JUDGMENT N. Kumar, J : These two appeals are preferred by defendants 2 to 4 against the judgment and decree of specific performance of the agreement of sale granted by the trial Court. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. The subject matter of the suit is agricultural lands bearing Sy.No.108 measuring 7 acres 20 guntas, Sy.No.109 measuring 5 acres 33 guntas, Sy.No.112 measuring 10 acres and Sy.No.113 measuring 5 acres 24 guntas, all situated in Thylagere Village, Kundana Hobli, Devanahalli Taluk, Bangalore District and bounded within the boundaries mentioned in the schedule (hereinafter referred to as the schedule property). 4. The first defendant Smt. Hanumakka is the absolute owner of the schedule property. The case of the plaintiff is that she entered into an agreement on 05.11.1990 agreeing to sell the aforesaid 28 acres 37 guntas of land in favour of the plaintiff for a sum of Rs. 3,47,100/-. The plaintiff paid a sum of Rs. 1,75,000/- to the defendants. On the same day, the defendants' delivered possession of the schedule property to him. Her son by name Ashwathappa has also attested the agreement of sale dated 05.11.1990. The first defendant agreed to execute the sale deed as soon as survey and durast work of the suit schedule property was carried out. She also agreed to complete the sale transaction within thirteen months from the date of the agreement. The plaintiff was always ready and willing to perform his part of the obligation. He was ready with the balance sale consideration. He requested the first defendant more than a dozen time to come and execute the sale deed. The first defendant under one pretext or the other evaded to execute the sale deed. The plaintiff during 1993 got issued two legal notices to the defendants. Though the first defendant received the said notice, she neither replied nor complied with the demand made therein. Right from the date of execution of the agreement, the plaintiff was ready to perform his part of the obligation as contemplated under the agreement. It is the defendants who were evading to execute the sale deed. Though the first defendant received the said notice, she neither replied nor complied with the demand made therein. Right from the date of execution of the agreement, the plaintiff was ready to perform his part of the obligation as contemplated under the agreement. It is the defendants who were evading to execute the sale deed. Pursuant to entering into the agreement, the plaintiff has developed the land by investing huge lot of money i.e., he has raised mango groves and he has also levelled the entire land by using the bulldozer and also made preparation to fence the entire land for which purpose he has invested lot of money. The defendants even to this day have not made any attempt to disturb the possession of the suit schedule property. The first defendant has not executed the sale deed. The suit was originally filed only against the first defendant. Subsequently, an application was filed for impleading second defendant, which was allowed. Thereafter, the plaintiff filed an application for impleading defendant Nos.3 and 4. It was also allowed. After they were impleaded the plaintiff amended the plaint by adding para-5(a). The second defendant has purchased item (c) of the suit schedule property from the Power of Attorney holder of the first defendant. The first defendant has executed a General Power of Attorney in favour of one Sri Amit Gupta on 22.07.1992. On 29.08.1992 it was revoked. On the day Amit Gupta conveyed the property to the second defendant the General Power of Attorney was not in existence and Amit Gupta had no power to convey the property. Even though he has conveyed the property, it would not create or confirm any better right, title or interest in favour of the second defendant. The second defendant cannot claim that she had become absolute owner of the property by virtue of the sale deed dated 05.10.1993. By virtue of the agreement dated 05.11.1990 the plaintiff had no subsisting right over the property in question. The sale deed in favour of the second defendant would in no way affect the right of the plaintiff over the suit property. The agreement dated 05.11.1990 has not been terminated till the filing of the suit. By virtue of the agreement dated 05.11.1990 the plaintiff had no subsisting right over the property in question. The sale deed in favour of the second defendant would in no way affect the right of the plaintiff over the suit property. The agreement dated 05.11.1990 has not been terminated till the filing of the suit. Therefore, the first defendant by herself or through her agent have no right to convey the suit schedule property in favour of the second defendant and the alleged sale deed do not bind the right of the plaintiff in any manner nor affect his interest in any manner. The first defendant has sold the first item of the suit schedule property in favour of the third defendant under a sale deed dated 15.02.1992. The first defendant on 26.06.1992 has also sold the 'B' and 'D' schedule properties in favour of defendant No.4 by executing another sale deed and getting it registered. The first defendant has not disclosed the said alienation made by her in the written statement placed by her in the year 1996. As such her conduct in that regard is depricable. The plaintiff came to know about the alienation in favour of defendant Nos.3 and 4 only during third week of June 1999. Thereafter he made an application under Order 1, Rule 10(2) CPC for impleading the purchasers as additional defendants in the above case, which application was allowed. That is how they are arrayed as defendants 3 and 4 in the suit. Defendants 3 and 4 have purchased the property under two registered sale deeds. The said sale deeds are subject to the final result of the case since they came in to picture after the agreement of sale dated 05.11.1990. The sale deeds dated 15.02.1992 and 26.06.1992 will not take away the right vested with the plaintiff to get a decree for, specific performance of the agreement dated 05.11.1990. The said sale deeds are void abinitio. They have been created by the first defendant in favour of the defendant No.3 and 4 in order to defeat the rights of the plaintiff under the agreement dated 05.11.1990. The said documents are collusive, executed with an intention to defraud the plaintiff and therefore, the plaintiff sought for a decree for specific performance of the agreement dated 05.11.1990. They have been created by the first defendant in favour of the defendant No.3 and 4 in order to defeat the rights of the plaintiff under the agreement dated 05.11.1990. The said documents are collusive, executed with an intention to defraud the plaintiff and therefore, the plaintiff sought for a decree for specific performance of the agreement dated 05.11.1990. Subsequently, by way of an amendment of the prayer column, he sought for a direction directing the defendant Nos.1, 3 and 4 to execute the sale deed jointly in favour of the plaintiff in pursuance of the agreement dated 05.11.1990 and put the plaintiff in lawful possession of the suit schedule property. 5. After service of summons, the first defendant has filed the written statement. She admitted execution of the agreement dated 05.11.1990 agreeing to sell the suit property for a consideration of Rs. 3,47,100/-. However, it is her specific case that only a sum of Rs. 75,000/- was paid under the agreement and not Rs. 1,75,000/- as alleged by the plaintiff. It is her further case that plaintiff inserted n Lakh in between the words "agreement" thereby tampering the valuable agreement. She denied that she agreed to execute the registered sale deed after survey and durasth work of the suit schedule property. She denied that 13 months is the period agreed upon for completing the sale transactions. It is her case that time agreed was only three months from the date of agreement, but the plaintiff failed to obtain sale deed within the stipulated period in spite of repeated demands and requests made by the defendant. Further, the plaintiff manipulated and tampered the documents by inserting 13 months in place of 03 months. The allegation that the plaintiff was ready and willing to perform his part of the obligation arising out of the agreement is an utter falsehood averred just for the purpose of the suit. She admits the issue of legal notice and the same has been replied to. The allegation that the plaintiff has developed the lands by investing huge amounts and raised mango fruits and he has also levelled the entire lands by using buldozers and he has fenced the lands by spending huge amounts are all denied as false. In fact there is already mango groove in the land. The allegation that the plaintiff has developed the lands by investing huge amounts and raised mango fruits and he has also levelled the entire lands by using buldozers and he has fenced the lands by spending huge amounts are all denied as false. In fact there is already mango groove in the land. The entire land has been fenced and levelled and there is no need for the plaintiff to do these works on the land. After the agreement, the plaintiff failed to obtain the sale deed within the stipulated period and went on postponing on one pretext or the other. Finally, he expressed his inability to arrange funds and obtain sale deed from the defendant. Hence, he agreed to take back the advance amount and cancel the agreement. Though, the defendant was entitled to forfeit the advance amount, she has graciously returned the amount and got cancelled the original agreement dated 05.11.1990. In fact, the suit schedule property was sold to one Lakshmi Thammaiah of Maddur and Padmini Raghavan under two separate sale deeds registered in the office of the Sub-Registrar, Devanahalli. The said land was sold much earlier to the filing of the suit. Out of the sale consideration received by the defendant, the advance amount has been returned to the plaintiff by cancelling the original agreement dated 05.11.1990. The defendant has executed a separate document cancelling the original agreement and also acknowledged having received or having taken return of the advance amount from the defendant. This document is in accordance with oral, understanding reached by plaintiff and defendant when plaintiff was unable to perform his part of the agreement. The said document dated 13.08.1992 cancelling of the original agreement dated 05.11.1990 was produced as Annexure-'X' to the written statement. The defendants are in peaceful possession and enjoyment of the suit schedule property. The plaintiff suppressing the material facts of cancellation of the earlier agreement between him and defendant and by inserting words in between the lines and making material alterations filed the suit. The plaintiff has not made proper parties to the suit. Even if decree or order is made against the defendant, the same is in-fructuous as she is not the owner of the suit schedule property on the date of filing of the suit. 6. The second defendant filed an application to implead herself in the suit. The application was allowed. The plaintiff has not made proper parties to the suit. Even if decree or order is made against the defendant, the same is in-fructuous as she is not the owner of the suit schedule property on the date of filing of the suit. 6. The second defendant filed an application to implead herself in the suit. The application was allowed. Thereafter, she filed her written statement. 7. She has stated that she has purchased the land bearing Sy.No.112 referred to Schedule Item No. C of the suit schedule property measuring to an extent of 10 acres situated at Thylagere Village, Kundana Hobli, Devanahalli Taluk, Bangalore Rural District for a valuable consideration of Rs. 1,70,000/- by a registered sale deed dated 05.10.1993. Ever since the date of purchase, she is in possession and enjoyment of the land in question. After purchase, she filed an application before the Deputy Tahasildar of Devanahalli Taluk with a request to change the khatha in her favour. The Tahsildar had issued an endorsement dated 12.10.1995 stating that the plaintiff has filed the Original Suit No. 316/1993 before the Court. He has obtained an order of temporary injunction which has been extended from 15.01.1995 till further orders. Therefore; the khatha cannot be changed till the disposal of the suit. Till the said endorsement was served on her, she was not, aware of the suit filed by the plaintiff. She preferred an appeal against the order of the Deputy Tahsildar dated 12.10.1995 before the Assistant Commissioner. The appeal was registered as No.206/1995-96. She also stated that Item Nos. 'B' and 'D' schedule properties were sold to Sri V.T. Anand, the fourth defendant in the suit, and item No. 'A' schedule property was sold to one Mrs. Lakshmithammaiah, the third defendant in the suit, by a registered sale deed dated 15.02.1992, i.e., much prior to the institution of suit by the plaintiff. Subsequently, khatha was also changed in favour of the defendant by an order dated 21.09.1993. In view of the said facts, the suit is not maintainable for mis-joinder and non-joinder of parties. Therefore, she sought for dismissal of the suit. 8. Defendants 3 and 4 who are impleaded on an application filed by the plaintiff also filed their written statement. They admitted the sale deed executed by the first defendant in their favour. In view of the said facts, the suit is not maintainable for mis-joinder and non-joinder of parties. Therefore, she sought for dismissal of the suit. 8. Defendants 3 and 4 who are impleaded on an application filed by the plaintiff also filed their written statement. They admitted the sale deed executed by the first defendant in their favour. They have pleaded their complete ignorance regarding the agreement dated 05.11.1990 and the alleged payment of Rs. 1,75,000/-, by the plaintiff to the first defendant. They denied that the plaintiff was put in possession under the agreement of sale. They have denied all the allegations in the plaint. They have denied the plaintiffs possession over the suit schedule property. The sale deeds have been executed by the first defendant in favour of these defendants in accordance with law and these defendants are bonafide purchasers for valuable consideration without knowledge of the alleged agreement of sale in favour of the plaintiff and therefore, the plaintiff has no right to question the sale in favour of defendants. There is no fraud in the purchase of item (a), (b) and (c) of lands by these defendants. The suit for specific performance being a discretionary relief, cannot be granted in favour of the plaintiff as the plaintiff has not approached this Court immediately on the expiry of 13 months in terms of the alleged agreement of sale, even assuming that such an agreement is there, but not conceding. In the meanwhile third party interest having been created, he cannot maintain the suit. The plaintiff having slept over the matter cannot after the sale through proper registered documents being effected in favour of these defendants, question the same. The relief of specific performance cannot be granted as it works out adversely to the interest of these defendants. 9. The plaintiff has filed a rejoinder to the written statement of the first defendant. The allegation that the original agreement of sale is tampered was denied. It is the defendant who got the document prepared. In fact, some corrections were there in the first page of the agreement and thereafter she has attested those corrections by signing the paper which clearly goes to show that no tampering has been done by the plaintiff. The defendants have taken a contention that the agreement dated 05.11.1990 is cancelled on 13.08.1992 by the plaintiff himself which is denied as false. The defendants have taken a contention that the agreement dated 05.11.1990 is cancelled on 13.08.1992 by the plaintiff himself which is denied as false. The plaintiff has not executed any document on 13.08.1992. The document dated 13.08.1992 is concocted, forged, fabricated document created by the defendants solely with an intention to defraud the plaintiff. The signature contained on the alleged document is not that of the plaintiff. A careful reading of the said document shows that there was an Agreement between the parties on 04.10.1990 and that the same has been cancelled. The consideration set forth in the document is something else and receipts incorporated is Rs. 80,500/- and the said Stamp Paper do not contain the signature of the stamp vendor and further it does not disclose in whose name the stamp paper was purchased. It clearly makes out that it is a concocted document. Similarly, rejoinder was filed to the written statement of defendants 3 and 4 also. The defendants 3 & 4 were fully aware of the agreement dated 05.11.1990 when they purchased the portion of the suit schedule property under the sale deed dated 15.02.1992 and 26.06.1992. Despite she ventured to purchase a portion of the suit schedule property from the alleged Power of Attorney Holder of Defendant No.1. In that view of the matter, the sale deeds dated 15.02,1992 and 26.06.1992 obtained by the defendants 3 & 4 are not valid sale deeds in the eye of law. Further, defendants 3 & 4 are not bonafide purchasers for value without knowledge of agreement sale dated 05.11.1990 and as such, they are not entitled for protection of her right alleged to have been accrued under the sale deed dated 15.02.1992 and 26.06.1992. He denied that the defendants are in possession of the property. On the contrary, he contended that after taking possession, he has developed the same by investing huge amount of money towards levelling the schedule property with the help of bulldozer and he has also sunk a Well, fitted with Diesel Motor for lifting water in order to grow crops in the property in question. He has also planted about 2000 Mango Plants which are presently aged about 11 years and are already yielding fruits. He has also planted about 2000 Mango Plants which are presently aged about 11 years and are already yielding fruits. The defendants 3 and 4 at the time of taking the alleged Sale Deed dated 15.02.1992 and 26.06.1992 were quite aware of the possession of the plaintiff over the suit schedule property in pursuance of the agreement dated 05.11.1990 and also the development already made by the plaintiff therein. The contention of the defendants 3 and 4 that the plaintiff slept over the matter and approached the Hon'ble Court after 13 months and as such, the plaintiff is not entitled to claim for specific performance of the agreement dated 05.11.1990 is incorrect. There is no delay and laches on the part of the plaintiff in approaching the Court. Hence; he prayed for decree of the suit. 10. Subsequently, an additional written statement came to be filed by defendants 3 and 4. They contend that the prayer of the plaintiff for possession cannot be granted as the suit has not been properly valued. Unless the plaintiff pays the Court fee, the plaintiff cannot file a suit for possession and as such, defendants are in possession pursuant to the sale deed in their favour, unless the sale deeds are declared as null and void, the suit of the plaintiff is unsustainable. 11. On the aforesaid pleadings, the trial Court framed the eight issues and two additional issues. "1. Whether the plaintiff proves that under the agreement of sale dated 5.11.90 he has paid Rs. 1,75,000/- to the pt defendant as part consideration? 2. Whether the plaintiff proves that he was put in possession of the suit properties in part performance of the contract? 3. Whether the 1st defendant proves that the plaintiff has paid only Rs. 75,000/- as part consideration under the agreement dated 5.11.90 and he has inserted figure 1' and made it to appear Rs. 1,75,000/- and thereby tampered or altered the suit agreement? 4. Whether the plaintiff proves that the 1st defendant had agreed to complete the sale transaction within 13 months from the date of agreement and the time was the essence of the contract? 5. Whether the plaintiff proves that he was always ready and willing to perform his part of the contract and obtain a regular sale deed and it is the 1st defelant who has evaded to execute the sale deed? 6. Deleted. 7. 5. Whether the plaintiff proves that he was always ready and willing to perform his part of the contract and obtain a regular sale deed and it is the 1st defelant who has evaded to execute the sale deed? 6. Deleted. 7. Whether the plaintiff is entitled for the relief of specific performance of the contract dated 5.11.90 in respect of the four properties described in the plaint schedule? 8. What decree or order? Additional issues 1. Whether the defendants 2 to 4 proves that they are the bonafide purchasers of the suit schedule properties accordingly they were put in possession of the suit schedule property in pursuance of their respective sale deeds executed by the 1st defendant? 2. Whether the plaintiff proves that defendants 2 to 4 have purchased the suit schedule property with knowledge of the agreement of sale entered into between him and defendant No.1 in respect of the suit properties?" 12. The plaintiff in order to substantiate his claim examined himself as PW-1 and also examined two attesting witnesses to the agreement of sale as PWs.2 and 3. They produced 17 documents which were marked as Exs.P1 to P17. On behalf of the defendants, 1st defendant's son and also her power of attorney holder Sri. T. Ashwatappa was examined as DW-1. 2nd defendant was examined as DW-2. Dr. Ravi Raghavan was examined as DW-3. The power of attorney holder of 1st defendant Sri. Amith Gupta was examined as DW-4. Sri. V.T.Anand, the 4th defendant was examined as DW-5 and Sri. B.R.Yogish was examined as DW-6 and they have produced 29 documents which were marked as Exs.D1 to D29. 13. The trial Court on appreciation of the oral and documentary evidence on record held that the execution of agreement of sale is admitted. The evidence of the plaintiffs witnesses coupled with the evidence of DW1 shows that there are no interpolations in the agreement of sale. It also held that a sum of Rs. 1,75,000/- was paid and possession was delivered on the date of agreement of the sale. It held that the 1st defendant has failed to prove that only Rs. 75,000/- was received under the agreement of sale and not Rs. 1,75,000/-. The 1st defendant has failed to prove the interpolation pleaded by her in the written statement. 1,75,000/- was paid and possession was delivered on the date of agreement of the sale. It held that the 1st defendant has failed to prove that only Rs. 75,000/- was received under the agreement of sale and not Rs. 1,75,000/-. The 1st defendant has failed to prove the interpolation pleaded by her in the written statement. It recorded a finding that the plaintiff was put in possession on the date of the agreement and continuously he is in possession of the property. It held that the 13 months was the period prescribed for completion of the sale transaction from the date of the agreement and not three months. Defendants 2 to 4 have failed to prove that they are the bonafide purchasers for valuable consideration. Though no specific issue was framed regarding limitation, as both the parties argued on the basis of the material on record, it recorded a finding that the suit is in time. Accordingly, the suit for specific performance was decreed. Aggrieved by the said judgment and decree of the trial Court, 2nd defendant has preferred RFA 1242/2003 and defendants 3 and 4 have preferred RFA No. 1312/2003. ARGUMENTS 14. Sri B. V. Acharya, learned Senior Counsel appearing for the appellants-defendants 3 and 4 contended as under:- (a) A bare perusal of the suit agreement discloses two types of interpolations. First interpolation is by typing. The second interpolation is by writing in hand. The interpolation is regarding material terms of the contract. The contract should have been completed within three months and only Rs. 75,000/- was paid under the agreement. Now the interpolation is as if Rs. 1,75,000/- was paid and 13 months was agreed upon. In fact, careful reading of the agreement shows that out of the balance amount, Rs. 1,00,000/- has to be paid within 13 months and balance amount has to be paid within three months thereafter and before registration. In fact in the legal notice issued, the reference is only to the payment of Rs. 1,75,000/- and 13 months. Absolutely, there is no reference to the subsequent clauses which are in writing. Similarly, in the plaint, there is no reference to that condition. It clearly demonstrates the interpolations of the suit document. It is settled law that once there is interpolation, the document gets vitiated and the question of enforcing an agreement would not arise. 1,75,000/- and 13 months. Absolutely, there is no reference to the subsequent clauses which are in writing. Similarly, in the plaint, there is no reference to that condition. It clearly demonstrates the interpolations of the suit document. It is settled law that once there is interpolation, the document gets vitiated and the question of enforcing an agreement would not arise. He also submits that a specific performance being the discretionary relief, the conduct of the parties assumes importance. (b) When the suit was filed on 22.10.1993, in pursuance of the sale deed executed in favour the defendants 3 and 4, mutation entry had been made on 20.9.1993. The plaintiff produces the RTC's of the year 1990 which shows the 151 defendant as the owner. If the plaintiff had the RTC records on the date of the suit, it would have shown the purchaser's name. The plaintiff files a suit and also files an application for temporary injunction and the trial Court acting on the said RTCs produced, grants an injunction restraining the 1st defendant from alienating the property by which time, 1st defendant had already alienated the property in favour of defendants 2 to 4 and therefore, he submits that this conduct of the plaintiff disentitles him from seeking the discretionary relief. (c) When the 1st defendant filed the written statement on 20.2.1994, it is categorically mentioned that she has already sold the property in favour of defendants 2 to 4, but still the plaintiff did not chose to implead the defendants. It is the 2nd defendant who filed the application on 27.11.1995 which was allowed. Still, the plaintiff did not attempt to implead defendants 3 and 4. Immediately thereafter, defendant No.2 filed written statement with reference to the sale deed in favour of defendants 3 and 4. It is only on 2.8.1999 when plaintiff filed an application for impleadment of defendants 3 and 4, by which time, nearly six years had elapsed. Defendants 3 and 4 were impleaded on 6.8.2000 and therefore, the suit against them is clearly barred by the law of limitation. (d) The defendants have specifically contended that they are the bonafide purchasers for valuable consideration. In the entire plaint, there is no allegation that the defendants 3 and 4 were aware of the agreement. Defendants 3 and 4 were impleaded on 6.8.2000 and therefore, the suit against them is clearly barred by the law of limitation. (d) The defendants have specifically contended that they are the bonafide purchasers for valuable consideration. In the entire plaint, there is no allegation that the defendants 3 and 4 were aware of the agreement. Even otherwise, the evidence on record shows that the plaintiff was totally unaware of the sale deeds and as such, the sale in favour of defendants 3 and 4 is not vitiated and they are not bound to execute the sale deed in favour of the plaintiff. (e) Though the agreement of sale is dated 5.11.1990, the legal notice was issued on 19.1.1993 nearly after two years. There is absolutely no material on record to show that the plaintiff made an attempt to complete the transactions during the stipulated period. It is because the said agreement of sale has been cancelled by an agreement dated 19.8.1992. Therefore, the suit filed at a belated stage even against the 1st defendant, though in time, is liable to be dismissed on the ground of delay and laches. (f) Lastly it was contended that there is absolutely no evidence on record to show that the plaintiff was ready and willing to perform his part of the contract, he was ready with the balance sale consideration and he tendered balance sale consideration to the defendants. The trial Court has not properly appreciated the evidence on record and has blindly decreed the suit of the plaintiff which, requires to be interfered with. 15. Sri Udaya Holla, learned Senior Counsel appearing for the 2nd defendant adopting the aforesaid arguments contended that the 2nd defendant has purchased the 'A' schedule property for valuable consideration. She was put in possession. The sale was effected after the cancellation of agreement of sale. The very fact that she was not. made a party by the plaintiff and she had to get herself impleaded and contest the claim shows lack of bona fides on the part of the plaintiff. He submits that the suit agreement is tampered, interpolated and the said agreement is also cancelled. Therefore, the decree for specific performance is unsustainable in law. 16. Per contra, Sri S. Vijaya Shankar, learned senior Counsel appearing for the plaintiff submitted that execution of suit agreement is admitted. It is true that there are some corrections. He submits that the suit agreement is tampered, interpolated and the said agreement is also cancelled. Therefore, the decree for specific performance is unsustainable in law. 16. Per contra, Sri S. Vijaya Shankar, learned senior Counsel appearing for the plaintiff submitted that execution of suit agreement is admitted. It is true that there are some corrections. It is after the corrections 1st defendant has affixed her signature. Plaintiff and his two witnesses have spoken about these corrections and consent of the 1st defendant. Therefore, merely because the document was corrected, it does not vitiate the agreement and the case of tampering the document is not proved. The 1st defendant who set up the plea has not entered the witness box. Similarly, the period agreed upon is 13 months. In fact, in reply notice by the defendants, it is clearly mentioned that the 13 months is the period agreed upon and therefore, this story of tampering is without any substance. Though a plea of cancellation was set up in the written statement of the 1st defendant, which was reiterated by the other defendants, the said cancellation deed was not produced in evidence. Plaintiff has specifically denied the execution of the cancellation agreement. No witnesses who have attested the cancellation deed have been examined and therefore, the said cancellation deed is not proved. In the suit agreement, there is a specific reference that the plaintiff was put in possession of the property. Therefore, Section 53A of the Transfer of Property Act is attracted. That apart in Exs.P16 and P17-notices issued by the revenue authorities to the parties before surveying the property and fixing the boundaries, it is clearly mentioned that the plaintiff is in possession of the property on the date it was issued. Even the evidence of the defendants in this case shows that they are not in possession. In those circumstances, the finding recorded by the trial Court that the plaintiff is in possession of the property cannot be found fault with. Defendants 3 and 4 claim that they are the bonafide purchasers. The evidence on record shows that before purchasing the property, they did not go near the land, they did not enquire who were in possession of the property. The said fact shows the negligence and lack of good faith of the defendants and therefore, it cannot be said that they are the bonafide purchasers for valuable consideration. The evidence on record shows that before purchasing the property, they did not go near the land, they did not enquire who were in possession of the property. The said fact shows the negligence and lack of good faith of the defendants and therefore, it cannot be said that they are the bonafide purchasers for valuable consideration. The trial Court was justified in decreeing the suit even against them. 17. He also submitted that, before this Court an application is filed under Section 21(1) of the Limitation Act along with an application under Section 5 of the Limitation Act to condone the delay in filing the said application. Though in law the impleading applicants are considered as parties to the suit from the day of service of notice of the impleading application, in a given case, the Court has ample power to condone the delay and treat the suit having been filed against them in time. In the facts of the case, the case is made out for condoning the delay and to treat the suit against the defendants 3 and 4 having been filed in time. He submits that for the aforesaid reasons, no case for interference is made out. POINTS FOR CONSIDERATION 18. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration are as under :- (1) Whether the suit agreement of sale is interpolated so as to render it void and unenforceable? (2) Whether the plaintiff was ready and willing to perform his part of the contract? (3) Whether defendants 3 and 4 are bona fide purchasers for valuable consideration without notice of the agreement of sale in favour of the plaintiff? (4) Whether the application filed by the plaintiff in the Appellate Court under Order XXI, Rule (2) of CPC, is maintainable and requires to be allowed or whether the suit of the plaintiff is barred by limitation in so far as defendants 3 and 4 are concerned? (5) Whether the suit of the plaintiff is liable to be dismissed on the ground of delay and latches? POINT No. (1) - EFFECT OF MATERIAL ALTERATION 19. The suit is one for specific performance of the agreement of sale dated 5.11.1990. The consideration agreed upon for sale is Rs. 3,47,100/-. The extent of land agreed to be sold is 28 acres 37 guntas, at the rate of Rs. POINT No. (1) - EFFECT OF MATERIAL ALTERATION 19. The suit is one for specific performance of the agreement of sale dated 5.11.1990. The consideration agreed upon for sale is Rs. 3,47,100/-. The extent of land agreed to be sold is 28 acres 37 guntas, at the rate of Rs. 12,000/- per acre. The execution of this agreement is not in dispute. What is contended is that in the agreement material alteration has been made to which the vendor has not agreed. Secondly, the said agreement is cancelled. It is after such cancellation and after sale of the schedule property to defendants 2 to 4 the agreement is altered and on that basis the suit is filed. Therefore, the suit agreement is unenforceable. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The plaintiff has not mentioned in the plaint about these alterations. However, in his evidence he admits that the writing in the hand happened in the presence of the first defendant. The first defendant has consented for the same and accordingly she has also signed. Therefore, the interpolation in Ex.P1-the agreement of sale is admitted. Therefore, the question is, whether the interpolation took place prior to the execution of the agreement of sale and whether the first defendant has given her consent for such alteration; Further, whether the said alteration is a material alteration so as to render the deed void, if it is proved that the alteration has been made without the consent of the first party. 20. In order to prove this agreement with alteration, plaintiff in his evidence in chief has not whispered a word about this alteration. It is only in the cross-examination at para 8 after identifying the agreement which is marked as Ex.P1 admits that in the first page of the agreement there is a writing in the pen and it was written in the presence of the first defendant. He has not made any corrections. The said writing/correction was marked as Ex.P1(a). He asserts that the said writing was done in the presence of the first defendant. First defendant has affixed his signature consenting for the said correction. He identifies her LTM as Ex.P1(b). Her son one Ashwathappa also has signed at EX.P1(c). He has not made any corrections. The said writing/correction was marked as Ex.P1(a). He asserts that the said writing was done in the presence of the first defendant. First defendant has affixed his signature consenting for the said correction. He identifies her LTM as Ex.P1(b). Her son one Ashwathappa also has signed at EX.P1(c). One Annayappa has affixed his signature at Ex.P1(d), Srinivasagouda at Ex.P1(e) and K.Govindaraju at Ex.P1(f). He further admits that EX.P1 was got prepared and written by the first defendant's son by name Ashwathappa who is examined in this case as DW1. Before the first defendant affixed her signature to Ex.P1, it was read over to her. One Swamy, advocate, also has signed the said EX.P1 as the scribe. She has deposed that the first defendant's son is the author of that writing in the pen. 21. In support of his case, he has examined PW2-Narayanappa. He has stated in the examination in chief that the writing in ink was there before the first defendant executed Ex.P1. In the cross-examination, he states that Ex.P1 is in handwriting. He has signed the said document. Thereafter, he goes back on that statement and states that Ex.P1 is type written. In the cross-examination, he also asserts that Ex.P1 was got typed by DW1 the first defendant's son. 22. PW3-one Sri C. M. Srinivasagouda, another witness to Ex.P1, admits that, in Ex.P1 there is a writing in ink. It is after the said writing the first defendant has affixed her signature. She has affixed her signature at the place where the correction is made. The first defendant after getting the document read over and agreeing to the contents of the same has affixed her signature. In the cross-examination he deposes that he is not aware where the Ex.P1 was typed. 23. DW1-the son of the first defendant has been examined as the Power of Attorney Holder of the first defendant. In his examination in chief he has stated that, when the transaction took place, three months was the period mentioned for completion of the transaction. Because the first defendant did not find time to complete the sale transaction, it became 13 months. He admits in his cross-examination that there are corrections in Ex.P1. His mother has affixed her signature. Nowhere in his evidence, he has stated that he has made the correction. Because the first defendant did not find time to complete the sale transaction, it became 13 months. He admits in his cross-examination that there are corrections in Ex.P1. His mother has affixed her signature. Nowhere in his evidence, he has stated that he has made the correction. None of these witnesses who are said to be present at the time of execution of Ex.P1 though admit the corrections in Ex.P1 in ink in handwriting, they do not whisper about who is the author of these alterations and corrections. If the evidence of DW1 is to be believed, the period stipulated for completion of the sale transaction is three months. It is because they could not find time to complete the transaction, it became 13 months. Therefore, the said alteration was not there on the day the document was executed, but the alteration obviously is made after the expiry of the three months period as they could not complete the transaction. If that evidence is to be believed, then the evidence of PWs 1 to 3 falls to ground. 24. It is an admitted fact that the first defendant is an illiterate lady. She has affixed her LTM. The plaintiff says he has studied up to 7th standard. The document bears the seal of one Kandaswamy, B.Com, B.L, Advocate and above the seal it is written as "drafted by me". The plaintiff also admits to this fact, i.e., Ex.P1 is drafted by an advocate. The document is in Kannada. It is typed. The evidence of all these witnesses show that it is DW1, the son of the first defendant, who got this agreement prepared, typed and brought for execution. The advocate who drafted the agreement was not present at the time of execution of the agreement. If any corrections were to be made in the said agreement before execution and if he was present, being the draftsman of the agreement, the corrections should have been in his handwriting. It is nobody's case that the writing found in EX.P1 is in his handwriting. Though PW1 in his evidence says that the said writing is in the handwriting of DW1, DW1 has not stated so. Therefore, who is the author of this corrections is a mystery, which is not explained. The argument is that before the first defendant put her LTM to the document, this correction was made with her consent. Though PW1 in his evidence says that the said writing is in the handwriting of DW1, DW1 has not stated so. Therefore, who is the author of this corrections is a mystery, which is not explained. The argument is that before the first defendant put her LTM to the document, this correction was made with her consent. She, in token of her consent, has affixed her LTM near the said corrections. Therefore, it is immaterial who made the corrections, but she is a consenting party to the corrections and therefore the said corrections do not vitiate the document. 25. In order to appreciate this contention, it is necessary to look at the original agreement and find out where this LTM is put. Is it a LTM put in token of consenting for corrections or is it a LTM which is put in the normal course. The agreement runs to 3 pages. In the first page, at the bottom on the right side, we find there is a LTM of Smt. Hanumakka. The LTM is not clearly visible. If that should be construed as execution of the agreement, in page No.2 we do not find the LTM of Hanumakka at the bottom on the right side. However, we find one LTM in the left margin of page No.1 at the center. The place where that LTM is put is not the place where this correction in ink is made. The said LTM is put roughly after 8 lines from the correction in the center of the page. If a LTM in the center of the page is to be construed as a consent for the corrections, in page No.2 also we find one such LTM where there are no corrections. If LTMs are taken in the left margin in the center even at the place where there are no corrections, the only inference that could be drawn is that those LTMs is the proof of execution of the document. In fact, the LTMs found at the left margin of page No.1, page No.2 and at the end of writing at page No.3 are alike, whereas the so called LTM of the first defendant at the bottom of page No.1 on the right side has no similarity with the same. In fact, the LTMs found at the left margin of page No.1, page No.2 and at the end of writing at page No.3 are alike, whereas the so called LTM of the first defendant at the bottom of page No.1 on the right side has no similarity with the same. The evidence of DW1, the son of the first defendant makes it clear, that the alteration is made after the expiry of three months period as they could not complete the transaction within three months. Therefore, it is not possible to hold from the aforesaid undisputed material on record that the LTM on the left margin in page No.1 is affixed by the first defendant in token of her consent for the corrections made in hand and ink, at the time of execution of the agreement. 26. Then, let us see what are the corrections, how did the document read before the corrections and how does the document read after corrections and does it amount to material alteration. What is typed in the document discloses that, "out of Rs. 3,47,100/- this day in the presence of the witnesses Rs. 75,000/- has been received as advance. The balance sale consideration of Rs. 2,72,100/- would be paid in about 6 months from the date of execution of the agreement." Thereafter, at the cost of the vendee he is entitled to get the document registered. If he commits breach, the advance amount will not be refunded. The agreement also stands cancelled. The interpolation is of two types. One is by typing. Second one is by hand writing. A careful perusal of the agreement shows that, before the word "75,000-00", "1" appears to have been typed subsequently. Thereafter, after the word "75,000-00" the word "Lakh" has been typed subsequently and in the next line the word "the" has been typed subsequently. The, resultant position is, originally it was mentioned that 75,000-00 has been received as advance. In the next line when the word "1,72,100-00" is mentioned in Kannada, it is typed as "1,72,000-00". Whereas, in the earlier portion, the word "1,00,000-00" is conspicuously missing and the word used is "Lakh". This is an interpolation by typing. Then we have the interpolation in ink. The word "6" has been struck off. In its place "13" is mentioned in Kannada language. Whereas, in the earlier portion, the word "1,00,000-00" is conspicuously missing and the word used is "Lakh". This is an interpolation by typing. Then we have the interpolation in ink. The word "6" has been struck off. In its place "13" is mentioned in Kannada language. In the bracket "3" is mentioned in writing and in the bracket also "3" is mentioned. Below that also "3" in writing and "3" in words are mentioned. After mentioning the same, again there is a interpolation mentioning in Kannada "Hadi" meaning "13" and "1" is added which is clearly visible because it is beyond the circle. Now, with the correction in ink it reads as under:- "Within 13 months 1,00,000-00 is to be paid and the balance amount should be paid within 3 months". 27. In other words, the time stipulated for completing the transaction is 16 months and not 13 months as contended by the plaintiff. In fact, this last alteration read properly would make no sense. In one breadth it says that Rs. 1,00,000/- is to be paid within 13 months. In another breadth it means after paying Rs. 1,00,000/-, balance amount is to be paid within 3 months and then document is to be registered. It only shows that even while making this alteration they are not clear about what they really intend to alter as those alteration appear to have been done in installments. There is no coherence even in the alterations. 28. Now, in this background, we have to find out in the first place whether this alteration is a material alteration. In an agreement of sale, the material terms of the contract are, the total consideration agreed upon, how the said consideration is .to be paid and the period within which the consideration is to be paid. There is no alteration in the instant case about the total consideration which is Rs. 3,47,100/-. Before this alteration what is typed is, Rs. 75,000/- is paid as advance. If that Rs. 75,000/- is altered as Rs. 1,75,000/- certainly it makes a lot of difference and if it is an alteration without the consent of the first defendant, it is a material alteration. Similarly, if the balance amount payable is Rs. 2,72,100/- and if it is now altered to mean Rs. 1,72,100/-, it is yet another material alteration. If that Rs. 75,000/- is altered as Rs. 1,75,000/- certainly it makes a lot of difference and if it is an alteration without the consent of the first defendant, it is a material alteration. Similarly, if the balance amount payable is Rs. 2,72,100/- and if it is now altered to mean Rs. 1,72,100/-, it is yet another material alteration. Further, as typed 6 months is the period prescribed for completing the sale transaction. If three months is the period agreed upon in place of 6 months which appears to be the case and if it is altered as 13 months, it is yet another material alteration. Therefore, unless the plaintiff proves that the first defendant has consented for these material alterations, the agreement gets vitiated, the said alterations render it void and in law it has the effect of cancelling the deed of sale. 29. It is in this context it is necessary to look at the conduct of the parties after the execution of this agreement. Ex.P5 is the legal notice issued on behalf of the plaintiff before filing the suit. In the legal notice there is no whisper about this alteration. On the contrary it is stated that a sum of Rs. 1,75,000/- is paid by the plaintiff to the defendant and it is mutually agreed that the sale transaction should be completed within 13 months. The plaintiff approached the first defendant more than 10 times and she went on evading the execution of the document. The notice is dated 19.1.1993. If this alteration was there in the document on the day the legal notice is issued as the recitals with this correction stand, the plaintiff ought to have paid a sum of Rs. 1,00,000/- within 13 months and the balance amount had to be paid within 3 months thereafter at the time of registration. There is no whisper about the agreement to pay Rs. 1,00,000/- within 13 months from the date of the agreement or the said amount being tendered to the first defendant. Similarly, one more notice came to be issued on 21.1.1993 as per EX.P8. Even in this notice there is no whisper about the obligation to pay Rs. 1,00,000/- within 13 months from the date of the agreement and obligation to pay the balance amount within 3 months thereafter and at the time of registration. Similarly, one more notice came to be issued on 21.1.1993 as per EX.P8. Even in this notice there is no whisper about the obligation to pay Rs. 1,00,000/- within 13 months from the date of the agreement and obligation to pay the balance amount within 3 months thereafter and at the time of registration. Therefore, it is clear that the aforesaid corrections and alterations are made subsequent to the said legal notice and before filing of the suit. 30. In fact, after service of summons, the defendant has entered appearance and she has filed the written statement. In the written statement she has categorically stated that it is false to say that the plaintiff paid a sum of Rs. 1, 75,000/- on the date of the agreement. It is her specific case that he paid only a sum of Rs. 75,000/- under the agreement and not Rs. 1,75,000/-. The plaintiff inserted Rs. 1,00,000/- in between the words, thereby tampering the valuable agreement. Further she has stated that the time agreed was only three months from the date of the agreement, but, the plaintiff failed to obtain sale deed within the stipulated period in spite of repeated demands and requests made by the defendant to obtain the sale deed. Further, the plaintiff manipulated and tampered the documents by inserting 13 months as the period agreed upon in place of 3 months and therefore at the earliest point of time when the said tampering was brought to her notice, she has made her stand very clear. This assumes importance, because she has not entered the witness box. She has executed Power of Attorney to her son DW1 who has deposed before the Court giving a go bye to the stand taken by his mother. In fact, he admits that 3 months was the period prescribed for completing the sale transaction. As they could not complete the sale transaction it became 13 months. Therefore, the evidence on record shows that the period agreed upon is 3 months. It is altered subsequently. It is altered according to DW1 obviously after the period of 3 months when they could not complete the sale transaction. Therefore, the argument that on the day the agreement was executed, these alterations, corrections in handwriting and in ink were very much in existence and accepting the said corrections the first defendant executed the agreement is disproved. It is altered according to DW1 obviously after the period of 3 months when they could not complete the sale transaction. Therefore, the argument that on the day the agreement was executed, these alterations, corrections in handwriting and in ink were very much in existence and accepting the said corrections the first defendant executed the agreement is disproved. Coupled with the fact, as to who is the author is not spoken to. When the plaintiff says it is DW1 who is the author of the corrections, DW1 has not stated so and even there is no suggestion to him to that effect, though on the day he was giving evidence he has been won over by the plaintiff. 31. In this background, the question that arises for our consideration is, what is a material alteration and what is the effect of such alteration in a deed. 32. In paragraph 1378 of Volume 12 of Halsbury's Laws of England (Fourth Edition) it is observed as under:- "if an alteration (by erasure, interlineation, or other- wise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled, under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against an party bound by it, who did not consent to the alteration, any obligation, covenant, or promise thereby undertake or made. A material alteration, according to this authoritative work, is on which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and a such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed." 33. The Privy Council in Nathu Lal Vs. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed." 33. The Privy Council in Nathu Lal Vs. Mussamat Gomti Kaur [AIR 1940 SC 160] has held as under: - "A deed is nothing more than an instrument or agreement under seal; and the principle of those cases is that any alternation in a material part of any instrument or agreement avoids it, because it thereby ceases to be the same instrument." Again the Judicial Committee observed as under:- "A material alteration has been defined in the rule as one which varies the rights, liabilities or legal position of the parties ascertained by the deed, etc.," and after applying that test they held that the alteration in that case was not material in the sense of altering the rights, liabilities or legal position of the parties or the legal effect of the document." 34. The Supreme Court in the case of Valiammal Rangarao Ramachar Vs. Muthukumaraswamy Gounder and Another [ (1982) 3 SCC 508 ] held that, a motivated interpolation in a solemn document completely vitiates the document. Common course of human conduct has uptil now indicated to us that solemn agreements have-been violated when more price is offered, but here is a breach attempted for a lesser price and by a fairly crude attempt which stares in the face. The interpolation is motivated inasmuch as when translated it meant that the plaintiff who seeks specific performance of his contract was aware or and had the knowledge of an agreement which the vendor appears to have entered into with original defendant 2. There was hardly any explanation about the interpolation offered to the High Court and in fact none was forthcoming to us also. 35. The Apex Court in the case of Loonkaran Sethiya and Others Vs. Mr. Ivan E. John and Others, [AIR 1977)SC 336] after referring to the aforesaid passage of the Halsburys Law of England observed that: "a material alteration is one which varies the rights, liabilities, or legal position of the parties, as ascertained by the deed In its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed." After laying down the aforesaid law; applying the same to the facts of that particular case it was observed as under:- 25. Now a comparison of Exh. A-I (produced by the defendants first set) with Exh. 168 (produced by the plaintiff) would show that besides the obliteration of the word 'partner' from the preamble as stated above, the plaintiff made two other alterations in Exh.168. Originally, the second proviso to sub-clause (8) of clause 1 of the agreement stood as given in Exh. A-1 ran thus:- "The payment for purchase of cotton will be made on the first (emphasis ours) day of its receipt in the mills of the partners." 26. In Exh 168, however, the word 'first' has been changed into 'tenth' thus making it read as "the payment for purchase of cotton will be made on the tenth (emphasis ours) day of its receipt in the mills of the partners." 27. The third alteration is no less important. As would be evident from Exh. A-1, sub-clause (3) of clause 12 of the agreement as actually drawn up between the parties read as follows:- "A commission of Rupee one percent on value of all sales of products of the above three spinning mills, viz. yarn, and newar, whether sold directly by the partners or otherwise but delivered and produced during the currency of this agreement. 28. After the alteration, the clause has been made to read as follows on Exh.168:- "A commission of Rupee one percent on value of all sales of products of the above three spinning mills, viz. yarn, and newar, whether sold directly by the partners or otherwise but delivered or produced during the currency of this agreement." 29. As a result of the last change, the word 'and' has been substituted by the word 'or'. 30. As the above mentioned alterations substantially vary the rights and liabilities as also the legal position of the parties, they cannot be held to be anything but material alterations and since they have been made without the consent of the defendants first set, they have the effect of cancelling the deed. Question No.5 is, therefore, answered in the affirmative." 36. As the above mentioned alterations substantially vary the rights and liabilities as also the legal position of the parties, they cannot be held to be anything but material alterations and since they have been made without the consent of the defendants first set, they have the effect of cancelling the deed. Question No.5 is, therefore, answered in the affirmative." 36. Therefore, once the evidence on record shows that a material alteration is made in a deed, after its execution, without the consent of the party liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration from putting the deed in suit to enforce against a party bound by it, who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made because the material alteration varies the rights, liabilities and legal position of the parties as ascertained by the deed in its original state. It varies the legal effect of the instrument as originally expressed. It prejudices the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. Therefore, as the above mentioned alteration substantially vary the rights and liabilities as also the legal position of the parties, they cannot be held to be anything, but material alterations and since they have been made without the consent of the first defendant, it has the effect of cancelling the deed and it is unenforceable, as on the date of the suit in law as the deed has become void and it is non est, i.e., not in existence. 37. Dealing with this interpolation, the trial Court held that, the first defendant did not step into the witness box. On the other hand, she has examined the Power of Attorney Holder who is her own son DW-1. He has clearly deposed that on the date of the agreement it was settled that the sale deed has to be executed within 3 months. Since the required time for execution of the sale deed was extended to 13 months, according to the learned trial Judge this evidence of DW1 fully supports the case of the plaintiff, but in no way helps the defence of defendant No.1. Since the required time for execution of the sale deed was extended to 13 months, according to the learned trial Judge this evidence of DW1 fully supports the case of the plaintiff, but in no way helps the defence of defendant No.1. In the evidence of PWs 1 to 3 they have stated that some corrections were made with the pen in Ex.P1 agreement and defendant No.1 has put her LTM on the said correction and the said fact is also admitted by DW1 in his cross-examination. In view of this clear admission by DW1, the question of tampering by the plaintiff either consideration amount or time fixed for execution of the sale deed will not survive. On going through Ex.P1, undoubtedly there are some corrections in Ex.P1, but those corrections are attested by defendant No.1 by putting her LTM. So, under such circumstances, Ex.P1 is not a tampered document. On the other hand, in view of the admission of DW1 in his cross-examination, it has to be held that Ex.P1 is the genuine document and there are no material alterations in Ex.P1. In view of the evidence of PWs1 to 3 and DW1 the stand taken by the first defendant that there are material alterations in Ex.P1 must fall to the ground and the said allegations of the first defendant are baseless. 38. This finding is contrary to both oral and documentary evidence on record. Firstly, DW1 has clearly deposed that 3 months was the period prescribed for completing the sale transaction. Further, he has specifically deposed that as they could not complete the sale transaction it became 13 months. Therefore, on the day the agreement was executed, the period prescribed was only 3 months and not 13 months. It is only after the expiry of 3 months when they were unable to complete the transaction it became 13 months. Therefore, this interpolation of 13 months introduced in the suit document is only after the expiry of 3 months period and it was not there on the day the agreement was executed. This aspect was not noticed by the trial Judge. This evidence of DW1 on which the plaintiff relies on clearly establishes the case of interpolation. 39. Secondly, the plaintiff has not produced any independent evidence to show the payment of Rs. 1,75,000/-. This aspect was not noticed by the trial Judge. This evidence of DW1 on which the plaintiff relies on clearly establishes the case of interpolation. 39. Secondly, the plaintiff has not produced any independent evidence to show the payment of Rs. 1,75,000/-. When the defendants have clearly demonstrated the interpolation and now that the interpolation is also admitted by the plaintiff and his witnesses and the finding of the trial Court also is to that effect, the burden of showing that in terms of the interpolation, the plaintiff paid Rs. 1,75,000/- to the first defendant was squarely on him. Except the bear assertion in the oral evidence of PW1 coupled with the aforesaid interpolated recital nothing else is produced before the Court to substantiate the contention that either the interpolation was acted upon or a sum of Rs. 1,75,000/- is paid. The trial Judge has not carefully scrutinized the suit document. It shows not only the interpolation •in handwriting, there is an interpolation even by way of typewriting. If, the evidence of the plaintiff and his witnesses is to be accepted, the first defendant has affixed her LTM approving this interpolation on the left side margin. A perusal of the document shows her LTM in the first page is not found near the lines where this interpolation is made. It is about 8 lines above that where there is no interpolation. If affixing a LTM on the side margin of a page is proof of acceptance of the interpolation, we find such a LTM in the second page also in the left margin where there is no interpolation at all. Therefore, this argument that this interpolation took place even before execution and the first defendant affixed her LTM in token of acceptance of this interpolation falls to ground. This aspect also has not been seen by the trial Judge. Therefore, the finding recorded by the trial Court that there is no interpolation and these interpolations are all done prior to the execution of the document and that the first defendant has consented for such interpolation by affixing LTM is contrary to the oral and documentary evidence .on record. POINT NO.2 - READINESS AND WILLINGNESS 40. Therefore, the finding recorded by the trial Court that there is no interpolation and these interpolations are all done prior to the execution of the document and that the first defendant has consented for such interpolation by affixing LTM is contrary to the oral and documentary evidence .on record. POINT NO.2 - READINESS AND WILLINGNESS 40. In a suit for specific performance the plaintiff should not only plead and prove the terms of the agreement, but also plead arid prove his readiness and willingness to perform his obligation under the contract in terms of the contract. 41. Section 16 of the Specific Relief Act reads as under: - "16. Personal bars to relief.-Specific performance of a contract cannot be enforced in favour of a person- (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation' intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.-For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 42. This provision has been the subject matter of interpretation by the Apex Court on several occasions: 43. The law on the point is well settled. The Supreme Court in the case of N.P. Thirugnanam (Dead) by LRs Vs. Dr. R. Jagan Mohan Rao and Others, [ (1995) 5 SCC 115 ] has held as under:- "5. 42. This provision has been the subject matter of interpretation by the Apex Court on several occasions: 43. The law on the point is well settled. The Supreme Court in the case of N.P. Thirugnanam (Dead) by LRs Vs. Dr. R. Jagan Mohan Rao and Others, [ (1995) 5 SCC 115 ] has held as under:- "5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Section 20, the Court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract." 44. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract." 44. The Supreme Court in the case of His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar, [ (1996) 4 SCC 526 ] has held as under: "2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiffs part of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to abide for the time, which disentitles him as time is the essence of the contract." 45. The Supreme Court in the case of Ram Awadh (Dead) by L.Rs. and Others Vs. Achhaibar Dubey and Another [ 2000 (2) SCC 428 ] interpreting Section 16 of the Specific Performance (Relied Act, 1963 has held as under: "6. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. and Others Vs. Achhaibar Dubey and Another [ 2000 (2) SCC 428 ] interpreting Section 16 of the Specific Performance (Relied Act, 1963 has held as under: "6. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh's case is erroneous." 46. The Apex Court in the case of P.D'Souza Vs. Shondrilo Naidu [ 2004 (6) SCC 649 ] has held as under: "It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf." 47. The Supreme Court in the case of Aniglase Yohannan Vs. Ramlatha (2005) 7 SCC 534 [SCC p 540, para 12) has held as under: "12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief." This Court further held that the averments relating to readiness and willingness are not a mathematical formula which should be expressed in specific words and if the averments in the plaint as a whole; do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract, the fact that the wording was different, will not militate against the readiness and willingness of the plaintiff. The above observations cannot be construed as requiring only a pleading in regard to readiness and willingness and not ‘proof’ relating to readiness and willingness. In fact, in the very next para, this Court clarified that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. Therefore, the decision merely reiterates the need for both pleadings and proof in regard to readiness and willingness of the plaintiff" 48. The Supreme Court in the case of M.M.S. Investments, Madurai and Others Vs. V. Veerappan and Others [2007 AIR SCW 4809] has held as under:- "5. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short the 'Act') is not applicable. It is to be noted that the decision in Ram Awadh's case (supra) relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the appellants were ready and willing is really of no consequence. In Ram Awadh's case (supra) the question of the effect of a completed sale was not there. Therefore, that decision cannot have any application so far as the present case is concerned. Once there is a conveyance the concept would be different and the primary relief could be only cancellation." 49. The Supreme Court in the case of Azhar Sultana Vs. B. Rajamani and Others [ AIR 2009 SC 2157 ] has held as under:- "18. Section 16(c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of contract. 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." 50. The Supreme Court in the case of Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha [ (2010) 10 SCC 512 ] has held as under:- "12. Section 16(c) of the Specific Relief Act 1963 (‘Act’ for short) bars the specific performance of a contract in favour of a plaintiff "who fails to aver and prove that he has performed or has always been ready and willing to perform the essentia1 terms of the contract which are to be performed by him (other than terms of the performance of which has been prevented or waived by the defendant). Explanation (ii) to Section 16 provides that for purposes of clause (c) of Section 16, "the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Explanation (ii) to Section 16 provides that for purposes of clause (c) of Section 16, "the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract." 51. Thus, Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. 52. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. If the plaintiff fails to either aver or prove the same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the' contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract. 53. 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. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. If there are any reservations without any justification, or it is made conditional on the happening of any event which is not agreed upon, it shows his unwillingness to perform his part of the contract. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with. 54. Therefore, it is necessary to see whether there is a proper plea which satisfies the requirement of Section 16(c) of the Specific Relief Act, 1963. In para 4 it is stated that the plaintiff was ever ready and willing to perform his part of the obligation and he was ever ready with the balance sale consideration amount and that the plaintiff requested the defendant more than a dozen times to come and execute the sale deed. In para 5 of the plaint the plaintiff has averred that right from the date of execution of the agreement he was ready to perform his part of the obligation as contemplated under the agreement. On the other hand the defendant had evaded to execute the sale deed on one pretext or the other. The plaintiff during 1993 had got issued two legal notices to the defendant. Though the defendant received the said notice, she never replied nor complied. 55. The 1st defendant has specifically traversed these allegations. On the other hand the defendant had evaded to execute the sale deed on one pretext or the other. The plaintiff during 1993 had got issued two legal notices to the defendant. Though the defendant received the said notice, she never replied nor complied. 55. The 1st defendant has specifically traversed these allegations. She specifically contends that the time agreed was only three months from the date of the agreement, but the plaintiff failed to obtain sale deed within the stipulated period in spite of repeated demands and requests made by the defendant to obtain the sale deed. The averments in the plaint that the plaintiff was ready and willing to perform his part of the obligation arising out of the agreement is utter falsehood and are averred just for the purpose of the suit. Further, it is stated that the averment in para 5 of the plaint that the plaintiff was ever ready to perform his part of the agreement and the defendant had postponed the execution of the sale deed on one pretext or the other was denied as false. It is because of these material allegations in the plaint which were denied in the written statement, issue No.5 in the suit was framed as under: - "Whether the plaintiff proves that he was always ready and willing to perform his part of the contract and obtain a regular sale deed and it is the first defendant who has evaded to execute the sale deed?" Therefore, the plea of readiness and willingness to perform the essential terms of the contract is found in the plaint. 56. In support of his plea of readiness and willingness the plaintiff has adduced evidence. In his evidence he stated that by employing bulldozers he got the schedule land flattened, planted mango plants, dug a bore well, installed a pump set at a cost of Rs. 8,00,000-00. Within 13 months from the date of the agreement, he was in possession of the balance amount payable under the agreement of sale. He met the first defendant about 30 to 40 times in those 13 months. It is the first defendant who is the cause for not completing the sale transaction. She was expected to get the measurement of the property done which she did not do. However, he was ready with the balance sale consideration. He met the first defendant about 30 to 40 times in those 13 months. It is the first defendant who is the cause for not completing the sale transaction. She was expected to get the measurement of the property done which she did not do. However, he was ready with the balance sale consideration. Even on the day he was giving evidence he was ready with the said amount. This is what he said in the examination in chief. In cross-examination he deposed he has no document to show that he was in possession of the balance amount. However, he again asserted that he is in possession of the balance sale consideration. Except this evidence we have no evidence on record. In other words except repeating these words that he was ready and willing to perform his part of the contract in the witness box, he has not placed any evidence on record to show that he was firstly ready with the balance sale consideration and secondly he was willing to part with the sale consideration to the first defendant. 57. If the plaintiff after entering into the sale agreement took possession of the schedule property under the agreement and thereafter levelled the entire land by using the bulldozers, dug a bore well, installed a pump set and planted mango trees and spent nearly Rs. 8,00,000-00 towards these expenses which is twice the amount of the sale consideration, he should have produced evidence to substantiate this fact. If he had employed a bulldozer to level the entire land he should have paid money to the owner of the bulldozer and obtained receipts even if cash payment is made. Similarly, if a bore well is dug, there should have been evidence to substantiate the said fact. If a pump set had been installed, he should have had a receipt evidencing the purchase of the said pump set. If he has fenced the land, again there should be a receipt to show the purchase of barbed wire because the land to be fenced is about 28 acres 37 guntas. Except the oral assertion, absolutely no scrap of paper is produced to substantiate this fact. He has not said where he had kept that money. In these days it is very difficult to keep so much cash in the house. Except the oral assertion, absolutely no scrap of paper is produced to substantiate this fact. He has not said where he had kept that money. In these days it is very difficult to keep so much cash in the house. If he was ready with the balance sale consideration and approached the 1st defendant 30 to 40 times in those 13 months period as spoken to by him, he could not have kept the cash in the house. If he was really interested in purchasing the property or at least when he issued a legal notice and filed a suit, he would have deposited the amount in some bank and could have produced documents showing that he was ready with the balance sale consideration. At least on the day he issued the legal notice or he filed the suit or at least on the day he was giving evidence, he should have demonstrated that he was ready with the balance sale consideration. Absolutely no effort is made in this direction. 58. The plaintiff in order to succeed has to prove the continuous readiness and willingness from the date of the agreement till the date of hearing of the case. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. His conduct should be blemishless throughout entitling him to the specific relief. The mere assertion in the witness box that he is ready and willing to perform his part of the contract or he is ready with the balance sale consideration would not meet the requirements of law. Seen from this angle if we look into the evidence on record in the first place, there is no evidence apart from the interpolated recital in the suit agreement that he has paid Rs. 1,75,000/- under the agreement. The first defendant has admitted the receipt of Rs. 75,000/-. She has specifically denied the payment of Rs. 1,00,000/- and has contended that such a writing is an interpolation. Therefore, in the first instance it was necessary for the plaintiff to prove by acceptable evidence other than the recital in the agreement that a sum Rs. 1,00,000/- was paid in addition to Rs. 75,000/- on execution of the agreement of sale. 1,00,000/- and has contended that such a writing is an interpolation. Therefore, in the first instance it was necessary for the plaintiff to prove by acceptable evidence other than the recital in the agreement that a sum Rs. 1,00,000/- was paid in addition to Rs. 75,000/- on execution of the agreement of sale. Subsequently, 13 months is the period prescribed according to the plaintiff to pay the balance sale consideration. Absolutely no evidence is adduced to show that in these 13 months period the plaintiff was ready with the balance sale consideration. It is the specific case of the plaintiff that about 30 to 40 times plaintiff approached the first defendant with the balance consideration and requested her to execute the sale deed. No evidence is coming forward to, prove this fact of plaintiff approaching defendant 30 to 40 times and during the said period he had the balance sale consideration in his hand. Two legal notices have been issued asserting readiness and willingness to pay the sale consideration. But, no evidence is adduced to show that on the day when these legal notices were issued, the plaintiff was ready with the balance sale consideration. Even after the filing of the suit till the day he gave evidence in Court, no evidence is adduced to show during that period that he was ready with the balance sale consideration. It is the specific case of the plaintiff which is averred in the plaint and also spoken to in his evidence that after the agreement of sale, he has spent Rs. 8,00,000/- for the purpose of flattening the land, digging bore well, installing a pump set, fencing the land and planting mango trees. Absolutely no evidence is adduced to show that the plaintiff was in possession of Rs. 8,00,000/- and how much he has spent out of Rs. 8,00,000/- on these different heads and from where he got the money. Therefore, the evidence on record clearly establishes that the plaintiff has failed to prove the possession of the balance sale consideration as pleaded by him. There is absolutely no evidence on record to show that he was willing to pay the said amount. When he was .not in possession of the amount at all, the question of willing to part with that money would not arise. There is absolutely no evidence on record to show that he was willing to pay the said amount. When he was .not in possession of the amount at all, the question of willing to part with that money would not arise. Therefore, the plaintiff has failed to prove the legal requirement of readiness and willingness to pay the balance sale consideration. As the proof of readiness and willingness to pay the sale consideration is a condition precedent for grant of a decree of specific performance, the plaintiff has miserably failed in this regard and therefore the plaintiff is not entitled to the relief of specific performance. 59. The trial Court has proceeded on the basis that, the evidence of PW2 and legal notices at Exs.P5 and P8 clearly goes to show that the plaintiff was/is ready and willing to perform his part of the contract from the agreement till the date of filing the suit and subsequently also. Further it held that, in spite of service of notices the defendant No.1 did not respond to the said notices. So under such circumstances an inference has to be drawn that the plaintiff was always been ready and willing to perform his part of contract as per the agreement. Then, the trial Court took note of the fact that, in the cross-examination of DW1, it is elicited that the plaintiff after getting the agreement approached the first defendant several times and requested her to execute the sale deed by receiving the balance consideration amount. So, the admission made by DW1 in the cross-examination will cut the contention of the defendants 2 to 4 that the plaintiff was not ready and willing to perform his part of the obligation under the agreement dated 5.11.1990. 60. This reasoning only demonstrates a very superficial approach on the part of the trial Court in appreciating the evidence. It failed to notice that mere assertion in the witness box and issue of a legal notice is riot a proof of readiness and willingness to pay the balance sale consideration. The plaintiff should not only aver, but also prove the readiness and willingness to the satisfaction of the Court. No inferences are permissible in law. Readiness and willingness is purely a question of fact. The plaintiff should not only aver, but also prove the readiness and willingness to the satisfaction of the Court. No inferences are permissible in law. Readiness and willingness is purely a question of fact. The plaintiff has to produce before the Court such evidence so as to satisfy the Court that he was ready with the balance sale consideration and he was willing to part with the balance sale consideration. As set out above, the evidence on record clearly demonstrates he was neither ready with the balance sale consideration nor he made any attempt to pay the balance sale consideration. On the contrary he has taken false pleas which are not substantiated by any evidence. Therefore, the finding recorded by the trial Court that the plaintiff has established his readiness and willingness is not based on any legal evidence and as such it is vitiated and requires to be set aside and accordingly it is set aside. POINT No.3 61. Section 19 of the Specific Relief Act is pressed into service by the plaintiff to bind defendants 3 and 4 and to compel them to execute the sale deed in their favour. Defendants 3 and 4 have taken a specific contention that they are bona fide purchasers for valuable consideration without notice of this agreement of sale and therefore they are not bound by the said contract and no decree for specific performance can be passed against them. 62. Section 19 of the Specific Relief Act, 1963 reads as under:- "19. Defendants 3 and 4 have taken a specific contention that they are bona fide purchasers for valuable consideration without notice of this agreement of sale and therefore they are not bound by the said contract and no decree for specific performance can be passed against them. 62. Section 19 of the Specific Relief Act, 1963 reads as under:- "19. Relief against parties and persons claiming under them by subsequent title.-Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against - (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant; (d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; (e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract." 63. The section lays down a general rule that the original contract may be specifically enforced against persons who are not parties to the original contract. It provides the categories of persons against whom specific performance of a contract may be enforced. Among them is included, under clause (b), any transferee claiming under the vendor by a title arising subsequently to the contract of which, specific performance is sought. However, a transferee for value, who has paid his money in good faith and without notice of the original contract, is excluded from the purview of the said clause. It is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which, prima facie, he had no right to get. However, a transferee for value, who has paid his money in good faith and without notice of the original contract, is excluded from the purview of the said clause. It is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which, prima facie, he had no right to get. Further, the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of Sections 103 and 106 of the Indian Evidence Act, 1872, have a bearing on the question. The plaintiff does not necessarily have knowledge of either matter. To fall within the excluded class, a transferee must show that: (a) he has purchased for value the property (which is the subject-matter of the suit for specific performance of the contract); (b) he has paid his money to the vendor in good faith; and (c) he had no notice of the earlier contract for sale (specific performance of which is sought to be enforced against him). A bona fide purchaser for valuable consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right is entitled to priority in equity as well as at law. 64. Under Section 19(b) a specific performance of a contract can be enforced not only against either party thereto, but against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of original contract. Further, Section 91 of the Indian Trusts Act, 1882 lays down that where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which a specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract. An agreement to sell immovable property does not create any interest in the said property unless a sale deed is executed conveying the said property. The vendor, who has not transferred his interest in the property, though he entered into an agreement with another to sell the same, can certainly confer title on a third party by executing a sale deed in his favour. The vendor, who has not transferred his interest in the property, though he entered into an agreement with another to sell the same, can certainly confer title on a third party by executing a sale deed in his favour. As between the vendor and the subsequent purchaser, there can be little doubt that there is a transfer of ownership and, therefore, the title to the property vests in the latter. But the title of the subsequent purchaser with notice of the prior agreement in favour of another is subject to the obligation under S. 91, Trusts Act. He holds the property for the benefit of the latter to the extent necessary to give effect to the contract. The person in whose favour there was a prior agreement can specifically enforce his agreement under Section 27(2) Section 27(b)), Specific Relief Act, and compel him to execute a sale deed in his favour. But till such a sale deed is executed by the subsequent purchaser, the person in whose favour there was a prior agreement cannot acquire any title to the same. It is well settled that the initial burden to show that the subsequent purchaser of suit property covered by earlier suit agreement was a bona fide purchaser for value without notice of the suit agreement squarely rests on the shoulders of such subsequent transferee. Once evidence is led by both the sides the question of initial onus of proof pales into insignificance and the Court will have to decide the question in controversy in the light of the evidence on record. Where a transferee has knowledge of such facts which would put him on inquiry which if prosecuted would have disclosed a previous agreement, such transferee is not a transferee without notice of the original contract. It is the bounden duty of the purchaser to make all such necessary enquiries and to ascertain all the facts relating to the property to be purchased prior to committing in any manner and hence they cannot simply come forward to put up the general plea that they are the bonafide purchasers for value and without notice. It is the bounden duty of the purchaser to make all such necessary enquiries and to ascertain all the facts relating to the property to be purchased prior to committing in any manner and hence they cannot simply come forward to put up the general plea that they are the bonafide purchasers for value and without notice. Explanation II appended to the interpretation clause in Section 3 of the Transfer of Property Act says: "Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. 65. Thus, it is seen that a statutory presumption of "notice" arises against any person who acquires any immovable property or any share or interest therein of the title, if any, of the person who is for the time being in actual possession thereof. Where there is a tenant in possession under a lease or an agreement, a person, purchasing part of the estate, must be bound to inquire, on what terms that person is in possession. 66. Section 3 of the Transfer of Property Act is the interpretation clause. It defines when a person is said to have notice. It reads as under:- "3. Interpretation- clause.-In this Act, unless there is something repugnant in the subject or context,-" xxx xxx xxx "a person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Interpretation- clause.-In this Act, unless there is something repugnant in the subject or context,-" xxx xxx xxx "a person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I.-Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub- district, or where the registered instrument has been registered under sub-section (2) of Section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that- (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act. Explanation II.-Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.-A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud." 67. Thus, it is seen that a statutory presumption of notice arises against any person who acquires any immovable property or any share or interest therein of the title, if any, of any person who is for the time being in actual possession thereof. Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. A person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. From the definition of the expression, a person is said to have notice in Section 3 of the Transfer of Property Act, it is plain that the word notice is of wider import than the word knowledge. A person may not have actual knowledge of a fact but he may have notice of it having regard to the aforementioned definition and Explanation II thereto. If the purchasers have relied upon the assertion of the vendor or on their own knowledge and abstained from making enquiry into the real nature of the possession of the tenant, they cannot escape from the consequences of the deemed notice under Explanation II to Section 3 of the Transfer of Property Act. 68. Section 3 was amended by the Amendment Act of 1929 in relation to the definition of 'notice'. The definition has been amended and supplemented by three explanations, which settle the law in several matters of great importance. Explanation-II states that actual possession is notice of the title of the person in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various High Courts in relation to the actual possession as notice of title. A person may enter the property in one capacity and having a kind of interest, but subsequently while continuing in possession of the property his capacity or interest may change. A person entering the property as a tenant later may become a usufructuary mortgagee or may be an agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. A person entering the property as a tenant later may become a usufructuary mortgagee or may be an agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence with reference to subsequent purchaser, it is essential that he should make an inquiry as to title or interest of the person in actual possession as on the date when sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. When a person purchases a property from the owner knowing that it is in the possession of another, he is under a duty to inquire into the nature of that possession, and, in the absence of such inquiry or knowledge of title under which possession is held, the same should be attributed to the purchaser. Where there is a tenant in possession under a lease and an agreement of sale in his favour, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession. A tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser who made no inquiry as to the nature of his possession. It is the duty of the subsequent purchaser to inquire from the persons in possession as to the precise character in which they were in possession at the time when subsequent sale transaction was entered into. If there be a tenant in possession of land a purchaser is bound by all the equities which the tenant could enforce against the vendor and such equity extends not only to the interest connected with the tenancy, but also to interests under the actual agreement. 69. The law on the point is well settled. The principle of constructive notice of any title which a tenant in actual possession may have, was laid down by Lord Eldon In Daniels Vs. Davison [(1809) 16 YES. 249 AT P.254]. 69. The law on the point is well settled. The principle of constructive notice of any title which a tenant in actual possession may have, was laid down by Lord Eldon In Daniels Vs. Davison [(1809) 16 YES. 249 AT P.254]. The learned law Lord observed: "Where there is a tenant in possession under a lease, or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession..........that a tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser who made no inquiry as to the nature of his possession"." (emphasis supplied) 70. In the case of Bhup Narain Singh Vs. Gokul Chand Mahton and Others [AIR 1934 Privy Council 681 it is held as under:- "In their Lordships' opinion, the section lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee, and, in their Lordships' opinion, it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which, prima facie, he had no right to get. Further, the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of Sections 103 and 106 of the Indian Evidence Act, 1872, have a bearing on the question. The plaintiff does not necessarily have knowledge of either matter..... ." 71. The High Court of Andhra Pradesh in the case of Mummidi Reddi Papannagari Yella Reddy Vs. Salla Subbi Reddy and Others, AIR 1954 AP 20 referring to various decisions in paragraph 8 has stated thus: "It may be mentioned here that an Explanation was introduced into the Transfer of Property Act by the Amending Act 21 of 1929. ." 71. The High Court of Andhra Pradesh in the case of Mummidi Reddi Papannagari Yella Reddy Vs. Salla Subbi Reddy and Others, AIR 1954 AP 20 referring to various decisions in paragraph 8 has stated thus: "It may be mentioned here that an Explanation was introduced into the Transfer of Property Act by the Amending Act 21 of 1929. Even prior to this amendment, the law, as dec1ared in decided cases, was that, when a person purchased property from the owner knowing that it is in the possession of another, he is under a duty to inquire into the nature of that possession, and, in the absence of such inquiry, knowledge of title under which possession is held, should be attributed to the purchaser. The leading case on the subject, relied on in a number of Indian decisions." 72. A Division Bench of the High Court of Madras in Veeramalai Vanniar Vs. Thadikara Vanniar ( AIR 1968 Mad. 383 ) has held as under:- "that it is also the duty of the subsequent purchaser to inquire from the persons in possession as to the precise character in which he was in possession at the time when subsequent sale transaction was entered into. If there be a tenant in possession of land a purchaser is bound by all the equities which the tenant could enforce against the vendor and such equity extends not only to the interest connected with the tenancy but also to interests under the actual agreement". 73. The Apex Court in the case of Govinddas (Dr.) Vs. Shantibai (1978) 3 SCC 418 has held as under:- "14. It will be noticed that the evidence is contradictory and we have to decide whose version is more acceptable. The learned Counsel for the appellants contended that the onus of proof was very light on the appellants and they had discharged it by entering the witness-box and stating that they had no knowledge. We are unable to agree with him that in the circumstances of this case the onus was light on the appellants. The circumstances that tell heavily against the version of the appellants are these. First, all the parties are residents or have shops in the same vicinity and in places like this it is not probable that the appellants would not come to know of the execution of the agreement (Souda-Chitthi) of the plaintiff. The circumstances that tell heavily against the version of the appellants are these. First, all the parties are residents or have shops in the same vicinity and in places like this it is not probable that the appellants would not come to know of the execution of the agreement (Souda-Chitthi) of the plaintiff. Secondly, the haste with which the sale-deed in favour of the appellants was executed was unusual. It is more usual for an agreement to be executed in such cases rather than arrive at an oral agreement on one day and have the sale-deed executed the next day and registered the following day. For some reason the appellants were in a hurry to get the deed registered. What was the reason? In view of all the circumstances we are inclined to accept the evidence of Hem Raj Chauhan, and corroborated by Hayat, that Goverdhandas knew of the execution of the agreement with the plaintiff on March 1, 1960." 74. The Bombay High Court in the case of Murlidhar Bapuji Valve Vs. Yallappa Lalu Chaugule and Others (AIR 1994 Bombay 358) has held as under:- "20......It is well settled law that the onus to prove the exception carved out in S.19(b) of the Specific Relief Act, 1963 is on the subsequent purchaser. S.19 of the Act clearly provides that specific performance of a contract may be enforced against either party thereto or any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract." 75. The Supreme Court in the case of R.K. Mohammed Ubaidullah and Others Vs. Hajee C Abdul Wahab (D) by LRs and Others, [ (2000) 6 SCC 402 ] has held as under:- "As can be seen from Section 19 (a) and (b) extracted above specific performance of a contract can be enforced against (a) either party thereto and (b) any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 19(b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Section 19(b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasizes due care and attention in relation to the good faith. In the General Clauses Act emphasis is laid on honesty. 15. Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. "A person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation II of said Section 3 reads: "Explanation II.-Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof." Section 3 was amended by the Amendment Act of 1929 in relation to the definition of 'notice'. The definition has been amended and supplemented by three explanations, which settle the law in several matters of great importance. For the immediate purpose Explanation-II is relevant. It states that actual possession is notice of the title of the person in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various High Courts in relation to the actual possession as notice of title. A person may enter the property in one capacity and having a kind of interest. But subsequently while continuing in possession of the property his capacity or interest may change. A person entering the property as tenant later may become usufructuary mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. But subsequently while continuing in possession of the property his capacity or interest may change. A person entering the property as tenant later may become usufructuary mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence with reference to subsequent purchaser it is essential that he should make an inquiry as to title or interest of the person in actual possession as on the date when sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. In the case on hand defendants 2 to 4 contended that they were already aware of the nature of possession of the plaintiff over the suit property as a tenant and as such there was no need to make any inquiry. At one stage they also contended that they purchased the property after contacting the plaintiff, of course, which contention was negatived by the learned trial Court as well as the High Court. Even otherwise the said contention is self- contradictory. In view of Section 19(b) of the Specific Relief Act and definition of 'notice' given in Section 3 of the Transfer of Property Act read along with explanation II, it is rightly held by the trial Court as well as by the High Court that the defendants 2 to 5 were not bona fide purchasers in good faith for value without notice of the original contract." 76. The Apex Court in the case of Ram Niwas (Dead) Through LRs Vs. Bano (Smt) and Others, [ (2000) 6 SCC 685 ] has held as under:- (a) "3. Section 19 provides the categories of persons against whom specific performance of a contract may be enforced. Among them is included, under clause (b), any transferee claiming under the vendor by a title arising subsequently to the contract of which, specific performance is sought. However, a transferee for value, who has paid his money in good faith and without notice of the original contract, is excluded from the purview of the said clause. 4. Among them is included, under clause (b), any transferee claiming under the vendor by a title arising subsequently to the contract of which, specific performance is sought. However, a transferee for value, who has paid his money in good faith and without notice of the original contract, is excluded from the purview of the said clause. 4. The said provision is based on the principle of English law which fixes priority between a legal right and an equitable right. If 'A' purchases any property from 'B' and thereafter 'B' sells the same to 'C', the sale in favour of 'A', being prior in time, prevails over the sale in favour of 'C' as both 'A' and 'C' acquired legal rights. But where one is a legal right and the other is an equitable right "a bona fide purchaser for valuable consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right is entitled to priority in equity as well as at law." [Snells Equity - 13th Edn p.48]. 7. Thus, it is seen that a statutory presumption of "notice" arises against any person who acquires any immovable property or any share or interest therein of the title, if any, of the person who is for the time being in actual possession thereof." 77. The Supreme Court in the case of Vasantha Viswanathan and Others Vs. V.K. Elayalwar and Others [ (2001) 8 SCC 133 ] has held as under:- "13...... Section 19(b) of the Specific Relief Act, 1877 (sic 1963), which occurs in Chapter II, applies to movables by virtue of the provisions of Section 58 of the Sale of Goods Act referred to above. Under Section 19(b) a specific performance of a contract can be enforced not only against either party thereto but against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of original contract. Further, Section 91 of the Indian Trusts Act, 1882 lays down that where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which a specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract......" 78. In the instant case, the plaintiff contends that, when the execution of the agreement of sale is not in dispute and the agreement of sale specifically contains a recital that the possession of the property is handed over to him on the day of the agreement of sale, the fact that he is in possession is established. Therefore, in so far as defendant No.2 is concerned, she admits that she was aware of the existence of such an agreement and that she purchased the property because the said agreement had been cancelled. Therefore, she actually knows the fact that plaintiff was in possession of the property on the day she purchased the property. In so far as defendants 2 to 4 are concerned, they were also aware of the existence of the agreement of sale and therefore they were also knowing the fact that the plaintiff is in possession. Even otherwise, they did not make any enquiry which they ought to have made and therefore because of their gross negligence they are deemed to have had notice of the possession of the plaintiff over the schedule property. Therefore, they cannot plead that they purchased the property without notice of the said agreement of sale. 79. It is true that in the agreement of sale there is a recital that the plaintiff was put in possession of the agreement of sale. The question is, on the day the defendants' purchased the property, was he in possession of the property. The entire argument is based on the footing that the plaintiff has taken possession of the property in part performance of the agreement of sale and therefore Section 53A of the Transfer of the Property Act is attracted. SECTION 53A OF THE TRANSFER OF PROPERTY ACT 80. Therefore, the question that arise for consideration is, whether the plaintiff is entitled to the benefit of Section 53A of the Transfer of Property Act. Section 53A of the Transfer of Property Act reads as under:- “53A. SECTION 53A OF THE TRANSFER OF PROPERTY ACT 80. Therefore, the question that arise for consideration is, whether the plaintiff is entitled to the benefit of Section 53A of the Transfer of Property Act. Section 53A of the Transfer of Property Act reads as under:- “53A. Part performance.-Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken• possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof”. 81. This provision has been the subject matter of interpretation by the Supreme Court. The Supreme Court in the case of Bai Dosabai Vs. Mathurdas Govinddas and Others [ AIR 1980 SC 1334 ] has held as under:- "6. ...... The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immovable property, as understood in England is alien to Indian Law which recognises one owner i.e. the legal owner.........The ultimate paragraph of Section 54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of Section 40 of the Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice or the contract or a gratuitous transferee of the property. Thus the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a gratuitous transferee. 7. If we now turn to the Indian Trusts Act, we find "trust" defined as: "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner", and "beneficial interest" defined as the interest of he beneficiary against the trustee as owner of the trust- property. Chapter IX of the Trusts Act enumerates in section after section cases where obligations in the nature of trust are created. Section 94 finally provides: "94. In any case not coming within the scope of any of the preceding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands". 8. We may now examine some of the provisions of the Specific Relief Act, 1877, which though repealed and replaced by Act 47 of 1963, is the statute with which we are concerned. "Trust" was defined in Section 3 of the 1877 Act as having "the same meaning as in Section 3 of the Indian Trusts Act" and as "including an obligation in the nature of a trust within the meaning of Chapter IX of that Act". Section 12(a) of the Act of 1877 provided, "Except as otherwise provided in this Act, specific performance of contract may, in the discretion of the Court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust". Section 12(a) of the Act of 1877 provided, "Except as otherwise provided in this Act, specific performance of contract may, in the discretion of the Court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust". The other clauses of Section 12 and Sections 13 to 18 enumerated the other contracts which might be specifically enforced. Section 21 specified when contracts were not specifically enforceable. Section 16 is of some relevance. It said: “when part of a contract which, taken by itself can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part". 82. The Kerala High Court in the case of M/s. Jacobs Private Limited Vs. Thomas Jacob [ AIR 1995 Ker 249 ] has held as under:- "9 ....... The following postulates are sine qua non for basing a claim on Sec.53-A (1). The contract should have been in writing signed by the transferor, (2) The transferee should have got possession of the immovable property covered by the contract. (3) The transferee should have done some act in furtherance of the contract. (4) The transferee has either performed his part of the contract or is willing to perform his part of the contract. Section 53-A makes it clear by employing the word "then" after laying down the pre-requisites that a transferee can seek refuge under it only after satisfying the above pre-requisites. In other words, the bar envisaged in the section against enforcement of the transferor's right can be exercised only on compliance with the postulates. The said bar is intended to be used by a transferee only as a shield and not as a sword. 11. Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of Sec.53-A of the T. P. Act must be absolute and unconditional. If willingness is studded with a condition, it is in fact no more than an offer and cannot be termed as willingness. As a right is created by the statute in favour of a transferee through Sec.53-A, the transferee has to fulfil all the conditions for acquiring the right. If willingness is studded with a condition, it is in fact no more than an offer and cannot be termed as willingness. As a right is created by the statute in favour of a transferee through Sec.53-A, the transferee has to fulfil all the conditions for acquiring the right. In other words, what is contemplated is the complete performance or complete willingness and not performance in part or conditional willingness or even willingness in part......" 83. The Supreme Court in the case of Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi (Dead) by LRs and Others [ILR 2003 Kar 503] has held as under:- "7. A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of Section 53-A in a scientific manner. It means to look into the legislative history and structure of the provisions of Section 53-A of the Act. 8. Earlier, the assistance of historical facts or any document preceding the legislation was very much frowned upon for purposes of construction of statutes. At that time, there was some injunction against applying principle of looking into the historical facts or reports preceding the legislation in construing a statute. However, by passage of time, this embargo has been lifted. 9. In R.S. Nayak Vs. A.R. Antulay, 1984 (2) SCC 183 , it was held thus: "(R)eports of the Committee which preceded the enactment of a legislation reports of Joint Parliament Committee report of a commission set up for collecting information leading to the enactment are permissible external aid to construction. 9. In R.S. Nayak Vs. A.R. Antulay, 1984 (2) SCC 183 , it was held thus: "(R)eports of the Committee which preceded the enactment of a legislation reports of Joint Parliament Committee report of a commission set up for collecting information leading to the enactment are permissible external aid to construction. If the basic purpose underlying construction of legislation is to ascertain the "real intention of the Parliament why should the aids which Parliament availed of such as report of a Special Committee preceding the enactment existing State of Law, the environment necessitating enactment of legislation and the object sought to be achieved be denied to Court whose function is primarily to give effect to the real intention of the Parliament in enactment of the legislation. Such denial would deprive the Court of a substantial and illuminating aid to constructions. (SCC pp. 214-15 para 34) The modern approach has to a considerable extent eroded the exclusionary rule even in England. (SCC p. 212. Para 33)" The modern approach has to a considerable extent eroded the exclusionary rule even in England (SCC p.212 para 33). "10. Now the accepted view is that the document or report preceding the legislation can legitimately be taken into consideration while construing the provisions of an Act. 11. We, therefore, proceed to examine the question before us in the light off acts stated hereinafter. 12. In England, the provisions of the law of Property Act of the Statute of Fraud provided that no suit or action would be brought on agreement relating to a property which was not in writing signed by the parties. The aim and object of the statute was to protect a party against fraud. However, certain difficulties were experienced when it was found that under an oral agreement a party has performed his part of the contract, yet he was unable to bring any action or suit against other party viz., transferor for a specific performance of the agreement which was not in writing in view of the provisions contained in the Statute of Fraud. Under such situations, transferors managed to play fraud on innocent buyers who entered into an oral agreement and performed their part of the contract. In view of such prevailing circumstances in England, the Court of Equity intervened on the ground of equity and took action to enforce specific performance of a parole agreement. Under such situations, transferors managed to play fraud on innocent buyers who entered into an oral agreement and performed their part of the contract. In view of such prevailing circumstances in England, the Court of Equity intervened on the ground of equity and took action to enforce specific performance of a parole agreement. The view taken by the Court of Equity was that the object behind the Law of Property of the Statute of Fraud was to protect against a fraud, but the provisions of Law of Property of Statute of Fraud were being used as an instrument to help and protect fraud. Thus, the Court of Equity did not permit the Statute of Fraud to be used as an instrument to cover the fraud by the transferors where there was a part performance of a parole agreement. 13. When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various Courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. Since there was a difference of opinion on question of the application of English equitable doctrine of part performance in various Courts of India, the Govt. of India resolved to set up a Special Committee for making recommendations amongst others whether the British equitable doctrine of part performance be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith that lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired. 14. The aforesaid recommendation of the Special Committee were accepted by the Govt. of India as the same is well reflected in the aims and objects of amending Act 1929 whereby Section 53-A was inserted in the Act : 15. The Special Committee's report which is reflected in the aims and objects of amending Act 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of Special Committee's report and aims, objects contained in amending Act 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired. 16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. 16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are 1) there must be a contract to transfer for consideration any immovable property; 2) the contract must be in writing, signed by the transferor, or by someone on his behalf; 3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; 4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; 5) the transferee must have done some act in furtherance of the contract; and 6) the transferee must have performed or be willing to perform his part of the contract. 17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation. 18. The matter may be examined from another angle. The established rule of limitation is that law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statute. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in a suit. Thus, the law of limitation bars only an action in a Court of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a Court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim made by him may be barred by limitation and cannot be enforced in a Court of law. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a Court of law, being barred by limitation. 19. In M.K. Venkatachari & Ors. Vs. I.A.R. Arunachalam Pillai & Ors. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a Court of law, being barred by limitation. 19. In M.K. Venkatachari & Ors. Vs. I.A.R. Arunachalam Pillai & Ors. AIR 1967 Madras, 410, it was held, thus : "That defence to limitation is a creature of a positive law and, therefore, cannot be extended to cases which do not strictly fall within the enactment. It is an established canon of construction of law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic". 20. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action." 84. The Supreme Court in the case of FGP Limited Vs.. Saleh Hooseini Doctor and Another [ (2009) 10 SCC 223 ] has held as under :- "23. The submission by the appellant's Counsel on part performance of the contract under Section 53-A of the Transfer of Property Act also cannot be accepted. Section 53-A of the Transfer of Property Act is based upon the equitable doctrine of part performance in English Law. Initially Section 53-A was not incorporated in the Transfer of Property Act but the same came by way of an amendment for the first time by the Transfer of Property Amendment Act 1929 (Act of 1929). The amendment had to be made in view of some divergence in judicial opinion on the application of the aforesaid equitable doctrine by various Courts in India. 24. The amendment had to be made in view of some divergence in judicial opinion on the application of the aforesaid equitable doctrine by various Courts in India. 24. Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are :- (1) a contract to transfer immovable property; (2) the transfer should be for consideration; (3) the contract must be in writing; (4) it should be signed by or on behalf of the transferor; (5) the terms of the contract can be ascertained with reasonable certainty from the writing; (6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession; (7) such taking of or continuance in possession should be in part performance of the contract; (8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract. 25. The rationale of the equitable doctrine of part performance in English Law has been traced in Section 53-A by this Court in the case of Sardar Govindrao Mahadik Vs. Devi Sahai [ 1982(1) SCC 237 ]. In para 13, page 249 of the report while tracing the said equitable doctrine in the way it has been assimilated in Section 53-A of the Transfer of Property Act, the learned Judges held that the act or action relied upon as "evidencing part performance"; must be of such nature and character that its existence would establish the contract and its implementation. The learned Judges further held that the crucial act or action must be of such a character as to be unequivocally referable to the contract as having been performed in performance of the contract. 26. In support of the said conclusion, the learned Judges referred to an Old English decision rendered in the case of (Lady) V. Earl of Glengall (2 HL Cases 131). In referring to the said case, the learned Judges quoted the observations therefrom and which are reproduced herein below : (Thynne case, HL. p.158) "...part performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be .no part performance where there is no completed agreement in existence. In referring to the said case, the learned Judges quoted the observations therefrom and which are reproduced herein below : (Thynne case, HL. p.158) "...part performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be .no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement..." Relying on the aforesaid principle, the learned Judges in Sardar Govindrao Mahadik (supra) reiterated that the act relied upon by the party invoking the said doctrine must be such as by its own force to show the very existence of the same contract." 85. From the aforesaid judgments of the Apex Court it is clear that, the ultimate paragraph of Section 54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of Section 40 of the Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice or the contract or a gratuitous transferee of the property. Thus the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a gratuitous transferee. When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various Courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. A Special Committee was constituted to consider, whether the British equitable doctrine of part performance was extended in India also. Based on the recommendation of the Committee by Amending Act 1929, Section 53A was inserted in the Act. A Special Committee was constituted to consider, whether the British equitable doctrine of part performance was extended in India also. Based on the recommendation of the Committee by Amending Act 1929, Section 53A was inserted in the Act. The purpose of enacting Section 53A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. However, there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are : 1) there must be a contract to transfer for consideration any immovable property; 2) the contract must be in writing, signed by the transferor, or by someone on his behalf; 3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; 4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; 5) the transferee must have done some act in furtherance of the contract; and 6) the transferee must have performed or be willing to perform his part of the contract. 86. Therefore, it is clear that, before a transferee can claim the benefit of Section 53A, the contract should have been in writing signed by the transferor, the transferee should have got possession of the immovable property covered by the contract, the transferee should have done some act in furtherance of the contract and lastly the transferee has either performed his part of the contract or is willing to perform his part of the contract. Section 53-A makes it clear by employing the word "then" after laying down the pre-requisites that a transferee can seek refuge under it only after satisfying the above pre-requisites. In other words, the bar envisaged in the section against enforcement of the transferor's right can be exercised only on compliance with the postulates. Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of Sec.53-A of the Transfer of Property Act must be absolute and unconditional. If willingness is studded with a condition, it is in fact no more than an offer and cannot be termed as willingness. Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of Sec.53-A of the Transfer of Property Act must be absolute and unconditional. If willingness is studded with a condition, it is in fact no more than an offer and cannot be termed as willingness. Therefore, the sine qua non for basing a claim on Section 53A is the complete performance or complete willingness and not performance in part or conditional willingness or even willingness in part. It is only when the transferee has either performed his part of the contract or is willing to perform his part of the contract, he is entitled to the benefit of Section 53A of the Transfer of Property Act. 87. Proviso to Section 53A makes it clear that nothing in Section 53A shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. Therefore, Section 53A has no application in so far as the rights of the transferee for consideration who had no notice of the contract or of the part performance thereof. It is in this background that we have to appreciate the facts of this case. 88. Though the execution of the agreement of sale is not in dispute, we have already held the agreement of sale is interpolated in so far as the material terms of the contract are concerned and therefore, it amounts to cancelling the agreement of sale. Even otherwise we have said it is unenforceable in law. Secondly we have recorded a finding that plaintiff was not ready and willing to perform his part of the contract and therefore the agreement is not enforceable. For application of Section 53A mere acceptance of an agreement of sale and taking possession of the property agreed to be sold in part performance of the contract by itself is not sufficient. The transferee should perform or is willing to perform his part of the contract. It is only then Section 53A is attracted. In view of our finding that the plaintiff has neither performed nor willing to perform his part of the contract, the plaintiff cannot take advantage of Section 53A. Therefore, it does not confer any right under the agreement so as to protect his alleged possession. It is only then Section 53A is attracted. In view of our finding that the plaintiff has neither performed nor willing to perform his part of the contract, the plaintiff cannot take advantage of Section 53A. Therefore, it does not confer any right under the agreement so as to protect his alleged possession. The plaintiff in his examination in chief at para 7 has categorically stated that the suit agreement was not cancelled prior to the execution of the sale deed by the first defendant in favour of defendants 2 to 4. As the first defendant had taken a specific contention in para 7 of the written statement that the agreement is cancelled and in para 8 it was specifically stated that the said document of cancellation dated 19.8.1992 is produced as Annexure-X to the written statement, the plaintiff was deposing that the said cancellation deed was not executed prior to the execution of the sale deeds by the first defendant in favour of defendants 2 to 4. Even otherwise, we have recorded a categorical finding that because of the interpolation of material terms of the contract, it has the effect of cancelling the agreement and it is unenforceable. 89. The plaintiff in his evidence speaking about part performance of the agreement of sale has stated in para 3 of the deposition that, when he purchased the property the schedule land was not even and some shrubs were there. After he took possession he engaged a bulldozer and got the land levelled so as to make it useful for the purpose of agriculture. Thereafter, he had planted mango trees. He got a well dug and also installed a pump set. Further, he got a barbed wire fencing to the schedule property. He spent about Rs. 8 Lakhs for these developments. This fact is disputed by the defendants. The plaintiff has not produced any scrap of paper to establish this fact of part performance and therefore we have already recorded a finding that the case of part performance as pleaded is not established. It was contended that defendants 3 and 4 have not made any enquiry at all before purchasing the property and therefore they cannot contend they had no notice of this agreement of sale. The evidence of defendant Nos. 2, 3 and 4 do not show that they have made any enquiries at all. It was contended that defendants 3 and 4 have not made any enquiry at all before purchasing the property and therefore they cannot contend they had no notice of this agreement of sale. The evidence of defendant Nos. 2, 3 and 4 do not show that they have made any enquiries at all. It is in this regard it is to be noticed defendant DW2 and her husband DW3 were residing at Saudi Arabia whereas defendants 3 and 4 are residents of Bangalore. They did not purchase the property from the first defendant. They have purchased the property from the Power of Attorney Holder of the first defendant. The said Power of Attorney in original is produced and marked in this case as Ex. D2. The Power of Attorney Holder Sri Amit Gupta was also examined as DW4. The first defendant admits the execution of sale deed in favour of defendants 2 to 4 in para 7 of the written statement. Her son who was examined as DW1 in the case as her Power of Attorney Holder bas deposed at para 4 of the deposition that, his mother has sold some part of the property to the third defendant. It has been done without his knowledge. With the intention of deceiving the plaintiff, in the year 1992 she has executed a Power of Attorney in favour of the fourth defendant. That was also done without his knowledge. The said Power of Attorney is executed on 26.6.1992. Therefore, execution of the Power of Attorney by the first defendant in favour of Amit Gupta DW4 and the execution of the sale deed by Amit Gupta in favour of defendants 2 to 4 is not in dispute. The said Amit Gupta has been examined who has deposed that he did not make enquiry to find out who is in possession of the property before execution of the Power of Attorney. After execution of the sale deed in favour of defendants 2 to 4, he has handed over the money to 1st defendant, who has executed receipts after receiving the money. The second defendant negotiated with him to purchase the land. A year earlier her husband had come to him for negotiations. Then he has seen some nilagiri trees and other trees in the land. He did not enquire with 1st defendant who has planted those trees. The second defendant negotiated with him to purchase the land. A year earlier her husband had come to him for negotiations. Then he has seen some nilagiri trees and other trees in the land. He did not enquire with 1st defendant who has planted those trees. He did not make any enquiry with the 1st defendant to find out whether she had made any commitments with regard to the suit property with any persons. She must have executed agreement with plaintiff and she told that the same was cancelled. He did not enquire with the plaintiff whether the said agreement was cancelled. He is doing real estate business. On the say of the defendant 2 and her husband, the 1st defendant executed the Power of Attorney in his favour and prior to the execution of Power of Attorney, negotiations were completed. He was present on the date of negotiations between the parties. On that day there was no token advance taken. He has denied the suggestion that 1st defendant was not in possession of the suit land on the date of execution of the sale deed. He has pleaded his ignorance that plaintiff was put in possession of the property on the date of the agreement. He denied the suggestion that 1st defendant did not deliver possession to the defendants. 90. We have also the evidence of DW6-the Power of Attorney Holder of third defendant. He has stated that the third defendant prior to purchase of the schedule land through her son fourth defendant made enquiries regarding title of 1st defendant over the said land. He was present throughout the negotiations, registration and thereafter. He is a family friend of the third and fourth defendants. He assisted them in all these matters. He has deposed that prior to purchase, they verified the RTC, katha entries and encumbrance certificates and found that the property stood in the name of 1st defendant after the death of her husband Sri Munishami Gowda and that after being convinced about the title of 1st defendant, the third defendant purchased the said land for valuable consideration. At all the time when they negotiated for the purchase of the land and at the time of purchase, 1st defendant was in possession of the said land and as such, she delivered possession of the schedule land to the third defendant. At all the time when they negotiated for the purchase of the land and at the time of purchase, 1st defendant was in possession of the said land and as such, she delivered possession of the schedule land to the third defendant. Immediately after the purchase of the land, the third defendant submitted necessary applications to the revenue authorities and got her name mutated as kathedar of the said land vide the mutation register bearing No. 5/93-94. She has been shown as the person in personal cultivation of the said land in the pahani register. At no point of time, the name of the plaintiff was shown in the pahani records. The third defendant planted mango trees on the said land. The third defendant was not informed of the alleged agreement of sale, which the first defendant has entered into with the plaintiff. The third defendant is totally unaware of the said agreement of sale. Further, when they made enquiries in the village at the time of purchase, nobody in the village was aware of any such agreement of sale. In fact, everyone said that the first defendant is the owner of the said land and she has valid title to the said land and therefore, the third defendant purchased the said land from the first defendant. The third defendant is in possession of the land in Sy. No. 108 measuring 7 acres 20 guntas. 91. In the cross-examination he has stated that, he made enquiries near the land, village and also with the Village Accountant. He enquired with one Govindappa, but he does not remember the other names. He has asserted that it is he who has planted the mango trees. He is taking the usufructus from the mango trees. He has also deposed about the steps he has taken after purchase of the land for getting the land surveyed and the mutation entries written in the name of the purchasers. 92. The fourth defendant was also in the witness box. He deposed that one Muniraju from Kannamangala Village introduced him to the 1st defendant. He is a broker and a middle man. They entered into the transactions through him. He was a local man and he was knowing the state of affairs at the spot of the suit land. He did not accept whatever was told by Muniraju. He deposed that one Muniraju from Kannamangala Village introduced him to the 1st defendant. He is a broker and a middle man. They entered into the transactions through him. He was a local man and he was knowing the state of affairs at the spot of the suit land. He did not accept whatever was told by Muniraju. He also visited the spot and chocked the land and also enquired the villagers. He has gone number of times near the land. When he saw the land for the first time, there were nilagiri trees. It may be of 15 to 20 feet height. The trees may be aged about 3 to 4 years. He does not remember whether the nilagiri trees were cut and removed in the month of January and February 1991. He has not enquired with 1st defendant who cut and removed the nilagiri trees. He asserts that, in his mother's property they have planted mango trees. Age of mango trees is about 10 to 12 years. He has employed some workers and planted the mango trees. The mango trees are already yielding fruits. He has not maintained any accounts regarding the expenditure incurred. 93. From this evidence it is clear that, it is not as if that defendants 2 to 4 did not make any enquiries before purchase of the land. They did make enquiries through their agents. It is not the law that the purchaser should make enquiry personally. Explanation II states that, any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. In other words, for application of Explanation II, the possession of the property by the plaintiff' is a must. It is only thereafter if no enquiry is made or search which he ought to have made, is not made, then he is deemed to have notice. In so far as search is concerned, the evidence on record shows that plaintiffs name was not entered in the RTC. No katha was made out. Agreement was not registered. The evidence of the defendants clearly establish that they obtained an encumbrance certificate, they obtained pahanis, they obtained katha, all of which showed the name of the first defendant-the vendor. In so far as search is concerned, the evidence on record shows that plaintiffs name was not entered in the RTC. No katha was made out. Agreement was not registered. The evidence of the defendants clearly establish that they obtained an encumbrance certificate, they obtained pahanis, they obtained katha, all of which showed the name of the first defendant-the vendor. Except the recital in the agreement of sale that the plaintiff was put in possession, there is absolutely nothing on record to show that he was put in possession and more so he continued in possession. His case of carrying out developmental activities is held to be not proved. Therefore, on the day the defendants 3 and 4 purchased the property, there is nothing on record to show that the plaintiff was in possession of the property. The plaintiff relies on a notice issued to the defendant No.2 by the revenue authorities calling upon her to be present at the time of survey where a reference is made to the effect that the plaintiff is in possession of the property. Relying on that piece of evidence which is marked as Exs. P16 and 17 it was contended that it shows the plaintiffs possession. The evidence on record shows that the plaintiff is an adjoining land owner. After purchase, when applications were filed for mutating the name of the second defendant, he has raised objections contending that he is in possession. It is in that context he was able to get that recital in Exs. P16 and 17, the document which has come into existence subsequent to the date of sale and subsequent to the dispute between the parties. That is not a document which establishes the possession of the plaintiff over the schedule property. In fact, mutation entries were made in pursuance of the sale deed in favour of defendants 3 and 4 in respect of the property which they have purchased and there was no such objection. Ultimately, the mutation entries were made in the name of the second defendant after enquiry when they found that the claim of the plaintiff is baseless. Therefore, the evidence on record do not show plaintiffs possession over the schedule property on the day defendants 2 to 4 purchased the property and as such they cannot be attributed any notice of any title which the plaintiff possessed over the schedule property. Therefore, the evidence on record do not show plaintiffs possession over the schedule property on the day defendants 2 to 4 purchased the property and as such they cannot be attributed any notice of any title which the plaintiff possessed over the schedule property. It is here, it is necessary to mention that a contract for sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties and it does not itself create any interest in or charge of such property. Therefore, plaintiff acquired no interest under the agreement of sale. Secondly, the said agreement is interpolated resulting in its cancellation. Thirdly, in part performance of the agreement of sale nothing is done. The plaintiff was not ready and willing to perform his part of the contract and therefore no right under Section 53A is acquired by the plaintiff under the agreement. Defendants 3 and 4 have purchased the property. The sale is not in dispute. Payment of consideration is not in dispute. Now, mutation entries are made on the basis of the sale deed in their name. The sale deed recites that possession is delivered to them on the date of sale. They have been paying taxes. Subsequently, the plaintiff has amended the plaint seeking the relief of possession which shows he is not in possession. In the light of these proved facts on record, the contention that the plaintiff was in possession of the land from the date of the agreement of sale, defendants 2 to 4 failed to make enquiries, therefore they are deemed to have notice of the plaintiffs right over the property and they cannot be construed as bona fide purchasers for valuable consideration without notice of the agreement of sale is not established. On the contrary, the defendants have established that they are bona fide purchasers for valuable consideration and defendants 3 and 4 have also established that they have no notice of the agreement of sale. 94. The trial Court was of the view that from the evidence of DW6 it goes to show that defendant No.3 purchased the property without making any proper enquiry which is mandatory under law. 94. The trial Court was of the view that from the evidence of DW6 it goes to show that defendant No.3 purchased the property without making any proper enquiry which is mandatory under law. It did not accept the case of defendants 3 and 4 that they have purchased the portion of the suit property without the knowledge of the prior agreement between the first defendant and plaintiff. According to the trial Court, the document alleged to be got executed by defendants 2 to 4 appears to be suspicious nature of document and they have not purchased the property for valuable, consideration can be gathered from their evidence only. Therefore, the contention that they are the bona fide purchasers for value without knowledge of the agreement falls to the ground. It relies on Exs. P16 and 17 notices issued by the survey authorities where it is mentioned that plaintiff was in possession of the suit land and defendants 2 to 4 never came in possession of the purchased lands at any point of time. Defendants 2 to 4 without verifying as to who are in possession of the property and without making proper enquiry with any of the adjoining land owner or villagers, they have ventured to purchase the property and they have got executed the sale deeds from the first defendant. Hence, it cannot be said that they are bona fide purchasers for value without notice of the prior agreement. 95. This reasoning runs counter to the evidence on record. The execution of the sale deeds in favour of defendants 2 to 4 is not in dispute at all. DW1 has admitted in his evidence that the said sale deeds came to be executed without his knowledge. The executant of the sale deed, the Power of Attorney Holder of the first defendant has been examined in this case. The sale deeds are all duly registered. The consideration mentioned clearly go to show that the properties were sold for valuable consideration. The revenue authorities acting on these registered sale deeds have made mutation entries entering the names of the purchasers. They have been, paying taxes. It is because of the objection of the plaintiff to mutate the name of the second defendant, proceedings were initiated. It is in that context Exs. P16 and 17 came to be issued by the survey authorities. They have been, paying taxes. It is because of the objection of the plaintiff to mutate the name of the second defendant, proceedings were initiated. It is in that context Exs. P16 and 17 came to be issued by the survey authorities. What the survey authorities are expected to do before conducting the survey is to issue notice to the adjoining land owners. They are not the authorities to say who is in possession of the land. They issued notices to the adjoining owners on the basis of the title deed. They are not concerned with possession. Even before conducting survey, they cannot say in the notice issued for conducting survey who is in possession of the property. In this background if it is mentioned in Exs. P16 and P17 that the plaintiff is in possession of the schedule property, it is because he is the owner of the adjoining land and because he had filed objections and as the suit had already been filed by the time the said proceedings were initiated, he wanted to create evidence and therefore he has got the same mentioned in the notice. That notice is not proof of possession of the plaint schedule property by the plaintiff. Unfortunately, the trial Court did not consider this document in a proper perspective. It failed to take note of the contents of the registered sale deed which are validly executed and which are not in dispute. It erred in holding that the sale deeds are all executed in suspicious circumstances which is not a case pleaded by any of the parties. It is on that assumption it has recorded a finding that defendants 3 and 4 are not the bona fide purchasers for valuable consideration, a finding which is contrary to the evidence on record and as such, it is vitiated and the same is hereby set aside. POINT No.4: LIMITATION 96. The defendants 3 and 4 contend that the suit against them is barred by the law of limitation as they were impleaded only on 6.8.2000, whereas suit was filed on 22.10.1993 and the date of the agreement being 5.11.1990 the suit is clearly barred by the law of limitation. 97. POINT No.4: LIMITATION 96. The defendants 3 and 4 contend that the suit against them is barred by the law of limitation as they were impleaded only on 6.8.2000, whereas suit was filed on 22.10.1993 and the date of the agreement being 5.11.1990 the suit is clearly barred by the law of limitation. 97. In this regard it is to be noticed that the plaintiff has filed the suit for specific performance of the agreement of sale dated 5.11.1990 on 22.10.1993 impleading only the first defendant-the owner of the schedule property who had executed the agreement of sale in his favour. The land in question being an agricultural land, Section 132 of the Karnataka Land Revenue Act, 1964 mandates that the plaintiff shall annex with the plaint a certified copy of the record of rights or register of mutation relevant to the lands, failing which the plaint shall be rejected. The record of rights and mutation extracts which are produced along with the plaint were of the years 1988 and 1990 which only reflected the name of the first defendant Hanumakka as the owner. They are marked as Exs. P11 to P14. The suit having been filed on 22.10.1993, the plaintiff ought to have obtained the record of rights and mutation extracts as they stood prior to the date of the suit. It has not been done. It is the case of the defendants that, when the plaintiff was not ready with the balance sale consideration, the agreement came to be cancelled by cancellation deed dated 19.8.1992. After such cancellation she has sold the properties to defendants 2 to 4 to the knowledge of the plaintiff. Because the plaintiff was aware that defendants 2 to 4 had purchased the schedule property under three different sale deeds prior to the date of the suit, deliberately the plaintiff did not obtain and produce the record of rights and mutation extracts as on the date of the suit. If only the record of rights and mutation extracts had been obtained or an encumbrance certificate had been obtained, it would have disclosed the name of defendants 2 to 4 as the owners of the schedule property on the date of the suit. Therefore, defendants 3 and 4 ought to have been made defendants in the suit. If only the record of rights and mutation extracts had been obtained or an encumbrance certificate had been obtained, it would have disclosed the name of defendants 2 to 4 as the owners of the schedule property on the date of the suit. Therefore, defendants 3 and 4 ought to have been made defendants in the suit. As the defendants wanted to obtain an order of temporary injunction against the defendant No.1 not to alienate the property, these facts which were all well within the knowledge of the plaintiff has been deliberately suppressed. 98. The first defendant after service of notice filed the written statement on 20.2.1994. In the written statement so filed, in para 7 the defendant has categorically stated that, though the defendant was entitled to forfeit , the advance amount, she has graciously returned the amount and got cancelled the original agreement dated 5.11.1990. However, she has stated that the suit schedule property was sold to one Lakshmi Thammaiah of Maddur and Padmini Raghavan under two separate sale deeds registered in the office of the Sub-Registrar, Devanahalli. The said land was sold much earlier to the filing of the suit before the Court. Out of the sale consideration received by the defendant, the advance amount has been returned to the, plaintiff by cancelling the original agreement dated 5.11.1990. The plaintiff has executed a separate document cancelling the original agreement and also acknowledged having received or having taken return of the advance amount from the defendant. This document is in accordance with oral understanding reached by plaintiff and defendant when plaintiff was unable to perform his part of the agreement. The said document dated 19.8.1992 cancelling the original agreement dated 5.11.1990 was produced as Annexure - 'X' to the written statement. 99. From the aforesaid averments it is clear that, at least on 20.2.1994 the plaintiff became aware that the first defendant has sold the schedule property under registered sale deeds in favour of defendants 2 to 4, but still the plaintiff did not take any steps to get these defendants 2 to 4 impleaded as parties. No effective decree for specific performance could be granted in the suit filed by the plaintiff, as, on the date when the suit was filed, first defendant had ceased to be the owner of the property and defendants 2 to 4 had acquired title to the property. No effective decree for specific performance could be granted in the suit filed by the plaintiff, as, on the date when the suit was filed, first defendant had ceased to be the owner of the property and defendants 2 to 4 had acquired title to the property. When the plaintiff and first defendant probably colluded to defeat the rights of defendants 2 to 4, the second defendant filed an application for impleadment in the suit on 27.11.1995. In fact, the plaintiff filed objections to the said application opposing the impleadment. However, the trial Court passed an order allowing the application and second defendant was impleaded. The second defendant also in para 10 of the written statement averred that, item Nos. B and D of the schedule property was sold to one Mr. Anand-the fourth defendant in the suit and item No. A of the schedule property to one Mrs. Lakshmi Thammaiah-the third defendant, by a registered sale deed dated 15.2.1992, i.e., much prior to the institution of the suit by the plaintiff. Subsequently, katha was also changed in favour of the defendants by an order dated 21.9.1993 and therefore she contended the suit itself is not maintainable in view of misjoinder and non-joinder of parties. The said written statement was filed as aforesaid on 24.7.1996. Even then the plaintiff did not make any effort to implead defendants 3 and 4. It is only after 3 long years on 2.8.1999 the application is filed by the plaintiff for impleadment of defendants 3 and 4 which came to be allowed. They were impleaded on 6.8.2000. These facts are not in dispute. In this factual background, whether the suit filed against defendants 3 and 4 is within limitation. In order to answer this question it is necessary to look into the relevant statutory provisions governing the issue. The relevant Article is Article 54 of the Limitation Act 1963 which reads as under : 54. For specific Three years The date fixed for the performance of performance, or, if no a contract such date is fixed, when the plaintiff has notice that performance is refused. 100. Article 54 of the Act 1963 prescribes three years as the period within which a suit for specific performance can be filed. For specific Three years The date fixed for the performance of performance, or, if no a contract such date is fixed, when the plaintiff has notice that performance is refused. 100. Article 54 of the Act 1963 prescribes three years as the period within which a suit for specific performance can be filed. The period of three years is to be calculated from the date specified in the agreement for performance or in the absence of any such stipulation, within three years from the date the performance was refused. Even if we accept the interpolations regarding time for performance in the agreement of sale as correct, then the suit filed by the plaintiff on 22.10.1993 is well within time. But, admittedly defendants 3 and 4 were not impleaded in the said suit. Now, an application for impleadment has been filed only on 2.8.1999. What is the effect of such impleadment. 101. Order I Rule 10(4) and (5) of CPC deals with addition of defendants. Where defendant is added, plaint to be amended. It reads as under :- (4) Where defendant added, plaint to be amended.-Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner, as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. 102. Therefore, it is clear that the proceedings as against any person added as defendant shall be deemed to have begun only on service of summons. Therefore, it is the date which is subsequent to 2.8.1999. Sub-rule (5) makes it clear the same is subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877)(Section 22). Now, Indian Limitation Act, 1877 is repealed by the Limitation Act, 1908 by Act No. 9/1908. However, Section 22 is retained. It reads as under :- "22. Effect of substituting or adding new plaintiff or defendant.-(1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. However, Section 22 is retained. It reads as under :- "22. Effect of substituting or adding new plaintiff or defendant.-(1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff ''. 103. However, Limitation Act, 36/1963 repealed the Limitation Act, 1908. Section 21 of the Act 36/1963 corresponds to Section 22. It reads as under : - "21. Effect of substituting or adding new plaintiff or defendant.-(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party : Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff." 104. It is dear from the aforesaid new provision, that a proviso is added which was conspicuously missing under the old Act. In the said proviso the word "good faith" has been used. The word "good faith" in the proviso has been defined under the Act at Section 2(h). It reads as under :- "2.(h) "good faith-nothing shall be deemed to be done in good faith which is not done with due care and attention". 105. From a harmonious reading of these provisions it is clear that, by virtue of sub-rule (5) of Rule 10 of Order I of CPC where a defendant is added subsequent to the filing of the suit, by way of impleadment, the plaint shall be amended. 105. From a harmonious reading of these provisions it is clear that, by virtue of sub-rule (5) of Rule 10 of Order I of CPC where a defendant is added subsequent to the filing of the suit, by way of impleadment, the plaint shall be amended. After such amendment summons of the suit shall be served on the new defendant. The proceedings as against any person so added as defendant shall be deemed to have begun only on the service of summons. It is subject to the provisions contained in the Indian Limitation Act. In Section 22 of the old Act when a new defendant is added, the suit shall as regards him be deemed to have been instituted when he was so made a party. However, in the new Act a proviso is added to the effect that if the omission to include a new defendant was due to a mistake made in good faith, the Court is vested with the power to direct that the suit as regards such defendant shall be deemed to have been instituted on any earlier date. But for this proviso, the suit is deemed to have been instituted when the defendant who is added was so made a party. These provisions had been the subject matter of interpretation by the Apex Court. 106. The Supreme Court in the case of Munshi Ram Vs. Narsi Ram and Another [ AIR 1983 SC 271 ] has held as under :- "7. It is clear from the foregoing that there was no provision corresponding to the proviso to sub-section (1) of Section 21 of the Act in Section 22 of the repealed Act. Under the former Limitation Act when after the institution of suit a new plaintiff or defendant was substituted or added, the suit as regards him was to be deemed to have been instituted when he was so made a party. The severity of the above law is sought to be reduced by the introduction of the proviso to Section 21(1) of the Act which provides that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit as regards such plaintiff or defendant should be deemed to have been instituted on any earlier date. This change in Section 21 of the Act appears to have been made so that an omission to implead a person owing to a bonafide mistake does not deprive a plaintiff of his rights against that person if the Court is satisfied in that behalf. 8. We shall now have to consider whether the appellant is entitled to claim the benefit of the proviso to Section 21(1) of the Act and if he is entitled to it, what is the date on which the suit against the party proposed to be newly added should be deemed to have been instituted. It is not disputed that the appellant had obtained a certified copy of the sale deed in question from the office of the Sub Registrar before the suit was filed and in that copy only respondents 1 and 2 had been shown as the vendees. Munni Devi was not shown in that copy as a vendee. The suit which was filed on January 29, 1978 was well within the period of limitation prescribed under Article 97 of the Act as against respondents 1 and 2. There is no evidence to show that on the date of the suit the appellant knew by any other means that there was any other vendee who had purchased the land along with respondents 1 and 2. In the written statement which was clearly drafted, the name of Munni Devi was not mentioned. It merely stated that all the vendees had not been impleaded as defendants. The original sale deed which was with respondents 1 and 2 was not produced in Court along with the written statement. The appellant who had looked into the certified copy of the sale deed asserted that the plea that the suit should be dismissed for non-joinder of necessary parties was untenable as all the persons who were shown as vendees in the certified copy had been impleaded. He had no reason to suspect that there was an error in the certified copy until the original sale deed was read out in the trial Court by the Counsel for respondents 1 and 2 on June 14, 1978. It cannot be presumed that the appellant must have known that Munni Devi was also a vendee because the vendor was his father. It cannot be presumed that the appellant must have known that Munni Devi was also a vendee because the vendor was his father. In fact the appellant had nothing to gain by not impleading Munni Devi also as a defendant when he filed the suit and there could be no motive for doing so. It must, therefore, be held that the omission to implead her as a defendant was due to a mistake. If such mistake is made in good faith, the proviso to Section 21(1) of the Act would be attracted. The meaning of the expression 'good faith' is explained in Section 2 (h) of the Act thus : "2.(h) "good faith-nothing shall be deemed to be done in good faith which is not done with due care and attention". 9. In the instant case the appellant had obtained a certified copy of the sale deed in question and had filed the suit against respondents 1 and 2 who alone had been shown as the vendees in that copy. It has to be held that in the circumstances he had acted with due care and attention. When the original of the sale deed was read out in Court by the Counsel for respondents 1 and 2, the appellant realised the mistake and filed the application on the very next date i.e. June 15, 1978 with all due diligence. Hence we are of the view that the suit against Munni Devi should be deemed to have been filed on the date of the institution of the suit i.e. January 29, 1978 itself, which on the facts and in the circumstances of the case, we consider, should be treated as the 'earlier date' referred to in the proviso to Section 21 (1) of the Act. There is no dispute that if the suit had been filed against Munni Devi also on January 29, 1978 it would have been in time and would not have suffered from the defect of non-joinder of a necessary party. The bar of limitation is thus got over by the appellant. Because Munni Devi is a necessary party, she has to be impleaded under sub-rule (2) of Rule 10 of Order I of the Code of Civil Procedure to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The bar of limitation is thus got over by the appellant. Because Munni Devi is a necessary party, she has to be impleaded under sub-rule (2) of Rule 10 of Order I of the Code of Civil Procedure to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The application filed by the appellant on June 15, 1978 is, therefore, allowed. The amendment of the plaint regarding the date of cause of action has thus become unnecessary. The judgments and decrees of the High Court, the first appellate Court and the trial Court have, therefore, to be set aside as they have been passed against the appellant only on the ground of non-joinder of a necessary party within time. They are accordingly set aside. The suit has now to be remanded to the trial Court to dispose it of in accordance with law by recording findings on the other issues which arise for consideration in the suit. We accordingly do so. The plaint shall be permitted to be amended by the trial Court by including the name of Munni Devi as a defendant before issuing summons to her." 107. The Supreme Court in the case of Karuppaswamy and Others Vs. C. Ramamurthy [ (1993) 4 SCC 41 ] has held as under :- "4. A comparative reading of the proviso to sub-section (1) shows that its addition has made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the Court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to sub-section (1) of Section 21 of the Act is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in Court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of Limitation starting when discovering - a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficient proviso to sub-section (1) of Section 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the Court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The Court's satisfaction alone breaths life in the suit. 6. The High Court relied on Ram Prasad Dagduram Vs. Vijay Kumar Motilal Mirakhanwala ( AIR 1967 SC 278 ) observing that it virtually decided the point. It seems the High Court had discerned and borne in mind the following observations of Bachawat, J. concurring with A.K. Sarkar, C.J.: "The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like Section 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of Section 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsebuk Vs. Ramlall Koondoo (1881) ILR 6 Cal. 815. But the policy of Section 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsebuk Vs. Ramlall Koondoo (1881) ILR 6 Cal. 815. The rigour of this law has been mitigated by the provision to Section 21(1) of the Indian Limitation Act, 1963, which enables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to Section 21(1) of the Indian Limitation Act, 1963 has no application to this case, and we have no power to direct that the suit should be deemed to have been instituted on a date earlier than November 4, 1958. (emphasis ours) At the time of the cause the old Indian Limitation Act, 1908, was in force." 108. From the aforesaid judgments it is clear that, under Section 22 of the repealed Act after the institution of the suit when a defendant was added by way of impleadment, the suit as regards him was to be deemed to have been instituted when he was so made a party. The severity of the above law is sought to be reduced by the introduction of the proviso to Section 21 (1) of the new Act which provides that where the Court is satisfied that the omission to include a new defendant was due to a mistake made in good faith, it may direct that the suit as regards such defendant should be deemed to have been instituted on any earlier date. This change in Section 21 of the Act has been made so that an omission to implead a person owing to a bonafide mistake does not deprive a plaintiff of his rights against that person if the Court is satisfied in that behalf. Therefore, this addition of the proviso to sub-section (1) has made all the difference. The intention is to permit correction of errors which have been committed due to a mistake made in good faith, but only when the Court permits correction of such mistake. Therefore, this addition of the proviso to sub-section (1) has made all the difference. The intention is to permit correction of errors which have been committed due to a mistake made in good faith, but only when the Court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission, but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The said proviso is in line with the spirit and thought of other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in Court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficient proviso an averment that a mistake was made in good faith by impleading should be made and the Court must on proof of the same be satisfied that the motion to include the new defendant by substitution or addition was just and proper and the mistake has occurred in good faith. The Court's satisfaction alone breaths life in the suit. 109. Invoking this provision, an application under Section 21(1) of the Limitation Act read with Section 104 of the CPC is filed on 2.11.2010 before this Court requesting this Court to hold that the impleadment of the appellants who are defendant Nos. 3 and 4 in O.S. No. 316/1993 is deemed to have come on record on the date of institution of suit i.e., on 22.10.1993. This application is registered as Misc. Cvl. 19451/2010. In support of the application, the plaintiff has sworn to an affidavit. After referring to the plaint allegations and the contents of the agreement of sale, in para 3 of the affidavit he has sworn to the fact that, subsequent to service of summons, the respondent No.2 herein being the defendant No.1 appeared and she on 21-02-1994 has placed the written statement on record. After referring to the plaint allegations and the contents of the agreement of sale, in para 3 of the affidavit he has sworn to the fact that, subsequent to service of summons, the respondent No.2 herein being the defendant No.1 appeared and she on 21-02-1994 has placed the written statement on record. In the written statement filed by her at para 7 she has stated that she has sold the property to one Smt. Lakshmi Thimmaiah of Maddur and Smt. Padmini Raghavan under two separate sale deeds which are registered in the office of the Sub-Registrar, Devanahalli. The defendant No.1 has not made clear when she has sold the properties and to whom and also did not furnish the correct name and address of the purchasers nor did she produce the copies of those sale deeds before the trial Court. At para 4 it is stated even after impleadment the defendant Nos.3 and 4 also did not produce the sale deeds before the trial Court. The properties alleged to have been purchased by the appellants herein were not the subject matter of any revenue dispute. However, there was a survey dispute between them and him, which has taken shape in 2000-01 and by then they were already on record as defendant No.3 and 4. As such he had no knowledge about the said transactions effected by the defendant No.1 in favour of the defendant Nos.3 and 4 and about the sale transactions dated 15-02-2010 on the day when he filed the suit. If he had the knowledge of the sale transactions definitely he would have made them as defendants in the suit filed by him. Subsequent to the defendant No.1 filing of the written statement, he did his level best to know as to who are all the persons who have purchased the suit schedule properties from the defendant No. 1 and also the sale deeds executed by defendant No. 1 in their favour. Despite his sincere efforts he was unable to trace out the sale deeds executed by the defendant No. 1 in favour of defendant Nos.3 and 4. On 20-11-1995 the Counsel appearing for defendant No.2 at the trial Court had served a copy of the impleading application i.e., IA. Despite his sincere efforts he was unable to trace out the sale deeds executed by the defendant No. 1 in favour of defendant Nos.3 and 4. On 20-11-1995 the Counsel appearing for defendant No.2 at the trial Court had served a copy of the impleading application i.e., IA. No.3 on his Counsel stating that she has purchased the land bearing Sy.No.112 measuring 10 acres situated at Thaligere, which is one of the properties covered under the agreement of sale deed 5-11-1990. Said application was moved on 3-1-1996. His Counsel who appeared before the trial Court had stated no objection for allowing the said application i.e., IA No.3, which came to be allowed on 11-3-1996. Subsequently, the plaint was amended accordingly. As regards the impleadment of the appellants in RFA No.1312/2003, who was the defendant No.3 and 4 at the trial Court are concerned, 3 days earlier to 21-06-1999 he went to the concerned Village Accountant of Devanahalli to remit the Kandayam in respect of the suit schedule properties i.e., during the third week of June 1999. The Village Accountant declined to accept the Kandayam from him on the ground that some one has remitted the same, when he questioned the Village Accountant as to who remitted the Kandayam in respect of the suit schedule properties he revealed that Smt. Lakshmi Thimmaiah, Sri V.T. Ananda have remitted the Kandayam. He was shocked to hear the same. Then he enquired with the Village accountant as to how the Kandayam was received from them in respect of the lands bearing Sy.No.108, 109, 113 of Thailgere Village. He after going through the records maintained by him informed him that 1st defendant has sold the lands bearing Sy.No.109 and 113 in favour of V.T. Anand and Sy.No.108 in favour of Smt. Lakshmi Thimmaiah, under the two sale deeds both dated 15-02-1992. After coming to know the same, he went and searched in the Office of the Sub-Registrar, Devanahalli, to verify the same. Upon search he was able to know that the sale transaction effected by defendant No.2 in favour of defendant Nos.3 and 4 on 15-02-1992. On 21-6-1999 he applied for a certified copy of the said sale deeds dated 15-02-1992 and the certified copies of the sale deeds were made available to him on 24-06-1999. Upon search he was able to know that the sale transaction effected by defendant No.2 in favour of defendant Nos.3 and 4 on 15-02-1992. On 21-6-1999 he applied for a certified copy of the said sale deeds dated 15-02-1992 and the certified copies of the sale deeds were made available to him on 24-06-1999. After obtaining the certified copies of the sale deeds he came to know about the illegal sale effected by defendant No.1 in favour of defendant Nos. 3 and 4. Thereafter he instructed his Advocate who was appearing at the trial Court to make an application to implead them as additional defendants. Accordingly, the impleading application was filed on 02-08-1999 which was allowed on 06-06-2000. The trial Court while allowing the IA No.6 recorded as hereunder : "It is submitted that the plaintiff was not aware of these transactions when the suit was filed against the defendants for specific performance of the contract dated 05-11-1990. Since the proposed defendants are necessary parties hence IA No.6 filed by the plaintiff is allowed". 110. Therefore, he contends that he had no knowledge of the sale transactions effected by defendant No.1 in favour of the appellants i.e., defendant Nos.3 and 4 till he obtained the certified copies of the sale deeds. It was only on 24-06-1999 he came to know about the sale transactions effected by 1st defendant in favour of defendant Nos.3 and 4 i.e., upon going through the said sale deeds. Therefore the delay was neither deliberate nor an intentional one. On the other hand, it was for want of knowledge, which is a mistake in good faith. The application for impleading was not filed soon after the filing of the written statement by the first defendant for the bonafide reason stated above. When the suit filed was in time, the impleadment of the defendant Nos.3 and 4 shall take effect from the date of the suit and not from the date of allowing the application for impleadment. Therefore, he prayed that the Court should direct that the suit has been instituted on an earlier date i.e., on 22.10.1993. 111. An application under Section 5 of the Limitation Act was also filed to condone the delay in filing the said application on the very same day which is numbered as Misc. Civil 19452/2010. Again the same averments are reiterated in the affidavit filed in support of the application. 111. An application under Section 5 of the Limitation Act was also filed to condone the delay in filing the said application on the very same day which is numbered as Misc. Civil 19452/2010. Again the same averments are reiterated in the affidavit filed in support of the application. 112. Defendants 3 and 4 have filed a detailed objections to the said application. They contend that, the discretionary power under Section 21(1) is exercisable only by the trial Court and since the plaintiff/applicant had neither sought for such a relief no such relief was granted by the trial Court, the prayer in the present application is not maintainable. The application is filed at an abnormally belated stage. The application in question was not filed before the trial Court but even before this Court the same is filed at the fag end of the hearing of the appeal which has been heard for several days and in fact, after the arguments of the defendant No.3 and 4 is concluded. The applications are filed more than 7 years after the filing of the appeal and more than 11 years from the filing of the impleading application in the trial Court. Therefore the said application is not maintainable. 113. They have traversed the allegations in each and every para and have contended that the conduct of the plaintiff disentitles him to a discretionary relief of specific performance. Apart from the fact that the date of knowledge of the plaintiff is immaterial, various circumstances in the case would clearly establish plaintiffs knowledge of the sale deed in favour of these appellants. The plaintiff is deemed to have knowledge of the sale deed from the date of its registration i.e., 26-06-1992 as per explanation 1 to Section 3 of the Transfer of Property Act, 1882. Furthermore as per Section 132 of the Karnataka Land Revenue Act, 1964 which mandates that the plaintiff should annex a certified copy of the record of rights or register of mutation relevant to the lands, failing which the plaint shall be rejected. In the present case the plaintiff, being fully aware that prior to the institution of the suit, defendant No.1 had sold items A, B and D properties to the appellants herein, has attempted to suppress the same by producing the revenue records of the years 1988 to 1990 and not for the period between 1990 to 1993. In the present case the plaintiff, being fully aware that prior to the institution of the suit, defendant No.1 had sold items A, B and D properties to the appellants herein, has attempted to suppress the same by producing the revenue records of the years 1988 to 1990 and not for the period between 1990 to 1993. This discloses the dishonest intention of the plaintiff. Further more the written statements of defendants 1 and 2 filed on 20-02-1994 and 06-07-1996 also discloses the execution of sale deeds in favour of the defendants 3 and 4. However in spite of bringing the same to the knowledge of the plaintiff, he has chosen not to implead them within the prescribed period of limitation. Viewed from any angle the averments made in the application are devoid of merit and contains concoctions and inventions only for the purpose of this application and therefore they sought for dismissal of the application. 114. It is in the light of these averments in the application filed under Section 21(1) of the Limitation Act and in the background of this case we have to see whether the omission to include defendants 3 and 4 was due to a mistake made in good faith so as to invoke the discretionary power conferred on the Court to condone the delay in impleading defendants 3 and 4 and to hold that the suit as against them is instituted on the day of the suit i.e., 22.10.1993. In the case of Munshi Ram the Apex Court condoned the delay because in the certified copy of the sale deed which was obtained by the plaintiff in the said suit, it only showed the name of two persons as vendees who were impleaded in the suit as first defendant. The third purchaser's name was not found in the certified copies made available. It is only when the original sale deed was read out in the Court by the defendants, the plaintiff realised the mistake and came to know that there was a third vendee. Then realising the mistake, application was filed on the very next day with all due diligence. In those circumstances, the Court exercising the power under the proviso to Section 21(1) of the new Act held the suit is deemed to have been filed on the date of the suit and not on the day the application for impleadment is filed. Then realising the mistake, application was filed on the very next day with all due diligence. In those circumstances, the Court exercising the power under the proviso to Section 21(1) of the new Act held the suit is deemed to have been filed on the date of the suit and not on the day the application for impleadment is filed. That is the due diligence that is expected before the Court could exercise its power. In the instant case the suit is filed on 22.10.1993. Section 132 of the Karnataka Land Revenue Act mandates that, when the suit is filed in respect of the agricultural land, record of rights and mutation extracts should accompany the plaint, otherwise the plaint is to be rejected. The plaintiff who was aware of the said provisions produced RTC of the year 1988-89 as Exs. P11 to P14 which was for the period 1988-1990. They ought to have obtained the RTC of the period immediately prior to the suit, i.e., for 1992-93 which in the facts of the case we are convinced deliberately they have not done. It is because in the examination in chief of the plaintiff at para 7 he has stated that before the first defendant sold the schedule properties to defendants 2 to 4, he had cancelled the agreement of sale dated 5.11.1990. Therefore, he was aware of the cancellation of the agreement dated 5.11.1990 on the day he filed the suit. If he had only obtained RTC or mutation extract or encumbrance certificate he would have known the property had been alienated in favour of defendants 2 to 4. In fact the defendants have produced Exs. D22 and D23 which show their name was entered in the RTC in respect of the schedule property on 20.9.1993, roughly a month prior to the filing of the suit. As the plaintiff wanted an interim order restraining the first defendant from alienating the property, he produced the revenue records showing the first defendant as the owner and then obtained an interim order restraining him from alienating the property. However, on the day when the suit was filed and on the day the injunction order was granted, the alienation had already taken place. This is not a bona fide conduct on the part of the plaintiff. After service of summons, the first defendant entered appearance. However, on the day when the suit was filed and on the day the injunction order was granted, the alienation had already taken place. This is not a bona fide conduct on the part of the plaintiff. After service of summons, the first defendant entered appearance. She filed her written statement on 20.2.1994 clearly setting out the date of the sale deed under which she had sold the property in favour of defendants 2 to 4. The grievance is that, full particulars and addresses of the purchasers is not furnished. If only the plaintiff had applied for encumbrance certificate it would have given the full particulars of the alienation made and after obtaining the said particulars they could have applied for certified copies as was done in the year 1999 and the certified copies of the sale deeds would have disclosed the particulars of the defendants. That is the due diligence expected of the plaintiff, which he has miserably failed to exercise. The second defendant filed an application to implead herself. After she was impleaded she has filed her written statement on 24.7.1996 giving full particulars of sale deed executed by the first defendant not only in her favour, but also in favour of defendants 3 and 4. Again the plaintiff did not raise his little finger. He did not obtain the certified copies of the sale deed or the encumbrance certificate. It is only 3 years thereafter, the application for impleadment is filed on 2.8.1999. After impleadment the plaintiff did not invoke the jurisdiction of the Trial Court under Section 21(1) of the Limitation Act and sought for condoning the delay and to treat the suit having been filed against defendants 3 and 4 on the date of the suit itself. Merely because the application was allowed by the Court it does not have the effect of suit against defendants 3 and 4 being filed on the date of the suit. No such order is passed. Therefore, when Order I Rule 10 application is allowed, the effect is that the proceedings against the defendant shall be deemed to have begun only on the date of service of summons. It is only when the Court passes an order in terms of proviso to Section 21(1) of the Limitation Act, 1963 it could be deemed to have been instituted on the date of the suit. No application was filed. It is only when the Court passes an order in terms of proviso to Section 21(1) of the Limitation Act, 1963 it could be deemed to have been instituted on the date of the suit. No application was filed. No prayer was made. The trial Court proceeded and decreed the suit without properly appreciating this legal position though specific plea was taken in the written statement that the suit action is barred by the law of limitation. Aggrieved by the said judgment and decree dated 10-07-2003, the appellants preferred the appeal before this Court. The appeal is filed on 16.10.2003. The appellants reiterated the said ground of limitation in the said appeal memo. Appeal was heard by another Bench. It is only when the appellant pointed out the aforesaid provisions of law and contended before this Court that the trial Court has committed serious error in holding that the suit is in time then the present applications are filed, nearly 7 years after the filing of this appeal. Therefore, this application is filed 11 years after the application filed under Order I Rule 10(2) CPC and 7 years after the filing of the appeal. The Court gets the jurisdiction to pass an order to the effect that the suit is deemed to have been instituted on an earlier date only if the omission to include the defendant was due to a mistake beyond good faith. Good faith is defined under the Act to mean an act done with due care and attention. Therefore, the admitted facts, set out above shows that there is no due care and attention expected by the plaintiff throughout. The affidavit filed in support of the application is full of falsehood, contrary to the admitted material on record. The conduct of the plaintiff throughout is mala fide. An attempt is made to suppress facts from the Court. An interim order is obtained by suppressing true facts. In spite of the fact that at the earliest point of time this alienation is brought to the notice of the plaintiff, he did not move his little finger to find out the particulars of the alienation and to implead defendants at the earliest point of time. Therefore, no case for exercising the power under the proviso to Section 21(1) is made out. Therefore, no case for exercising the power under the proviso to Section 21(1) is made out. In fact, that is a power to be exercised by the trial Court and not by the Appellate Court. The Appellate Court is precluded from exercising such power for the first time when no such request is made to the trial Court and the trial Court has not exercised the power. Suffice it to state in the facts of this case, as the plaintiff has not exercised due care and attention and this act is not in good faith, the plaintiff is not entitled to the benefit of the proviso to Section 21(1) of the Limitation Act, 1963. Consequently, the suit filed by plaintiff against defendants 3 and 4 is clearly barred by the law of limitation. Accordingly, the aforesaid Misc. Cvl. Application Nos. 19451/2010 and 19452/2010 are liable to be dismissed and they are dismissed. POINT No.5: DELAY AND LATCHES 115. It is contended on behalf of the defendants that the date of agreement is dated 5.11.1990. The legal notice is issued on 19.1.1993, i.e., nearly after 2 years after the date of the agreement. Even thereafter immediately suit is not filed. 8 months thereafter second legal notice was issued on 21.9.1993. It is only thereafter the suit is filed on 22.10.1993, few days prior to the expiry of three years period. Though the suit is filed within three years, whether there was any justification for the delay in filing the suit. It is only after the property is sold by the first defendant to defendants 2 to 4, the suit is brought by interpolating the suit agreement, i.e., the agreement of sale. The dates speak for themselves. 116. The law on the point if fairly well settled. The Supreme Court in the case of Veerayee Ammal Vs. Seeni Ammal [ (2002) 1 SCC 134 ] held as under :- "11. When, concededly, the time was not of the essence of the contract, the appellant-plaintiff was required to approach the Court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani Vs. Kamal Rani held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. A Constitution Bench of this Hon'ble Court in Chand Rani Vs. Kamal Rani held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case." It was furthermore observed : 13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean : 'A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances. conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.' 19. It is also a well settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of contract. [See Ram Awadh (Dead) by LRs. & Ors. Vs. Achhaibar Dubey & anr; [ (2000) 2 SCC 428 para 6] 20. [See Ram Awadh (Dead) by LRs. & Ors. Vs. Achhaibar Dubey & anr; [ (2000) 2 SCC 428 para 6] 20. We are, however, in agreement with Mr. Lalit that for the aforementioned purpose it was not necessary that the entire amount of consideration should be kept ready and the plaintiff must file proof in respect thereof. It may also be correct to contend that only because the plaintiff who is a Muslim lady, did not examine herself and got examined on her behalf, her husband, the same by itself would lead to a conclusion that she was not ready and willing to perform her part of contract. 21. If the plaintiff has failed to establish that she had all along been ready and willing to perform her part of contract, in our opinion, it would not be necessary to enter into the question as to whether the defendant Nos.5 and 6 were bona fide subsequent purchasers for value without notice or not." 117. The Supreme Court in the case of K.S. Vidyanadam and Others Vs. Vairavan [ AIR 1997 SC 1751 ] has held as under : - "9. Article 54 of the Limitation Act prescribes three years as the period within which a suit for specific performance can be filed. The period of three years is to be calculated from the date specified in the agreement for performance or in the absence of any such stipulation, within three years from the date the performance was refused. 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. 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-limits specified in the agreement have no relevance arid can be ignored with impunity? It would also mean denying the discretion vested in the Court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani Vs. Kamal Rani, "it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract". In other words, the Court should look at all the relevant circumstances including the time-limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973*. 11....... Indeed, we are inclined to think that the rigor of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. Learned Counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as nonexistent? All this only means that while exercising its discretion, the Court should also bear in mind that when the parties prescribe certain time-limits for taking steps by one or the other party, it must have some significance and that the said time-limits cannot be ignored altogether on the ground that time has not been made the essence of the contract [relating to immovable properties]. 118. The Apex Court in the case of Mademsetty Satyanarayana Vs. Yelloji Rao [ AIR 1965 SC 1405 ], held as under : - "As Article 113 of the Limitation Act prescribes a period of 3 years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a Court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in Section 22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against the assertion. So, there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose. It is really difficult to define that field. Diverse situation may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the Court is not arbitrary, but sound and reasonably guided by judicial principles and capable of correction by a Court of appeal. Diverse situation may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the Court is not arbitrary, but sound and reasonably guided by judicial principles and capable of correction by a Court of appeal. [emphasis supplied] Subba Rao, J., speaking for the Bench, pointed out the distinction between Indian Law and the English Law on the subject and stated the conclusion in the following words: "While in England, mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief.... It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendants to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." 13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 21/2 years in clear violation of the term of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices - according to the defendants, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff." 119. From the aforesaid judgment of the Apex Court it is clear that, in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not the essence of the contract, the Court may infer that it is to be performed within a reasonable time, if the conditions are evident from the express terms of the contract, from the nature of the property and from the surrounding circumstances. Even if it is not the essence of the contract, the Court may infer that it is to be performed within a reasonable time, if the conditions are evident from the express terms of the contract, from the nature of the property and from the surrounding circumstances. For example, the object of making the contract. In other words, the Court should look at all the relevant circumstances including the time-limits specified in the agreement and determine whether its discretion to grant specific performance should be exercised. One such fact which the Courts should take note of is that in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. This rule that the time is not the essence of the contract in the case of immovable properties was evolved in times when prices and values were stable and inflation was unknown. The same requires to be relaxed, if not modified, particularly in the case of urban immovable properties. Where time is not the essence of the contract, but still when stipulations of time is provided in the contract, the significance or meaning of such stipulation as to time cannot be completely ignored. The Court while exercising the discretion should also bear in mind that when the parties prescribe certain time limits for taking steps by one or the other party, it must have some significance and that the said time limits cannot be ignored altogether on the ground that time has not been made the essence of the contract. While in England, mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. If the conduct or neglect of the plaintiff is directly responsible in inducing the defendants to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief, the Court will be well within its jurisdiction to refuse specific performance. 120. In the instant case, the agreement stipulates 6 months as the period of stipulation. According to the parties it was reduced to 3 months by way of correction. 120. In the instant case, the agreement stipulates 6 months as the period of stipulation. According to the parties it was reduced to 3 months by way of correction. Subsequently, 3 months has been made 13 months by way of interpolation. As is clear from the terms of the agreement, out of the sale consideration of Rs. 3,47,100/-, Rs. 75,000/- was paid under the agreement according to the first defendant. According to the plaintiff Rs. 1,75,000/- was paid. According to the interpolated term, Rs. 1,00,000/- has to be paid within 13 months and the balance amount is to be paid within 3 months. As is clear from the terms of the agreement, there is no corresponding obligation which is to be performed by the first defendant before the plaintiff pays the balance consideration agreed upon. Within the time stipulated plaintiff has not pointed out to the defendant No.1 what is the obligation she was expected to perform so that the plaintiff could pay the balance consideration and obtain a sale deed. In the evidence an attempt is made to contend that, in the agreement of sale it is mentioned that the balance consideration was payable only after, the property is surveyed and the sale deed is to be executed. There is no such recital in the sale deed. On the contrary, the recital is, it is the responsibility of the first defendant to get the measurement of the property done and boundaries fixed. She has already handed over xerox copies of all the documents of title. The said survey and fixing the boundary was not a condition precedent for the plaintiff to pay the balance sale consideration as contended. Therefore, the plaintiff ought to have paid the balance consideration according to them within 13 months, according to the first defendant within 3 months. However, the plaintiff has not paid the amount even according to his own case. It is because he did not possess the requisite money, he agreed to the cancellation of the sale deed. Consequently, the first defendant sold the property and from the consideration received the first defendant instead of forfeiting the amount has returned Rs.75,000/- received under the agreement of sale to the plaintiff. It is because he did not possess the requisite money, he agreed to the cancellation of the sale deed. Consequently, the first defendant sold the property and from the consideration received the first defendant instead of forfeiting the amount has returned Rs.75,000/- received under the agreement of sale to the plaintiff. It is in this context, if really the plaintiff has paid Rs.1,75,000/- as contended by them and was ready and willing to pay the balance amount of Rs.1,72,100/- within 13 months and if the defendant has not come forward to execute the sale deed, though time is not the essence of the contract, the suit for specific performance ought to have filed within a reasonable time. It is here for nearly two long years the plaintiff has not raised his little finger. There is no demand in writing. As set out earlier, there is no material placed on record to show that he was ready with the balance sale consideration. The plaintiff has chosen to file the suit few days prior to the expiry of the period of limitation. In that context, it is not a case of mere delay, it is a case of total inaction on the part of the plaintiff for two years in clear violation of the terms of the agreement which required him to pay the balance consideration and then ask for execution of the sale deed. Further, as the plaintiff was badly in need of money after cancelling the agreement of sale, she has proceeded to sell the property to defendants 2 to 4. They have purchased the property for a valuable consideration. The second defendant has purchased it on the assumption that the suit agreement is cancelled. In so far as defendants 3 and 4 are concerned, they are not aware of the agreement of sale at all. As the defendants 2 to 4 have purchased the schedule property for valuable consideration and have taken possession of the property and have invested money for its improvement coupled with the fact that the mutation entries are made in their name, they are paying taxes, the delay in filing the suit has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff. Moreover, when the plaintiff has not come to the Court with clean hands, he has interpolated the material terms of the agreement of sale, certainly such conduct disentitles the plaintiff from invoking the discretionary relief of specific performance at the hands of this Court. APPLICATION FOR ADDITIONAL EVIDENCE 121. This application - Misc. Civil No. 13365/2010 is filed by the second defendant for production of additional documents, namely a Xerox copy of the cancellation deed dated 13.8.1992 and a copy of the reply to the legal notice dated 22.2.1993. The first defendant in para 8 of her written statement has categorically stated that the original agreement dated 5.11.1990 is cancelled by a deed of cancellation dated 13.8.1992. It is also stated the original agreement is produced as Annexure-X to the written statement. However, the same was not marked during trial. It is submitted that the same was not available. Therefore, in the appeal the aforesaid application is filed along with a Xerox copy of the said agreement and a copy of the legal notice requesting the Court to permit the second defendant to produce the said documents. 122. This Court by its order dated 13.9.2010 after going through the order sheet dated 4.3.1994 of the trial Court in O.S. No. 316/1993 had noticed that the said document is kept in safe custody. Therefore, this Court directed the High Court registry to secure the documents. In pursuance of the said direction issued, the document was secured as is clear from the order sheet dated 4.10.2010. Therefore, the original is also now before the Court. But, the question is, whether the application filed under Order 41 Rule 27 CPC requires to be allowed. 123. The said documents are relied on by the defendants to show that the suit agreement is cancelled and therefore the suit is liable to be dismissed and no specific performance could be granted on the basis of an agreement which is cancelled. From the discussions aforesaid, we have held the suit document is interpolated and therefore the material alteration in the suit agreement has rendered the agreement of sale void, unenforceable and has the effect of cancelling the document. We have also held that the plaintiff was not ready and willing to perform his part of the contract and therefore he is not entitled to specific performance. We have also held that the plaintiff was not ready and willing to perform his part of the contract and therefore he is not entitled to specific performance. We, have also further held that defendants 3 and 4 are bona fide purchasers for valuable consideration without notice of the suit agreement. Further, we have held the suit against defendants 3 and 4 is barred by limitation. Lastly, we have held the suit is liable to be dismissed on the ground of delay and latches. Therefore, we have already come to the conclusion that the suit is liable to be dismissed on the aforesaid grounds. 124. In the light of the aforesaid findings recorded already, this additional evidence which is now sought to be produced, if proved would show that the suit agreement is cancelled and it is not enforceable. Even without such a deed of cancellation we have held the suit agreement stands cancelled because of interpolation and not enforceable for the reasons set out therein. Therefore, no prejudice is caused to defendant No.2 by not allowing her to rely on these documents. Even without those documents she succeeds in the suit. For the aforesaid reasons we do no not see any justification to allow the said application. Accordingly, the application is dismissed. 125. In the light of the aforesaid discussion, the judgment and decree of the trial Court is liable to be set aside. Hence, we pass the following :- ORDER (a) Both the appeals are allowed. (b) The judgment and decree of the trial Court is hereby set aside. (c) The suit of the plaintiff is dismissed. The plaintiff is liable to pay costs of these appeals.