Judgment :- 1. The 2nd defendant is the appellant in this Second Appeal. Respondents 1 and 2 plaintiffs filed the suit O.S. No. 63 of 1978 for specific performance of Ex. A1 sale agreement dated 25.4.1978 executed by the 3rd respondent-1st defendant, agreeing to sell the suit house to the 1st plaintiff for a sum of Rs. 7500/- Though Ex. A1 sale agreement is with reference to the entire suit property, the plaintiffs claim relief of specific performance only with reference to 3/5th share of the suit property. A sum of Rs. 2,000/- was paid as advance towards the sale consideration. At about that time, there was dispute between the 1st defendant and his sisters as to whether the 1st defendant was entitled to the entirety of the suit property, and the 1st defendant as plaintiff in O.S. No. 93 of 1972 against his sister and sisters husband and others claimed that he was the full owner of the property. The 1st defendant was also not in possession of the suit property and the possession was with his sister Valli. Therefore, in the above said Ex. A1 Sale Agreement, it was provided thus:— So, according to the said recital, sale deed has to be executed pursuant to Ex. A1 within one month from the date of taking possession of the suit property by the 1st defendant through court. The 2nd respondent — 2nd plaintiff is the nominee of the 1st plaintiff. It transpires that pursuant to the preliminary decree passed in the said suit on 6.8.1974 the 1st defendant was held to be entitled to only 3/5th of the suit property. Further, though the 1st defendant subsequently applied for passing final dec ree for partition and separate possession of the abovesaid 3/5th share, his application was, for some reason, dismissed on 21.4.1975 by the Court. Later on, the 1st plaintiff, coming to know that the 1st defendant was trying to sell away the suit house to third parties, issued the notice Ex. A2 dated 27.1.1978 to the 1st defendant, calling upon the 1st defendant to give possession of the suit house and execute the sale deed as per Ex. A1. In reply, in Ex. A3 dated 6.2.1978, the 1st defendant offered to return the abovesaid advance of Rs. A2 dated 27.1.1978 to the 1st defendant, calling upon the 1st defendant to give possession of the suit house and execute the sale deed as per Ex. A1. In reply, in Ex. A3 dated 6.2.1978, the 1st defendant offered to return the abovesaid advance of Rs. 2,000/- to the 1st plaintiff, on the ground that the Court has held that she was not the full owner and that only the 1st plaintiff “drew back” from the transaction and committed default. While so, the suit house had been sold to the 2nd defendant-appellant under Ex. B2 sale deed dated 20.2.1978, executed by 1st defendants sister Valli. Therefore the 1st and 2nd respondents filed the present suit on 16.5.1978 claiming specific performance. 2. The trial court dismissed the suit for specific performance, holding that it was impossible to perform the sale agreement, that the suit was out of time and that the 2nd defendant was a bona fide purchaser However, the trial court dismissed the suit, directing the 1st defendant to return the sum of Rs. 2,000/- to the 1st plaintiff with interest at 6% per annum from the date of the suit till the date of realisation. 3. On appeal by the plaintiffs, the lower appellate Court, in A.S. No. 26 of 1981, allowed the appeal and decreed the suit to the extent of the abovesaid 3/5th share in the suit house, on the ground that the suit was within time and the 2nd defendant was not a bona fide purchaser. Aggrieved by the said decree, the 2nd defendant has preferred this Second Appeal. 4. The 1st defendant remains ex parte in this Second Appeal. 5. Admittedly, the abovesaid sale in favour of the 2nd defendant under Ex. B2 was executed by the 1st defendants sister Valli. It appears that by virtue of the preliminary decree given in O.S. No. 93 of 1972, she had only a fractional share in the suit property, but subsequently under Ex. B3 release deed executed on 21.12.1977 and registered on 24.12.1977, the said Valli had obtained release in her favour of the entire remaining share also from first defendant and his two sisters and thus became full owner thereof. The sale consideration under Ex. B2 is Rs. 18,000/- Prior to Ex. B2 the said Valli executed a sale agreement Ex. B1 dated 23.12.1977 in favour of the 2nd defendant and paid an advance of Rs. The sale consideration under Ex. B2 is Rs. 18,000/- Prior to Ex. B2 the said Valli executed a sale agreement Ex. B1 dated 23.12.1977 in favour of the 2nd defendant and paid an advance of Rs. 1000/- towards sale consideration. 6. In the above context, the learned counsel for the appellant makes the following submissions: The lower appellate Court erred in holding that the appellant is not a bona fide purchaser. Its sole reliance for coming to this conclusion, on the evidence of PW2 is totally unwarranted. Further, the 1st plaintiff is not entitled to get specific performance of Ex. A1 agreement because the time for performing the said agreement had not come into existence at all, since as per the above referred to recital in the agreement, the 1st defendant did not secure possession of the suit property at all and since as per the said recital, the sale agreement had to be performed only within one month after such taking possession, through the above referred to Court proceeding. 7. On the other hand, the learned counsel for the 1st respondent-plaintiff made the following submissions: The lower appellate Court is right in having held that the 2nd defendant is not a bona fide purchaser. Further, even though the sale agreement was for the entire suit house property, there is no bar for granting specific performance for the above said 3/5th share thereof, as has been granted by the Lower Appellate Court. In this connection he relies on S. 12 of the Specific Relief Act. 8. Before considering the said rival submissions, I may also state that there was no serious argument on either side regarding the abovesaid limitation question since as per Art. 54 of the Limitation Act, when time is fixed for the performance of the contract, the time would begin to run only from the date fixed in the contract for its performance. In the present case, it cannot be said that time has not been fixed since Ex. A1 sale agreement provides that the sale transaction has to be completed within one month from the date when the 1st defendant secures possession of the suit property through Court proceedings and since that date has, not yet been reached, the suit cannot be held to be out of time. 9. A1 sale agreement provides that the sale transaction has to be completed within one month from the date when the 1st defendant secures possession of the suit property through Court proceedings and since that date has, not yet been reached, the suit cannot be held to be out of time. 9. Now, I shall deal with the above referred to two main submissions made by the learned counsel for the appellant. I shall take up first the second of the abovesaid two submissions. Here, the learned Counsel relies on the above extracted recital in Ex. A1 and contends that the time for 1st defendant specifically performing the contract has not come yet at all since she has not taken possession of the property through Court or even otherwise. As against this contention, the learned counsel for respondents 1 and 2 plaintiffs relies on S. 12 of the Specific Relief Act, which provides for specific performance of a part of the contract. According to the said Counsel even though the contract was for the entirety of the suit house, since it has been held that the 1st defendant was entitled to only 3/5th share thereof, at least to that extent, pursuant to S. 12, decree for specific performance could be granted. The relevant clauses in S. 12 run as follows: “12 Specific Performance of Part of Contract: (1) Except as otherwise hereinafter provided in this Section, the Court shall not direct the specific performance, of a part of a contract. 2. Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, award compensation in money for the deficiency.” But, I do not think that there is scope for S. 12 in the present case. The question is not whether a part of the contract could be enforced or not, but, whether the time for performing the contract has come at all. The question is not whether a part of the contract could be enforced or not, but, whether the time for performing the contract has come at all. As per the very terms in the contract, time for performance has not come at all, since the 1st defendant had not obtained final decree in the abovesaid O.S. No. 93 of 1972 with reference to his 3/5th share, his final decree petition having been dismissed long back on 21.4.1975 itself. It is also not clear how even though the sale agreement was entered into in 1972, the 1st plaintiff kept quiet for a very long time and chose to send a notice only on 27.1.1978 under Ex. A2 nearly six years after the date of the sale agreement. If really, he was interested in getting specific performance of the contract, he would have taken necessary steps to see that the 1st defendant gets the final decree in respect of the abovesaid 3/5th share, either by himself impleading in the said suit or at least by frequently reminding the 1st defendant to get the said final decree and possession of the separated 3/5th share. No evidence was brought to my notice about any such step taken by the 1st plaintiff prior to issuing Ex. A2 notice and right from 25.4.1972, the date of Ex. A1. 10. It is well known that specific performance is a discretionary remedy. S. 20 of the Specific Relief Act also provides that the Court is not bound to grant specific relief “merely because it is lawful to do so”. Specific performance by Gareth Jones & Williams Goodhart, Chapter 1, 1986 Edition also points out “specific performance is a decree of the court which compels the defendant personally to do what he promised to do.” (emphasis supplied). Again in Halsburys Laws of England, in paragraph 401, p. 275 4th Edition, Vol. 44 it is stated as follows: “The remedy by specific performance is a equitable relief, given by the Court to enforce against a defendant, the duty of doing what he agreed by contract to do. (emphasis supplied) These two passages have also been relied on in Namazi, N.B. v. Central Chinmaya Mission Trust (100 L.W. 582) (D.B.). 44 it is stated as follows: “The remedy by specific performance is a equitable relief, given by the Court to enforce against a defendant, the duty of doing what he agreed by contract to do. (emphasis supplied) These two passages have also been relied on in Namazi, N.B. v. Central Chinmaya Mission Trust (100 L.W. 582) (D.B.). Here, in the present case, the 1st defendant agreed to perform his part of the contract, viz., execution of the sale deed within one month from taking possession of the suit property through Court in the above referred Court proceedings. But, admittedly, he has not taken possession so far. So, in such a situation, I do not think that he could be compelled to specifically perform the contract under Ex. A1 since as per the very recital in Ex. A1 time for performing the contract has not come yet. No doubt, it is argued that the 1st defendant deliberately allowed the final decree petition to be dismissed and he should not be allowed to take advantage of the said dismissal in view of his own default. If that is so, the plaintiffs could claim damages from the 1st defendant and I do not think that the discretionary remedy of specific performance could be given in the present case in the abovesaid situation in favour of the plaintiffs. 11. Even regarding the other submission, I find that there is force in the contention of the learned counsel for the appellant. The lower Appellate Court has no doubt believed PW2 and on that ground alone, held that the 2nd defendant was not a bona fide purchaser for value. PW2 no doubt has deposed thus. So, the lower appellate Court concluded that even before purchasing the property under Ex. B2 when the 2nd defendant inspected the suit property, he, was told about Ex. A1 sale agreement by PW2 and also, according to the lower appellate Court, the 1st defendant had knowledge of Ex. A1 sale agreement prior to Ex. B2 Sale Deed. The abovesaid version given by PW2 has been believed by the Lower Appellate Court solely on the alleged ground that PW2 is an aged person, a relative of the plaintiffs and also a neighbour to the suit house. But the lower appellate court has not at all taken into consideration what the trial court has observed about the evidence given by PW2. But the lower appellate court has not at all taken into consideration what the trial court has observed about the evidence given by PW2. First of all, PW2 himself admitted that he is looking after the lands of PW1. So, it is clear that his evidence is only an interested evidence. The trial court also holds that PW2 has been introduced by the plaintiffs only to establish that the 2nd defendant is aware of Ex. A1. Further, simply because PW2 is aged 54, it cannot be said that he is an aged person. That apart, the trial court also points out that DW2 the 2nd defendant categorically denied that PW2 informed him regarding Ex. A1. Further, the trial court also points out that there is nothing on record to indicate that the 2nd defendant had got notice about Ex. A1 and there was also no averment in the plaint that P.W. 2 had informed the 2nd defendant regarding Ex. A1. Further P.W. 2 has deposed in cross examination that nobody else knew about his informing the 2nd defendant about Ex. A1. In the light of the above features, I consider that the lower appellate Court was rather perverse in believing PW2s evidence. Further, even the lower appellate court only says that the deposition of PW2 that he had informed the 2nd defendant about Ex. A4 sale agreement, “may probably be true”, because PW1 had issued Ex. A2 notice. Here, it may also be noted that Ex. A2 notice, was issued only to the 1st defendant and not to the 2nd defendant. No doubt, the lower appellate court also observes, “there has been litigation about the suit house from 1972 onwards, and it could not be stated that DW2 was not aware of these facts at all.” But even, assuming that DW2 was aware of the abovesaid litigation, that may not be relevant for holding that he was not a bona fide purchaser for value. Only if he is aware of Ex. A1 sale agreement, he can be held to be not a bona fide purchaser for value. I, therefore, hold that the 2nd defendant is a bona fide purchaser for value. 12. The net result is, in view of the abovesaid two reasons given by me, the judgment and decree of the lower appellate court have to be set aside and the appeal has to be allowed. 13. I, therefore, hold that the 2nd defendant is a bona fide purchaser for value. 12. The net result is, in view of the abovesaid two reasons given by me, the judgment and decree of the lower appellate court have to be set aside and the appeal has to be allowed. 13. However, since, it is clear that the 1st defendant has committed breach of Ex. A1 contract the 1st plaintiff will be entitled to damages, as I have already indicated. The claim for damages was not made by the 1st plaintiff even alternatively in the suit, yet, since specific performance relief is negatived and since the 1st plaintiff can claim damages from the 1st defendant, if, he may, in this Second Appeal, file a petition within four weeks from today to amend the plaint, making the said claim for damages. If he so files and the new plea regarding damages is entertained, the 1st defendant can file an additional written statement in that regard and after issues are framed thereon, I propose to call for a finding from the trial Court on those issues. Call this Second Appeal after four weeks. This Second Appeal having been posted on this day for further orders in the presence of Mr. S. Sadakshram, Advocate for the Appellant and of Mr. S.M. Hameed Mohideen for Mr. N.M. Muthurajan Advocate for the respondents 1 and 2 and the 3rd respondent not appearing in person or by Advocate the Court made the following Order: Already by my judgement dated 20.1.1993, I have held that this appeal preferred by the subsequent purchaser, in relation to a sale agreement whose specific performance was sought in the suit, has to be allowed and the judgment and decree of the lower appellate court has to be set aside. However, since, I also found that as the first defendant who executed the sale agreement committed breach of the sale agreement he would be liable to pay damages to the first plaintiff and that is why I gave four weeks time for the plaintiff to amend the plaint making the said claim for damages. But, so far, even though nearly two months have passed, the plaintiff has not chosen to file any such petition for amendment of the plaint. Therefore, I hereby allow the appeal as already indicated and set aside the judgment and decree of the lower appellate court. But, so far, even though nearly two months have passed, the plaintiff has not chosen to file any such petition for amendment of the plaint. Therefore, I hereby allow the appeal as already indicated and set aside the judgment and decree of the lower appellate court. In the circumstances, there will be no order as to costs.