GANAPATS v. GOINDASA VS NINGAPPA RAMAPPA — 1979 DIGILAW 141 (KAR)

JAGANNATHA SHITTY, J. ( 1 ) THIS appeal is directed, against the judgment and decree for specific performance of an agreement made by the Principal Civil Judge, Belgaum in orginal Suit No. 83 of 1966. Briefly stated, the facts are these: one Masabi alias Dulanbi, mohammadsaheb Tor gal was the owner of certain agricultural lands situated at Belgaum city. On 19th june 1948, she obtained permission from the revenue authorites to divert the kinds for non-agricultural purposes. Thereafter she made a lay out with 162 building sites out of which she sold 47 sitea The remaining 115 sites could not be disposed off. She also did not pay the non-agricultural assessment due in respect of those lands. For that default, the lands were forfeited to the Government on 29th july, [954 and entered in the record of rights as Government waste. This position continued to remain for almost a decade. Masabi could not raise any funds to clear the dues of the Government nor she could succeed in getting the lands restored to her, although she challenged the order of forfeiture in appeal and revision. ( 2 ) ON 30th May, 1964, she entered into an agreement Ext. P-l with ningappa Ramappa Obannavar (the plaintiff) for the sale of those 115 sites for Rs. 43,000i- out of which rs. 17,000/- should be paid by the plaintiff to the Government on behalf of Masabi towards the outstanding dues and the balance at the time of registration of the sale deed which should be completed within a period of six months. On the date of the agreement, the plaintiff paid Rs. 1,000/- as advance. ( 3 ) IN order to remit Rs. 17,000/- to the Government as per the agreement, it is said that the plaintiff went to the collector's Office, where he was told that the lands had been forfeited to the Government and the amount could be paid only upon an application for restoration. The plaintiff passed on that information to Masabi who then assured the plaintiff "that he need not have any apprehension and she would set right the matter through h. P. Patil (P. W. 2)". On 6th June, 1964, P. W. 2 as Power of Attorney of masabi filed an application Ext. P-2 to the Secretary to Government, revenue Department, inter alia stating that he was willing to credit rs. On 6th June, 1964, P. W. 2 as Power of Attorney of masabi filed an application Ext. P-2 to the Secretary to Government, revenue Department, inter alia stating that he was willing to credit rs. 11,855-2-6 under protest for restoration of the lands although the order of forfeiture was illegal and unjust. No amount however, was paid along with that application. ( 4 ) ON 21st March 1965, Masabi died. It is said that before her death she executed a will Ext D-24 dated 21st february 1965 bequeathing the lands in question in favour of her daughter- in-law Rabiyabi, who is defendant-1 in the suit. Defendant-2 is an estate agent and also the Power of Attorney holder of defendant-1. Defendant-3 is the son of Masabi and husband of defendant-1. Defendants 4 to 6 are the daughters of Masabi. ( 5 ) ON 10th January, 1966, defendant- 1 executed an agreement Ext. D-5 in favour of defendant-2, for sale of the suit lands. Defendants 3 to 6 filed affidavits Exts. D-20 to D-23 before the Circle Officer stating that defendant-1 was the legatee legally entitled to the lands as per the Will ext- D-24. On 13th January 1966, the tahsildar reported to the Deputy commissioner for restoring the lands in favour of defendant-l. On 17th) june, 1966, defendant-2 also asked for restoration of the lands. The Deputy commissioner by order Ext. P-5 dated 19th June, 1966, directed that the lands should be restored to the successor-in-title of the original defaulter upon the deposit of the arrears within a period of three months thereof. On 25th June, 1966, the Tahsildar by his intimation Ext. D-10 called upon defendant-2 to deposit the said amount. Thereupon, defendants 1 and 2 deposited the arrears amounting to Rs. 18,930/- on different dates from 2nd August, 1966 to 19th September, 1966. ( 6 ) ON 29th August 1966, P. H. Patil p. W. 2, styling himself as the General power of Attorney holder of Masabi, wrote a letter Ext-P-5a giving some interesting information to defendants 1 to 6. He had stated in that letter that Masabi had entered into an agreement dated 24th, May, 1964 with the plaintiff agreeing to sell her lands for Rs. He had stated in that letter that Masabi had entered into an agreement dated 24th, May, 1964 with the plaintiff agreeing to sell her lands for Rs. 24,000/ - plus the amount of non-agricultural assessment due to government, with a Power of attorney in his (P. W. 2) favour authorising him to do all that was necessary to get the lands restored from the Government. He had accordingly pursued the matter before the deputy Commissioner who has since restored the lands on the condition that the arrears of non-agricultural assessment should be deposited before 19th September, 1966. With this information, he called upon defendants 1 to 6 to credit that amount in time to the Government. He also gave a warning to them in the following terms:". . . If you fail to credit the amount in time, the lands will not be restored. If any loss or damages occurs thereby either to you or to shri Ningappa Ramappa Obannavar. you are directly responsible for the same as he is willing to pay the amount on production of a proper receipt as per the terms of the contract. "he further stated: "i am to further inform you that i have received a sum of Rs. 4,0001/- being my pay and expenses of the case for which I will produce accounts if considered necessary. Thus the total amount received from Shri Ningappa Ramappa obannavar comes to Rs. 5,000 which may be reduced from the total amount of Rs. 24,000 to be received by you and the remaining amount be received from him in addition to the probable amount of dues to government. It may be relevant to state that defendants 1 to 6 did not reply to that letter nor complied with the demand made thereunder. ( 7 ) ON 5th October, 1966, the Tahsildar pursuant to the order - of the deputy Commissioner passed an order ext. D-11restoring the possession of the lands to defendant-1 as a legatee under the will executed by Masabi. ( 8 ) ON 24th September 1966, one babu Mallappa Appugol of Belgaum claiming to be the Power of Attorney of the plaintiff issued a notice Ext. D-1 to defendants 1 and 2 calling upon them to execute the sale deed as per agreement executed by Masabi. Defendants 1 and 2 did not reply to that, notice. ( 8 ) ON 24th September 1966, one babu Mallappa Appugol of Belgaum claiming to be the Power of Attorney of the plaintiff issued a notice Ext. D-1 to defendants 1 and 2 calling upon them to execute the sale deed as per agreement executed by Masabi. Defendants 1 and 2 did not reply to that, notice. By then, defendant-1 had already entered into a contract with defendant-2 for sale of the lands and also authorised him to sell the same. Accordingly, on 11th October, 1966 he sold some of the sites to defendants 7 to 15. On 14th October, 1966, the plaintiff filed the suit for specific performance. ( 9 ) INTERRUPTING the narration, we have to refer to some other facts. On 28th September, 1966, the plaintiff executed a registered agreement Ext. P-3 assigning his right under the suit agreement in favour of Tayawwa, the mother of Kudchi P. W. 3. The suit was filed wiihout disclosing this 'assignment and also without impleading Tayawwa. When the defendants raised an objection as to the maintainability of the suit on that ground, Tayawwa executed a deed Ext. P-4 dated 15th, march, 1967 reassigning her right in favour of the plaintiff stating that ext. P-3in her favour was only a nominal deed. With these background developments, the suit proceeded. ( 10 ) DURING the pendency of the suit, some more interesting events took place. Oil 7th June, 1968, Tayawwa made an application to implead her as a pianeiff in the suit, but it was later withdrawn and rejected. On 8th July 1968, defendant-3 executed a sale deed ext. D-25 in favour of the plaintiff purporting to sell his interest in the suit property, but that deed was not registered. It was cancelled on 12th august 1968 as per the order of the assistant Commissioner. On 9th July, 1968, deiendant-3 assigned his right in the suit property in favour of one topanna Nagappa Belgundkar for Rs. 10,000/ as per Ex. D-26. On 9th July, 1970, the plaintiff purchased the right, title and interest of defendants 4 to 6 in the suit property for Rs. 15,000/- as per Ext- D-28. The other side of the picture may also be completed. 10,000/ as per Ex. D-26. On 9th July, 1970, the plaintiff purchased the right, title and interest of defendants 4 to 6 in the suit property for Rs. 15,000/- as per Ext- D-28. The other side of the picture may also be completed. Three days before the fliling of the suit, defendant-2 sold sites to defendants 7 to 15 and during the pendency of the suit, it is said that he disposed off all the remaining sites. ( 11 ) WE may now turn to the averments in the plaint as they have a material bearing on the question before us. The averments therein are as follows: that Nasabi was the owner of the lands which she got converted into non-agricultural purpose in 1948 and formed sites thereafter. She had formed about 162 sites out of which she sold 47 to different persons. The remaining 115 plots wefe agreed to be sold to the plaintiff as per the agreement dated 30th May 1964. On the date of the agreement, the plaintiff paid Rs. 1,000/- as advance money. Out of the balance he had to pay Rs. 17,000/ - to the Government on behalf of Masabi towards her dues on account of the arrears of non-agricultural assessment. The remaining amount of Rs. 20,000/- was required to be paid at the time of the registration of the sale deed. The plaintiff made an attempt to credit t;he sum oi Rs. 17,000/- to the Government, but he could not. deposit ass the 'lands hud been forfeited to Government. When this information was conveyed to masabi, she promised to do the needful and on her behalf an application for restoration of the land was filed. During the pendency of that application, Masabi died. Defendant-1 on the strength of an alleged will executed by Masabi continued the restoration proceedings before the Deputy commissioner and obtained, an order of restoration in her favour keeping the plaintiff and the other legal representatives of Masabi in the dark. After obtaining the restoration order, defendants 1 and 2 without calling upon the plaintiff to make payment of Rs. 17,000/ - to Government, paid themselves that amount, besides Rs. 1,930/- towards interest. After obtaining the restoration order, defendants 1 and 2 without calling upon the plaintiff to make payment of Rs. 17,000/ - to Government, paid themselves that amount, besides Rs. 1,930/- towards interest. When the plaintiff came to know about that payment, he issued a notice to defendants 1 and 2 informing them that he was ready with the entire sale amount and they should execute a sale deed in his favour. But the defendants have refused to execute the sale deed. The plaintiff has all along been ready and willing to perform his part of the agreement and he is still ready and willing to perform that and complete the same. With these allegations, he asked for specific performance of the agreement and in the alternative, sought damages equal to the sale price of Rs. 43,000/- for breach of the agreement. ( 12 ) THE written statement of defendants 1 to 3 was filed on 25th September 1967 by one Mahajan, Pleader, denying the plaintiff's claim and supporting the Will Ext. D-24. It was contended therein that the agreement of the plaintiff was brought about by misrepresentation, fraud and under colour of office by Sri L. K. Kudchi (P. W. 3) who was then a Clerk in the Tabsildar's Office, Belgaum. The agreement was thus benami in the name of the plaintiff and the same was therefore illegal and void. It was also contended that the plaintiff did not deposit nor made any honest attempt to deposit Rs. 17,000/- in the Government as required under the agreement. ( 13 ) IT appears that defendant-3 did not engage Sri Mahajan, Pleader who filed the written statement as stated above. He was placed exparte on 27h february 1967, but that exparte order was set aside on 24th July, 1968. Thereafter defendant-3 filed a separate written statement in which he stated that he had not filed the written statement along with defendants 1 and 2. So saying, he sailed with plaintiff giving his consent for passing a decree for specific performance. Likewise, defendants 4 to 6 also followed defendant-3 although they did resist the suit in their written statement. But defendants 7 to 15 being the purchasers of sites stoutly resisted the suit. ( 14 ) ON these pleadings, the trial court framed as many as 15 issues. Likewise, defendants 4 to 6 also followed defendant-3 although they did resist the suit in their written statement. But defendants 7 to 15 being the purchasers of sites stoutly resisted the suit. ( 14 ) ON these pleadings, the trial court framed as many as 15 issues. Issuesi 1, 2, 4 5 and 6 relate to the validity of the suit agreement Ext. P-l and the plaintiff's readiness and willingness to perform his part of the agreement. The remaining issues relate to the legality of the forfeiture and the restoration of the lands, the validity of the execution of the Will ext. D-24 and the plea set up by defendants 7 to 15 regarding their bona fide purchases. In support of the case set up in the plaint, three witnesses including the plaintiff P. W. 1 have been examined. P. W. 2 is P. H. Patil who was the Power of Attorney holder of Masabi and who filed the application on her behalf for restoration of the lands. P. W. 3 is L. K. Kudchi, one of the attestors to the agreement. Defendants in their turn, have examined 12 witnesses including defendant-2. Most of these witnesses were on behalf of defendants 7 to 15 to prove that they were bonafide purchasers without notice of Ext. P-l. ( 15 ) THE trial Court , held that Ext. P-l was proved to have been validly executed and the plaintiff was always ready and willing to perform his part of the agreement. On the question of the Will Ext. D-24 relied upon by defendant-1, it was held that the will was not proved to have Been executed as the attestors did not support its execution. It also held that the lands had been restored, on the application filed by Masabi and her legal representatives are therefore, bound to perform the agreement. Accordingly, it decreed the suit, directing the plaintiff to deposit in court Rs. 32,000/- towards the balance of consideration for the sale, with a further direction to defendants 1 to 6 to execute the sale, deed in favour of the plaintiff and also directing all the defendants to put the plaintiff in possession of the lands. ( 16 ) IN this appeal, a lot of argument was addressed by Sri Krishnamurthy, learned Senior Advocate for the appellant regarding the validity of the will and the effect of restoration of the lands. ( 16 ) IN this appeal, a lot of argument was addressed by Sri Krishnamurthy, learned Senior Advocate for the appellant regarding the validity of the will and the effect of restoration of the lands. He urged that that Will was validly executed and the mere fcat that the attestors have not supported its execution, is no ground to conclude that it was not a valid will. He also urged that defendants 3 to 6 admitted the execution of the will by filing affidavits Exts. D-20 to d-23 before the Circle Officer on 10th january 1966 and they are, therefore, bound by those statements and cannot be permitted to approbate and reprobate. He further urged that the lands were restored to defendant-1 under S. 56 of the. Bombay Land revenue 'code free from all encumbrances and liabilities including the obligation under the agreement. ( 17 ) ON the validity of the Will, it seems to us, that it would be proper not to express any opinion in this case. A finding on that question appears to be uncalled for. Even if the Will is valid, the plaintiff's suit cannot be thrown out. Ext. P-1 gives him the right to proceed against the legatee, if the Will is not valid, the plaintiff could proceed against the legal representatives of Masabi. The fate of the suit does not depend upon the genuineness of the Will, the investigation of which is, therefore, uncalled for in this proceeding. We may, however, observe that the trial Court was not justified in holding that the will was not proved merely on the ground that the attestors to the deed aid not support it. "an attesting witness who denies attestation may be contradicted by other evidence and the Court is competent to disregard the testimony of the attesting witnesses and pronounce in favour of the will if it is satisfied from the evidence collectively or from the circumstances of the case that the requirements of law have been complied with and the witnesses who had spoken against the will had not spoken the truth. "vide Kedar Nath v. Rajkumar, AIR 1939 Cal 674 at 680. We may also make it clear that the proof of a Will is not a matter of mere dispute between contending parties as in ordinary actions. It is a matter which falls for satisfaction of the judicial conscience of the Court. "vide Kedar Nath v. Rajkumar, AIR 1939 Cal 674 at 680. We may also make it clear that the proof of a Will is not a matter of mere dispute between contending parties as in ordinary actions. It is a matter which falls for satisfaction of the judicial conscience of the Court. If a Will is surrounded by any suspicious circumstances as it is in the present case, it is always for the propounder to satisfy the Court by removing such suspicions by cogent and satisfactory evidence. We leave it at that for any aggrieved party to challenge it in an appropriate proceeding and we are told that the validity of that Will is already under consideration in a suit as between some of the legal representatives of masabi. ( 18 ) THE contention urged for the appellants that the lands were restored in favour of defendant-1 free from encumbrances including the obligation of Masabi under Ext. P-1, has, in our opinion, no merit. No doubt, s. 56 of the Bombay Land Revenue code provides that when the land was forfeited and, later restored shall, unless the Collector otherwise directs, be deemed to be freed from all tenures, rights, encumbrances and equities theretofore created in favour of any person other than the Government in respect of such occupancy or holding, but that section has no application to the case on hand. Bombay Land revenue Code was repealed upon coming into force of the Karnataka land Revenue Act, 1964, which came into force on first April, 1964. Thje application for restoration on behalf of Masabi was made on 6th June, 1964 and the Deputy Commissioner made the order restoring the land to the successors of Masabi on 19th June, 1966, as per Ext. P-5. S. 56 of the bombay Land Revenue Code, therefore, cannot be pressed into service. There is no indentical provision in the karnataka Land Revenue Act, 1964. 1. S. 87 (3) of the Karnataka Land revenue Act providing for restoration of such lands, states that such occurancy or holding, when disposed of, whether by sale or otherwise except by restoration to the defaulter, shall unless the Tahsildar otherwise directs, be deemed to be freed from all tenures, rights encumbrances and equities theretofore created by the occupant or holder etc. . other than the government. . other than the government. It is clear from this section that such vesting free from encumbiances will not be there when the land is restored to the defaulter. Rule 119 of the Rules framed under the Karnataka Land Revenue Act confers absolute discretion to the deputy ' Commissioner to restore any forfeited occupancy upon payment of the arrears in respect of which the forfeiture was incurred. We must therefore proceed that the lands were restored to the successors-in-title of masabi under these provisions and not under S. 56 of the Bombay Land revenue Code. ( 19 ) THE real questions in controversy to which we must now address ourselves are as follows: 1. Whether the agreement Ext. P-l is proved to have been duly executed by Masabi, and whether the plaintiff had a subsisting right thereunder to maintain the suit? 2. Whether, having regard to the true construction of the agreement, the plaintiff has performed or has always been ready and willing to perform the obligations that lay upon him and whether there was any laches or other improper conduct on his part disentitling him the decree of specific performance? ( 20 ) IT may be relevant' to remember that S. 36 of the Specific Relief Act, 1963 lays down a postive rule that specific performance of an agreement shall not be enforced in favour of a person who has failed to aver and prove that he has performed, or has always been ready and willing to perform, the essential terms of the contract which are to be performed' by him. The Section so far as it is material provides: specific performance of a contract cannot be enforced in favour of a person xx XX XX XX (c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendant. Explanation: For the purpose of clause (c): (i) xx xx xx (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Explanation: For the purpose of clause (c): (i) xx xx xx (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The terms of an agreement to be performed by a party may be of two kinds: (1) those that have to be performed before the other side is called upon to fulfil his promise, and (ii) those that may have to be subsequently performed. In relation to the former, the actual performance of, or a readiness to perform must be shown by the party who seeks specific performance and in relation to the latter, the offer to perform must be made. The defendant in turn, could plead and prove that the plaintiff has for feited his rights under the agreement by his conduct. He could also prove that the plaintiff has violated any essential term of the agreement or done acts in contravention of or at variance with the agreement. ( 21 ) WITH these principles, we new turn to the questions above referred to. On tne proof of Fxt. F-1, the; evidence adduced by the plaintiff appears to be clear and beyond blemish. The plaintiff has stated that the document was written by one manjarkar and after writing, the scribe read out the document to masabi and others. This is corroborated by the evidence of P. W. 2 and P W. 3 who were attestors to the agreement. Of course, the scribe has not been examined; but, in our opinion. it matters little in the circumstances. Mr. Krishnamurthy, however, contended that Masabi was a pardahnashin lady and the plaintiff has not discharged his burden that Masabi was a free agent and duly informed of what she executed. In support of the contention he relied upon the decision of the Supreme Court in Kharbuja kuer v. Nangbahadur, A. I-R. 1963 S-C. 1203 at 1206, wherein it was observed at page 1206:". . . . THE legal position has been very well settled. Shortly it may be stated thus: The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahjnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and she understood it, but also by other evidence, direct and circumstantial. "on the evidence to which we have earlier referred to, we cannot say that the plaintiff has not discharged the burden as required under law. The circumstances also indicate that masabi knew what she was doingshe was in a great difficulty at the time of the execution of Ext. P-1. She knew very well that due to her default to pay the dues, the lands were forfeited to Government- She unsuccessfully challenged the validity of the forfeiture in appeal and revision. She could not also raise money to pay the arrears and get the lands released. She was in that helpless position for over a decade. The lands with formation of sites were lying as Government waste. When such was the position she must have been indeed happy when the plaintiff came forward to purchase the lands undertaking to clear the arrears of non-agricultural assessment on her behalf and to pay the balance of consideration at the time of the execution of the sale deed. ( 22 ) NOR we could accept the contention that the plaintiff had no subsisting right to file the suit. No doubt, the plaintiff assigned his right under Ext. P-l in favour of Tayawwa under a registered deed Ext. P-3 dated 28th September, 1966. On the date of the suit, the plaintiff could be said to have no right to institute the suit although he said that Ext. P-3 was a nominal deed. But during the pendency of the suit, Tayawwa reassigned her rights in favour of the plaintiff under Ext. P-4 dated 15th march, 1967. The fact that Ext. P-4 was unregistered cannot be made much of as it is not a document compulsorily registrable. When the agreement itself is not compulsorily registrable, the deed of assignment of rights thereunder cannot be placed on a higher pedestal. The Court ought to take note of this subsequent event to work out the rights of the parties instead of driving them to fresh litigation. When the agreement itself is not compulsorily registrable, the deed of assignment of rights thereunder cannot be placed on a higher pedestal. The Court ought to take note of this subsequent event to work out the rights of the parties instead of driving them to fresh litigation. ( 23 ) THE important question that remains to be considered is whether the, plaintiff had discharged his obligation under the agreement which he ought to have discharged before he sued the defendants and whether he has always been ready and willing to perform the remaining part of the agreement which was to be performed by him,. The answer to this question depends upon the true construction (2) para 0, of the agreement and the honest efforts made by the plaintiff. ' For immediate reference, we set out the relevant portion of Ext. P-1 hereunder. "the above mentioned lands have been purchased by me and they are in my actual possession and wahiwat and they have been got converted to N. A. use from Government already. I had laid 162 plots of which 47 plots have been sold by me. Remaining 115 are still in my possession and wahiwat. I am selling these plots agreeing to take the consideration amount of Rs. 43,000 out of which I have received this day a sum of Rs. 1000 in cash. The remaining Rs. 42,000, you have to pay a sum of Rs. 17,000 on my behalf to Government as they are outstanding dues and you have to take a receipt therefor. The remaining amount of Rs. 25,000/- you have to pay me before the Sub registrar at the time of the registration of the sale deed. You have to bear all expenses regarding the registration of the deed which should be completed within a period of 6 months from today. There is no dispute about this land either of Government or of any individual. If any dispute arises from any source I shall get it finalised at my cost and hand over the possession of the said land. Since you have paid me Rs. 1000/- in cash today there is no necessity of separate receipt as the agreement forms part of the receipt. "the terms of the agreement are binding on me, my heirs, bhavbands and legatees. Executed this 30th day of May 1964writerbhalchandra Balwant Manjarekar. Since you have paid me Rs. 1000/- in cash today there is no necessity of separate receipt as the agreement forms part of the receipt. "the terms of the agreement are binding on me, my heirs, bhavbands and legatees. Executed this 30th day of May 1964writerbhalchandra Balwant Manjarekar. " ( 24 ) IT is first stated in the agreement that Masabi was in actual possession and Wahiwat of the lands agreed to be purchased by the plaintiff and the lands had been converted to non- agricultural use. It is further stated that she was willing to sell the 115 plots for Rs. 42,000/- out of which the plaintiff paid Rs. 1000/- as advance. It contains two directions to the plaintiff as to how ho should pay the balance of consideration of Rs. 42,000/ -. Firstly, it provides:"out of the remaining Rs. 42,000 you have to pay a sum of Rs. 17,000 on my behalf to Government as it is an outstanding dues and you have to take a receipt therefor. "secondly it states:"the remaining amount of Rs. 25,000 you have to pay me before the Sub-Registrar at the time of the registration of the sale deed. You have to bear all expenses regarding the registration of the deed which should be completed within a period of six months from today. "these conditions to the plaintiff are not in dispute and indeed, there can be no dispute. But in the performance of the first condition, the parties are at variance. For the appellants, it was urged that it was obligatory for the plaintiff to have deposited Its. 17,000 in the Collector's Office even before the lands were restored to Masabi or to her successors; while for the respondent, it was contended that there was no such obligation and time was not the essence of the agreement. According to Mr. Sundaraswamy, learned counsel for the plaintiff that obligation to deposit Rs. 17,000 arose only when Masabi got a good title to the lands and till then, it was kept dormant. Alternatively, he submitted that the plaintiff was ready and willing to deposit Rs. 17,000 but could not do so as the concerned authorities did not receive the amount. Sundaraswamy, learned counsel for the plaintiff that obligation to deposit Rs. 17,000 arose only when Masabi got a good title to the lands and till then, it was kept dormant. Alternatively, he submitted that the plaintiff was ready and willing to deposit Rs. 17,000 but could not do so as the concerned authorities did not receive the amount. He further stated that the plaintiff was not aware of the forfeiture of the lands at the time of entering into the agreement ana he was led to believe that masabi was the owner in possession of the lands and therefore, the condition to deposit Rs 17,000 should not be delinked from the good title of masabi. ( 25 ) THESE contentions require very careful analysis. Before that, we must bear in mind the governing principles of construction recognised by the law and applicable to every document. Generally, the intention of the parties is to be collected from the document itself and particularly from the words used by the parties. If there is ambiguity, in the language employed, then it is permissible to look into the surrounding circumstances to determine what was intended. The application of these principles, however, to some extent is also governed by the nature of the document- Lord Tomlin in Hillas and Co v. Areas, Ltd. , 1932 All. E. R. 494 at 499, said:". . . The governing principles of construction recognised by the law are applicable to every document, and yet none woujd gainsay that the effect of their application is to some extent governed by the nature of the document. The problem for a court of construction must always be so to balance matters that, without violation of essential principle, the dealings of men may as far as possible be treated as effective, and that the law may not incur the reproach of being the destroyer of bargains. " ( 26 ) IN the light of these principles, we my first examine whether the plaintiff was not aware at the time of entering into the agreement of the fact that the lands were forfeited to the State. The plaintiff was no doubt a sheep breeder, but we do not think that he entirely depended upon his native intelligence to strike a bargain with Masabi to purchase not less than 115 sites at the heart of Belgaum city. The plaintiff was no doubt a sheep breeder, but we do not think that he entirely depended upon his native intelligence to strike a bargain with Masabi to purchase not less than 115 sites at the heart of Belgaum city. He is a resident of Mutage which is 6 to 7 miles from Belgaum. But the two attestors to the agreement, Mr. Kudchi P- W. 3 and Kotwal were working as clerks in the Tahsildar's office at Belgaum at the time of Ext. P-1. P. II. Patil (P. W. 2) another attestor to Ext. P-l was a Police patil from 1948 to 1969 of the village where the lands were situated. He has admitted his familiarity with Masabi since he used to go to her for collection of land revenue. These three persons, at any rate, cannot be said to be ignorant of the forfeiture of the lands and the entry in the record of rights as Government waste. The plaintiff and P. W- 3 are first cousins. One naturally expects P. W. 3 to guide the plaintiff properly by looking into the record of rights of the lands before entering into such a big transaction. Any person credited with a little common sense could have asked masabi why it was necessary for the plaintiff to pay Rs. 17,000 on her behalf to the Government and why she could not herself pay the same. Such an enquiry would have immediately revealed that the lands were forfeited to the Government and it was an impediment for the proposed sale. Masabi at least could be credited with the knowledge of that forfeiture. Mr. Sundaraswamy fairly conceded that Masabi must be aware of the forfeiture because she herself had preferred an appeal and revision against the order of forfeiture- In the premises, the plaintiff surrounded by persons with wordly knowledge may fairly be attributed with the knowledge of the forfeiture. His version that he was not aware of the forfeiture and he bonafide believed that Masabi was the owner of the lands is a "thing which is very difficult to digest. " ( 27 ) APART from that, there are enough indications in the agreement itself as to the purpose for which that payment was required to be made. Firstly it is stated in the agreement that the sum of Rs. 17,000 was an out 2. standing dues in respect of the lands. " ( 27 ) APART from that, there are enough indications in the agreement itself as to the purpose for which that payment was required to be made. Firstly it is stated in the agreement that the sum of Rs. 17,000 was an out 2. standing dues in respect of the lands. Secondly, it is stated that that sum should be paid to the Government on her behalf by the plaintiff and he must obtain a receipt for it. The balance was required to be paid at the time of execution of the sale deed. By the nature of these terms, it appears to be clear that that outstanding to the Government was an impediment for Masabi to execute the sale deed, as otherwise there was no necessity lor Masabi to split the total consideration into two parts with a direction to the plaintiff to pay one part on her. behalf to the Government and to pay the other part at the time of executing the sale deed. The amount quantified at Rs 17,000 is a further indication that the non-agricultural assessment duo to the Government was calculated at the time of the agreement itself and the plaintiff was asked to pay it on behalf of Masabi. This is confirmed by the evidence of P. W. 2 who has stated"masabi herself had, told us that Rs. 17,000 would be payable to the Government towards N. A. permission and she herself had given the figure". Nobody, however, could believe that Masabi who was an illiterate Pardahnashin lady herself calculated the arrears due to the government with up to date interest without anybody's assistance. "men may lie but not the circumstances" is an old saying and it is particularly true in this case. ( 28 ) ASSUMING that the plaintiff became aware of the forfeiture of the lands only after the agreement was entered into, then he had a choice to avoid the agreement straightway on the ground that Masabi made a, false representation that she was the owner in possession of the lands while she was in fact not. But he did not repudiate the agreement. He kept the agreement subsisting which only means that he undertook to perform that part of the agreement. But he made no serious effort in that regard. But he did not repudiate the agreement. He kept the agreement subsisting which only means that he undertook to perform that part of the agreement. But he made no serious effort in that regard. His only act, even according to him, was that he went to the Collector's office on the next date of the agreement, along with P. W. 2, P. W. 3 and defendant-3 to deposit Rs. 17,000. He was informed by somebody in that office that the amount could not be received without an application for restoration of the lands. His evidence in this connection is worth noticing he states: ''in terms of Ext- P-l, I had gone to remit Rs. 17,000 to the Government treasury. I was informed in the Collector's Office that the lands had been forfeited to the Government and that an application shpuld be given for restoration and till then the amount cannot be accepted, then I went back to Masabi and informed her about the forfeiture. " assuming that what he has stated is true, yet there is no reason why he could not deposit the amount after p. W. 2 made the application Ext. P-2 on behalf of Masabi. He ought to have deposited then, since he was informed in the Collector's Office that the amount could be accepted after filing the application for restoration. That was not the only opportunity he had. It may be recalled that the Collector restored the lands on the application made by P. W. 2 and not on the application purported to have been made by defendant-1 or defendant-2. If he was willing and ready to pay Rs. 17,000 to the Government, nothing prevented him from depositing the same atleast immediately after the order of the Collector. There is no point in the submission of Mr. Sundaraswamy that time was not the essence of the agreement and the plaintiff could offer to pay that amount at any time before he sought the execution of the sale deed. We agree that time was not the essence of the agreement. The plaintiff could have taken a reasonable time to perform his part of the agreement. But he could not have taken upon himself to alter the mode of performance of the agreement or vary the obligatory term in the agreement. We agree that time was not the essence of the agreement. The plaintiff could have taken a reasonable time to perform his part of the agreement. But he could not have taken upon himself to alter the mode of performance of the agreement or vary the obligatory term in the agreement. He was asked to pay Rs 17,000 to Government on behalf of Masabi before he could ask for the execution of the sale deed. He could not sit idle and say "let somebody else pay now- I will pay at my own convenience when Masabi gets good title to the lands". ( 29 ) MR. Simdaraswamy urged that the plaintiff was unaware of the order of the Deputy Commissioner restoring the lands and he was also not called upon by defendants 1 and 2 to deposit rs. 17,000 after the said order of the deputy Commissioner. It is too hard to accept this contention. Firstly, there was no obligation on defendants 1 and 2 to call upon the plaintiff to comply with the order of the Deputy commissioner. Secondly, the notice ex. D-l dated 24th September 1966 issued by Appugol, the Power-of- altorney holder of the plaintiff calling upon defendants 1 and 2 to execute the sale deed impliedly shows that the plaintiff was closely watching the outcome of the restoration application filed by P. W- 2, and he was also aware of the order of the Deputy Commissioner- But that notice was issued after the arrears were paid to the government by defendants 1 and 2. The three months time given by the deputy Commissioner for payment of arrears expired on 19th September, 1966, whereas Ext- D-1 was issued on 24th September, 1966. Even Ext- D-1 cannot be taken as evidence of the willingness of the plaintiff to pay Rs. 17,000 as per the terms of the agreement He did not even disclose in Ext- d-1 that it was for him to pay Rs. 17,000 to the Government as per the agreement. He simply stated therein that the lands were agreed to be sold for Rs- 43,000 in his favour out of which he paid the earnest money of rs. 1,000 to Masabi- The concluding portion of the said notice reads:"i am now ready with the money- 1 would, therefore, request you to execute the sale deed in my favour on or before 30-9-1966. 1,000 to Masabi- The concluding portion of the said notice reads:"i am now ready with the money- 1 would, therefore, request you to execute the sale deed in my favour on or before 30-9-1966. " ( 30 ) THIS clearly shows that the plaintiff was not ready with the money till he got issued the notice Ext. D-l- it is still interesting to note that P-W. 2 as an agent of Masabi wrote a letter ext. P-5a dated 29th August 1966, that is, about two months after the order of the Collector- By that letter, he called upon defendants 1 to 6 to deposit the arrears due to the Government on beha]f of Masabi. Masabi was dead by then. His Power-of-attorney had thus come to an end. Still he wrote that letter. Why? At whose instance and for whose benefit? The reason is not far to seek. It must have been only at the instigation of the plaintiff- That would be clear from the following statements in that letter. "i like to add further that the lands have already been restored by the Deputy Commissioner, Belgaum and granted 3 months time to credit the amount to Government. The time limit expired on 19-9-1966. If you fail to credit the amount in time, the lands will not be restored- If any loss or damages occurs thereby either to you or to Shri Ramappa obannavar, you are directly responsible for the same as he is willing to pay the amount on production of a proper receipt as per the terms of the contract. "the letter clearly shows that P. W. 2 was aware of the order of the Deputy commissioner and the last date within which the arrears should be paid. He was not interested in the legal heirs of Masabi- He was only interested in the plaintiff. He was particular that the plaintiff should not be put to any loss or damage- Under the circumstances, it was most unlikely that he had not kept the plaintiff informed about the order of the Deputy Commissioner. But what is curious to note is that the plaintiff was not willing to pay to the Government and obtain a receipt- P. W. 2 states that the plaintiff "is willing to pay the amount on production of a proper receipt as per the terms of the contract". But what is curious to note is that the plaintiff was not willing to pay to the Government and obtain a receipt- P. W. 2 states that the plaintiff "is willing to pay the amount on production of a proper receipt as per the terms of the contract". That means sombody must pay and produce a receipt before him and then he would pay to that person. Unfortunately that was not intended by the agreement. ( 31 ) THE conduct of the plaintiff, the contents of Ext. P-5a and D-l, the assignment of plaintiff's rights under the agreement to Tayawwa as peext. P-3, hurried reassignment Ext. P-4 by Tayawwa to the plaintiff, the plaintitl purchasing the riglus of defendants 4 to 6 in the suit lands as per Ext- D-28 during the pendency of the suit and behind the scene activities of P. W. 2 and P. W. 3 coupled with the inconsistent stand taken by the legal representatives of Masabi on the validity of her Will, all go to shpw that there are more things concealed than revealed in this case. Havin. f regard to these and other aforesaid circumstances, we are firmly of the opinion that the plaintiff has not performed nor was ready and willing to perform his part of the agreement. ( 32 ) IN the result, the appeal is allowed. In reversal of the judgment and decree of the lower court, the plaintiffs suit is dismissed with costs throughout. --- *** --- .