( 1 ) THIS is first defendant's second appeal against the judgment and decree passed by the District Judge, Kolar, in R. A. No. 4 of 1965 affirming the judgment of the Civil Judge, Kolar in O. S. 2 of 1961 decreeing the suit with a modification in regard to the award of mesne profits. ( 2 ) THE facts briefly stated are these; PW. 3 A. Hariachar, holder of general power of attorney, Ext. P4 executed by D. Hanumantha Rao the plaintiff and his deceased father D. Ramachandra Rao, has filed the suit for specific performance directing the first and the second defendants to execute a sale deed in favour of the plaintiff in respect of the suit schedule, properties, failing which, the Court may be pleased to execute the said deed acting on behalf of the defendants and also for recovery of possession and mesne profits. ( 3 ) THE plaintiffs case is that he is a Government servant at Bangalore and that he was not in a position to prosecute the suit in person. His further case is that he along wiht his father executed a registered power of attorney Ext. P4 on 29-12-1957 in favour of his father-in-law Hariachar. The relief of specific performance is sought against one Gundamma grand mother of the first defendant and mother-in-law of the second defendant who died before the suit was filed. It is the plaintiff's case that Gundamma was the owner of the suit schedule properties. She had borrowed a sum of Rs. 5,550 and some other amounts by mortgaging the suit schedule properties in favour of the father of the plaintiff and delivering possession to him. In all, she owned Rs. 5,807 by executing a deed of agreement of sale which is marked as Ext. P2 in favour of Rarnachandra Rao on 6-7-1957. Thereafter, as the parties found that Ext. P2 was executed on a paper which was insufficiently stamped, she executed another deed of agreement of sale dt. 20-9-1957 in favour of the plaintiff Hanumantha Rao agreeing to sell, the suit schedule properties within 20-1-1958. On 29-12-57 rarnachandra Rao and Hanumantha Rao the plaintiff, executed a general power of attorney in favour of PW. 3 Hariachar to take suitable steps to get the agreement of sale registered and also to get the necessary sale deed executed by Gundamma in favour of Hanumantha Rao. On 29-12-57 rarnachandra Rao and Hanumantha Rao the plaintiff, executed a general power of attorney in favour of PW. 3 Hariachar to take suitable steps to get the agreement of sale registered and also to get the necessary sale deed executed by Gundamma in favour of Hanumantha Rao. Gundamma failed to get the sale deed Ext. P1 registered. Proceedings were instituted before the Sub-Registrar and the District Registrar and finally the District registrar by an order passed in Registration Appeal No. 2 of 1959 directed the Sub-Registrar to register the document Ext. P1 and accordingly it was registered. Then the plaintiff in performing his part of contract was ever ready and willing to perform the remaining part of the contract relating to the agreement of sale. Since the executant of the sale agreement in spite of repeated demands failed to execute the sale deed in favour of the plaintiff, the present suit was filed by the general power of attorney holder Hariachar against defendants 1 to 7. It may be mentioned that at the time of the suit, Gundamma was no more; the first defendant sethubai is her grand-daughter and the second defendant is her son-in-law. Defendants 3 to 7 have been impleaded in the suit as the properties had been subsequently sold to them. In these circumstances, the plaintiff has sought the relief of specific performance of the contract entered into between Gundamma and the plaintiff on 20-9-1957 and for possession and mesne profits. ( 4 ) THE first defendant has resisted the suit on the ground that the power of attorney executed in favour of Hariachar was terminated by reason of the death of Ramachandra Rao the father of the plaintiff. The heirship of the plaintiff, after the death of Ramachandra Rao is also denied. According to the first defendant, the suit is bad on the ground of the non-joinder of the widow and the two daughters of the deceased R. Rao. ( 5 ) THE second defendant has filed a written statement and resisted the suit practically on the same ground taken by the first defendant. ( 6 ) DEFENDANTS 3 to 7 have filed their written statement and have contended that they are bona fide purchasers for value without notice and that therefore the sales in their favour were valid and are not affected by the execution of the deed of agreement of sale Ext. ( 6 ) DEFENDANTS 3 to 7 have filed their written statement and have contended that they are bona fide purchasers for value without notice and that therefore the sales in their favour were valid and are not affected by the execution of the deed of agreement of sale Ext. P1 by Gundamma in favour of the plaintiff Hanumantha Rao. ( 7 ) ON these pleadings, as many as twelve issues were framed by the trial Court. The issues relevant for the disposal of this appeal are as under : issue No. 1: Whether the power of attorney holder of the plaintiff has valid right to bring this suit? issue No. 6: Whether defendant No. 7 is a bona fide purchaser of suit items 20 to 32 for value without notice of the suit agreement of sale? issue No. 7: Whether defendants 3 to 6 are bona, fide purchasers of suit items 1 to 19 and 33 to 56 for value wthout notce of the suit agreement of sale? issue No. 11: Whether the suit is bad for non-joinder of necessary parties? on these and other issues the trial Court gave findings in fayour of the plaintiff and reached the conclusion that the power of attorney executed by Ramachandra Rao and Hanumantha Rap was not vitiated and terminated by reason of the death of Raniachandra Rap before the suit was filed and therefore held that the power of attorney holder of the plaintiff ha,s valid right to bring the suit. On the issue relating to the non-joinder of necessary parties, the trial Court held that the suit was not bad for non-joinder of the widow and the two daughters of Ramachandra Rao since the suit was not based on the previous mortgages executed in favour of Ramachandra Rao, but on the basis of Ext. P1 an agreement of sale executed by Gundamma in favour of Hanumantha Rao. In that view of the matter, the trial Court held that the suit was not bad for non-joinder of necessary parties and decreed the suit. Aggrieved by the judgment and decree passed by the trial Court, the first defendant filed an appeal before the District Judge, Kolar, in R. A. No. 4 of 1965. Defendants 2 to 7 have not preferred any appeal against the judgment and decree of the trial court. Aggrieved by the judgment and decree passed by the trial Court, the first defendant filed an appeal before the District Judge, Kolar, in R. A. No. 4 of 1965. Defendants 2 to 7 have not preferred any appeal against the judgment and decree of the trial court. The learned District Judge, after a review of both the oral and documentary evidence, has affirmed the findings of the trial Court. The present second appeal is direcetd against the judgment and decree passed by the learned District Judge, Kolar. The decree of the trial Court as against "defendants 2 to 7 have become final. However, Sri Ranganna has appeared for defendants 3 to 5 in this Court. ( 8 ) MR. Subbarao, learned Advocate for the appellant, firstly contended that the power of attorney Ext. P4 executed by Ramachandra Rac and Hanumantha Rao in favour of PW. 3 Hariachar became invalid by reason of the death of Ramachandra Rao and that the suit filed by the power of attorney holder on behalf of the plaintiff on the strength of ext. P4 is not maintainable. He further urged that the terms of the power of attonery at Ext. P4 gave no power to PW. 3 to file a suit for specific performance. His second contention is that the suit is bad for non-joinder of necessary parties, viz. , the widow and the two daughters of the deceased ramachandra Rao. His third contention is that the, suit is barred by time since the suit was filed on 20-1-1963 after the lapse of three years allowed by Art. 113 of the Limitation Act, 1908. His last contention is that granting that PW. 3 the power of attorney holder had the authority to file the suit, the plaint does not disclose necessary averments which are required in a suit for specific performance. ( 9 ) MR. Narasimhan, learned Advocate for the plaintiff, sought to support the findings of the first appellate Court. He contended that Ext. P4 the power of attorney executed by Ramachandra Rao and Hanumantha pao in favour of Hariachar PW. 3 was not terminated by reason of the death of Ramachandra Rao. ( 9 ) MR. Narasimhan, learned Advocate for the plaintiff, sought to support the findings of the first appellate Court. He contended that Ext. P4 the power of attorney executed by Ramachandra Rao and Hanumantha pao in favour of Hariachar PW. 3 was not terminated by reason of the death of Ramachandra Rao. He Urged that Ramachandra Rao and hanumantha Rao were members of a Hindu joint family and after the death of Ramachandra Rao, Hanumantha Rao was the sole surviving coparcener and that the power of attorney executed by the father and the son did not come to an end after the death of the father. He, therefore, urged that the power of attorney Ext. P4 executed in favour of Hariachar PW. 3 was still in force and the suit filed by Hariachar on behalf of the plaintiff was perfectly maintainable. He further contended that the suit is not barred by time and that the suit is not bad for non-joinder of the widow and the two daughters of Ramachandra Rao. ( 10 ) MR. Ranganna, learned Advocate for defendants 3 to 5, contended that the finding of the first appellate Court that defendants 3 to 6 were not bona fide purchasers for value without notice is erroneous and that it requires re-examination. He supported the contentions raised by Mr. Subba Rao, learned Advocate appearing on behalf of the first defendant. ( 11 ) IT is not necessary to deal with the contention of Mr. Ranganna in view of the position that defendants 3 to 5 did not file any appeal against the judgment and decree of the trial Court, which affected their interest. The fust appellate Court has confirmed the findings against these defendants. In these circumstances, it is not open, to defendants 3 to 5 to challenge the concurrent findings of the Courts below in the second appeal as those findings are binding in the second appeal. Therefore, it is unnecessary to consider the question whether defendants 3 to 5 were not bona fide purchasers for value without notice. As already stated, defendants 2, 6 and 7 have remained ex parte. The findings of the first appellate Court are binding on them. ( 12 ) FROM the contentions raised, three principal questions arise for decision in this appeal. They are : (1) Whether Ext. As already stated, defendants 2, 6 and 7 have remained ex parte. The findings of the first appellate Court are binding on them. ( 12 ) FROM the contentions raised, three principal questions arise for decision in this appeal. They are : (1) Whether Ext. P4 was vitiated and became invalid in law after the death of Ramachandra Rao and the suit filed by Hariachar (PW. 3) is not maintainable? (2) Whether the suit has become bad for non-joinder of the widow and the two daughters of Ramachandra Rao? (3) Whether the suit is barred by time? ( 13 ) NOW taking the first contention of Mr. Subba Rao whether Ext. P4 was vitiated and became invalid after the death of Ramachandra, Rao, it is necessary to recall some undisputed facts in this case. It is admitted that Gundamma had mortgaged the suit properties under two mortgage deeds and executed a deed of agreement of sale in favour of Ramachandra rao on 6-7-1957 which is marked as Ext. P2. Admittedly Ext. P2 was insufficiently stamped. Ext. P1 was executed on 20-9-1957 in favour of Hanumantha rao the plaintiff. Ext. P1 contains all the recitals which are, found in Ext. P2. This is an agreement of sale executed by Gundamma in favour of Hanumantha Rao the plaintiff. It is also not disputed that ext. P4 was executed by Ramachandra Rao and Hanumantha Rao the plaintiff in favour of PW. 3 Hariachar on 29-12-1927 which was subsequent to the execution of Exts. P1 and P2 by Gundamma. It is also not disputed that PW. 3 Hariachar instituted proceedings on behalf of Hanumantha rao before the registering authority and finally the District Registrar of kolar directed the registration of Ext. P1 and it was registered. The suit was filed by Hariachar on 20-1-1961 on behalf of Hanumantha Rao the plaintiff. Now, the contention raised, as already stated, is that after the death of Ramachandra Rao, the power of attorney Ext. P4 executed in favour of Hariachar PW. 3, came to an end. Mr. Subba Rao urged that ext. P1 was in continuation of Ext. P2, and that Ramachandra Rao had a distinctive interest in seeking the relief of specific. performance and that therefore the power given to PW. 3 under Ext. P4 had come to an end. It is not possible to accept the contention, of Mr. 3, came to an end. Mr. Subba Rao urged that ext. P1 was in continuation of Ext. P2, and that Ramachandra Rao had a distinctive interest in seeking the relief of specific. performance and that therefore the power given to PW. 3 under Ext. P4 had come to an end. It is not possible to accept the contention, of Mr. Subba Rao, in, view of the decision in Badrinarain Agarwala v. Brijnarayan Roy, AIR. 1917 Cal. 436 wherein their lordships of the Calcutta High Court while considering a power of attorney executed by joint coparceners in favour of another and death of some coparceners, have held that the death of some of the executants did not put an end to the power but that so long as the object of the power continued to be capable of realisation, it retained its vitality. In this case, though there are two different judgments by the learned Chief Justice and Mookerjee, j. both have come to the conclusion that the death of one of the executants of the members of the roparcenery does not vitiate the power of attorney executed by them. The ratio of this decision has been quoted with approval in the decision of the Madras High Court in Garapati Ven- kanna v. Mullapudi Atchuta Ramanna, AIR. 1938 Mad. 842. In the above case his Lordship hag summarised the law as follows :"in the Calcutta case, already referred to, the property belonged to a joint Hindu family and the intention of the joint power of attorney appearing to be to facilitate joint-loans by the mortgage of the joint estate, it was held that the death of one member did not revoke the agency. "in the instant case, the plaintiff has averred that Ramachandra Rao and himself were members of the joint family and that after the death of ramachandra Rao he inherited the property of Ramachandra Rao as a surviving heir. Though it has been denied by the first defendant in the course of the written statement that Ramachandra Rao and Hanumantha rao were members of the joint Hindu family, there is no material on. record to show that they were not members of the undivided joint Hindu family. There is no evidence adduced on behalf of the defendants to disprove this position. Therefore, it must be presumed that Ramachandra rao and Hanumantha Rao the plaintiff when they executed Ext. record to show that they were not members of the undivided joint Hindu family. There is no evidence adduced on behalf of the defendants to disprove this position. Therefore, it must be presumed that Ramachandra rao and Hanumantha Rao the plaintiff when they executed Ext. P4 in, favour of PW. 3 Hariachar were members of the joint family. Further the mortgages and debts referred to in Ex. P1 must also be presumed to be, for and on behalf of the joint family in the absence of proof to the contra. In the light of the ratio of the decision quoted above and of which i am in respectful agreement, it is not possible to say that the power of attorney executed by Ramachandra Rao and Hanumantha Rao the plaintiff, in favour of PW. 3 had come to an end. Therefore, the findings of the court below that by reason of the death of Ramachandra Rao, the power of attorney executed by Ramachandra Rao and Hanumantha Rao the plaintiff are sustained. Hence the suit filed by PW. 3 on behalf of the plaintiff on the strength of Ext. P4. is maintainable in law. The contention of mr. Subbarao therefore fails. ( 14 ) NOW turning to the second contention that the suit is bad for non-joinder of the widow and the two daughters of Ramachandra Rao, it must be said that this contention is devoid of force. Both the Courts below have rejected this contention on the ground that the suit has not been filed either on the strength of the two previous mortgages executed in favour of Ramachandra Rao or in favour of Hanumantha Rao or the monies advanced by him, but on the basis of Ext. P1 executed by Gundamma. The argument of Mr. Subba Rao is that the widow and the two daughters of Ramachandra Rao were entitled to get a share in the joint family properties, that after the death of Ramachandra Rao, there was a national partition and that therefore the widow and the 2 daughters of r. Rao were necessary parties to the suit. It must be borne in, mind that the suit brought by the power of attorney holder is not for claiming or enforcing any partition, but, it is for specific performance of the contract on the strength of Ext. It must be borne in, mind that the suit brought by the power of attorney holder is not for claiming or enforcing any partition, but, it is for specific performance of the contract on the strength of Ext. P1 executed by Gundamma, It cannot be said that the said suit could not have been filed without impleading the widow and the two daughters of Ramachandra Rao. Therefore, the courts below have rightly held that the widow and the two daughters of Ramachandra rao are not necessary parties to the suit arid the suit as brought for specific performance and for recovery of possession on the basis of the deed of agreement of sale Ext. P1 is maintainable. The second contention of Mr. Subba Rao therefore fails. ( 15 ) AS regards the question of limitation, it must be said that the suit is not barred by time. In Ext. P1 Gundamrna had agreed to execute the, sale deed within 20-1-1958. In fact, the suit was filed on 20-1-1961. Th,e contention of Mr. Subba Rao is that the date 20-1-1961 should be excluded while construing the meaning of the word "within". According to him, the last date to execute the sale deed was 19-1-1958 and not 20-1-1958. It is not possible to accept the construction put forth by Mr. Subba Rao in view of the decision in Juit Ram v. Jagannath Ram, AIR. 1956 Pat. 489. . In that case, Sinha, J: while considering the starting point of limitation, under Art 113 of the Limitation Act, 1908, has observed in paragraph 3 of the judgment as follows: "so far as the question of limitation is concerned the court below has held that the suit is premature because it was instituted a day too early. According to the Court below, the contract was to be performed by the end of the 18th year from the date of the contract, which was 30-7-1929. but after 12 years from that date, and that 18 years from the said date would have ended on 30-7-1947, the date of the agreement being excluded, and that the limitation for specific performance of the contract could have started from 31-7-1947. The plaintiff, according to the Court below, had thus no cause of action for filing Title Suit No. 218 of 1947 before 31-7-1947, and the suit having been instituted on 30-7-1947, it was premature. The plaintiff, according to the Court below, had thus no cause of action for filing Title Suit No. 218 of 1947 before 31-7-1947, and the suit having been instituted on 30-7-1947, it was premature. I am unable to agree with the Court below on the construction of the document so far as the period of limitation is concerned. The agreement in the moandanama, Ext. 3, recites after twelve years from the 30th july 1929 and 'within' eighteen years when the claimants and their heirs and representatives shall pay. . . I, the executant, shall return both the mortgage bonds. . . . . " it is clear to my mind that no suit for specific performance could have been brought within 12 years, but the claimants, Juit Ram and others, had the right to return the money within 6 years after the expiry of the first 12 years. In the quotation I have under-lined (herein ' ') the word 'within' and that shows that, on refusal to accept the money by Doma ram or his heirs after the expiry of 12 years but within 6 years from the expiry thereof, the claimants, the present plaintiffs in the suit for specific performance of contract, had the right to pay off, and on refusal to accept the payment, the cause of action accrued to the plaintiffs. In that view of the matter it must be held that the suit brought within 6 years after the expiry of 12 years from the date of execution of the document Ext. 3 is maintainnable, and the Court below is wrong in holding that the suit is premature. " i am in respectful agreement with the interpretation of the word 'within' in the above decision. In the instant case also, the recital in Ext. P1 states that the executant was required to execute the sale deed within 20-1-1958. The suit, as already stated, was filed on 20-1-1961. The word 'within' means and includes, in my opinion, the date 20-1-1961 and that would come within the period of limitation fixed under Article 113 of the Limitation Act, 1908. It is erroneous to contend that the last date of limitation was' 19-1-1961 as the terms of the contract found in Ext. P1 would include the date 20-1-1961. Therefore, the suit is not barred by limitation. Thus the contention of Mr. It is erroneous to contend that the last date of limitation was' 19-1-1961 as the terms of the contract found in Ext. P1 would include the date 20-1-1961. Therefore, the suit is not barred by limitation. Thus the contention of Mr. Subba Rao on the question of limitaion also fails. ( 16 ) FOR the reasons stated above, the appeal fails and is dismissed. Each party to bear his ov/n costs. --- *** --- .