Judgment

JASWANT SINGH, J.:- This appeal by special leave which is directed against the judgment and decree dated January 29, 1968, of the High Court of Judicature at Bombay involves a question of the applicability or otherwise of the doctrine of frustration embodied in Section 56 of the Contract Act which to use the words of Viscount Manugham in Joseph Constantine Steamship Line Limited v. Imperial Smelting Corporation Ltd., (1942 AC 154 at p. 168) "is only a special case of the discharge of contract by an impossibility of performance arising after the contract was made or to use the language of Mukherjea, J. in Satyabrata Ghose v. Mugheeram Bangur & Co., (1954 SCR 310) "is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act.

2. The facts giving rise to this appeal lie in a short compass and may be briefly stated: the respondents who are the owners of four plots of agricultural land admeasuring 7 acres and 13 gunthas and a bungalow standing thereon situate in village Majwade, near Pokhran Talao Road, Thana, having bought the same from Homi D. Dubash under a sale deed dated September 9, 1953 agreed to sell the same to the appellants in lieu of Rupees 25,000/- vide agreement dated May 16, 1957, relevant clauses whereof provided as follows:-

"5. If the purchasers shall insist on any requisitions or objections as to the title, evidence of title, conveyance, possession, receipt of rents or any other matters on the abstract of or this agreement or connected with the sale which the vendors shall be unable or on any ground unwilling to remove or comply with, the vendors shall be at liberty notwithstanding any negotiation or litigation in respect of such requisition or objection, to give to the Purchasers or their Solicitors notice in writing of their intention to rescind the contract for sale unless such requisition or objection be withdrawn and if such notice be given and the requisition or objection be not withdrawn within ten days after the day on which the notice was sent, the contract shall, without further notice be rescinded. The Vendors shall thereupon return to the purchasers the deposit but without any interest, costs of investigating the tile or other compensation or payment whatever.

6. If the title be not approved by the Purchasers attorneys or if the purchase is not completed within the said period of two months owing to any default on the Vendors part, is shall be at the option of the purchaser to rescind this agreement and in that even the purchase shall be entitled to receive back the earnest money from the vendors, together with out of pocket costs incurred in the preparation of this agreement and investigation of title, advertisement, Bataki, correspondence etc. But in case of the Vendors wilful default the Vendors shall also pay to the Purchasers interest at 6% per annum on the amount of earnest money from the date hereof till the date of return of the earnest money and all costs of the Purchasers.

7. If the sale is not completed within time provided for completion owing to the fault of the Purchaser, the Vendors shall be entitled to put an end to this contract and to forfeit the earnest money.

3. Pursuant to the aforesaid agreement, the respondents attorneys delivered the documents of title to the appellants attorneys on May 17, 1957 for investigation of title and in the third week of May, 1957. The respondents gave possession of the aforesaid property to the appellants in part performance of the said agreement. On August 22, 1957, the respondent and the appellants made a joint application to the District Deputy Collector, Thana Prant, under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1943 (hereinafter referred to as the Act) seeking permission to sell and purchase the aforesaid agricultural land. Section 63 of the Act reads:

"63. (1) Save