RAJESH KUMAR versus ANAND KUMAR & ORS.
[2024] 5 S.C.R. 612, Supreme Court of India, 2024
Outcome: Dismissed (Dismissed)
Segment: Facts
* Author
[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
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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
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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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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
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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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“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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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
626
[2024] 5 S.C.R.
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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
[2024] 5 S.C.R. 
627
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
628
[2024] 5 S.C.R.
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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