JUDGMENT : G. JAYACHANDRAN, J. 1. These two appeals are directed against the judgment and decree passed in O.S.No.7191 of 2010, on the file of IV Additional City Civil Court, Chennai, vide a judgment dated 10.04.2023. 2. The 1 st defendant in the suit is the appellant in A.S.No.479 of 2023. The 3 rd defendant in the suit is the appellant in A.S.No.421 of 2024. Both these appellants are sister and brother, children of Ramakrishna Reddy. The suit was filed by V.Chandra, who is the 1 st respondent in both the appeals, for specific performance of the agreement of sale dated 19.01.1994 in respect of the property held by Kasturi Bai and her father, Ramakrishna Reddiar. 3. According to the plaint, the suit property consists of two schedules; (i) land measuring 8805 sq.ft owned by the 1 st defendant, Kasturi Bai and (ii) 1800 sq.ft of pathway owned by 2 nd defendant. The defendants 1 & 2 agreed to sell the suit property for consideration of Rs.10,50,000/- and received Rs.2,00,000/- as advance. An agreement for sale entered into on 19.01.1994 with a specific understanding that the vendors (defendants 1 & 2) will get the income tax clearance certificate and also remove the encroachment in the pathway before executing the sale deed. The time for performance was fixed as six months. As per the terms of agreement, the sale deed has to be executed either in favour of the plaintiff or her nominee on receiving the balance sale consideration and also complying the above two conditions. 4. Based on this agreement, the plaintiff as vendor entered into a sale agreement with 4 th defendant/R.V.Arul on 27.06.1996 for a consideration of Rs.14,00,000/-, and also received Rs.6,25,000/- as advance. For completing this agreement, a period of six months from 27.06.1996 was fixed. 5. The plaintiff was ready with the balance consideration, approached the defendants 1 & 2 for Income Tax clearance certificate to prepare the draft sale deed. The defendants, with a promise to get the clearance certificate, received a further sum of Rs.1,00,000/- towards the sale consideration and made an endorsement acknowledging the receipt of Rs.1,00,000/- and the time to complete the transaction extended upto 31.12.1996. Subsequently, the plaintiff received suit summons from the 3 rd defendant Balakrishnan in O.S.No.117 of 1999 on the file of the District Munsif-cum-Judicial Magistrate, Alandur, for injunction against the plaintiff and defendants 1 & 2. Subsequently, the plaintiff received suit summons from the 3 rd defendant Balakrishnan in O.S.No.117 of 1999 on the file of the District Munsif-cum-Judicial Magistrate, Alandur, for injunction against the plaintiff and defendants 1 & 2. It is also brought to the notice of the plaintiff that the earlier suit for partition between the defendants 1 to 3 in the O.S.No.206 of 1987 on the file of Sub-Court, Poonamallee, a preliminary decree for partition had been passed, which is appealed and pending as A.S.No.177 of 1995. In the said circumstances, after coming to know about the pending litigations, the plaintiff approached the defendants 1 & 2 to execute the sale deed as per the agreement dated 19.01.1994, on receipt of the balance sale consideration. Having deposited the originals deeds of the property and receiving advance money, the defendants are bound to perform their part of agreement. However, with the intention to defraud the plaintiff they were delaying to honour the agreement. Hence, after initiating criminal proceedings before the Crime Branch St.Mount, the plaintiff filed the suit on 24.04.2001 for specific performance of the agreement dated 19.01.1994. After filing the suit, the 2 nd defendant/Ramakrishna Reddiar, died. Hence, his daughters were impleaded as defendants 5 to 7. 6. The suit was initially filed in the original side of the High Court and while the matter was pending before the High Court in C.S.No.419 of 2001, Application No.519 of 2001 was filed by V.Chandra/the plaintiff seeking an injunction restraining defendants 1 to 3 from alienating or encumbering the suit schedule property. In the said application, after hearing both sides, this Court, taking note of the fact that the original documents was given to applicant/Chandra at the time of agreement, directed the applicant/plaintiff to hand over the following documents in the High Court Registry. (i) Deed of family arrangement in favour of A.B.Ramakrishnan Reddiar. (ii) Sale deed executed by A.B.Ramakrishnan Reddiar in favour of R.Kasturi Bai in Document No.508/1984 on the file of Sub-Registrar, Saidapet. (iii) Sale deed executed by A.B.Ramakrishnan Reddiar in favour of R.Kasturi Bai in Document No.510 of 1984 on the file of Sub-Registrar, Saidapet. 7. Later, on enlargement of pecuniary jurisdiction suit was transferred to City Civil Court and renumbered as O.S.No.7191 of 2010. 8. (iii) Sale deed executed by A.B.Ramakrishnan Reddiar in favour of R.Kasturi Bai in Document No.510 of 1984 on the file of Sub-Registrar, Saidapet. 7. Later, on enlargement of pecuniary jurisdiction suit was transferred to City Civil Court and renumbered as O.S.No.7191 of 2010. 8. In the written statement, the 1 st defendant had stated that the 3 rd defendant, namely, A.R.Balakrishnan instituted a suit for partition in respect of the suit property and other properties of their father Ramakrishna Reddiar, as against his sister, Kasturi Bai (1 st defendant) and their father, Ramakrishna Reddiar (2 nd defendant). The suit for partition includes the suit property shown as item Nos.5 & 6 in the present suit. The partition suit was allowed on 09.02.1994, wherein the 3 rd defendant, Balakrishnan, was granted a preliminary decree for partition, recognising his ½ share in the properties. Aggrieved by the preliminary decree, A.S.No.177 of 1995 was filed before High Court and the same is pending. 9. Meanwhile, the 3 rd defendant/A.R.Balakrishnan instituted O.S.No.177 of 1999 on the file of District Munsif-cum-Judicial Magistrate. Alandur, for permanent injunction. The first defendant had further stated that the plaintiff never been ready and willing to perform her contract and the suit was filed after three years from the time stipulated for performing of the contract. The injunction sought as interim relief in A.No.519 of 2001 was also not maintainable. Despite order of the High Court dated 01.03.2002, the appellant had not deposited the original documents admittedly received by her, hence for non-compliance of the Court direction, the suit is liable to be dismissed. In addition, the suit is not maintainable and is barred by limitation. 10. It was further contended that the agreement dated 19.01.1994 was entered with the knowledge of the pendency of the partition suit. The three years period fixed for performance of the contract expired on 16.01.1997. Even before that, after the payment of Rs.1,00,000/-, the plaintiff agreed to complete the contract by 31.12.1996. While so, the suit for specific performance which ought to have been filed before 31.12.1999, was laid only on 30.04.2001, with a delay of 16 months and therefore, hit by Article 54 of the Limitation Act . Furthermore, the prayer to execute the sale deed in favour of 4 th defendant, who has no privity of contract with the plaintiff, is not maintainable. Furthermore, the prayer to execute the sale deed in favour of 4 th defendant, who has no privity of contract with the plaintiff, is not maintainable. The nomination of the 4 th defendant by the plaintiff will not bind the defendants. 11. In the alleged agreement between the plaintiff and the 4 th defendant dated 27.06.1996, there is no reference about the suit agreement dated 19.01.1994. Likewise, in the notice issued by the plaintiff dated 18.02.2001, there is no whisper about the alleged agreement between the plaintiff and the 4 th defendant. Thus, the introduction of 4 th defendant, by creation of records to show as if the 4 th defendant have a legal interest in the suit property, the specific performance suit is filed after the right to sue become stale. 12. It is also contended that the original documents of the property was in fact, handed over to the broker of the plaintiff, who had played fraud and induced the defendants to hand over the documents with promise to return it within 15 days. In this regard, a police complaint was lodged on 26.09.1995. During the police enquiry, the husband of the plaintiff gave a letter stating that he will hand over the original documents to the defendants on or before 05.06.1996 which he did not do. However, in the notice dated 1802.2001, the plaintiff had stated that the original documents are handed over to the 4 th defendant pursuant to this agreement with the 4 th defendant. Despite the High Court direction, the 4 th defendant had not deposited the original documents in the High Court Registry within the time prescribed. 13. Due to enlargement of pecuniary jurisdiction, the suit was transferred to City Civil Court, Chennai. Before the City Civil Court, the 4 th defendant R.V.Arul filed a written statement stating that he is a builder and in the field of construction for more than 15 years. In the course of his business, he was introduced to the plaintiff, Smt.V.Chandra, by a real estate agent and came to know about the suit property. On being satisfied that the plaintiff was an agreement holder with the defendants 1 & 2, he entered into an agreement with the plaintiff on 27.06.1996 to purchase the property for consideration of Rs.14,00,000/- and made a payment of Rs.6,25,000/- as advance. On being satisfied that the plaintiff was an agreement holder with the defendants 1 & 2, he entered into an agreement with the plaintiff on 27.06.1996 to purchase the property for consideration of Rs.14,00,000/- and made a payment of Rs.6,25,000/- as advance. It was agreed to pay the balance of Rs.8,75,000/-, within a period of six months. He further stated that he is also ready and willing to perform his part of contract. However, his vendor, who is plaintiff, not to get the sale deed in her favour from the defendants 1 and 2. 14. The 4 th defendant, in paragraph No.5 of his written statement had stated that he had made a payment of Rs.6,25,000/- as advance on 27.06.1996 when he entered into an agreement with the plaintiff for the purchase of the suit property. In paragraph Nos.8 & 9, he further stated that he paid Rs.7,25,000/- to the plaintiff and was ready and willing to pay the balance sum of Rs.6,50,000/-. He claims that he was aware of the earlier agreement with the landowners, namely defendants 1 & 2 and that he had entered into an agreement with the agreement holder, namely the plaintiff and paid the part consideration at Chennai and ready to pay the balance consideration. Being the nominee, he claims that the specific performance of the agreement between his vendor/the plaintiff and the defendants 1 & 2 should be specifically enforced and the sale deed to be executed in his favour by the plaintiff. He contends that there is no conflict of interest between the plaintiff and the defendants, inasmuch as right of the plaintiff to acquire the property from the defendants 1 and 2, in view of the assignment of equitable rights to acquire the property pursuant to the valid and enforceable agreement. 15. The 4 th defendant has also contended that when the plaintiff entered into an agreement on 27.06.1996, she had also executed the power of attorney in his favour on 15.03.1993, authorizing him to act as her Agent and deal with the suit property. This defendant claims that the original title document been entrusted to him and he also been put in possession of the suit property by the plaintiff. The 4 th defendant claiming that he is in possession of the suit property pursuant to the valid and enforceable agreement dated 27.06.1996. This defendant claims that the original title document been entrusted to him and he also been put in possession of the suit property by the plaintiff. The 4 th defendant claiming that he is in possession of the suit property pursuant to the valid and enforceable agreement dated 27.06.1996. He is in lawful possession of the suit property therefore entitled to remain in the suit property till the enforcement of the contract entered into between the plaintiff and the defendants 1 & 2 and that his possession cannot be interfered otherwise than the manner known to law. 16. With the above contention, a counter claim is made by the 4 th defendant seeking the relief of mandatory injunction directing the plaintiff to obtain a valid conveyance from the 1 st and 2 nd defendants in respect of the suit property and to perform her part of obligations arising out of contract dated 27.06.1996, entered with the 4 th defendants. For this relief, the 4 th defendant has valued his counter claim at Rs.1000/- and paid Court Fees of Rs.75.50/- under Section 27(c) of Tamil Nadu Court Fees and Suits valuation Act 1955. He had further sought for permanent injunction and perpetual injunction, stating that such reliefs are incapable of valuation and he affixed Court Fees of Rs.75.50 for each these two prayers injunction prayers. 17. In reply to the counter claim made by the 4 th defendant, the 3 rd defendant has filed the reply statement stating that there is no privity of contract between the 4 th defendant and the defendants 1 & 2. Even if the plaintiff, with whom the defendants 1 & 2 had entered the agreement succeed, the 4 th defendant cannot get any relief. It was further contended that the suit itself is barred by limitation and the 4 th defendant, who is the third party unconnected to the owner of the property, cannot take advantage of the so-called agreement between him and the plaintiff and seek any relief especially when the plaintiff herself had no right or title over the property. 18. The 3 rd defendant contend that he is holder of ½ share in the suit property as per the preliminary decree passed by the competent Civil Court and the defendants 1 & 2 have no right to sell his share in the suit property without his knowledge and consent. 18. The 3 rd defendant contend that he is holder of ½ share in the suit property as per the preliminary decree passed by the competent Civil Court and the defendants 1 & 2 have no right to sell his share in the suit property without his knowledge and consent. It is also contended that the agreement entered by the defendants 1 & 2 with the plaintiff itself is invalid and the suit filed by the plaintiff is barred by limitation. No possession was given either to the plaintiff or to the 4 th defendant, hence, the Court Fees paid by the 4 th defendant for the counter claim under Section 41 of Court Fees Act is wrong and therefore, counter claim is liable to be dismissed. 19. Based on the pleadings, the following issues were framed. 1. Whether the plaintiff is entitled for permanent injunction as prayed for in the suit? 2. Whether the plaintiff is entitled the suit for specific performance of the dated 19.01.1994 based on the agreement? 3. Whether the time is the essence of the contract? 4. Whether the previous litigations in between the parties as pleaded in the written statement is binding on the parties? 5. Whether the suit is barred by limitation? 6. Whether the 4 th defendant is entitled the counter claim for the relief of mandatory injunction and also for permanent injunction and for the relief of perpetual injunction as prayed for in the written statement of 4 th defendant? 7. To what other relief? 20. On the side of the plaintiff, one witness and 17 documents (Ex.A1 to Ex.A17) were marked. On behalf of the defendants, two witnesses (D.W1 and D.W2) were examined and 9 documents (Ex.B1 to Ex.B9) were marked. 21. The trial Court held that the plaintiff is entitled to Specific Performance of the agreement dated 19.01.1994. The plaintiff shall step into the shoes of the defendants 1, 5 to 7 and seek for partition of the ½ share in the family property and out of which, they can claim the suit property to be allotted to defendants 1, 5 to 7. The plaintiff is entitled to seek for specific performance of the agreement of sale in respect of the shares of the defendants 1, 5 to 7 which will fall in their hands at the time of final decree proceedings. The plaintiff is entitled to seek for specific performance of the agreement of sale in respect of the shares of the defendants 1, 5 to 7 which will fall in their hands at the time of final decree proceedings. In respect of the counter claim made by the 4 th defendant, the trial Court has held that the agreement between the plaintiff and the 4 th defendant dated 27.06.1996 is separate and independent agreement. There is no assignment of the plaintiff’s right in favour of the 4 th defendant and his right depends on the right of the plaintiff. Therefore, the th 4 defendant is not entitled for mandatory injunction or perpetual injunction as prayed. 22. The trial Court has also recorded that the 4 th defendant, who admits that he is in possession of the original documents which were directed to be deposited in the High Court vide order dated 01.03.2002, not produced by the 4 th defendant and therefore, the prayer for perpetual injunction cannot be granted. The Court also taken note of the fact that the 1st defendant/Kasturi Bai, who had nd entered into an agreement along with her father, (the 2 defendant) with the plaintiff on 19.01.1994, had no right to enter into such an agreement in respect of the property in which the 3 rd defendant had share, as per the decree passed in the partition suit in O.S.No.206 of 1987. 23. The suit was partly allowed to the effect that the plaintiff shall step into the shoes of the defendants 1, 5 to 7 in the proceedings pending for the final decree and in respect of ½ share of the deceased 2 nd defendant, the plaintiff shall get the suit property allotted to defendants 1, 5 to 7 and thereafter, enforce the agreement for sale and get the sale deed in his favour or in the name of his nominee, the 4 th defendant. For this purpose, the plaintiff has to deposit the balance sale consideration of Rs.7,50,000/- 24. For easy reference, the decree passed by the trial Court is extracted below:- (a) The plaintiff is entitled for a specific performance of the agreement of sale dated 19.01.1994 against the defendants 1, 5 to 7. For this purpose, the plaintiff has to deposit the balance sale consideration of Rs.7,50,000/- 24. For easy reference, the decree passed by the trial Court is extracted below:- (a) The plaintiff is entitled for a specific performance of the agreement of sale dated 19.01.1994 against the defendants 1, 5 to 7. (b) The plaintiff shall deposit the balance sale consideration of Rs.2,25,000/- into the Court deposit within 60 days from the date of decree and shall seek for specific performance of the half share of the suit property of the defendants 1, 5 to 7 leaving the half share of the 3 rd defendant. The defendants 1, 5 to 7 shall execute a sale deed in respect of their undivided half share in the suit property. or (c) the plaintiff or her nominee, the 4 th defendant shall step into the shoes of the defendants 1, 5 to 7 and seek for passing of final decree and for separate possession in O.S.No.206/1987 and to seek for allotment of the entire suit property either to the plaintiff or her nominee, the 4 th defendant towards the half share of the defendants 1, 5 to 7. In such case, the plaintiff shall deposit the balance sale consideration of Rs.7,50,000/- into Court. (d) The defendants 1, 5 to 7 are entitled to receive the sale consideration. which is in deposit after the execution of the sale deed. (e) The plaintiff shall seek for execution of the sale deed in favour of the 4 th defendant as her nominee and also for separate possession. (f) The suit is dismissed in respect of other reliefs. (h) The counter claim of the 4 th defendant is dismissed without costs. 25. The Appellant/1 st defendant, Kasturi Bai, in her appeal A.S.No.479 of 2022 has stated that the judgment and decree of the trial Court are perverse, illegal and bristles with non-application of mind. 26. The suit for specific performance is based on an agreement dated 19.01.1994 which is sought to be enforced by suit for specific performance filed on 24.04.2001, which is per se barred by limitation. The prayer in the suit to execute the sale deed in favour of the 4 th defendant, claimed to be the nominee of the plaintiff, is further improper and not maintainable. The prayer in the suit to execute the sale deed in favour of the 4 th defendant, claimed to be the nominee of the plaintiff, is further improper and not maintainable. There is no agreement between the defendants 1 and 2 and the plaintiff to execute the sale deed in favour of the 4 th defendant. The 4 th defendant had entered into an agreement with the plaintiff separately for the property which neither the plaintiff nor the defendants 1 & 2 have right to alienate. 27. The suit filed after 7 years and 3 months from the date of agreement, is hopelessly barred by limitation under Article 54 of the Limitation Act . In the absence of any proof for readiness and willingness on the part of the plaintiff the trial Court had erroneously entertained the suit. Without any explanation for not prosecuting the suit for specific performance within the period prescribed, the trial Court had passed an decree which is totally against the fundamental principles of the Transfer of Property. Having noted that the 4 th defendant, who is holding the original title document and had failed to deposit the original documents in the Court as per the direction of the High Court in its order dated 01.03.2002, the trial Court ought to have non-suited both the plaintiff as well the 4 th defendant. Despite such wilful disobedience of the Court direction, the trial Court has ventured to grant relief to the plaintiff beyond the relief sought which is contrary to the procedures established under law. 28. The Learned Counsel appearing for the appellant submitted that, on the date of the alleged suit agreement i.e., 19.01.1994, the suit for partition in O.S.No.206 of 1986 filed by the 3 rd defendant was pending. The plaintiff has entered into the suit agreement on 19.01.1994 with full knowledge of the litigation. Taking advantage of the possession of the original documents, which was received from the defendants 1 & 2 by misrepresentation and deceit, the plaintiff had created a separate agreement with the 4 th defendant on 27.06.1996 to subvert the execution of the partition decree. 29. Taking advantage of the possession of the original documents, which was received from the defendants 1 & 2 by misrepresentation and deceit, the plaintiff had created a separate agreement with the 4 th defendant on 27.06.1996 to subvert the execution of the partition decree. 29. Referring to the endorsement made on the back of the suit agreement (Ex.A5), the Learned Counsel appearing for the appellant submitted that the receipt of Rs.1,00,000/- and extending the period for performance of the contract upto 31.12.1996 without the date of payment of Rs.1,00,000/- would clearly show the parties were not intend to enforce the agreement. The parties earlier fixed the period of performance as six months, which expired on 19.07.1994. The endorsement has given an extended period for completing the contract upto 31.12.1996. Though the plaintiff pleads that the production of the Income Tax Clearance Certificate and removal of encroachment as preconditions and was not complied by the vendor till 2001, when the suit notice was issued, there is no whisper by the plaintiff about demanding of removal of the encroachment or income tax clearance certificate. In fact, these two conditions were only formal and it did not constitute an impediment to complete the transaction within the time stipulated. The partition suit and the subsequent injunction suit will not save the limitation, the trial Court has perversely held that the suit is not barred by limitation citing pending of litigations. 30. The trial Court judgment while discussing framed issue of limitation and considering the endorsement made on the back of the first page of Ex.A5. The Learned Judge had rightly observed that there is no indication in the endorsement when the sum of Rs.1,00,000/- was paid by the plaintiff to the defendants 1 & 2, for extending the time for performance upto 31.12.1996. In the plaint, it is stated that the said sum was paid on 31.12.1996. This averment defies logic. To pay Rs.1,00,000/- on 31.12.1996 and get extension of time upto 31.12.1996. This error itself would clearly show that the fabrication of the endorsements. The trial Court, even after observing that the extension of time mentioned in the endorsement made on Ex.A5 the date of payment being one and the same has not rejected the endorsement. He had taken the extended period upto 31.12.1996 to reckon the commencement of limitation and had fixed three year period ends on 31.12.1999. The trial Court, even after observing that the extension of time mentioned in the endorsement made on Ex.A5 the date of payment being one and the same has not rejected the endorsement. He had taken the extended period upto 31.12.1996 to reckon the commencement of limitation and had fixed three year period ends on 31.12.1999. Even after fixing 31.12.1999 as the end of three year period as per Article 54 of Limitation Act , the trial Court instead of reckoning the period of limitation runs from 31.12.1996, he had fixed the limitation to run from 31.12.1999 and had held that the suit filed on 30.04.2001 is well within limitation. This calculation for running of limitation and the reasoning adopted in reckoning the date on which the limitation starts clearly exposes the poor understanding of law by the Learned trial Judge. 31. Relying upon the document alleged to be a notice dated 18.02.2001 which was not marked and only a police complaint dated 25.02.2001, marked as Ex.A14, the trial Court shifted the burden of proof on the defendants 1 & 2 and had held that the suit is not barred by limitation. For that purpose, the trial Court has also referred to previous litigation between the defendants 1 to 3 as well as subsequent litigation between the 3 rd defendant and other defendants, including the plaintiff as cause to save the period of limitation. 32. The Learned Counsel appearing of the appellant contended that the trial Court's poor understanding of the law of limitation and the law relating to Specific Performance has led to miscarriage of justice. Hence, the Appeal Suit No.479 of 2023 deserves to be allowed and the decree passed by the trial Court is liable to be set aside. 33. The Learned Counsel appearing for the appellant, A.R.Balakrishnan in A.S.No.421 of 2022, submitted that the appellant is the successful decree holder in the partition suit, wherein, out of six items of property, item No.5 & 6 are the suit property in which Court has declared that he has an equal share along with his father, the deceased Ramakrishna Reddiar. The preliminary decree was passed in the year 1995. During the lifetime, his father Ramakrishna Reddiar had alienated a portion of the suit property in favour of his daughter, Kasturi Bai, in which he not right to alienate without division by metes and bounds. The preliminary decree was passed in the year 1995. During the lifetime, his father Ramakrishna Reddiar had alienated a portion of the suit property in favour of his daughter, Kasturi Bai, in which he not right to alienate without division by metes and bounds. Therefore, the agreement alleged to have entered by his father and his sister in respect of the suit property with one Chandra the plaintiff is unenforceable. While so, the suit for specific performance, which was filed nearly seven years later based on an unenforceable agreement, ought not to have been entertained by the Court below. Contrarily, against the settled principles of the law of evidence, the learned City Civil Judge had perversely held that the defendants have not mounted the witness box to prove their case therefore the plaintiff is entitled for the relief sought even without a plea in the plaint explaining how the suit is within the period of limitation. 34. The plaintiff's response to the check slips issued by the Registry that the period of limitation commenced from February 2001 been accepted by the trial Court without any document. The perversity of the trial Court's order is exposed by allowing a time-barred suit and granting relief beyond the scope of the relief sought. Permitting the agreement holder to step into the shoes of the sharers and contest the final decree proceedings pending in a partition suit is nothing but perverse. 35. As per the decree passed in O.S.No.206 of 1987, the appellant is entitled for ½ share in the ancestral property, which includes the suit schedule property. Pending final decree proceedings, his father Ramakrishna Reddiar, who is the other ½ share holder died intestate. Therefore, his right in the property gets devolved upon his five children, and each of them are entitled for 1/5 share. The 3 rd defendant who already declared as ½ share holder entitled for additional 1/5 share from his father. Thus, he is entitled for 6/10 or 3/5 share in the suit property. Having held that the sale of 1 st item of the suit property by Ramakrishna in favour of his daughter, Kasturi Bai, in the year 1984 as invalid. The 3 rd defendant who already declared as ½ share holder entitled for additional 1/5 share from his father. Thus, he is entitled for 6/10 or 3/5 share in the suit property. Having held that the sale of 1 st item of the suit property by Ramakrishna in favour of his daughter, Kasturi Bai, in the year 1984 as invalid. The suit agreement which consists of two portions, namely, the major portion of 8805 sq.ft in the name of 1 st defendant, Kasturi Bai and 1800 sq.ft, being the pathway, in the name of the 2 nd defendant, the trial Court ought to have held that the suit agreement unenforceable, not only for the reason it is barred by limitation, but also the defendants 1 & 2 had no right to alienate the property excluding the co-sharer. Furthermore, the trial Court finding that based on the subsequent agreement between the plaintiff and 4 th defendant, later will have a rights in the suit property as an agreement holder with the plaintiff is again epitome of perversity. 36. The Learned Senior Counsel appearing for the 1 st respondent V.Chandra, made an elaborate argument in support of the judgment passed by the trial Court and also filed his written arguments. He contended that at the relevant point of time, under Section 230A of Income Tax Act, 1961 , clearance from the Income Tax Department was mandatory. The terms of the suit agreement clearly emphasis that the vendor should obtain income tax clearance and also should remove the encroachment in the pathway. The vendors, who are the defendants 1 and 2, had not complied either of the two conditions. Having entered into an agreement with the defendants 1 & 2 on 19.01.1994 and paid Rs.2,00,000/- as advance towards the total sale consideration of Rs.10,50,000/-, the plaintiff waited for reasonable time and thereafter, on the strength of the suit agreement entered into a sale agreement with 4 th defendant on 27.06.1996 to sell the property, for a consideration of Rs.14,00,000/- and received part consideration of Rs.6,25,000/- from the 4 th defendant. In the suit agreement dated 19.01.1994, the vendors have agreed to execute the sale deed in respect of the suit property, free from encumbrance, either in favour of the plaintiff or his nominee. In the suit agreement dated 19.01.1994, the vendors have agreed to execute the sale deed in respect of the suit property, free from encumbrance, either in favour of the plaintiff or his nominee. The 4 th defendant the nominee of the plaintiff as well as the power of attorney holder is entitle to get the sale deed in his favour. 37. The Learned Senior Counsel submitted that it is incorrect for the defendants 1 and 3, who are the appellants, to claim that the agreement between the plaintiff and the 4 th defendant is a collusive agreement and handing over of the original document to the 4 th defendant by the plaintiff is an act of fraud. The documents were handed over to the plaintiff on the date of entering into an agreement i.e., 19.01.1994. The agreement, Ex.A5 clearly states about the handing over the original documents. 38. The 4 th defendant, not only being an agreement holder of the property with the first defendant also the power agent of V.Chandra the 1 st defendant. Hence, he is entitled to have possession of the documents as a Power Agent coupled with interest on parting Rs.6,25,000/- as against total sale consideration of Rs.14,00,000/-. Claiming that on account of pendency of suit for partition, the suit agreement carries the trapping of conditional contract. Therefore, Section 22 of the Specific Relief Act will come into operation, in view of the pendency of partition suit in O.S.No.206 of 1987. Pointing the fact that neither the 1 st defendant nor the legal heirs of the deceased 2 nd defendant (except the 3 rd defendant) had contested the suit by entering the witness box, it is submitted that as far as the suit agreement is concerned, it was only between the 1 st defendant and the deceased 2 nd defendant. The 3 rd defendant not party to the suit agreement. Since he was holding a decree of partition and had filed injunction suit, he was arrayed as defendants otherwise the 3 rd defendant has no locus to contest the suit. 39. The trial Court, having held that the agreement of the plaintiff with the defendants 1 & 2 is valid and that in the suit property, the 2 nd defendant holds ½ share as per the preliminary decree passed in O.S.No.206 of 1987. 39. The trial Court, having held that the agreement of the plaintiff with the defendants 1 & 2 is valid and that in the suit property, the 2 nd defendant holds ½ share as per the preliminary decree passed in O.S.No.206 of 1987. The trial Court has rightly protected the interest of the agreement holder by permitting the agreement holder to enter into the shoes of the 1 st defendant and the impleaded legal heirs of the 2 nd defendant, namely defendants 5 to 7. 40. The trial Court has also rightly held that the plaintiff has proved his readiness and willingness, by holding that the time is not essence of the contract and that the plaintiff had been always ready and willing to perform the contract but for the non-production of Income Tax clearance certificate and the clearance of encroachment in the pathway. 41. Referring to the judgment of the High Courts and the Hon'ble Supreme Court which says the purchaser need not jingle the coin before the vendor to prove the readiness and willingness and the judgment in respect of Section 55 of Indian Contract Act, which speaks about the effect of failure to perform the contract where the time is essence, as well as Section 55 of Transfer of Property Act, 1882 which deals with Rights and Liabilities of buyer and seller, the Learned Senior Counsel emphatically submitted that the suit is well within the period of limitation and is not covered by Article 54 of the Limitation Act . The plaintiff has proved the readiness and willingness by her conduct and the defendants 1 and 2 are bound to honour the contract as per the terms of agreement Ex.A5 by permitting the plaintiff to step into the shoes of the defendants 1, 5 to 7 in the final decree proceedings and thereby get satisfied the specific performance decree. Point for determination:- Whether the trial Court had properly applied the provision of Limitation Act to reckone the period of limitation and whether the relief granted is inconsonance with law? 42. Point for determination:- Whether the trial Court had properly applied the provision of Limitation Act to reckone the period of limitation and whether the relief granted is inconsonance with law? 42. The suit prayer reads as below:- (a) Directing the defendants 1 and the heirs of 2 defendant 5-7 herein to specifically perform the agreement of sale dated 19.1.94 in respect of the suit property by executing a deed of sale or sales in favour of the 4 th defendant herein on receipt of the balance sale consideration of Rs.7,50,000/- and falling thereof direct the Asst. Registrar, Original Side, High Court, Madras to execute and register sale deed or deeds in respect of the suit property in favour of the 4 th defendant or his nominee or in the alternate direct the defendants 1 and the heirs of 2 defendant 5-7 herein to refund the sum of Rs.3,00,000/- along with such sum that may he determined as damages and fixed by this Hon'ble Court with future Interest at the rate of 24% p.a., till the date of realisation. (b) For a permanent injunction restraining the defendants herein or any person or persons claiming on their behalf from interfering with the custody of the plaint schedule documents as set out in Schedule II hereunder. (c) For a permanent injunction restraining the defendants herein or any person or persons claiming on their behalf from alienating or dealing with the suit property either by way of sale, mortgage, lease or development except in accordance with the sale agreement dated 19.1.1994. (d) Grant such further or other reliefs. (e) Costs of the suit. 43. (c) For a permanent injunction restraining the defendants herein or any person or persons claiming on their behalf from alienating or dealing with the suit property either by way of sale, mortgage, lease or development except in accordance with the sale agreement dated 19.1.1994. (d) Grant such further or other reliefs. (e) Costs of the suit. 43. To maintain the suit, the plaintiff had explained the cause of action as below:- “The cause of action for the suit arose at Madras when the plaintiff and the defendants 1 and 2 have entered into contract for the sale of the suit property on 19.01.1994 and paid a sum of Rs.2,00,000/- (Rs.Two lakhs only) by way of advance and on 27.6.96 when the plaintiff and the 4 th defendant entered into agreement for sale of the suit property and later on 31.12.1996 when the plaintiff made, a further payment of Rs.1,00,000/- to the 1 st and 2 nd defendants, in March 1999 when the plaintiff received a notice in O.S.No.117 of 1999, on the file of the District Munsif-cum-Judicial Magistrate, Alandur, a proceeding which was initiated subsequent to the agreement of sale and handing over of the title deeds and lastly when the plaintiff received a notice from the Inspector of Police, District Crime Branch, St.Thomas Mount, Madras 600 016, summoning the plaintiff for an enquiry under Sections 160 and 91 Cr.P.C. and lastly when the plaintiffs 1 and 2 are trying to interfere with the custody of the documents of title in the hands of the plaintiff and when the threat of wrongful alienation of the property continues and when the defendants 1, 2 and 3 are contemplating to deal with the suit property without reference to the rights of the plaintiff.” 44. In paragraph No.10 of the plaint, it is stated that the suit is not barred by law, since the refusal was made known to the plaintiff through the criminal complaint of the 1 st defendant in February 2001 and the suit laid immediately. In any event, within three years from the date of refusal of the performance of the contract. 45. The trial Court had rightly observed that there is no document to show that in the criminal complaint lodged in the month of February 2001, the defendants had refused to perform the contract. In any event, within three years from the date of refusal of the performance of the contract. 45. The trial Court had rightly observed that there is no document to show that in the criminal complaint lodged in the month of February 2001, the defendants had refused to perform the contract. It is also observed that the legal notice dated 18.02.2001 mentioned in the plaint not produced before the Court. The suppression of the partition suit in O.S.No.206 of 1987 was taken into consideration by the trial Court to observe that time was not essence of the contract and that the plaintiff was not in a position to seek for specific performance of the agreement of sale during the pendency of the suit in O.S.No.206 of 1987. 46. It is shocking to note that even the plaintiff has not made a plea that he did not file the specific performance suit in view of the pendency of the partition suit. In contra, he had specific pleaded that he came to know about the partition suit only when he received the suit summons in O.S.No.117 of 1999, the injunction suit filed by the 3 rd defendant. While so, Section 55 (1)(a) of the Transfer of Property Act, which mandates the seller to disclose the buyer any material defect in the property [or in the seller's title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover, cannot be a reason for the plaintiff for not seeking specific performance within the period of limitation fixed under Article 54 . When admittedly the knowledge of non-disclosure of defect in title was only after receipt of notice in O.S.No.117 of 1999, if the plaintiff is a bonafide purchaser ought not to have waited to seek specific performance after 31.12.1996, the date fixed for completing the agreement. 47. In fact the plaint does not say, the pendency of litigation as a reason for not filing the suit for specific performance within period of three years and the so called complaint in the month of February 2001 alleged to have been given to the police by the vendor against the plaintiff not before the Court. 47. In fact the plaint does not say, the pendency of litigation as a reason for not filing the suit for specific performance within period of three years and the so called complaint in the month of February 2001 alleged to have been given to the police by the vendor against the plaintiff not before the Court. While so, the trial Court had bend upon to fetch an imaginary reason for reckoning the limitation from the year 2001 and not from 31.12.1996 which is the date fixed for completion of contract even as per the plaintiff. On the singular ground of barred by limitation, the suit ought to have been dismissed. Unfortunately, the trial Court had invented reasons for saving limitation and had passed a decree beyond the scope of the prayer sought. Even if the trial Court has believed that the plaintiff had come to know that the defendants 1 & 2 had suppressed the partition suit in O.S.No.206 of 1987 and the plaintiff came to know about the suit only when received the suit summons in O.S.No.117 of 1999, the relief prayed in the suit ought to have been only in terms of Section 13 of the Specific Relief Act , which reads as below:- “ 13. Rights of purchaser or lessee against person with no title or imperfect title .— (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely,- (a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest; (b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance; (c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee; (d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property which is the subject-matter of the contract. (2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.” 48. It is admitted by the plaintiff that, when he filed the suit on 30.04.2001, he was aware of the preliminary decree passed in the partition suit and her vendors had only imperfect title. However, she had not sought for a relief which will be in consonance with Section 13 of Specific Relief Act , which deals about rights of purchaser or lessee against a person with no title or imperfect title. However, she had not sought for a relief which will be in consonance with Section 13 of Specific Relief Act , which deals about rights of purchaser or lessee against a person with no title or imperfect title. In such circumstances, the relief granted by the trial Court clearly indicates the perversity. 49. Thus, it is obvious, the trial Court has entertained a time-barred suit for specific performance and granted relief which is not permissible under the Specific Relief Act . 50. Section 55 (1)(a) of the Transfer of Property Act, mandates that the seller should disclose the defect in the property which in ordinary course will not be found by the buyer. Section 55 (1)(a) of the Transfer of Property Act, reads as below: 55. Rights and liabilities of buyer and seller.—In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold: (1) The seller is bound- (a) to disclose to the buyer any material defect in the property [or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover. 51. As per pre-amended Section 16 of Specific Relief Act , the buyer has to plead and prove his ready and willing to perform his part of the contract within the time prescribed. In case, time is not essence of the contract, the limitation shall commence from the date of refusal to perform the contract and within three years, she has to seek for enforcement of the contract as per Article 54 of the Limitation Act . 52. Prior to the amendment to Section 16 of the Specific Relief Act , in the year 2018 a person who seeks for specific performance has to plead and prove the ready and willingness to perform the contract. In instant case, the plaintiff had not pleaded that within the period of three years, she expressed her ready and willingness. 53. 52. Prior to the amendment to Section 16 of the Specific Relief Act , in the year 2018 a person who seeks for specific performance has to plead and prove the ready and willingness to perform the contract. In instant case, the plaintiff had not pleaded that within the period of three years, she expressed her ready and willingness. 53. The Learned Counsel appearing for the appellant in A.S.No.479 of 2023, rely upon the following judgments:- (i) G. Rosaiah and C. Balarami Reddy and another reported in AIR 1989 AP 179 (ii) Smt.Chand Rani (dead) by LRs v. Smt.Kamal Rani (dead) reported in 1993 (1) SCC 519 (iii) Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others reported in AIR 1996 SC 2814 (iv) The Kancheepuram Kamakshi Amman Silk Handloom Weavers' Co-operative Production and Sale Society Limited v. Yamuna Bai and other, order dated 06.01.1993. 54. The Learned Counsel appearing for the appellant in A.S.No.421 of 2024, rely upon the following judgments:- (i) R.Kandasamy (since dead) & others v. T.R.K.Sarawathy and another reported in CDJ 2024 SC 997 (ii) J.Vincent v. S.Srinivasan reported in CDJ 2018 MHC 4082 (iii) Chinnasamy and others v. Dhanasekaran reported in 2022 SCC OnLine Mad 1703 55. The Learned Counsel for the 1 st respondent rely upon the following judgments: (i) Gomathinayagam Pillai and others v. Palaniswami Nadar reported in AIR 1967 SC 868 (ii) Smt.Indira Kaur and others v. Sheo Lal Kapoor reported in (1998) 2 SCC 488 (iii) S.V.R.Mudaliar (dead) by LRs and others v. Rajabu F.Buhari (Mrs) (dead) by LRs and others reported in (1995) 4 SCC 15 (iv) Swarnam Ramachandran (Smt) and another v. Aravacode Chakungal Jayapalan reported in (2004) 8 SCC 689 (v) G.Jayashree and others v. Bhagwandas S.Patel and others reported in (2009) 3 SCC 141 (vi) Ahmmadsahab Abdul Mulla (deceased by LRs) v. Bibijan and Others reported in AIR 2009 SC 2193 (vii) J.P.Builders and another v. A.Ramadas Rao and another reported in (2011) 1 SCC 429 (viii) R.Lakshmikantham v. Devaraj reported in (2019) 8 SCC 62 (ix) Iqbal Basith and others v. N.Subbalakshmi and others reported in (2021) 2 SCC 718 (x) Basavaraj v. Padmavathi and another reported in (2023) 4 SCC 239 (xi) A.Valliammai v. K.P.Murali and others reported in 2023 LiveLaw (SC) 777 56. The judgments cited by the Learned Counsels on either side provide insight about the Law of Specific Performance and the Law of Limitation and the rights of a buyer who has entered into contract with a person who has defective title. 57. On reading of the provisions and the judicial pronouncements on his aspects, this Court finds that the plaintiff/V.Chandra had entered into an agreement for sale of immovable property with Appellant/Kasturi Bai and her father, Ramakrishna Reddiar on 19.01.1994. The vendors who had imperfect title had agreed to sell the property for a sum of Rs.10,50,000/- and received Rs.2,00,000/- as advance. Subsequently, the plaintiff had made a further advance of Rs.1,00,000/-, which according to the plaint was paid on 31.12.1996. This payment was recorded by way of an endorsement on the back of the agreement marked as Ex.A5. A reading of the endorsement goes to show that, on receipt of Rs.1,00,000/-, the time for performance of the contract was extended upto 31.12.1996. 58. It is to be noted that the original agreement dated 19.01.1994 had specified only six months for completion of contract. Two conditions were cast on the vendors before going for registration. (i) To get income tax clearance, and (ii) To clear the encroachment in the pathway. 59. It is also pertinent to note that, on the date of agreement i.e., 19.01.1994, three crucial original documents pertaining to the property been handed over to the plaintiff. As per the original terms of agreement as found in Ex.A5, the contract ought to have been completed within six months from the date of agreement. However, there is no material placed before this Court to show the plaintiff made any attempt for getting the sale deed registered or the defendants have come forward to execute the sale deed on receipt of balance sale consideration. The endorsement on Ex.A5 which is subsequent to the original agreement dated 19.01.1994, does not specify about the date on which Rs.1,00,000/- tendered or received. It only speaks about extension of time upto 31.12.1996. The plaintiff has not placed any document to show that before 31.12.1996, there was attempt on her part to tender the balance consideration and get the sale deed registered or she demanded the income tax clearance certificate from the vendors. It only speaks about extension of time upto 31.12.1996. The plaintiff has not placed any document to show that before 31.12.1996, there was attempt on her part to tender the balance consideration and get the sale deed registered or she demanded the income tax clearance certificate from the vendors. She had not placed evidence to indicate that she was interested in performing her part of contract and get the sale deed registered in her favour till the filing of suit nearly 7 years after the date of agreement. 60. According to the plaint, she came to know about the litigation when she was enquired by the police on the complaint given by the defendants during the month of February 2011. The conspicuous silent on the part of the plaintiff for not seeking redressal through Court or for not making any attempt for enforcement of this Contract prior to that would clearly show that she had no intention to perform her part of contract. In the plaint, there is no averment to the effect that she was ready and willing to perform her contract within the time prescribed in the agreement dated 19.01.1994 or within the extended period as found in the endorsement. 61. It is interesting to note that the endorsement without date extending the time to perform the contract upto 31.12.1996, is nearly about one month short of three years from the original date of contract. The plaintiff, who agreed to buy the property for Rs.10,50,000/- had advanced a sum of Rs.2,00,000/- had subsequently entered into an agreement with the 4 th defendant to sell the property for Rs.14,00,000/- which she is proposed to purchase from the defendants 1 & 2 and agreed to complete the sale by 31.12.1996. Based on the agreement dated 27.06.1996, the suit filed with a prayer stating that the plaintiff had nominated the 4 th defendant and the right to purchase has been assigned to the 4 th defendant. Therefore, a decree for specific performance to be passed enforcing the agreement dated 19.01.1994 in favour of the 4 th defendant who holds an agreement with the plaintiff vide document dated 27.06.1996. 62. Therefore, a decree for specific performance to be passed enforcing the agreement dated 19.01.1994 in favour of the 4 th defendant who holds an agreement with the plaintiff vide document dated 27.06.1996. 62. While the agreement of the plaintiff with the defendants 1 & 2 shows the sale consideration of Rs.10,50,000/-, the suit filed to enforce the said agreement but to alienate the property to 4 th defendant who hold a separate agreement with the plaintiff for sale consideration of Rs.14,00,000/-. The deceitful creation of documents by the plaintiff, in collusion with the 4 th defendant was done while suppressing the fact that they were aware of the final decree passed in the partition suit in favour of the 3 rd defendant and failed to seek the relief within the period permissible under law. The prayer in the suit has been couched to enforce an enforceable agreement. The prayer sought and the relief granted clearly indicate that the trial Court has miserable failed to apply the law and facts properly. 63. Hence, the Appeal Suits deserve to be allowed with costs. Accordingly, the judgment and decree passed by the trial Court dated 10.04.2023 set aside. The Appeal Suits are allowed with costs payable to the appellants. Consequently, connected Miscellaneous Petitions are closed. 64. This Court also note that though the property lay outside the jurisdiction of the original side of Madras High Court, the suit has been filed in the High Court, after obtaining leave. There is difference in Court Fees paid and to be paid. Therefore, the plaintiff, who is 1 st defendant in the both appeals, is liable to pay the difference in Court fees, if not already paid. The Registry is directed to collect the difference in Court fees from the plaintiff/1 st respondent.