Judgment

HEGDE J.- The appellants are the legal representatives of Dewnani Vidya Wati. The said Vidya Wati was the owner of the village known as Kotli Delbagh Rai in Tehsil Gujranwalla. It appears that she used to give the lands in that village on lease for a term of years by calling for tenders and accepting the highest tender. In about January 1947, she published a notice inviting tenders from interested persons for taking those lands on lease for a period of three years beginning from Kharif 1947 to Rabi 1950. The tenders had to be submitted before January 1, 1947. Clause (3) of the tender notice stated that "the terms of lease can be perused in the Dewan estates office Jammu before filing of the tenders. No excuse of ignorance as to the time will be entertained after the acceptance of the lease."

2. A note containing the terms on which the lands would be leased was exhibited for the information of the tenders in the office of the lessor. For our present purpose the only terms that are relevant are those contained in Clauses 4 and 5 of the note. Clause 4 reads:

"According to the terms of the tender the lessee shall be bound to get the Patta deed Registered within 15 days from the date of the acceptance of the lease. The expenses of the completion and Registration of the deed shall be borne by the lessee. The period of 15 days fixed for the completion and registration of the lease deed shall be the essence of contract In case the lessee is negligent to get the lease deed registered, the lease shall stand cancelled. The earnest money and the security shall also be forfeited.

A fresh tender for the lands shall be called for and any loss caused in this connection shall be borne by the lessee."

Clause 5 says:

"The lessee shall be personally responsible to get the possession of the lands under Patta after the registration of lease deed. On getting the possession of the land the lessee shall get the counter part of the lease deed executed from his cultivators and deposit the same in the estates office. And shall furnish a certificate for any part of land which he keeps for his self cultivation. He shall inform and deposit fresh counter lease deed in case of any change in his cultivators and shall get a written receipt from the Manager for the same."

3. The respondents tendered in response to the notice calling for tenders. Their tender was accepted, along with the tender they deposit a sum of Rs. 1,000/- as earnest money. Later on they deposited a sum of Rs. 34,000/- as security for the payment of rent.

4. No lease was executed or registered. From the material on record, it is not possible to find out as to who was responsible for the non-execution of the lease. But that aspect is not material for our present purpose. The landlord has not sought to cancel the contract. The agreement to lease continued to be in force even after the period within which the lease deed had to be registered.

5. Tehsil Gujranwalla became a part of Pakistan as a result of partition of India on August 15, 1947. Even before the partition Vidya Wati as well as the respondents had migrated to India because of the communal disturbances. Considerable evidence was led in the case to establish that even before the actual partition of India took place, because of the serious communal troubles, it was not possible for the respondents to go to Gujranwalla either to cultivate the lands or even to collect the rent from those who were cultivating the lands. Under those circumstances the respondents called upon Vidya Wati to refund the amount deposited as security for the payment of rent as well as to pay them a sum of Rs. 2,000/- as damages. She declined to comply with that demand. Thereafter they filed the suit from which this appeal arises claiming a decree for Rs. 36,000/-, Rs. 34,000/- as refund of the amount deposited and Rs. 2,000/- as damages. Vidya Wati resisted the suit on various grounds. She pleaded that she had doen all that she was expected to do under the contrac