JUDGMENT : Birendra Kumar, J. 1. The original plaintiff/appellant late Bhagwan Kaur had brought the suit for a decree of specific performance of agreement to sale, the referred immovable property in pursuance of agreement to sale between the parties dated 24.07.1979 (Ex.1). In the alternative, prayer was for direction to the respondents to refund the part consideration money of Rs.35,000/-along with damages of Rs.35,000/-. Learned trial judge has granted alternative relief above by the impugned judgment and decree dated 19.01.1995 passed by the learned District Judge No.2, Hanumangarh in Civil Suit No.10/1985 (21/82). The plaintiff/appellant is not satisfied with the decree, hence this appeal. 2. The case and claim of the plaintiff is that the original defendant-Smt. Chandrapati and her three sons including two minors through their guardian-Smt. Chandrapati, had executed the aforesaid agreement to sale Chak No.10, HMH T.P. 149/ 264, Kila No.1 to 25 area 12 and half bigas out of total 25 bighas of land. It is not controverted that the said property was khatedari agricultural land of Prabhu Singh acquired through patta and after death of Prabhu Singh, the defendants had succeeded the said property. The total consideration money of the agreement was Rs.87,500/-. Rs.35,000/- was claimed to be paid in advance to the defendants and the defendants handed over possession of the suit property to the plaintiff. It is further stated that the defendant-vendors had promised to obtain no due certificate in respect of the property subject matter of transfer and to get their name mutated in the revenue records and to obtain permission to sale the property before registration of the sale deed. 3. As per agreement, 15.06.1980 was the date fixed for execution of the sale. In the meantime, the plaintiff was required to pay Rs.18,000/-on or before 01.12.1979 and the rest amount was payable at the time of execution of the sale deed. The parties had agreed to extend the time of agreement if the circumstances so require. 4. On 01.12.1979, the plaintiff claims to have tendered Rs.18,000/-to the defendants but they did not accept the same and started evading execution of the sale deed. Then, Advocate’s notice was sent on 23.12.1979 calling for the defendants to execute the sale deed. On their failure, the suit was filed on 20.09.1982. 5. 4. On 01.12.1979, the plaintiff claims to have tendered Rs.18,000/-to the defendants but they did not accept the same and started evading execution of the sale deed. Then, Advocate’s notice was sent on 23.12.1979 calling for the defendants to execute the sale deed. On their failure, the suit was filed on 20.09.1982. 5. On 24.08.1984, the suit was dismissed against defendant No.2-Bhanwar Singh, son of late Shri Prabhu Singh as the plaintiff failed to file requisites of notices for Bhanwar Singh, however, by order dated 23.05.1985, Bhanwar Singh was added as party defendant under Order 1 Rule 10 CPC. Bhanwar Singh filed written statement but did not appear in the witness box. 6. Defendants No.1, 3 and 4 jointly filed written statements and all the defendants including defendant-Bhanwar Singh contended that they had never entered into any agreement with the plaintiff. No advance was received nor possession of the suit property was given to the plaintiff. The so called Advocate’s notice was never received by them. Since there was no agreement, there was no question of tender of Rs.18,000/-. The defendants contended that Prabhu Singh had left three daughters as well, and they had joint interest in entire 25 bighas of land, therefore, in their absence no decree can be passed in the suit. They stated that mother had no right to enter into an agreement in respect of property of minors and all the seven heirs of late Prabhu Singh were entitled of 1/7th share in the entire area of 25 bighas. The defendant further stated that on 18.09.1981 a suit for partition was filed by the daughters of late Prabhu Singh against these defendants and the suit was decreed on 20.10.1982 followed by mutation of their name in revenue records. 7. The learned trial judge framed following issues. Issue wise finding of the trial judge is being noticed below:- (i) Whether there was any agreement between the parties dated 24.07.1979 for sale of 12 bighs and 10 biswas of land on total consideration of Rs.87,000/-and advance consideration money of 35,000/- was paid by the plaintiff to the defendants. Learned trial judge on consideration of evidence held that there was agreement between the parties as claimed by the plaintiff. (ii) Whether in part performance of contract possession of 12.5 bighas of land was given to the plaintiff. Learned trial judge on consideration of evidence held that there was agreement between the parties as claimed by the plaintiff. (ii) Whether in part performance of contract possession of 12.5 bighas of land was given to the plaintiff. Learned trial judge held that possession of the land under agreement was handed over to the plaintiff. (iii) Whether the plaintiff had tendered Rs.18,000/-on 01.12.1979 to the defendants. The learned trial court simply recorded that in fact tender was made on 22.12.1979. (iv) Whether the aforesaid tender vide issue No.3 was a condition precedent. Learned trial judge found that it was not a condition precedent for enforcement of the agreement between the parties. (v) Whether the plaintiff was ready and willing to perform her part of agreement from very inception. The learned trial judge found that plaintiff was always ready and willing to perform her part. (vi) Whether in the event of non-grant of relief in pursuance of agreement dated 24.07.1979, the alternative relief can be granted to the plaintiff. The learned trial judge has granted the alternative relief. (vii) Whether defendant No.3-Mahendra Singh and defendant No.4 Rajveer Singh were adult on the date of agreements and as such defendant No.1-Smt. Chandrawati had no right to execute the agreement on their behalf. Learned trial Judge on consideration of School documents of date of birth vide Ex.1/7, 1/8 and 1/9 came to the conclusion that respondent Nos.3 and 4 were adults on the date of agreement. (viii) In case, defendant Nos.3 and 4 fails to prove issue No.7 in their favour whether prior permission of the Court to sale their share by respondent No.1 was necessary in pursuance of Section 8 of the Hindu Minority and Gurdianship Act, 1956 (for short “the Act of 1956”). Sub Section (2) of the Section 8 prohibits natural guardian, without the previous permission of the Court, to transfer property of a minor in any manner i.e by sale, gift, exchange or otherwise. Learned trial judge held that since defendant No.1 Smt. Chandrapati was karta of the family, she was competent to transfer share of even minors and no permission under Section 8 of the Act was required. (ix & x) Whether the suit property was joint property of all the seven heirs of late Prabhu Singh on the date of agreement between the parties. (ix & x) Whether the suit property was joint property of all the seven heirs of late Prabhu Singh on the date of agreement between the parties. If the answer is in the affirmative whether the agreement to sale between the parties was executable. Since the trial judge has decided issue No.10 along with issue No.13, the same is being reproduced below:- “(xiii) Whether the agreement dated 24.07.1979 is a contingent contract.” Learned trial court decided the issue Nos.9, 10 and 13 against the plaintiff and as such did not grant the main relief. (xii) Whether the daughters of late Prabhu Singh who were not party to the suit and the minor defendants No.3 and 4 were agreeable for transfer of their title and interest in the suit property. If not what would be the effect on the suit. Learned trial judge recorded that the agreement is not enforceable for absence of daughters of late Prabhu Singh and non- consent of defendant Nos.3 and 4. (xiii) In view of decree for partition dated 20.12.1981 amongst seven heirs of late Prabhu Singh wherein the suit property was not allotted to the defendants what would be the effect on the present suit. Along with this issue learned trial judge took issue No.14 which is being reproduced below:- “(xiv) Is the suit maintainable in absence of setting aside the partition decree passed in favour of successor of late Prabhu Singh. Learned trial judge held that in absence of setting aside the decree for partition, the agreement can’t be executed. Moreover the agreement was contingent agreement. For this reason also it can’t be executed.” (xv) Whether the defendants had legal necessity and financial crunch leading to agreement between the parties and the same was for the welfare of the family as such the agreement was executable. This issue was decided against the plaintiff. (xvi) Whether the suit was barred by limitation against defendant No.2. This issue was also decided against the plaintiff. (xvii) Whether the Court fee paid was sufficient and the suit was under valied. (xviii) Whether it would be just and proper to direct defendants No.2 to 4 to execute sale deed in the facts and circumstances of this case. Issue No.17 was decided in favour of the plaintiff. This issue was also decided against the plaintiff. (xvii) Whether the Court fee paid was sufficient and the suit was under valied. (xviii) Whether it would be just and proper to direct defendants No.2 to 4 to execute sale deed in the facts and circumstances of this case. Issue No.17 was decided in favour of the plaintiff. Learned trial judge recorded that since the plaintiff has failed to prove a case for execution of the agreement to sale between the parties. Issue No.18 need not be gone into. 8. Learned counsel for the plaintiff/appellant contends that an agreement to sale between the parties is proved by the documentary evidence vide Ex.1 coupled with oral testimony of PW.2-Gyarsilal, who had drafted the agreement and the parties signed in his presence. Besides, aforesaid plaintiff-Bhagwan Kaur has also supported that agreement was executed in presence of the parties and in part performance of the agreement she paid Rs.35,000/-as part consideration and possession of the suit land was handed over to the plaintiff. She has detailed about the further acts to be performed by the respondents prior to execution of the sale deed. There is no contrary evidence on the record. Hence, the learned trial judge should have granted the main relief claimed by the plaintiff. Learned counsel contends that the trial judge has also found that the plaintiff has proved a case of agreement between the parties and readiness and willingness of the plaintiff to perform her part. Therefore, denial of the main relief only on the ground that the property was not partitioned and other co-sharers were not parties to the suit is not sustainable in law. Learned counsel further contends that the law is well settled that any one can enter into an agreement to sale, in respect of his/her interest in the joint property, the Court can allow performance of the contract to the extent of share of the transferor. Learned counsel has relied upon the judgment of Hon’ble Supreme Court in the case of Kammana Sambamurthy (Dead by L.R.S.) Vs. Kalipatnapu Atchutammu (Dead) & Ors. reported in (2011) 11 SCC 153 . It is also contended by learned counsel that the learned trial judge has wrongly held that the suit was barred by limitation against defendant-respondent No.2. 9. Learned counsel has relied upon the judgment of Hon’ble Supreme Court in the case of Kammana Sambamurthy (Dead by L.R.S.) Vs. Kalipatnapu Atchutammu (Dead) & Ors. reported in (2011) 11 SCC 153 . It is also contended by learned counsel that the learned trial judge has wrongly held that the suit was barred by limitation against defendant-respondent No.2. 9. Contention of the learned counsel for the respondents is that there is consistent case of the respondents in the pleading as well as evidence that the respondents had not entered into any agreement to execute sale deed in favour of the plaintiff nor had received any part consideration money or handed over possession of the suit property to the plaintiff. In the circumstance, the burden was heavy on the plaintiff to prove a valid agreement between the parties, mode and manner of payment of part consideration money, readiness and willingness to perform the part assigned to the plaintiff appellant. Learned counsel submits that though in pursuance of the decree of the trial judge, the respondents have already deposited Rs.98,000/-for payment to the plaintiff which included interest on the consideration money as directed by the trial judge, however, the facts of this case would reveal that even second relief should not have been granted in favour of the plaintiff. Learned counsel contends that whole agreement was unexecutable for the reason that the property was joint property of other heirs (daughters) of late Prabhu Singh, who were not party to the suit. The evidence on record would reveal that three daughters of late Mr. Prabhu Singh had brought a suit for partition before the revenue court and the revenue court decreed the suit to the extent of 1/7 the share of each of the seven successors of late Mr. Prabhu Singh vide Ex.A/1 and all the legal heirs were accordingly mutated in the revenue records vide Ex.A/3. Learned counsel submits that DW.1-Chandrapati, DW.2-Mahendra Singh and DW.3-Rajveer Singh, the party defendants in the suit, have consistently deposed that the plaintiff has taken forceful possession over the suit property ten to twelve years back. They have stated that they have not taken any step for recovery of possession separately. Learned counsel contends that the trial court as well as the plaintiff had misread the evidence of these witnesses for assumption that the possession was handed over in pursuance of agreement between the parties. They have stated that they have not taken any step for recovery of possession separately. Learned counsel contends that the trial court as well as the plaintiff had misread the evidence of these witnesses for assumption that the possession was handed over in pursuance of agreement between the parties. Learned counsel submits that finding of the learned trial judge that the contract was a contingent contract as defined under Section 31 of the Indian Contract Act since certain pre-conditions such as getting patta, mutation order and permission to sale prior to execution of the sale deed, were to be fulfilled. Therefore, unless those conditions were fulfilled, the execution of the agreement was clogged under Section 32 of the Contract Act. 10. Learned counsel further contends that the learned trial judge has rightly held that the suit was barred by limitation against respondent No.2. However, committed error of law and facts that even if it is assumed that respondents No.3 and 4 were adults, the mother was ‘Karta’ of the family, hence she had power to enter into an agreement to sale with respect to the family property including interest of respondent Nos.3 and 4. 11. Now the first point for consideration is whether finding of the learned trial judge that agreement between the parties dated 24.07.1979 at Ex.1 is a valid agreement to sale and the finding that the plaintiff was always ready and willing to perform her part is consistent with material available on the record and fit to be sustained. 12. It is evident that the respondents have consistently pleaded and asserted in evidence that there was no agreement between the parties. No consideration money was ever partly paid nor remaining was to be paid. DW.1-Chandrapati on being shown the agreement paper clearly denied that the signature on the agreement paper is hers. In the circumstance, it was burden of the plaintiff to prove by cogent and reliable evidence, which might been the nature of opinion of the expert comparing signature on the agreement paper with admitted signature of Chandrapati, to prove that the agreement was signed by Chandrapati, which is lacking. Further PW.1 deposed that stamps papers were purchased on the date of agreement itself, whereas Ex.1 shows that stamp was purchased on 28.06.1979 and the agreement was executed on 27.07.1979. Further PW.1 deposed that stamps papers were purchased on the date of agreement itself, whereas Ex.1 shows that stamp was purchased on 28.06.1979 and the agreement was executed on 27.07.1979. PW.1 deposed that she paid the part consideration money of Rs.35,000/-to the Deed Writer i.e. PW.2 and in her presence, the Deed Writer handed over the same to Chandrapati and Bhanwar Singh. The Deed Writer PW.2-Gyarsilal is clear enough that money was not paid in his presence. PW.4-Nathu Ram, claims to have gone to the Registry/Office for execution of his own document, has deposed that in his presence money was paid to a boy aged about 30 years. He had not identified any of the defendants claimed to be present at the time of execution of the said agreement. 13. Evidently, there is no documentary evidence of payment of part consideration money and the oral evidence is so inconsistence and conflicting that it cannot be relied upon. Learned trial judge has failed to appreciate the aforesaid infirmity. Unless payment of part consideration money is proved by trustworthy evidence, which has not been done in the present case, the part performance of the agreement is itself doubtful. Therefore, the appellant’s suit was fit to be dismissed on these grounds alone. 14. Since payment of part consideration money was not established, there was no question of grant of relief of refunds of consideration money along with interest. Since the finding of the trial judge is not consistent with the material available on record as discussed above. The same is hereby set aside and it is held that the plaintiff failed to prove a valid agreement between the parties and part performance of the same or payment of any consideration money to the defendant/respondents. 15. On readiness and willingness to perform her part, the plaintiff made only bald statement that she was ready and willing to perform her part of the contract. At the time of filing of the suit or till passing of the decree, no documentary evidence was produced to support that the plaintiff had money to pay for getting execution of the sale deed. Neither the bank statement nor the bank draft in the name of respondents was placed before the Court. 16. At the time of filing of the suit or till passing of the decree, no documentary evidence was produced to support that the plaintiff had money to pay for getting execution of the sale deed. Neither the bank statement nor the bank draft in the name of respondents was placed before the Court. 16. The law is well settled that for specific performance of contract to sale immovable property, the plaintiff is bound to prove a case of performance or readiness and willingness to perform her part as required under Section 16(c) of the Specific Relief Act. Only willingness to perform is not enough rather readiness must be proved and readiness includes evidence on capacity and availability to pay the consideration money. Though under the Income Tax Act tender of money more than Rs.20,000/-requires to be made through tangible evidence, however in the case on hand, no evidence was brought on the record to substantiate the requirement of “readiness” to perform the part. 17. Learned trial judge has not properly appreciated that there was lack of evidence on readiness of the plaintiff to perform her part. Therefore, only possible conclusion would be that the plaintiff appellant failed to prove the requirement of “readiness” to perform her part of the contract and on failure thereof she was not entitled to get relief of specific performance of contract to transfer immovable property. The contrary conclusion of the trial judge is hereby set aside as the same is not consistent with the material available on record and the plaintiff suit is fit to be dismissed for this reason as well. 18. An agreement to sale is not a conveyance and does not transfer ownership right or confers any title. Only on execution of the sale deed in pursuance of the agreement title passes to the plaintiff. The plaintiff has claimed possession over the suit property in pursuance of the agreement to sale between the parties. As held above, the agreement was not found to be a valid agreement and due to lack of evidence to support readiness of the plaintiff to perform the agreement, the suit for specific performance of contract was fit to be dismissed, therefore there is no need to file a separate suit to recover possession from the plaintiff, that relief can be granted in this very suit itself. 19. 19. Another point raised is whether the impugned judgment and decree is consistent with the law that respondent No.1 being ‘Karta’ of the family was competent to execute agreement to sale on behalf of respondent Nos.3 and 4. 20. It is evident that respondent Nos.3 and 4 are not signatories to the agreement. Since they were posed as minors, their mother-Chandrapati entered into an agreement to execute the sale deed. There is School documents on the record to substantiate that respondents No.3 and 4 were adults on the date of agreement. The School documents are Ex.A/7, A/8 and A/9. The aforesaid documents are consistent with the pleading of these respondents that they were major/adults on the date of agreement hence, no one could have entered into any agreement in respect of their interest. No contrary evidence has been brought on the record. Therefore, only for the submission of learned counsel for the appellant that those documents were not properly proved as School Registers were not brought on the record, would not make these documents unbelievable for the simple reason that a civil dispute is decided on preponderance of probability. 21. Learned trial judge has accepted these evidences in support of date of birth of respondent Nos.3 and 4 and held that respondent Nos.3 and 4 were adult on date of agreement. The said finding is consistent with the material on record, hence the same stands affirmed. 22. However, this Court does not find that the trial court was consistent with law that since Chandrapati was ‘karta’ of the family, she was competent to execute the agreement to sale on behalf of respondent Nos.3 and 4 as well. 23. The case and evidence on record suggests that the property was obtained by Late Shri Prabhu Singh through ‘patta’ as ‘Jageer’ as such the suit property was self acquired property of late Shri Prabhu Singh and not a joint Hindu mitakshara family property. Therefore, concept of ‘karta’ is not applicable. Moreover, in the matter of succession of self acquired property left by a male Hindu Sections 8 and 9 of the Hindu Succession Act would be applicable which provide that after death of the male, the property would go first upon class I heirs and class one heirs would simultaneously get the said property equally. Moreover, in the matter of succession of self acquired property left by a male Hindu Sections 8 and 9 of the Hindu Succession Act would be applicable which provide that after death of the male, the property would go first upon class I heirs and class one heirs would simultaneously get the said property equally. In the case on hand, the widow, the sons and the daughters of late Shri Prabhu Singh are class I heirs, hence soon after death of Shri Prabhu Singh, they succeeded the property as co-owners. Therefore, in respect of the property left by late Shri Prabhu Singh, no one would act as ‘karta’ even being head of the family because concept of ‘karta’ of a Hindu joint family applies only in respect of ancestral property of a joint Hindu Mitakshara family. Moreover, Chandrapati was aware that she was not “karta” as such another adult son allegedly joined in the agreement to sale. 24. The finding of the trial judge that Chandrapati was ‘karta’ of the family is inconsistent with the law applicable in the facts and circumstances of the case, hence the same is set aside and it is held that the claimed agreement was not executable in respect of share of respondent Nos.3 and 4. 25. The third point for consideration is whether finding of the trial judge that the suit was barred by limitation against respondent No.2 is correct and consistent with the law applicalbe. 26. Article 54 of the Limitation Act provides for three years limitation for a suit for specific performance of contract. Limitation would start running from the date fixed for the performance, or if no such date is fixed, when the plaintiff has noticed that performance is refused. 27. Though in the agreement, the date for execution of the sale deed was fixed on 15.06.1980, however there is stipulation in the agreement that prior to execution of the sale deed certain formalities are required to be performed. Those formalities were performed or not, by the defendant respondent, is not evident from the material available on record. 28. Further stipulation is that if any obstruction in execution of the sale deed would be there, the time for execution of sale deed may be extended. Therefore, time was not essence of the contract. Those formalities were performed or not, by the defendant respondent, is not evident from the material available on record. 28. Further stipulation is that if any obstruction in execution of the sale deed would be there, the time for execution of sale deed may be extended. Therefore, time was not essence of the contract. The plaintiff has pleaded that cause of action for the suit arose on 25.07.1992 when the defendant respondents finally refused to execute the sale deed. Hence, cause of action in the present case started on 25.07.1982. The suit was filed on 20.09.1982. Since fresh requisites of notices for defendant No.2 were not filed on return of unserved report, the suit against defendant No.2 was dismissed on 24.08.1984 under Order 9 Rule 5 CPC. The said provision reads as follows:- "5. Dismissal of suit where plaintiff, after summons returned unserved, fails for [seven days] to apply for fresh summons.-(1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of [seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that- (a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.] (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit." 29. On dismissal of the suit against defendant No.2, remedy to the plaintiff was to bring a fresh suit subject to law of limitation. There is no other legal remedy except to challenge the validity of the order passed under Order 9 Rule 5 CPC, which was not done in the present case. 30. The plaintiff could have brought the suit till 24.07.1985, which is period of three years from the date of cause of action. There is no other legal remedy except to challenge the validity of the order passed under Order 9 Rule 5 CPC, which was not done in the present case. 30. The plaintiff could have brought the suit till 24.07.1985, which is period of three years from the date of cause of action. Instead of bringing a suit, the plaintiff filed an application under Order 1 Rule 10 CPC on 20.10.1984 stating therein that defendant No.2 is a necessary party and in his absence, no effective decree can be passed in the suit. By order dated 23.05.1985, the learned trial judge allowed the prayer of impleadment under Order 1 Rule 10 CPC. The provisions of Order 1 Rule 10 CPC reads as under:- "10. Suit in name of wrong plaintiff.-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (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." 31. Section 21 of the Limitation Act reads as follows:- "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 direct that the such plaintiff or 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." 32. The order dated 23.05.1985 was also not challenged by anyone. From the date of impleadment, the suit against respondent No.2 revived, which was also done within three years. On purposeful and harmonious interpretation of sub Rule (5) of Rule 10 of Order 1 read with Section 21 (1) of the Limitation Act, the rider contained for counting limitation period, the relevant date would be the date of which respondent No.2 was made a party. It is evident that respondent No.2 was made party on 13.03.1985 within three years. This interpretation would felicitate substantial justice of adjudication of real dispute. Therefore, it was not a case of any clog of limitation against respondent No.2. Finding of the learned trial judge to the aforesaid extent stands hereby set aside and this point is answered accordingly. 33. It is evident that respondent No.2 was made party on 13.03.1985 within three years. This interpretation would felicitate substantial justice of adjudication of real dispute. Therefore, it was not a case of any clog of limitation against respondent No.2. Finding of the learned trial judge to the aforesaid extent stands hereby set aside and this point is answered accordingly. 33. The last point for consideration is whether the agreement between the parties was executable against respondents No.1 and 2 to the extent of their share in the property. 34. The law is well settled that a co-sharer to the joint property can transfer his interest in the property and as such can enter into an agreement to sale. However, in the case on hand the defendant-respondents have not agreed to transfer their interest in the joint family property rather they proposed to transfer specific property, wherein title and interest of other co-sharers (daughters) was also involved. Unless and until the property is partitioned, specific property could not have been transferred. The suit property is identified as Chak No.10 consisting of Pilar No.149 to 264, area 12.5 bighas. This property is part of the entire 25 bighas and all the seven heirs of late Prabhu Singh were having joint interest. Though a decree for partition was passed and 1/7th share was allotted to defendants No.1 and 2 as well. However, they got only 0.09 bighas each in the property mentioned in the agreement to sale. Therefore, agreement to sale could not have been given affect in the facts and circumstances of this case. 35. The plaintiff claimed one of the reliefs in the nature of direction to the defendants to get their name mutated in the revenue records and get permission to sale the agricultural land from the Competent Authority. Such direction could not be made unless the authority concerned were party to the suit. Moreover, the performance of aforesaid act was condition precedent for execution of the sale deed as such the agreement was a continent agreement dependent on performance of certain act which was not solely under the control of the defendants rather compliance of the same was dependent on action of others as well, who could have granted or refused such permission. There is no dispute that on the date of agreement till institution of the suit, the aforesaid acts were not performed. There is no dispute that on the date of agreement till institution of the suit, the aforesaid acts were not performed. Therefore, the agreement between the parties was not executable for this reason as well. 36. To conclude:- (i) it is held that in view of specific denial by the defendants about execution of agreement, receipt of consideration money and signature on the agreement paper, the plaintiff was burdened to prove the aforesaid facts by cogent and reliable evidence whereas the plaintiff has failed, as discussed above. (ii) The plaintiff failed to prove readiness to perform her part of contract as required by Section 16(c) of the Specific Relief Act, 1963, which is one of the conditions for grant of decree of specific performance of contract. No doubt as per explanation one, it is not essential for the plaintiff to tender to the defendants or to deposit in Court any money except when so directed by the Court. But, the second explanation says that the plaintiff must prove performance of his part or readiness and willingness to perform the contract according to its true construction. The true construction requires that the plaintiff must by tangible evidence show that she had money to pay for getting the sale deed. This could have been done by production of bank account statement or bank draft. Mere oral evidence of readiness and willingness would not satisfy the requirement of law. (iii) Since the agreement between the parties was continent upon performance of some other acts which was not performed on the date of institution of the suit and which could not have been performed unilaterally by the defendants rather performance of the same was dependent on discretion of some other authorities who were not party to the suit. Hence, the agreement was not enforceable for this reason also. (iv) As discussed above, the specific property could not have been transferred by a co-sharer as has been done in the present case rather only interest in the joint property could have been transferred. Hence, finding of the trial judge that the agreement was not executable for this reason, stands affirmed. (iv) As discussed above, the specific property could not have been transferred by a co-sharer as has been done in the present case rather only interest in the joint property could have been transferred. Hence, finding of the trial judge that the agreement was not executable for this reason, stands affirmed. (v) Since, the defendants suppressed about the interest of daughters of late Prabhu Singh in the property which was subject matter of agreement while entering into so called agreement with the plaintiff, this Court is not inclined to interfere with the compensation awarded by the trial judge, which has already been paid to the plaintiff. 37. The plaintiff-appellants are admittedly in possession of the property by virtue of agreement to sale between the parties, hence the plaintiff shall vacate the suit land and hand over possession to the defendant-respondents within one month, failing which, the plaintiff would be liable to make payment of mesne profit @ Rs.1 lakh per bigha. As has been noticed above, there is no need for separate suit for recovery on possession. 38. The impugned judgment and decree is affirmed with direction in above para and this appeal stands dismissed with cost of Rs.10,000/- payable to the defendant-respondents.