RAJESH KUMARversusANAND KUMAR & ORS.

                  [2024] 5 S.C.R. 612 : 2024 INSC 444

                              Rajesh Kumar
                                    v.
                            Anand Kumar & Ors.
                       (Civil Appeal No. 7840 of 2023)
                                  17 May 2024
           [Pankaj Mithal and Prashant Kumar Mishra,* JJ.]

                            Issue for Consideration
       Matter pertains to deposition of power of attorney holder in a suit for
       specific performance, in place and instead of the plaintiff-principal
       wherein the plaintiff is required to aver and prove his readiness
       and willingness to perform the terms of the contract; and the effect
       of filing a suit for specific performance after a long delay, on the
       last date of limitation.

                                   Headnotes†
       Specific Relief Act, 1963 – s. 12 – Specific performance of
       part of contract – Deposition of a power of attorney holder,
       when can be read in evidence – On facts, the appellant entered
       into an agreement to sell with power of attorney holder for
       purchase of land for a sale consideration – Appellant paid
       earnest money on the date of agreement to sell and the
       balance amount was to be paid on the date of registration
       of the sale deed – Time for execution of the sale deed
       extended – However, the power of attorney holder executed
       the sale deed of the suit land in favour of respondents even
       though they were aware of the earlier sale agreement and
       its extensions – Sale deed executed behind the back of the
       appellant – Subsequently, on coming to know of the same,
       the appellant sent notice – Thereafter, suit filed and the trial
       court decreed in favour of the appellant – However, set aside
       by the High Court – Correctness:
       Held: In view of s. 12, in a suit for specific performance wherein
       the plaintiff is required to aver and prove that he has performed
       or has always been ready and willing to perform the essential
       terms of the contract, a power of attorney holder is not entitled
       to depose in place and instead of the plaintiff (principal) – If the
       power of attorney holder has rendered some ‘acts’ in pursuance
       of power of attorney, he may depose for the principal in respect
* Author
[2024] 5 S.C.R.                                                             613

                    Rajesh Kumar v. Anand Kumar & Ors.


     of such acts, but he cannot depose for the principal for the act
     done by the principal and not by him – Similarly, he cannot
     depose for the principal in respect of the matter of which only the
     principal can have personal knowledge and in respect of which
     the principal is entitled to be cross-examined – It is necessary
     for the plaintiff to step into the witness box and depose that he
     was always ready and willing to perform his part of the contract
     and subject himself to cross-examination on that issue – Plaintiff
     cannot examine in his place, his attorney holder who did not have
     personal knowledge either of the transaction or of his readiness
     and willingness – On facts, the plaintiff failed to appear in the
     witness box and subject himself to cross-examination, he has not
     been able to prove the pre-requisites of s. 12 and more so, when
     the original agreement contained a definite time for registration
     of sale deed which was later on extended but the suit was filed
     on the last date of limitation calculated on the basis of the last
     extended time – Instead, the power of attorney holder got himself
     examined – It is not a case where the suit itself was filed by
     power of attorney holder – He appeared subsequently only for
     recording his evidence as the special power of attorney holder
     of the plaintiff – Plaintiff entered into an agreement with only one
     of the co-owners and thereafter sought extensions for execution
     of the sale deed but did not prefer any suit though he was aware
     of the sale deed executed in favour of respondents – Suit was
     preferred, on the last date of limitation, after a long delay – Thus,
     the appellant not entitled for specific performance – Judgment
     and decree passed by the High Court upheld. [Paras 6, 8, 12,
     13, 18, 19]

                              Case Law Cited
     Shanmughasundaram & Ors. v. Diravia Nadar (dead) by Lrs. &
     Anr. [2005] 2 SCR 649 : AIR (2005) SC 1836; Janki Vashdeo
     Bhojwani & Anr. v. Indusind Bank Ltd. & Ors. [2004] Supp. 6
     SCR 681 : (2005) 2 SCC 217; Man Kaur v. Hartar Singh Sangha
     [2010] 12 SCR 515 : 2010 (10) SCC 512; A.C. Narayanan v.
     State of Maharashtra & Anr. [2013] 11 SCR 80 : (2014) 11 SCC
     790; K.S. Vidyanadam v. Vairavan [1997] 1 SCR 993 : (1997) 3
     SCC 1; Azhar Sultana v. B. Rajamani & Ors. [2009] 2 SCR 537 :
     (2009) 17 SCC 27; Saradamani Kandappan v. S. Rajalakshmi &
     Ors. [2011] 8 SCR 874 : (2011) 12 SCC 18; Atma Ram v. Charanjit
     Singh [2020] 3 SCR 697 : (2020) 3 SCC 311 – referred to.
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                                    List of Acts
       Specific Relief Act, 1963.

                               List of Keywords
       Specific Relief; Specific performance; Deposition of power of
       attorney holder; Agreement to sell; Sale consideration; Earnest
       money; Ready and willing to perform the contract; Term ‘readiness
       and willingness’; Tendering in evidence; Limitation.

                              Case Arising From
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7840 of 2023
       From the Judgment and Order dated 01.09.2016 of the High Court
       of M.P at Jabalpur in FA No. 340 of 2003

                           Appearances for Parties
       Dhruv Agrawal, Sr. Adv., M/s. Aura & Co., Yashish Chandra, Nishit
       Agrawal, Harsh Bansal, Kushagra Pandey, Ms. Vanya Agrawal, Ms.
       Kanishka Mittal, Advs. for the Appellant.
       Gagan Gupta, Sr. Adv., Vineet Chaudhary, Santosh Chaudhary,
       Hemang Chaudhary, Saurabh Gupta, Rahul Gupta, Advs. for the
       Respondents.
                  Judgment / Order of the Supreme Court
                                    Judgment
       Prashant Kumar Mishra, J.
       The appellant/plaintiff has called in question the judgment rendered by
       the High Court of Madhya Pradesh dated 01.09.2016 in First Appeal
       No. 340 of 2003 allowing the appeal preferred by the respondent nos.
       1 to 3/defendant nos. 12 to 14 thereby setting aside the judgment
       and decree dated 25.04.2003 passed by the Trial Court in Civil Suit
       No. 38-A of 2000.
2.     The facts of the case briefly stated, are that the appellant/plaintiff
       entered into an agreement to sell with respondent no. 4 (acting as
       Power of Attorney holder of respondents/defendant nos. 2 to 11) for
       purchase of land admeasuring 145.60 acres bearing Khasra No.
       214 to 233 (except Khasra No. 225) and Khasra Nos. 67/1 to 212
       situated at village Khirsau, Tehsil Sihora, District Jabalpur, M.P for
[2024] 5 S.C.R.                                                          615

                    Rajesh Kumar v. Anand Kumar & Ors.


     sale consideration at the rate of Rs. 3,000/- per acre, totalling Rs.
     4,41,000/-. The appellant/plaintiff paid earnest money of Rs. 41,000/-
     on the date of agreement to sell and the balance amount was to be
     paid on the date of registration of the sale deed which was to be
     done within six months from the date of agreement.
     2.1 On 22.05.1996, the appellant/plaintiff paid an additional amount
         of Rs. 20,000/- for which an endorsement was made on the
         backside of the agreement. Further amount of Rs. 40,000/- was
         paid on 30.06.1996 which too was endorsed on the backside
         of the agreement. On 26.12.1996, another agreement was
         executed between the appellant/plaintiff and the Power of
         Attorney Holder extending the execution of the sale deed
         till 31.03.1997, remaining terms being the same. The date
         was further extended to 31.05.1997 vide entry made in the
         subsequent agreement dated 26.12.1996. Another entry was
         made on 23.04.1997 mentioning that the agreement to sell shall
         come to an end on 31.05.1997.
     2.2 However, the respondent/defendant no. 1 being the Power
         of Attorney Holder of respondents/defendant nos. 2 to 11
         executed the sale deed of the suit land on 14.05.1997 in
         favour of respondent nos. 1 to 3/defendant nos. 12 to 14 even
         though the said respondents were aware of the earlier sale
         agreement and its extensions. The sale deed dated 14.05.1997
         was executed behind the back of the appellant/plaintiff which
         came to his notice subsequently on which a legal notice was
         sent on 30.05.1997 calling upon the respondents/defendant
         nos. 1 to 11 to be present in the Registrar’s office at Sihora on
         31.05.1997 to carry out the formalities for execution of the sale
         deed. Despite receipt of this notice, the respondents/defendant
         nos. 1 to 11 did not attend the Registrar Office. On 31.05.1997,
         the appellant/plaintiff was informed by the sub-Registrar that
         the suit land has been sold in favour of respondent nos. 1 to
         3/defendant nos. 12 to 14.
     2.3 According to the appellant/plaintiff, he is in possession of the suit
         land, therefore, he objected to the application dated 20.08.1997
         moved by the respondents/defendant nos. 12 to 14 for mutation
         of their names. The Gram Panchayat assured the appellant/
         plaintiff in its meeting dated 06.12.1997 that defendant nos.
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            12 to 14 will execute a sale deed in favour of the appellant/
            plaintiff, therefore, legal action was not initiated. The present
            suit was filed on 19.06.2000.
       2.4 The respondents/defendants in joint written statement averred
           that the suit land is in possession of the respondent nos. 1 to
           3/defendant nos. 12 to 14 being the bona fide purchasers for
           value paid vide registered sale deed dated 14.05.1997. It was
           pleaded that the respondents/defendants were not aware of any
           agreement to sell between the appellant/plaintiff and respondent
           nos. 1 to 11 and that the suit is barred by limitation. It was also
           pleaded that time was the essence of the contract and the
           sale deed was to be executed within six months from the date
           of the agreement and that the appellant/plaintiff did not have
           sufficient funds with him for payment of the sale consideration
           and the advance amount of Rs. 40,000/- was also returned to
           the appellant/plaintiff through one Subhash Chandra Bansal.
           The respondents/defendant nos. 2A to 2F filed their separate
           joint written statement stating that their late father Raghvendra
           Kumar Bakshi has never executed or agreed to execute the
           sale agreement. Similar was the plea in the written statement
           filed by the respondent/defendant no. 5.
       2.5 The Trial Court decreed the suit upon finding that the agreement
           to sell has been executed between the appellant/plaintiff and
           defendant no. 1 as a Power of Attorney Holder of defendant nos.
           2 to 11. Non-examination of the appellant/plaintiff as a witness
           was held not having any adverse impact on plaintiff’s case.
           The Trial Court also found that the time allowed for execution
           of sale deed was extended twice and he had also paid earnest
           money, therefore, the appellant/plaintiff was ready and willing
           to perform his part of the contract and the suit is not barred by
           limitation. Since the extended time for registration of sale deed
           was till 31.05.1997 and the suit was to be filed on or before
           30.05.2000. However, on the said date, the Court was closed
           for summer vacation which ended on 18.06.2000 and the suit
           was filed on 19.06.2000. Therefore, the suit was within limitation,
           having been filed on the last date of limitation.
       2.6 In appeal preferred by the respondent nos. 1 to 3/defendant nos.
           12 to 14, the High Court has passed the impugned judgment
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                    Rajesh Kumar v. Anand Kumar & Ors.


           allowing the appeal to set aside the judgment and decree of
           the Trial Court consequently dismissing the appellant/plaintiff’s
           suit. Hence this appeal.
3.   Mr. Dhruv Agrawal, learned senior counsel appearing for the appellant
     would submit that the High Court has committed serious error of law
     and fact by setting aside the well reasoned judgment and decree
     passed by the Trial Court. According to him, the execution of sale
     agreement by defendant no. 1 as a Power of Attorney Holder of
     Defendant Nos. 2 to 11 having been duly proved and the appellant/
     plaintiff having paid the earnest money and filing the suit within
     time, the First Appellate Court ought not to have set aside the
     judgment of the Trial Court. It is further submitted that the High
     Court is not correct in holding that the defendant nos. 2 to 11 had
     not signed the agreement because defendant no. 1 was their Power
     of Attorney Holder. The High Court has also erred in holding that
     Power of Attorney Holder cannot depose in a civil suit on behalf
     of the plaintiff. According to him, non-appearance of the appellant/
     plaintiff as a witness would not have any adverse impact in a suit
     of this nature and that the readiness and willingness can be proved
     by the Attorney Holder.
4.   Per contra, Mr. Gagan Gupta, learned senior counsel for the
     respondents/defendants would submit that the agreement dated
     26.09.1995 is void ab initio because it was not executed by all the
     owners of the suit land. It was then argued that in a suit for specific
     performance non-appearance of plaintiff as a witness is fatal to his
     case because it is he who has to plead and prove the readiness
     and willingness. He would submit that the High Court has rightly set
     aside the judgment and decree of the Trial Court which is based on
     perverse finding and incorrect application of settled legal principles.
5.   The High Court has non-suited the appellant/plaintiff on two counts.
     Firstly, that defendant no. 1 is not the sole owner of the property
     which was the coparcenary property and the other coparceners
     did not sign the initial agreement and secondly, that the appellant/
     plaintiff having failed to appear in the witness box, the testimony of
     his Power of Attorney Holder cannot be read as statement of the
     plaintiff in a civil suit of this nature.
6.   Admittedly, the initial agreement dated 26.09.1995 was executed by
     Defendant no. 1-Gajay Bahadur Bakshi. It is the case of the appellant/
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       plaintiff that Gajay Bahadur Bakshi was the Power of Attorney Holder
       of Defendant nos. 2 to 11, the other co-owners/coparceners of the suit
       property. However, the agreement itself no where states that Gajay
       Bahadur Bakshi has executed the agreement as Attorney Holder of
       Defendant nos. 2 to 11. On the contrary, it is mentioned in the agreement
       that Gajay Bahadur Bakshi would be responsible for getting the sale
       deed executed and registered by all the co-owners or co-khatedars
       at the time of registration. Neither the names of all the co-owners/
       coparceners/co-khatedars are mentioned in the agreement, thus, the
       High Court is right in finding that all the co-owners have not signed
       the agreement. The subsequent endorsement of receipt of additional
       amount of Rs. 40,000/- is also not signed by all the co-parceners.
       The same is the condition with the 3rd agreement dated 26.12.1996
       and the extension endorsement dated 27.03.1997 and 23.04.1997.
       Significantly, the so-called power of attorney pleaded in the plaint
       through which the defendant nos. 2 to 11 authorised defendant no.
       1 to execute the agreement, have not been produced and proved in
       the Trial Court. Thus, neither in the agreement nor in course of trial
       the power of attorney is proved by tendering the same in evidence.
       Hence, in the absence of evidence, the High Court rightly held that
       the agreement is not signed by all the co-owners.
7.     In the matter of Shanmughasundaram & Ors. Vs. Diravia Nadar
       (dead) by Lrs. & Anr.1, this Court has held that in the event all the
       co-sharers of the property have not executed the sale agreement, a
       suit for specific performance cannot be decreed. The following is held
       in paras 29,30 & 31:
             “29. The facts in present case are distinguishable. Admittedly,
             the property has been jointly inherited by two brothers and
             three sisters. As heirs under the Hindu Succession Act,
             they inherited the property as co-owners. In the absence
             of partition between them, the two brothers together had
             undivided share in the property, and they could not have
             agreed for sale of the entire property. They were competent
             to execute agreement to the extent only of their undivided
             share in the property. In the event of sale of such undivided
             share, the vendee would be required to file a suit for partition



1    [2005] 2 SCR 649 : AIR 2005 SC 1836
[2024] 5 S.C.R.                                                                 619

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             to work out his right in the property. The left out three sisters
             as co-owners having undivided share in the whole property,
             the two brothers are incompetent to abide by the award.
             30. Learned counsel makes a reference to Section 12 of
             the Specific Relief Act, 1963 and submits that the arbitration
             agreement and consequent award should be allowed to
             be enforced to the extent of share of two brothers leaving
             the vendee to work out his right, if necessary, in case the
             sisters object to the sale, by a suit in accordance with
             Section 12 of the Specific Relief Act.
             31. Section 12 of the Specific Relief Act, in our considered
             opinion, would be of no assistance in the situation
             obtaining here. In the absence of sisters being parties to
             the agreement, the vendee can at best obtain undivided
             interest of two brothers in the property. Section 12 of the
             Specific Relief Act cannot be invoked by the vendee to
             obtain sale of undivided share of the two brothers with a
             right to force partition on the sisters who were not parties
             to the agreement of sale. Such a relief under Section
             12 cannot be obtained by a vendee, on purchase of an
             undivided share of the property of some of the co-owners,
             against other co-owners who were not parties to the sale
             agreement.”
8.    Undisputedly, in the present case, the plaintiff failed to appear in the
      witness box. Instead, his Power of Attorney Holder – Parmod Khare
      has got himself examined as PW-1. This witness was examined on
      05.09.2002 and the power of attorney was executed on 26.08.2002.
      It is not a case where the suit itself was filed by a Power of Attorney
      Holder. He appeared subsequently only for recording his evidence
      as the Special Power of Attorney Holder of the plaintiff. The legal
      position as to when the deposition of a Power of Attorney Holder
      can be read in evidence has been dealt with by this Court in several
      decisions.
9.    In Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. &
      Ors.2, it is held that a Power of Attorney Holder cannot depose



2    [2004] Supp. 6 SCR 681 : (2005) 2 SCC 217
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       for principal in respect of matters of which only principal can have
       personal knowledge and in respect of which the principal is liable
       to be cross-examined. It is also held that if the principal to the suit
       does not appear in the witness box, a presumption would arise that
       the case set up by him is not correct. This Court has discussed the
       legal position in the following words in paras 13 to 22:
            “13. Order 3 Rules 1 and 2 CPC empower the holder of
            power of attorney to “act” on behalf of the principal. In our
            view the word “acts” employed in Order 3 Rules 1 and
            2 CPC confines only to in respect of “acts” done by the
            power-of-attorney holder in exercise of power granted by
            the instrument. The term “acts” would not include deposing
            in place and instead of the principal. In other words, if
            the power-of-attorney holder has rendered some “acts” in
            pursuance of power of attorney, he may depose for the
            principal in respect of such acts, but he cannot depose
            for the principal for the acts done by the principal and
            not by him. Similarly, he cannot depose for the principal
            in respect of the matter of which only the principal can
            have a personal knowledge and in respect of which the
            principal is entitled to be cross-examined.
            14. Having regard to the directions in the order of remand
            by which this Court placed the burden of proving on the
            appellants that they have a share in the property, it was
            obligatory on the part of the appellants to have entered
            the box and discharged the burden. Instead, they allowed
            Mr Bhojwani to represent them and the Tribunal erred in
            allowing the power-of-attorney holder to enter the box and
            depose instead of the appellants. Thus, the appellants
            have failed to establish that they have any independent
            source of income and they had contributed for the purchase
            of the property from their own independent income. We
            accordingly hold that the Tribunal has erred in holding
            that they have a share and are co-owners of the property
            in question. The finding recorded by the Tribunal in this
            respect is set aside.
            15. Apart from what has been stated, this Court in the case
            of Vidhyadhar v. Manikrao [(1999) 3 SCC 573] observed
            at SCC pp. 583-84, para 17 that:
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                    Rajesh Kumar v. Anand Kumar & Ors.


                “17. Where a party to the suit does not appear in
                the witness box and states his own case on oath
                and does not offer himself to be cross-examined
                by the other side, a presumption would arise
                that the case set up by him is not correct….”
           16. In civil dispute the conduct of the parties is material.
           The appellants have not approached the Court with clean
           hands. From the conduct of the parties it is apparent that
           it was a ploy to salvage the property from sale in the
           execution of decree.
           17. On the question of power of attorney, the High Courts
           have divergent views. In the case of Shambhu Dutt Shastri
           v. State of Rajasthan [(1986) 2 WLN 713 (Raj)] it was held
           that a general power-of-attorney holder can appear, plead
           and act on behalf of the party but he cannot become a
           witness on behalf of the party. He can only appear in his
           own capacity. No one can delegate the power to appear
           in the witness box on behalf of himself. To appear in a
           witness box is altogether a different act. A general power-
           of-attorney holder cannot be allowed to appear as a witness
           on behalf of the plaintiff in the capacity of the plaintiff.
           18. The aforesaid judgment was quoted with approval in
           the case of Ram Prasad v. Hari Narain [AIR 1998 Raj 185 :
           (1998) 3 Cur CC 183] . It was held that the word “acts”
           used in Rule 2 of Order 3 CPC does not include the act of
           power-of-attorney holder to appear as a witness on behalf
           of a party. Power-of-attorney holder of a party can appear
           only as a witness in his personal capacity and whatever
           knowledge he has about the case he can state on oath but
           he cannot appear as a witness on behalf of the party in
           the capacity of that party. If the plaintiff is unable to appear
           in the court, a commission for recording his evidence may
           be issued under the relevant provisions of CPC.
           19. In the case of Pradeep Mohanbay (Dr.) v. Minguel
           Carlos Dias [(2000) 1 Bom LR 908] the Goa Bench of the
           Bombay High Court held that a power of attorney can file a
           complaint under Section 138 but cannot depose on behalf
           of the complainant. He can only appear as a witness.
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            20. However, in the case of Humberto Luis v. Floriano
            Armando Luis [(2002) 2 Bom CR 754] on which reliance
            has been placed by the Tribunal in the present case,
            the High Court took a dissenting view and held that the
            provisions contained in Order 3 Rule 2 CPC cannot be
            construed to disentitle the power-of-attorney holder to
            depose on behalf of his principal. The High Court further
            held that the word “act” appearing in Order 3 Rule 2 CPC
            takes within its sweep “depose”. We are unable to agree
            with this view taken by the Bombay High Court in Floriano
            Armando [(2002) 2 Bom CR 754] .
            21. We hold that the view taken by the Rajasthan High Court
            in the case of Shambhu Dutt Shastri [(1986) 2 WLN 713
            (Raj)] followed and reiterated in the case of Ram Prasad
            [AIR 1998 Raj 185 : (1998) 3 Cur CC 183] is the correct
            view. The view taken in the case of Floriano Armando Luis
            [(2002) 2 Bom CR 754] cannot be said to have laid down
            a correct law and is accordingly overruled.
            22. In the view that we have taken, we hold that the
            appellants have failed to discharge the burden that they
            have contributed towards the purchase of property at 38,
            Koregaon Park, Pune from any independent source of
            income and failed to prove that they were co-owners of
            the property at 38, Koregaon Park, Pune. This being the
            core question, on this score alone, the appeal is liable to
            be dismissed.”
10. Thereafter, in Man Kaur vs. Hartar Singh Sangha3, this Court
    referred to its earlier decisions including Janki Vashdeo Bhojwani
    (supra) and concluded thus in paras 17 & 18:
            “17. To succeed in a suit for specific performance, the
            plaintiff has to prove: (a) that a valid agreement of sale
            was entered into by the defendant in his favour and the
            terms thereof; (b) that the defendant committed breach
            of the contract; and (c) that he was always ready and
            willing to perform his part of the obligations in terms of the


3   [2010] 12 SCR 515 : 2010 (10) SCC 512
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           contract. If a plaintiff has to prove that he was always
           ready and willing to perform his part of the contract, that
           is, to perform his obligations in terms of the contract,
           necessarily he should step into the witness box and give
           evidence that he has all along been ready and willing
           to perform his part of the contract and subject himself
           to cross-examination on that issue. A plaintiff cannot
           obviously examine in his place, his attorney-holder who
           did not have personal knowledge either of the transaction
           or of his readiness and willingness. Readiness and
           willingness refer to the state of mind and conduct of the
           purchaser, as also his capacity and preparedness on the
           other. One without the other is not sufficient. Therefore a
           third party who has no personal knowledge cannot give
           evidence about such readiness and willingness, even if
           he is an attorney-holder of the person concerned.
           18. We may now summarise for convenience, the position
           as to who should give evidence in regard to matters
           involving personal knowledge:
           (a)   An attorney-holder who has signed the plaint and
                 instituted the suit, but has no personal knowledge
                 of the transaction can only give formal evidence
                 about the validity of the power of attorney and the
                 filing of the suit.
           (b)   If the attorney-holder has done any act or handled
                 any transactions, in pursuance of the power of
                 attorney granted by the principal, he may be
                 examined as a witness to prove those acts or
                 transactions. If the attorney-holder alone has
                 personal knowledge of such acts and transactions
                 and not the principal, the attorney-holder shall be
                 examined, if those acts and transactions have to
                 be proved.
           (c)   The attorney-holder cannot depose or give evidence
                 in place of his principal for the acts done by the
                 principal or transactions or dealings of the principal,
                 of which principal alone has personal knowledge.
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       (d)   Where the principal at no point of time had personally
             handled or dealt with or participated in the transaction
             and has no personal knowledge of the transaction,
             and where the entire transaction has been handled
             by an attorney-holder, necessarily the attorney-holder
             alone can give evidence in regard to the transaction.
             This frequently happens in case of principals carrying
             on business through authorised managers/attorney-
             holders or persons residing abroad managing their
             affairs through their attorney-holders.
       (e)   Where the entire transaction has been conducted
             through a particular attorney-holder, the principal
             has to examine that attorney-holder to prove the
             transaction, and not a different or subsequent
             attorney-holder.
       (f)   Where different attorney-holders had dealt with
             the matter at different stages of the transaction, if
             evidence has to be led as to what transpired at those
             different stages, all the attorney-holders will have to
             be examined.
       (g)   Where the law requires or contemplated the plaintiff
             or other party to a proceeding, to establish or prove
             something with reference to his “state of mind” or
             “conduct”, normally the person concerned alone has to
             give evidence and not an attorney-holder. A landlord
             who seeks eviction of his tenant, on the ground of his
             “bona fide” need and a purchaser seeking specific
             performance who has to show his “readiness and
             willingness” fall under this category. There is however
             a recognised exception to this requirement. Where
             all the affairs of a party are completely managed,
             transacted and looked after by an attorney (who
             may happen to be a close family member), it may
             be possible to accept the evidence of such attorney
             even with reference to bona fides or “readiness and
             willingness”. Examples of such attorney-holders are
             a husband/wife exclusively managing the affairs of
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                      Rajesh Kumar v. Anand Kumar & Ors.


                    his/her spouse, a son/daughter exclusively managing
                    the affairs of an old and infirm parent, a father/mother
                    exclusively managing the affairs of a son/daughter
                    living abroad.”
11. In a more recent judgment of this Court in the matter of A.C.
    Narayanan vs. State of Maharashtra & Anr.4, this Court again
    considered the earlier judgments, particularly, Janki Vashdeo
    Bhojwani (supra) and having noticed that Janki Vashdeo Bhojwani
    relates to Power of Attorney Holder under CPC whereas in the matter
    of (A.C. Narayanan) the Court was concerned with a criminal case.
    It was observed that since criminal law can be set in motion by
    anyone, even by a stranger or legal heir, a complaint under Section
    138 of the Negotiable Instruments Act, 1881 preferred by the Power
    of Attorney Holder is held maintainable and also that such Power of
    Attorney Holder can depose as complainant.
12. Having noticed the three judgments of this Court in Janki Vashdeo
    Bhojwani (supra), Man Kaur (supra) & A.C. Narayanan (supra), we
    are of the view that in view of Section 12 of the Specific Relief Act,
    1963, in a suit for specific performance wherein the plaintiff is required
    to aver and prove that he has performed or has always been ready
    and willing to perform the essential terms of the contract, a Power of
    Attorney Holder is not entitled to depose in place and instead of the
    plaintiff (principal). In other words, if the Power of Attorney Holder
    has rendered some ‘acts’ in pursuance of power of attorney, he
    may depose for the principal in respect of such acts, but he cannot
    depose for the principal for the act done by the principal and not by
    him. Similarly, he cannot depose for the principal in respect of the
    matter of which only the principal can have personal knowledge and
    in respect of which the principal is entitled to be cross-examined. If
    a plaintiff, in a suit for specific performance is required to prove that
    he was always ready and willing to perform his part of the contract,
    it is necessary for him to step into the witness box and depose the
    said fact and subject himself to cross-examination on that issue. A
    plaintiff cannot examine in his place, his attorney holder who did not
    have personal knowledge either of the transaction or of his readiness
    and willingness. The term ‘readiness and willingness’ refers to the


4   [2013] 11 SCR 80 : (2014) 11 SCC 790
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       state of mind and conduct of the purchaser, as also his capacity and
       preparedness, one without the other being not sufficient. Therefore,
       a third party having no personal knowledge about the transaction
       cannot give evidence about the readiness and willingness.
13. In the light of above settled legal position, we are of the view that
    in the instant case, the plaintiff/appellant has failed to enter into the
    witness box and subject himself to cross-examination, he has not
    been able to prove the pre-requisites of Section 12 of the Specific
    Relief Act,1963 and more so, when the original agreement contained a
    definite time for registration of sale deed which was later on extended
    but the suit was filed on the last date of limitation calculated on the
    basis of the last extended time.
14. The effect of filing a suit for specific performance after long delay,
    may be at the fag end of period of limitation fell for consideration
    before this Court in K.S. Vidyanadam vs. Vairavan5 wherein this
    Court held thus in para 10:
            “10. It has been consistently held by the courts in India,
            following certain early English decisions, that in the case
            of agreement of sale relating to immovable property, time
            is not of the essence of the contract unless specifically
            provided to that effect. The period of limitation prescribed
            by the Limitation Act for filing a suit is three years. From
            these two circumstances, it does not follow that any and
            every suit for specific performance of the agreement
            (which does not provide specifically that time is of the
            essence of the contract) should be decreed provided it
            is filed within the period of limitation notwithstanding the
            time-limits stipulated in the agreement for doing one or the
            other thing by one or the other party. That would amount
            to saying that the time-limits prescribed by the parties in
            the agreement have no significance or value and that they
            mean nothing. Would it be reasonable to say that because
            time is not made the essence of the contract, the time-
            limit(s) specified in the agreement have no relevance and
            can be ignored with impunity? It would also mean denying
            the discretion vested in the court by both Sections 10


5   [1997] 1 SCR 993 : (1997) 3 SCC 1
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                      Rajesh Kumar v. Anand Kumar & Ors.


            and 20. As held by a Constitution Bench of this Court in
            Chand Rani v. Kamal Rani [(1993) 1 SCC 519]: (SCC p.
            528, para 25)………………”
15. In Azhar Sultana vs. B. Rajamani & Ors.6, this Court held thus in
    para 28:
            “28. ……….The court, keeping in view the fact that it
            exercises a discretionary jurisdiction, would be entitled
            to take into consideration as to whether the suit had
            been filed within a reasonable time. What would be a
            reasonable time would, however, depend upon the facts
            and circumstances of each case. No hard-and-fast law
            can be laid down therefor. The conduct of the parties in
            this behalf would also assume significance.”
16. In Saradamani Kandappan vs. S. Rajalakshmi & Ors.7, this
    Court held that every suit for specific performance need not be
    decreed merely because it is filed within the period of limitation by
    ignoring time limits stipulated in the agreement. The courts will also
    frown upon suits which are not filed immediately after the breach/
    refusal. The fact that limitation is three years does not mean that
    a purchaser can wait for one or two years to file a suit and obtain
    specific performance.
17. In Atma Ram vs. Charanjit Singh8, this Court has observed in
    para 9 thus:
            “9. ……..No explanation was forthcoming from the
            petitioner for the long delay of three years, in filing the
            suit (on 13-10-1999) after issuing a legal notice on 12-
            11-1996. The conduct of a plaintiff is very crucial in a suit
            for specific performance. A person who issues a legal
            notice on 12-11-1996 claiming readiness and willingness,
            but who institutes a suit only on 13-10-1999 and that too
            only with a prayer for a mandatory injunction carrying a
            fixed court fee relatable only to the said relief, will not be
            entitled to the discretionary relief of specific performance.”


6   [2009] 2 SCR 537 : (2009) 17 SCC 27
7   [2011] 8 SCR 874 : (2011) 12 SCC 18
8   [2020] 3 SCR 697 : (2020) 3 SCC 311
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18. In the case in hand, the plaintiff entered into an agreement with only
    one of the co-owners and thereafter sought extensions for execution
    of the sale deed but did not prefer any suit though he was aware of
    the sale deed dated 14.05.1997 executed in favour of defendant nos.
    12 to 14 and sent a legal notice on 30.05.1997 and even objected to
    the subsequent purchasers’ application for mutation of their names
    in the revenue records on 20.08.1997 and refers to a meeting of
    the Gram Panchayat dated 06.12.1997, yet the suit was preferred,
    on 09.05.2000 on the last date of limitation. Thus, on the strength
    of observations made by this Court in K.S. Vidyanadam (supra),
    Azhar Sultana (supra), Saradamani Kandappan (supra) & Atma
    Ram (supra), the suit having been preferred after a long delay, the
    plaintiff is not entitled for specific performance on this ground also.
19. For the foregoing, we uphold the judgment and decree dated
    01.09.2016 passed in FA No. 340 of 2003 by the High Court. The
    appeal lacks substance and is hereby dismissed. The parties shall
    bear their own costs.

       Result of the case: Appeal dismissed.



       †
           Headnotes prepared by: Nidhi Jain