JUDGMENT Instant second appeal is directed against the judgment and decree dated 25.08.2000 passed by the 03rd Additional District Judge, Jalgaon in R.C.A. No. 43/1995 confirming the judgment and decree dated 13.01.1995 passed by the Civil Judge Senior Division, Jalgaon in Spl. C. S. No. 49/1985 refusing the relief of specific performance of contract based on the agreement dated 06.05.1974 and registered agreement dated 10.02.1984. FACTS : 2. The appellant/Kasturbai Patil, the plaintiff filed a suit for specific performance of contract against the original defendant No. 1 Lilabai Patil stating that, Lilabai had entered into a contract with her to sale the suit land on 06.05.1974 for Rs. 25,000/-, out of which Rs. 5,500/- was paid as earnest money and possession was also handed over to her. The agreement was executed on behalf of her minor children for legal necessity. Lilabai was to obtain necessary permissions for the execution of the sale deed. Time was not the essence of contract. After taking possession, plaintiff spent lot of money for making improvements of the fallow land. Since Lilabai started obstructing plaintiff/Kasturbai, R.C.S. No. 202/1976 for injunction was filed. She got injunction. Lilabai died in 1980 and her heirs entered the suit. Her son Balkrishna Patil represented to the plaintiff Kasturbai that his sisters surrendered their right in his favour and by misleading her recovered an amount of Rs. 22,000/- from her and he executed registered document of agreement dated 10.02.1984 in her favour showing total consideration of Rs. 35,000/- for the same property. The sale deed was to be executed on 30.06.1984 by paying the balance amount of Rs. 13,000/-. Then Balkrishna Patil joining hands with his sisters and got filed suit R.C.S. No. 36/1984 for partition and and another suit R.C.S. No. 98/1984 against Balkrishna and the Kasturbai to stop execution of sale deed in favour of the plaintiff Kasturbai. Thus having extracted money, Balkrishna got the said two suits filed against himself and plaintiff/Kasturbai. Finally suit R.C.S. No. 98/1984 was dismissed in default on 22.02.1992, so also suit R.C.S. No. 36/1984. However, Balkrishna continued to dodge the plaintiff and avoided to execute the sale deed, though notice to execute the sale deed was issued, but was replied by denying the agreement. Finally suit R.C.S. No. 98/1984 was dismissed in default on 22.02.1992, so also suit R.C.S. No. 36/1984. However, Balkrishna continued to dodge the plaintiff and avoided to execute the sale deed, though notice to execute the sale deed was issued, but was replied by denying the agreement. Finally, the appellant/Kasturbai Patil filed a suit for specific performance of contract i.e. R.C.S. No. 49/1985 against the defendant No. 1/Balkrishna and against his three sisters and added the defendant No. 5 at later point of time, her real brother since her real brother Baliram was a proposed joint purchaser under the said registered agreement dated 10.02.1984. 3. After receipt of suit summons only Balkrishna/defendant No. 1 appeared in the Trial Court and filed his written statement, while defendant Nos. 2 to 4, his sisters did not at all appear and were proceeded ex-parte on 10.12.1985. Thus the sisters of Balkrishna did not file written statement, nor even turned up to the Court. Not only that, after trial commenced except cross examination of plaintiff and her witnesses, even Balkrishna abandoned the suit and did not enter the witness box, so also his sisters. The Trial was held and the suit was dismissed. The appeal preferred by the appellant/plaintiff was partly allowed and order of refund of earnest money was made, but the relief of specific performance was denied. Hence this second appeal. SUBMISSIONS : 4. In support of the appeal Mr. R. N. Dhorde, the learned senior advocate with Shri Girish Wani, learned counsel for the appellant made the following submissions : i) That the agreement dated 06.05.1974 was executed in favour of the plaintiff/Kasturbai by Lilabai for the legal necessity of the family, since all the children of Lilabai were minor and Lilabai therefore entered into agreement of sale of the suit land with the appellant/plaintiff. But then the finding of fact recorded by the Courts below is perverse. Not only that, there are findings recorded by the two Courts in contrast and, therefore, the perversity in the matter of appreciation of evidence documentary as well as oral is clear. ii) The Courts below committed an error in holding that the plaintiff/Kasturbai was not ready and willing to perform her part of contract as per agreement dated 06.05.1974 or agreement dated 10.02.1984. Even on that point there is contrast of finding recorded by the two Courts below. ii) The Courts below committed an error in holding that the plaintiff/Kasturbai was not ready and willing to perform her part of contract as per agreement dated 06.05.1974 or agreement dated 10.02.1984. Even on that point there is contrast of finding recorded by the two Courts below. iii) The Trial Court wrongly held that the agreement dated 06.05.1974 was not proved and it wrongly refused to endorse the same by exhibiting. While the lower Appellate Court held that it was proved and was required to be exhibited, in fact there is voluminous record from P.W. 1 and 3 and the agreement is clearly admissible in evidence and was duly proved. iv) The Trial Court erroneously held that the plaintiff/Kasturbai was not ready and willing to perform her part of contract in respect of both the agreements, though there are appropriate pleadings and evidence on record about the readiness and willingness. v) The Courts below have not taken into consideration the fact that the possession was handed over at the time of agreement dated 06.05.1974 itself and plaintiff/Kasturbai put her money and labour to improve the quality of field which was a fallow land. The Courts below also ignored the fact that after ten years of the first agreement i. e. on 10.02.1984 again plaintiff/Kasturbai paid major amount of Rs. 22,000/-towards earnest money and the defendant No. 1 made escalation of price by Rs. 10,000/-, which conduct clearly indicates the readiness and willingness. vi) The lower Appellate Court wrongly held that the suit was barred by limitation and the reasons given by the lower Appellate Court are without any basis. vii) The Courts below committed an error in refusing the specific performance of contract, despite the fact that an amount of Rs. 2,500/- even above the agreed price of Rs. 25,000/- was paid and nothing remained to be done, since the entire amount of consideration was paid. The lower Appellate Court has held that the time was not essence of the contract, rightly so, because the property is immovable property. viii) Since the concurrent findings of fact recorded by the Courts below are in contrast and for denial of relief a serious miscarriage of justice is caused to the appellant/plaintiff. Even in the second appellate jurisdiction this Court can interfere with the said findings. He then argued that the above questions constitute substantial question of law and his appeal be allowed. Even in the second appellate jurisdiction this Court can interfere with the said findings. He then argued that the above questions constitute substantial question of law and his appeal be allowed. 5. Per contra, Mr. P. R. Patil, the learned counsel for respondent Nos. 2 and 4 made the following submissions : i) The agreement dated 06.05.1974 was not at all proved and the suit was barred by law of limitation. The plaintiff/Kasturbai was examined before the Court, though she was alive, but her younger brother Tukaram was examined as P.W. No. 1 acting as power of attorney. Tukaram was minor of 8 years at the time of execution of agreement as is clear from the evidence and, therefore, his evidence has been rightly rejected by the Courts below. The evidence of Power of Attorney has rightly been rejected since P.W. 1/Tukaram in his cross examination stated that, he has no personal knowledge of transaction and, therefore, the finding of fact that the agreement dated 06.05.1974 was not proved is correct, proper and not perverse. ii) The fact that, the appellant/plaintiff was not ready and willing to perform her part of contract in respect of both the agreement is clear and that there are no pleadings about her readiness and willingness, other there is any evidence on record to that effect, therefore the finding is not perverse. iii) That, admittedly sisters/defendant Nos. 2 to 4 have share in the suit property, even after the death of Lilabai and, therefore, agreement dated 10.02.1984 not being executed by defendant Nos. 2 to 4, but only by the defendant No. 1/Balkrishna their brother, was not binding on them and could not be enforced in law. The Courts below have rightly held that it was not possible to grant specific performance looking to the right, title and interest of the sisters. There is duty in the Court to protect interest of the sisters. iv) In fact, it was the case of the appellant/plaintiff that agreement dated 10.02.1984 was obtained by fraud and that being so, she could not be allowed to advance the case to the contrary and could not claim the relief on the basis of said agreement dated 10.02.1984. The Courts below have rightly held that the suit was barred by limitation and findings of facts are supportable. The Courts below have rightly held that the suit was barred by limitation and findings of facts are supportable. The Trial Court has rightly dismissed the suit, since Baliram Bhima Patil, the another alleged co-purchaser was not a party to the suit as plaintiff, but was as defendant and he did not claim any relief of specific performance of contract, though he was made defendant later on. v) The lower Appellate Court has rightly held that time was essence of contract qua agreement dated 10.02.1984. vi) The Courts below have rightly held that there was no legal necessity, therefore, agreement dated 06.05.1974 could not be acted upon. vii) The Courts below have rightly held that the sisters had right in the suit property along with their brother defendant No. 1/Balkrishna and, therefore, none of the agreement could be made enforceable by granting specific performance of contract. The learned counsel further argued that no substantial question of law is involved and, therefore, the appeal is required to be dismissed with costs. He relied on the following decisions. (i) Ramdas Vs. Sitabai reported in (2009) 8 SCC 444. (ii) Lalit Vs. Jaipur Traders reported in (2002) 5 SCC 383 . (iii) J. P. Builders Vs. A. Ramdas Rao reported in (2011) 1 SCC 429 . (iv) Ravinder Kumar Sharma Vs. The State of Assam reported in (1999) 7 SCC 435 . (v) Man Kaur Vs. Hartar Sing Sangha reported in (2010) 10 SCC 512 . (vi) Balraj Taneja Vs. Sunil Madan reported in (1999) 8 SCC 396 . (vii) Shantilal Gulabchand Mutha Vs. Tata Engineering and Locomotive Co. Ltd. reported in (2013) 4 SCC 396 . (viii) Shivshankar Prasad Sah Vs. Baikunth Nath reported in AIR 1969 SC 971 . CONSIDERATION: 6. I have heard the learned counsel for rival parties at length. I have carefully perused the record, so also the decisions cited before me. The following substantial questions of law arise for my consideration. Substantial Questions of Law: (i) Whether the findings of facts recorded by the trial Court that the agreement dated 06.05.1974 was not proved; and that the same was not for legal necessity and that the plaintiff Kasturbai was not ready and willing to perform the part of her contract; are perverse as held by the lower Appellate Court? Substantial Questions of Law: (i) Whether the findings of facts recorded by the trial Court that the agreement dated 06.05.1974 was not proved; and that the same was not for legal necessity and that the plaintiff Kasturbai was not ready and willing to perform the part of her contract; are perverse as held by the lower Appellate Court? (ii) Whether the suit filed by the plaintiff was barred by limitation as held by both the Courts below? (iii) Whether the lower Appellate Court having held that both the agreements dated 06.05.1974 and 10.05.1984 were proved; there was readiness and willingness on the part of the plaintiff, time was not the essence of contract; the entire amount of consideration or even more by Rs. 2,500/- having been paid, was justified in refusing the decree for specific performance of contract? (iv) What order? Answers : (i) Yes. (ii) No. (iii) No. (iv) Appeal is allowed with costs. Suit is decreed. 7. The trial court framed as many as 18 issues and held that : i) The plaintiff/Kasturbai did not prove that Lilabai executed an agreement dated 06.05.1974 in her favour. ii) The plaintiff failed to prove that contract was for legal necessity. iii) The plaintiff failed to prove that she was ready and willing to perform her part of the contract dated 06.05.1974. iv) The plaintiff failed to prove that agreement dated 10.02.1984 was executed by fraud and that she was not ready and willing to perform contract of sale dated 10.02.1984. v) The plaintiff was not entitled to claim specific performance of contract in respect of both the agreements dated 06.05.1974 and 10.02.1984. vi) The suit was barred by limitation. vii) Baliram Bhima Patil is necessary party and being joined late, suit was liable to be dismissed. viii) The time was essence of contract in respect of agreement dated 10.02.1984. After holding the trial, the trial Court dismissed the suit. 8. The appellant/plaintiff carried an appeal to the District Court in R.C.A. No. 43/1995. The lower Appellate Court framed 10 points for determination and answered the same. In substance, it held thus : I) The plaintiff/Kasturbai proved the agreement dated 06.07.1974 with Lilabai and payment of earnest money of Rs. 5,500/-. II) The claim of the plaintiff based on the strength of agreement for sale dated 06.05.1974 was not within limitation. The lower Appellate Court framed 10 points for determination and answered the same. In substance, it held thus : I) The plaintiff/Kasturbai proved the agreement dated 06.07.1974 with Lilabai and payment of earnest money of Rs. 5,500/-. II) The claim of the plaintiff based on the strength of agreement for sale dated 06.05.1974 was not within limitation. III) The plaintiff proved second registered agreement dated 10.02.1984 executed by the defendant No. 1/Balkrishna Patil in her favour for Rs. 35,000/- out of which Rs. 22,000/-was paid to him. IV) The plaintiff was ready and willing to perform her part of contract. V) Time was not essense of the contract in respect of agreement of sale dated 10.02.1984. VI) The plaintiff is not entitled to the decree of specific performance of contract, but was entitled to refund of the earnest amount. Thus, the above are the findings of facts in contrast recorded by the Courts below and, therefore, I am required to refer to the evidence led by the plaintiff for adjudicating the instant second appeal. 9. It is significant to note that, on 06.05.1974, when her children were minor, for the legal necessity of her family acting as Karta, Lilabai executed agreement dated 06.05.1974, and also delivered the possession of the suit property to the plaintiff/Kasturbai upon accepting Rs. 5,500/-. Lilabai died in the year 1980. Her son Balkrishna then approached plaintiff Kasturbai and increased the total price of the suit property by Rs. 10,000/- i.e. from Rs. 25,000/-as agreed by Lilabai on 06.05.1974 to Rs. 35,000/- and took Rs. 22,000/-as earnest amount from the plaintiff. He then executed a registered agreement dated 10.06.1984 in her favour. It is different matter that, in respect of the said agreement plaintiff/Kasturbai is alleging that she was induced by Balkrishna who extracted amount of Rs. 22,000/-from her and she was cheated by him. The allegation about fraud, in that context carry no relevance for resolving the controversy. 10. Going back to earlier agreement having received Rs. 5,500/- on 06.05.1974, Lilabai had started obstructing the possession of Kasturbai, but was injuncted by injunction order by the Court. Even after the execution of fresh agreement on 10.06.1984, Balkrishna's sisters defendant Nos. The allegation about fraud, in that context carry no relevance for resolving the controversy. 10. Going back to earlier agreement having received Rs. 5,500/- on 06.05.1974, Lilabai had started obstructing the possession of Kasturbai, but was injuncted by injunction order by the Court. Even after the execution of fresh agreement on 10.06.1984, Balkrishna's sisters defendant Nos. 2 to 4, filed R.C.S. No. 98/1984 against the defendant No. 1/Balkrishna and Kasturbai/plaintiff to restrain Balkrishna for executing sale deed in favour of plaintiff and had also filed suit R.C.S. No. 36/1984 on 01.03.1984 i.e. hardly after 21 days after execution of the said agreement of sale for partition, possession and injunction. Finally R.C.S. No. 98/1984 was dismissed in default on 20.02.1992, so also suit for partition bearing R.C.S. No. 36/1984. The defendant No. 1/Balkrishna in the instant suit after receipt of suit summons filed written statement and thereafter abandoned the suit proceedings in the sense that he did not enter the witness box, nor examined any witness while his sisters defendant Nos. 2 to 4 did not even appear in the Court and as such, the suit proceeded ex-parte against them in the trial court on 10.12.1985. Thus, before the Trial Court, what remained was the plaintiff, documents filed by the plaintiff, three witnesses examined by the plaintiff and the written statement filed by Balkrishna/defendant No. 1 and nothing more. Thus, in this background, the Courts below ought to have looked at the suit and the conduct of the parties. 11. In so far as, the agreement dated 06.05.1974 is concerned, the Trial Court casually held that it was not proved and marked Article A, without even looking at the evidence of the P.W. 3 and for that matter, even the P.W. No. 1 who proved the said agreement. That is the reason why, the lower Appellate Court has held that the said agreement dated 06.05.1974 was proved and it expressed surprise as to why said agreement was not exhibited. I agree with the said finding of fact recorded by the lower Appellate Court and in addition, I find that, P.W. No. 1 Tukaram Bhima Patil clearly proved the said agreement, but the Trial Court refused to mark exhibit to the same without giving any reasons in the judgment. It is exhibited as Exhibit 74A. I agree with the said finding of fact recorded by the lower Appellate Court and in addition, I find that, P.W. No. 1 Tukaram Bhima Patil clearly proved the said agreement, but the Trial Court refused to mark exhibit to the same without giving any reasons in the judgment. It is exhibited as Exhibit 74A. Not only that, the evidence of the P.W. No. 1/Tukaram Bhima Patil, the younger brother of the plaintiff/Kasturbai and her general power of attorney holder looking after her affairs and residing with her deposed about each and every minute details about the transaction of agreement, possession given to plaintiff/Kasturbai and he being the care taker of the property, actually cultivating the suit lands on her behalf. According to the learned counsel for respondents, on the date of agreement dated 06.05.1974 his age must be 8 years, but if power of attorney Exhibit 59 is perused, his age must be 14 years. The Trial Court rejected his evidence only, because he stated that the said agreement dated 06.05.1974 was not written or executed in his presence, but as earlier stated, there is evidence of P.W. 3 to that effect, which evidence has not at all been shaken in the cross examination and must be believed in totality. Even, still evidence of P.W. 1 Tukaram is of no less significance, on the aspect of point of readiness and willingness. The submission made by Mr. Patil, the learned counsel for respondents, that, there is no pleading and proof about the readiness and willingness is factually not correct, since there are pleadings about readiness and willingness in the suit and not only that even P.W. 1/Tukaram on her behalf categorically stated about it. I quote a few paragraphs from his evidence thus: (1) Plaintiff is my real sister. At present, Kasturibai always remains ill. She is not in a position to come and depose before the Court. Plaintiff has given me full information about suit transaction. She has given me power of attorney. It is filed in this case today. Plaintiff has affixed her thumb impression on it. It is at Exh.59. Its contents are correct. Defendant is not alive now and she is dead. Deft. Nos. 1 to 4 are legal heirs of deceased. Deft.No.5 is my brother. (2) G.No.132 was owned by deceased Lilabai. On 6/5/1974 she had entered into the agreement of sale with plaintiff. Plaintiff has affixed her thumb impression on it. It is at Exh.59. Its contents are correct. Defendant is not alive now and she is dead. Deft. Nos. 1 to 4 are legal heirs of deceased. Deft.No.5 is my brother. (2) G.No.132 was owned by deceased Lilabai. On 6/5/1974 she had entered into the agreement of sale with plaintiff. Consideration was fixed for Rs. 25,000/-. Rs. 5500/-was paid to defendant by plaintiff on the very day as earnest amount. The remaining amount of Rs.19,500/- was to be paid to defendant at the time of execution of sale-deed before Sub-Registrar. Transaction entered by defendant No.1 was for the benefit of minors as Lilabai was the Karta of joint family. On the day of Saude Pawati, defendant handed over the possession to plaintiff. Since 6/5/1974 the suit land is in possession of plaintiff. It was the duty of defendant Lilabai to bring necessary permission for sale, but she did not make any effort to bring permission during her lifetime. Even, there was no fixed condition for completion of transaction. All minors of joint family were aware of the transaction entered by Lilabai with Kasurabai. (3) At the time of Saude Pawati, suit land was barren. Thereafter, plaintiff converted it into fertile land. Therefore, defendant intended not to enter the transaction. Therefore, she tried to obstruct the possession and, therefore, suit was filed in Pachora Court. Legal heirs of Lilabai had appeared in Pachora Court. As defendants were ready to execute the sale-deed in favour of plaintiff, therefore, plaintiff withdrew the suit filed in Pachora Court. Accordingly, on 10/2/1984 fresh Saude Pawati was executed by Lilabai in favour of Kasturabai and accordingly, transaction was renewed and consideration was fixed Rs. 35,000/-. Plaintiff paid in all Rs. 22,000/- to defendants towards part-payment of transaction. Deft. No. 1 agreed to bring signatures of defendant Nos. 2 to 4 if their signatures are necessary. Other defendants were knowing the contents of fresh Saude Pawati of 1984. As per new Saude Pawati Sale-deed was to be executed on or before 30/6/1984. This idea was given to Kasturabai. Deft.Nos. 2 to 4 did not come for execution of sale-deed and filed R.C.S. No. 36/1984 in Pachora Court and accordingly, temporary injunction was obtained. Therefore, plaintiff could not get the sale-deed executed from defendants. Again, defendants filed three suits against me. Another suit is R.C.S.No.99/1984. This idea was given to Kasturabai. Deft.Nos. 2 to 4 did not come for execution of sale-deed and filed R.C.S. No. 36/1984 in Pachora Court and accordingly, temporary injunction was obtained. Therefore, plaintiff could not get the sale-deed executed from defendants. Again, defendants filed three suits against me. Another suit is R.C.S.No.99/1984. All the suits were dismissed by the Court. Plaintiff has produced the certified copies of proceedings and certified copies of temporary injunction order. On 22/2/1984, therefore, notices were served on defendants as they failed to execute the sale-deed. In that notice, plaintiff had informed that she was ready and willing to execute the sale-deed previously and now also. Today also, plaintiff is ready to get the sale-deed executed....................... (6) Today, I have produced the Saude Pawati dated 6/5/1974. Plaintiff has given me whole information about that Saude Pawati was for the purpose of field executed by deceased Lilabai and it was executed in connection with Balkrishna Sada. Transaction was fixed for Rs. 25,000/-. Rs. 5,500/-were given to deceased Lilabai as earnest amount. I cannot tell the names of defendant Nos. 1 to 5 at the time of execution of Ex.74. Remaining amount was to be paid at the time of execution of sale-deed. On the basis of Saude Pawati, Lilabai had already handed over the possession to plaintiff. At that tim,e defendant Nos. 1 to 5 were staying with Lilabai. Sauda done by her was for her children also. Lilabai has affixed her thumb impression on Saude Pawati dated 6/5/1974. It is shown to me. Gulabrao Patil has affixed his Dastur for the thumb impression of Lilabai. The person who scribed Saude Pawati is dead. Nimba Sonu who is witness of Saude Pawati is also dead. Contents of Saude Pawati were scribed as per the say of Lilabai. I am not identifying the thumb impression of Lilabai but plaintiff identifies it. That original Saude Pawati is the same. The said Saude Pawati is at Article.A. As per Saude Pawati, plaintiff was ready and willing to get the sale-deed executed. Deceased Lilabai failed to comply the transaction as per Saude Pawati dated 6/5/1974. (7) ..................To eastern side of suit land, there is land of Jadabai, to west, the land of Dayaram, to north the land of Dhana Koli and to south Waman Gana Koli and Girna river. I cannot tell who scribed the Saude Pawati dated 6/5/1974. Deceased Lilabai failed to comply the transaction as per Saude Pawati dated 6/5/1974. (7) ..................To eastern side of suit land, there is land of Jadabai, to west, the land of Dayaram, to north the land of Dhana Koli and to south Waman Gana Koli and Girna river. I cannot tell who scribed the Saude Pawati dated 6/5/1974. I was not present at the time of writing Saude Pawati dated 6/5/1974, but I heard that one Sonar scribed that Saude Pawati. (8) .............. I cannot identify the thumb impression of Lilabai on Saude Pawati dated 6/5/1974. I know as to how plaintiff took possession of land. On 6/5/1974 plaintiff took possession of the suit land by ploughing the field from four corners and I was also present at that time........................................... At present, Kasturabai is staying with me, and I am helping her in all things. At present, Kasturabai is ill, therefore, I am cultivating the land..............................................It is not true to say that no such Saude Pawati dated 6/5/1974 was executed in favour of plaintiff and no amount of Rs.5,500/-was paid to Kasturabai. Today, my age is 28 years................................................ Q.: As to why second Saude Pawati was executed in favour of plaintiff? Ans: Deft. No. 1 requested the plaintiff to withdraw the suit of Pachora Court and showed willingness to execute the sale-deed in her favour, therefore, second Saude Pawati was executed. Deft.No.1 has not passed any writing that he is ready and willing to execute the sale deed in favour of plaintiff for withdrawing the suit. At the time of second Saude Pawati, Kasturabai was not in a position to pay all amount of earnest amount of Rs. 5,500/-, therefore, half amount was paid by Kasturabai and half amount was paid by Baliram Bhima. Kasturabai had taken amount from my brother. No other document was executed in respect of giving and taking amount by parties i.e. by Kasturabai, Baliram Bhima and deft.No.1. Earnest amount of Rs. 5,500/- was not paid to Deft.No. 1 in my presence, but amount of Rs. 22,500/-was paid to defendant No. 1 in my presence, and I was present at the time of second Saude Pawati, but I cannot tell in what form that amount was paid to defendant No. 1. i.e. currency notes of Rs. 100/- Rs. 50/- etc." 12. Perusal of the above evidence of Tukaram inspires confidence. 22,500/-was paid to defendant No. 1 in my presence, and I was present at the time of second Saude Pawati, but I cannot tell in what form that amount was paid to defendant No. 1. i.e. currency notes of Rs. 100/- Rs. 50/- etc." 12. Perusal of the above evidence of Tukaram inspires confidence. It is true that, he is a power of attorney holder of Kasturbai and Kasturbai did not enter the witness box, but then evidence of P.W. 1 Tukaram that Kasturbai was unable to come to Court due to illness has not at all been shaken and even the lower Appellate Court has accepted that the agreement dated 06.05.1974 was proved. It so also held the readiness and willingness to perform the part of contract on the part of the plaintiff. That apart, the fact that, the plaintiff/Kasturbai even after 10 years from the first agreement dated 06.05.1974 at the instance of defendant No. 1/Balkrishna again paid Rs. 22,000/-for fresh agreement dated 10.02.1984 clearly shows that she was all the while ready and willing to perform her part of contract dated 06.05.1974. Another reason is that, there is evidence to show that the suit land was fallow land and she spent the money and labour for making the suit land fertile for over ten years. That appears to be the reason why she became ready to pay extra and major amount of Rs. 22,000/-to the defendant No. 1/Balkrishna. 13. There can be no dispute about the legal position as to the evidence of power of attorney as stated by the Apex Court. I have perused all the judgments cited before me by the learned counsel for respondents. The decisions will have to be applied looking to the facts and evidence in each case. In my opinion paragraph 18(g) from the case of Man Kau (Dead) by LRs. Vs. Hartar Singh Sangha reported in (2010) 10 SCC 512 would be apt in its application, I quote para 18(g) thus: "(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad." 14. Looking to the close relationship between plaintiff/Kasturbai and her younger brother Tukaram who lived with her and his evidence quoted by me, I am satisfied that his evidence does not suffer from any vice. Hence I hold concurring with the lower Appellate Court that, the agreement dated 06.05.1974 was duly proved, so also readiness and willingness to perform the part of contract under the said agreement dated 06.05.1974. 15. Admittedly, when Lalibai entered into agreement dated 06.05.1974, all the children were minor and the evidence of P.W. 1 Tukaram and the pleadings in the plaint clearly show that she entered into the said agreement for meeting the needs of her family as Karta of the family. It is interesting to note that, except denial about the legal necessity that too only by defendant No. 1/Balkrishna in the written statement, there is neither any rebuttal evidence, nor specific pleadings to rebut the said pleadings and evidence about the legal necessity, so also circumstances available on record including the circumstance that even after 10 years, the defendant No. 1/Balkrishna made another agreement by increasing price by Rs. 10,000/- and recovered an amount of Rs. 22,000/-. In my opinion, the evidence on record clearly points out to the legal necessity for which Lilabai had entered into the said agreement. The Trial Court answered the issue about the legal necessity against the plaintiff in one sentence on flimsy ground in para 10 that because the agreement dated 06.05.1974 was not proved, therefore, there was no legal necessity while the lower Appellate Court did not even frame point for consideration. The Trial Court answered the issue about the legal necessity against the plaintiff in one sentence on flimsy ground in para 10 that because the agreement dated 06.05.1974 was not proved, therefore, there was no legal necessity while the lower Appellate Court did not even frame point for consideration. Hence I hold that agreement dated 06.05.1974 was executed by Lilabai for legal necessity. 16. The lower Appellate Court has held that suit in respect of agreement dated 06.05.1974 was not within limitation. The reasons given by the lower Appellate Court for that purpose, in my opinion, are strange. The appellate Court held so firstly on the ground that, it was mentioned in agreement dated 06.05.1974 that after obtaining permission of competent authority, the sale deed would be executed. Then the learned Judge as per his personal knowledge stated that permission was not required in 1974 and same was required with effect from 01.09.1977 in view of Sec. 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act and, therefore, the suit was beyond the three years, even reckoned from that date namely 01.09.1977. Second reason given by him is that obstruction made by Lilabai to the possession of plaintiff after agreement and filing of the suit by the plaintiff bearing R.C.S. No. 202/1976 for injunction was an indicator of refusal to perform the agreement dated 06.05.1974. Both the reasons given by the lower Appellate Court are contrary to the record. Perusal of the agreement dated 06.05.1974 does not speak about any permission to be obtained under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act and nor there is any pleading or evidence by any of the parties of obtaining any such permission under that Act. The plea was never set up by any of the defendants before the Trial Court, nor any issue was framed. The said agreement only refers to obtaining the permission and expenses for obtaining the permission. It does not at all refer to permission under the Fragmentation Act. Thus, in the absence of any pleadings, recital in the agreement, the lower Appellate Court merely went by figment of imagination for calculating the limitation from 01.09.1977. In so far as, second reason is concerned, the same is equally perverse. It does not at all refer to permission under the Fragmentation Act. Thus, in the absence of any pleadings, recital in the agreement, the lower Appellate Court merely went by figment of imagination for calculating the limitation from 01.09.1977. In so far as, second reason is concerned, the same is equally perverse. In suit R.C.S. No. 202/1976, it was nobody's case that Lilabai was refusing to perform part of contract under agreement dated 06.05.1974, but the suit was that, Lilabai was obstructing the possession of plaintiff/Kasturbai and nothing more. Further that was not even case set up by anybody that Lilabai had at that point of time refused to perform the part of contract. Thus, the said finding about the suit based on agreement dated 06.05.1974 as barred by limitation must be said to be perverse and the substantial question of law to that effect must be answered in affirmative. 17. The submission made by Mr. Patil, the learned counsel for respondents that, though the sisters/defendant Nos. 2 to 4 did not enter the court for filing the written statement or for leading their evidence, there is duty on the Court to protect their interest as they are the share holders in the suit property along with defendant No. 1/Balkrishna is not acceptable. It is an admitted position that, the defendant Nos. 2 to 4, the sisters of defendant No. 1/Balkrishna filed R.C.S. No. 98/1984 for partition within 21 days of the second agreement dated 10.02.1984 against the defendant No. 1/Balkrishna and the present appellant/plaintiff, so also another suit R.C.S. No. 36/1984 and ultimately allowed those suits to get dismissed in default. The defendant Nos. 2 to 4, the sisters did not enter the present civil suit and were proceeded ex-parte, nor they asserted their claim if at all, they really wanted to as the co-owners in the suit estate. It has been held by the lower Appellate Court as well as by me that the agreement dated 06.05.1974 was duly proved and also the ingredients for claiming specific performance on the basis of the said agreement dated 06.05.1974. The said agreement having been found to have been executed for legal necessity, when all the children i. e. defendants were minors, the defendant Nos. 2 to 4 i.e. the sisters of the defendant No. 1 cannot make any claim as co-owners with the defendant No. 1 in the suit property. The said agreement having been found to have been executed for legal necessity, when all the children i. e. defendants were minors, the defendant Nos. 2 to 4 i.e. the sisters of the defendant No. 1 cannot make any claim as co-owners with the defendant No. 1 in the suit property. That apart, the facts and evidence pointed out by me above show that the conduct of the defendants is not bonafide to expect a Court of law to show any equity in their favour. To repeat, after execution of agreement on 06.05.1974, Lilabai started obstructing the possession of the plaintiff, who was required to obtain injunction in R.C.S. No. 202/1976. After death of Lilabai in 1980, the defendant No. 1/Balkrishna her son extracted Rs. 22,000/- from the plaintiff/Kasturbai by increasing the total price by Rs. 10,000/- on 10.02.1984. Within 21 days of the second agreement dated 10.02.1984, suit R.C.S. No. 36/1984 and R.C.S. No. 98/1984 were filed against the plaintiff to throw a ring of litigation around her. It is a fact that, none of these litigations were pursued by the sisters/defendant Nos. 2 to 4. In these circumstances, I do not think that, there is any scope of extending equity to the defendant Nos. 2 to 4. 18. The lower Appellate Court has held that, agreement dated 10.02.1984 was duly proved and in fact, there is no serious dispute about proof thereof, so also the readiness and willingness on the part of plaintiff to complete the said agreement dated 10.02.1984. Time was not essense of contract as held by the lower Appellate Court. Hence, I confirm the findings on point Nos. 3, 4 and 5 of the lower Appellate Court. 19. I hold that, the suit filed by the appellant in respect of both the agreements dated 06.05.1974 and 10.02.1984 was within limitation. 20. The Trial Court has held that the defendant No. 5/Baliram was not made plaintiff and, therefore, the suit for specific performance by the present appellant/plaintiff was not maintainable. The lower Appellate Court however, disagreed with him for the reasons given in para 15 with which, I concur by reproducing para 15, thus: "15. Now, we have to see whether the plaintiff is entitled to a decree of specific performance of the contract or not? Or she is entitled to the refund of the earnest amount. The lower Appellate Court however, disagreed with him for the reasons given in para 15 with which, I concur by reproducing para 15, thus: "15. Now, we have to see whether the plaintiff is entitled to a decree of specific performance of the contract or not? Or she is entitled to the refund of the earnest amount. It is pertinent to note that the Trial Court has not granted a decree for specific performance nor refunded the earnest amount on the ground that the plaintiff has not joined her co-purchaser defendant no. 5 Baliram Bhima Patil as party to the suit. It is to be noted that the findings of the Trial Court are not proper and convincing. The Trial Court has not appreciated the fact on record that initially the plaintiff had filed a suit against the defendants excluding her co-purchaser, but subsequently, she sought amendment and amended the plaint by order of the Court. After amendment, she added her co purchaser a party to the suit and impleaded him as defendant no. 5. In such circumstances, the suit was not bad for non joinder of necessary parties. Because it is a settled principle that amendment in the pleadings relates back to the suit. Therefore, the findings of the Trial Court are not proper." 21. To sum-up, the total amount that was paid to Lilabai and defendant No. 1 is Rs. 5,500/- plus Rs. 22,000/- total Rs. 27,500/-as against the total consideration of Rs. 25,000/- in the original agreement dated 06.05.1974. Thus the total consideration stands paid to the defendants. Short of actual registration of the deed of sale, there was nothing else that Kasturbai could do. As stated in Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and Sons, AIR 1950 SC 1 (Para 8) : "THE defendant and his predecessor in interest were willing to perform their part of the contract. As a matter of fact, they have performed the whole of it. All that remains to be done is the execution of a lease deed by the lessor in favour of the lessee and of getting it registered." The suit for specific performance of contract thus must be decreed. In the result, I make the following order. ORDER A. Second Appeal No. 457/2000 is allowed with no order as to costs. All that remains to be done is the execution of a lease deed by the lessor in favour of the lessee and of getting it registered." The suit for specific performance of contract thus must be decreed. In the result, I make the following order. ORDER A. Second Appeal No. 457/2000 is allowed with no order as to costs. B. The judgment and order dated 25.08.2000 passed by 03rd Additional District Judge, Jalgaon in R.C.A. No. 43/1995 thereby confirming the judgment and decree dated 30.01.1995 passed by the Civil Judge Senior Division, Jalgaon in Spl. C. S. No. 49/1985 are set aside. C. The suit bearing Spl. C. S. No. 49/1985 is decreed. D. The defendant Nos. 1 to 4 are directed to execute the sale deed in favour of the appellant/Kasturbai in respect of suit property gut No. 133 admeasuring 4H 33R situated at village Baccher, Tq. Bhadgaon, Dist. Jalgaon within a period of eight (8) weeks from today and upon failure thereof, the appellant/plaintiff shall be entitled to get the sale deed executed through the process of the Court within further period of eight (8) weeks therefrom. E. Decree be drawn up accordingly. 22. After pronouncement of the judgment, the learned counsel for respondents prays for stay of this judgment, which prayer is opposed by the learned counsel for the appellant. There shall be stay to this judgment for a period of twelve (12) weeks from today.