Sharma, J. - (1.) THIS is an appeal by the vendor defendant in a suit for specific performance of contract to sell immovable property. The vendor Bhura Mal executed an agreement on the 6th February, 1949 for sale of his house to the plaintiff Gokul Narain for a sum of Rs. 1549/- The plaintiff also executed an agreement on the same date to purchase the house for a sum of Rs. 1549/- and it was stated in the agreement that the property would be purchased within fifteen days. No sale deed was executed by the defendant No. 1 and so the plaintiff brought the present suit for specific performance of the contract. The defendant No. 2 Gulab Chand was also made a party because after the contract the vendor made a gift of the property in his favour. The plaintiff said in his plaint that he was prepared to purchase the house but the defendant No. 1 did not execute the sale deed. The agreement executed by the plaintiff is Ex. A. I. and that executed by the vendor Bhura Mal is Ex. 1.
(2.) THE main defence was that the plaintiff failed to get the sale deed executed within fifteen days in compliance with the terms of the contract and so he forfeited his right to purchase his property under the contract. It was also pleaded that the plaintiff gave his consent for the execution of the gift deed in favour of Gulab Chand and so he was estopped from suing for the enforcement of the contract. Learned Civil Judge Jaipur City who tried the case found in favour of the plaintiff and decreed the suit. The defendant went in appeal but the learned District Judge Jaipur City dismissed the appeal and upheld the decree of the first court. Bhura Mal has come in second appeal to this court. A lot of time of the court was spent by the learned counsel for the appellant in referring to the evidence recorded in the case. Learned counsel however, did not realise that both the lower courts having found against the defendant as a fact that the defendant was responsible for the breach and not the plaintiff, it was no use wasting the time of the Court in referring to the evidence. Both the lower courts have found that the plaintift purchased stamp for sale deed, that a site plan was prepared, that a draft was made of the sale deed and handed over to the defendant who kept it to himself and the defendant returned it to the plaintiff for the execution of the sale deed. They have held that the plaintiff was always willing to have a sale deed executed but it was the defendant who did not like to execute it. This being the finding of fact of both the lower courts it is not open for me in second appeal to go against that finding. Thus on the finding of fact that the plaintiff was always prepared to purchase the property but the breach occurred from the side of the defendant, it is not necessary for me to consider whether the time was of the essence of the contract in this case. However, I may observe that having read the agreement I do not find that the time was of the essence of the contract. It has been held by their Lordships of the Privy Council in Jamshed Khodaram Irani vs. Burjarji Dhunjibhai (A. I. R. 1915 Privy Coun-cil page 83) that stipulations about time must show that the intention was to make the rights of the parties depend on the observance of the time limits prescribed in a fashion which is unmistakable. Prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a court of law the contract has not been liter-ally performed by the plaintiff as regards the time limits specified. It was held also in Janardan Mahats vs. Bhairab Chandra Mondal and others (A. I. R. 1915 Calcutta Page 259) that time is not of the essence of a contract, until the parties expressly make it so. Where in an agreement to sell some time is named, it is not until one side or the other gives the opposite party reasonable notice to complete the agreement within a definite time that the opposite party can be tied down to the time so prescribed. In Sri Ram vs. Kidari Parshad Chhedi Lal (A. I. R. 1925 Lahore Page 481) it was held that in a contract for the sale of immovable property time is not of the essence of the contract. In Raghbir Das vs. Sunder Lal and another (A. I. R. 1931 Lahore Page 205) It was held that the mere fact that time is specified for the performance of a certain act, is not, by itself, sufficient to prove that time is the essence of a contract. The court has to look at the substance and not merely at the letter of the contract and ascertain whether the parties really and in substance intended more than that the act should be performed within a reasonable time. In the ruling reported in Suryanarayan Murthi vs. B. Satyanarayana Murthi (A. I. R. 1925 Mad-ras Page 211) cited by the learned counsel for the appellant himself it was held that though ordinarily time is not the essence of a contract to sell land yet it is open to the party to make time the essence of the contract. As I have said above reading both the documents Ex. I and Ex A 1 I do not find any such words in it which may lead me to conclude that the time was the essence of the present contract. Even though the plaintiff could not purchase the property within fifteen days, he was prepared to purchase within a reasonable time when he gave notice to the defendant No. 1 on the 20th March, 1947. The defendant No,. 1 however, refused to sell as his reply to this notice shows. Another argument was made by the learned counsel for the appellant that the vendor having parted with the property by way of gift after the contract, decree for specific performance of the contract could not be given. The learned counsel was unable to refer to any law on which this argument was based. Sec. 27 clause (b) explicitly provides that a specific performance of the contract may be enforced against any other person claiming under the executant by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and with-out notice of the original contract. In the present case defendant No. 2 claims title under defendant No. 1 and this title arose subsequently to the contract. The defendant No. 2 is not a transferee for value who has paid his money in good faith and without notice of the original contract. The contract could therefore, be specifically enforced against defendant No. 2 as well who has not preferred any appeal. I do not find any force in the appeal which is dismissed with costs to the contesting respondent. . ;