellate Judge is clearly illegal and it is opposed to the very wording of the agreement, Ex. P/1. Therefore, differing from the learned appellate Judge, I hold that time was of the essence of the contract. ( 9. ) THE further question arises is whether section 92 of the Evidence Act would be a bar to the proof of waiver on the part of one party so as to give a rise to an estoppel against that party and in favour of the other party. ( 10. ) IT may be relevant to reproduce section 92 of the Evidence Act and proviso (4), which are as follows :- "when the terms of any such contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representative -in -interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. " Therefore, what the section prohibits is to lead evidence of an oral agreement so as to contradict, vary, add to or subtract from the terms of a written document, the terms of which have been reduced to writing and which by law is required to be reduced to the form of a document. ( 11. " Therefore, what the section prohibits is to lead evidence of an oral agreement so as to contradict, vary, add to or subtract from the terms of a written document, the terms of which have been reduced to writing and which by law is required to be reduced to the form of a document. ( 11. ) PROVISO (4) is as under:- "the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in oases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. " Therefore, proof of a subsequent oral agreement to rescind or modify the contract itself is permissible. However, it is not permissible in cases in which such contract is by law required to be in writing or has been registered according to the law in force. Therefore, in respect of documents which are by law required to be in writing and registered, even proof of a subsequent oral agreement so as to rescind or modify it, will not be permissible. Similarly, if the document has been registered according to the law in force, then also proof of a subsequent oral agreement to rescind or modify will not be permissible. In all other cases covered by proviso (4), proof of a subsequent oral agreement to rescind or modify will be permissible. At this stage it is pertinent to note that an agreement of reconveyance is not by law required to be in writing or registered. If registered, it would be a voluntary registration. The question whether proviso (4) to section 92 of the Evidence Act is attracted, might have been relevant if the plea of the first and the second respondents had been that there was a subsequent oral agreement so as to rescind or modify the written agreement of reconveyance, dated 17-6-64. But the plea, as already pointed out earlier, is not of that sort, but one of a waiver on the part of the defendants so as to give rise to a plea of estoppel in favour of the plaintiffs. But the plea, as already pointed out earlier, is not of that sort, but one of a waiver on the part of the defendants so as to give rise to a plea of estoppel in favour of the plaintiffs. Proof of such a conduct of waiver giving rise to an estoppel can by no stretch of imagination be said to be barred by virtue of section 92 of the "evidence Act. It is always open to a party to give up his rights which may be contained in a document which by law is not required to be in writing and registered. In this connection I might refer to the observation of a Division Bench of the Madras High Court presided over by Vardachariar and Horwill JJ. in V. Krishnaswami Rao. v. R. Srinivasa Desikan (A I R 1937 Mad. 261.) wherein the suit was filed by the mortgagee for sale of the mortgaged property. The mortgagor pleaded an oral agreement between himself and the mortgagee to the effect that the mortgage amount had been settled at a certain figure and that the mortgagee would accept certain property in full discharge of his mortgage debt. An objection was raised on behalf of the mortgagee that section 92 of the Evidence Act was a bar to the proof of such a subsequent oral agreement. Vardachariar J. speaking on behalf of the Bench negatived that contention and held that the mortgagor was entitled to adduce evidence to prove the oral agreement about the mode of satisfaction of the mortgage debt. The learned Judge made the following observations :- "it is settled by a long line of authority and Mr. Bhashyam (Ayyangar) does not deny that a debtor may plead and prove an actual discharge in a manner or on terms different from those contemplated by or provided for in the document evidencing the debt. But relying on the distinction drawn in the cases between a discharge and an agreement to give a discharge in future, he maintains that in the present case the allege 1 contract to take a sale of a portion of the hypothec in satisfaction of the debt amounts to nothing more than an agreement to give a discharge if and when the sale is completed and is therefore within the prohibition contained in section 92. This argument seems to us to rest on a misapprehension of the legal effect of the contract of sale in such oases. " Varadachariar J. referred to the case law on the point exhaustively. ( 12. ) IN this connection, I might refer to the commentary of the learned author, Anson on principles of the English Law of Contract (21st Bdition-1959) at pages 402, 403 and 404. At page 402, the learned author observes as follows:- "as to the point concerning consideration, the Courts seem always to hive held that the waiver of a contractual condition by one party at the request of the other is valid and binding even though this element is nut present. The party granting the indulgence cannot go back on his promise and insist on his strict contractual rights He can, however, in cases of postponement of performance, by giving reasonable notice to the promisee, require the contract to be performed within a new time limit, or, if no new time is fixed, within a reasonable time. Similarly in cases of the waiver of other types of contractual condition, he kid, with reasonable notice, revere to the original contractual stipulation; but he cannot treat the forbearance as of no effect. " Further on, at page 403, the learned author observes as follows :- "the party at whose request the forbearance is granted is also bound by its terms. Moreover, if he asks to have the performance of the contract postponed, he doe3 so at his own risk. For if the market value of the goods which he should have accepted at the earlier date has altered at the later date, the measure of damages may be increased, as against him, by the addition of damages consequent on the delay. The doctrine of forbearance is a common law doctrine. But it will be remembered that equity also is prepared to intervene in similar circumstances. The doctrine of forbearance is a common law doctrine. But it will be remembered that equity also is prepared to intervene in similar circumstances. it is (said Lord Cairns) the first principle upon which ail Court3 of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results-certain penalties or legal forfeiture -afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enfored those rights will not be allowed to enforce them where it would be inequitable, having regard to the dealings which have thus taken place between the parties. the party who has promised the forbearance will be estopped from going back-on his promise, at any rate without giving notice to the promisee. The similarity between the common law and equitable doctrines is so striking that it is tempting to regard both as a species of estoppel. This was in fact the view taken by Denning l. J. in Charles Richards, Ltd. v. Oppenhaim ( (1950) 1 KB 616)" The same principle was reiterated by Asquith, Denning and Birkett, L. JJ. in combe v. Combe ( (1951) 1 All E R page 767.) Such a question came up for consideration before a Division bench of the Punjab High Court in Dominion of India v. Ram Rakha Mall (AIR 1957 Punj. 141.) In that case the plaintiff firm by a tender had contracted to supply the Government a certain quantity of bran, to its various military farms, at various periods. The plaintiff had deposited a certain sum as security for due performance of the contract. By the terms of the contract, the Government undertook to arrange for railway wagons, but did not guarantee the supply. The plaintiff however was to supply beforehand the wagon programme. The non-supply of wagons, however, was not to be the ground for non-fulfilment of the contract. There was a contemporaneous oral agreement that the Government would supply the wagons. On the requisition of the plaintiff the Government sent wagon permits to the plaintiff But on two occasions there were soma clerical mistakes on the permit. The non-supply of wagons, however, was not to be the ground for non-fulfilment of the contract. There was a contemporaneous oral agreement that the Government would supply the wagons. On the requisition of the plaintiff the Government sent wagon permits to the plaintiff But on two occasions there were soma clerical mistakes on the permit. Inspite of the repeated reminders of the plaintiff the mistakes were not corrected and the wagons could not be had The plaintiff had purchased the required quantity of bran at various centre; and was fervently applying for wagons. The goods could have been transported, at whatever cost, by other means of transport, but till the last the plaintiff-firm was left under the impression that the wagons would soon be made available to it, and was acting under that belief. In view of th s belief created by the employees of the Government, the plaintiff was prevented from arranging alternative means of transport. It was only a week before the expiry of three months that the Government wrote to say that the supply may be made from local zamindars and even then it was not said that the plaintiff had been in default in not making full supplies inspite of their failure to supply the wagons. The division Bench laid down that the plaintiff did all that he could do to perform his part of the contract and it could not be said that he had failed to perform his contract and therefore the security was liable to forfeiture. Further on the division Bench held that in equity the Government could not be allowed to go back on the oral promise made by the authority concerned to supply the wagons and therefore the security deposited by the plaintiff for due performance of the contract could not be forfeited on the ground that the plaintiff firm did not perform its part of the contract. For that proposition the Division Bench relied on the case of Combe v. Combe (supra ). ( 13. ) THUS, it is open to the parties to waive their contractual rights embodied in a document and if on that representation, the other party does something to its own prejudice, the party waiving its right is not entitled to strict performance according to the original contract, because it would be estopped from doing so. ( 13. ) THUS, it is open to the parties to waive their contractual rights embodied in a document and if on that representation, the other party does something to its own prejudice, the party waiving its right is not entitled to strict performance according to the original contract, because it would be estopped from doing so. It is that principle which would be attracted to such a case. ( 14. ) IN the present case what is found is that on 23-2-1965 the plaintiffs had secured a loan of Rs. 8,000 on high rate of interest. They were willing to incur the loan and to have a reconveyance. But it was the defendant who persuaded them not to do so and who waived his right of time limit under the agreement, Ex. P/l, and showed his willingness to postpone the matter for a further period of two months. On account of this representation of the defendant, the plaintiffs were prevented from offering Rs. 8,000 before 25-2-1965 and to have a reconveyance executed. However, in accordance with the suggestion of the defendant, the plaintiffs secured the necessary amount in the first week of April, 1965, which was well within the period of two months from 25-2-1965. Actually they offered the money on 8-4-1965. At this stage the defendant could not be allowed to turn round and stick to his contractual right strictly in accordance with the terms of the agreement, Ex. P/l, because he would be estopped from doing it. ( 15. ) HAD it been merely a matter to which section 92 of the Evidence act might be attracted, I would have no hesitation in reversing the decree of the first appellate Court on the basis of the pronouncement of their Lordships of the Supreme Court in K. Simarathmull v. Nanjalingiah Gowder (AIR 1963 S C 1182.) But, in my opinion, that question does not at all arise, nor does the question of proviso (4)to section 92 of the Evidence Act being attracted, arise for consideration. But the question is one of waiver giving rise to a plea of estoppel. ( 16. But the question is one of waiver giving rise to a plea of estoppel. ( 16. ) THE learned counsel for respondents 1 and 2 argued that this was a case of novation, as per section 62 of the Contract Act, and what the plaintiffs were enforcing were their contractual rights, as per the agreement, Ex, P/l, which ought to be considered to be a novated contract and which cannot be said to be a repetition of the earlier agreement of reconveyance, dated 25-2-1955. In my opinion, that controversy is wholly immaterial: Whether the agreement, dated 17-6-1964 (Ex P/l) is considered a novated contract or a mere repetition of the earlier agreement of reconveyance dated 25-2-1955, will not affect the merits of the case one way or the other. That argument was advanced by the learned counsel for the respondents 1 and 2 in order to meet the argument of the learned counsel for the appellants that the agreement was merely a concession, which could strictly be availed of in accordance with the terms of the deed on the principle laid down by their Lordships of the Federal Court in shatnmugam Pillai v. Annalakshmi Ammal (A I R 1950 F C 38.) I feel that it will make no difference whether the agreement, Ex. P/l, is considered one way or the other. ( 17. ) THEREFORE, although I may not be able to agree with all that the learned appellate Judge has said in his unnecessarily lengthy and exhaustive judgment, I would uphold the decree passed by him on the view taken by me above. ( 18. ) AS a result, this appeal fails and is accordingly dismissed with costs. Counsels fee in this Court shall be according to schedule or certificate, whichever be less. The costs of the Courts below shall be borne as directed by the first appellate Court. Appeal dismissed.