Case at a Glance
A buyer sued for specific performance of a 2004 agreement to purchase a property in Bankura town for Rs 5,00,000, but never stepped into the witness box himself; his brother deposed as his power of attorney holder. The trial court dismissed the suit in 2012 because the plaintiff had not proved his readiness and willingness. A Division Bench of the Calcutta High Court dismissed his first appeal, holding that continuous readiness and willingness is a condition precedent under Section 16(c) of the Specific Relief Act, and that an attorney holder cannot depose to matters within the principal’s personal knowledge.
On 17 March 2004 the plaintiff entered into an agreement to buy a property measuring 1,223 sq. ft. in Ward No. 2 of Bankura Municipality from its owner (since deceased) for Rs 5,00,000, with a clause reducing the price to Rs 3,75,000 if a tenant shop on the property was not vacated. The plaintiff claimed to have paid Rs 1,00,000 at registration of the agreement; the defendants admitted receiving Rs 60,000 on different dates. An earlier suit by the plaintiff for declaration and injunction was dismissed for default, and one of the defendants obtained probate of the owner’s will.
The plaintiff then filed Title Suit No. 55 of 2007 before the Civil Judge (Senior Division), Bankura, for specific performance. At trial he did not depose; instead his brother gave evidence as PW-1 as his constituted attorney. By judgment dated 4 June 2012 the trial court dismissed the suit on the sole ground that the plaintiff had not deposed to prove his readiness and willingness. The plaintiff’s first appeal remained pending in the High Court for over fourteen years before it was heard on 16 September 2026.
The Key Question Before the Court
In a suit for specific performance, can the plaintiff prove his continuous readiness and willingness under Section 16(c) of the Specific Relief Act through the evidence of a power of attorney holder who lacks personal knowledge of the transaction?
Readiness Is Personal, and So Is the Proof
Writing for the Division Bench, Justice Atarup Banerjee framed three issues: whether Section 16(c) was attracted by the appellant’s conduct, whether a power of attorney holder is competent to give evidence under Order III Rules 1 and 2 CPC, and whether the trial court’s judgment was perverse. On the first, the Court stressed that “The continuous readiness and willingness on the part of the plaintiff is a condition precedent” to relief, and relied on R. Shama Naik v. Srinivasiah (decided 28 November 2024), which distinguishes readiness (financial capacity to pay) from willingness (the plaintiff’s conduct). The plaintiff must both aver and prove these throughout.
On the second issue, the Court applied Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. (2005) 2 SCC 217, as reiterated in Mahinder Kaur v. Sant Paul Singh (2019) 9 SCC 358 and Rajesh Kumar v. Anand Kumar (2024). An attorney holder can depose to acts done by him, but “he cannot depose for the principal for the acts done by the principal and not by him.” The Court said that the authority to act for a party does not by itself entitle the attorney holder to substitute himself as a witness, and that the testimony of an attorney holder lacking personal knowledge of the transaction cannot be substituted for the principal’s. The appellant’s reliance on Daljit Singh Sondhi v. Ranjit Kaur (2026) was distinguished, as it concerned partition and the plaintiff’s son had deposed. Since the plaintiff failed to prove continuous readiness and willingness, the appeal failed.
What the Court Actually Held
- Continuous readiness and willingness on the part of the plaintiff is a condition precedent for specific performance under Section 16(c) of the Specific Relief Act, 1963.
- A power of attorney holder cannot depose for the principal on matters within the principal’s personal knowledge, such as readiness and willingness.
- The brother’s evidence as attorney holder was insufficient to discharge the plaintiff’s burden.
- The trial court’s decree dismissing the suit was affirmed and the first appeal dismissed, with no order as to costs.
Why This Judgment Matters
- Buyers often leave litigation to relatives holding a power of attorney; this ruling shows how that can be fatal to a specific performance suit.
- It restates that readiness and willingness must be proved, not merely pleaded, and must be continuous.
- It applies settled Supreme Court law on attorney-holder evidence to a common real-estate dispute.
What Should Advocates Take Away From the Judgment?
For Property Buyers
- If you sue to enforce a sale agreement, be prepared to give evidence yourself about your ability and willingness to pay.
- Keep proof of funds and of every payment and communication with the seller.
- A relative with a power of attorney can manage the case but cannot replace your own testimony on facts only you know.
For Counsel
- Examine the plaintiff personally on readiness and willingness; rely on Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. (2005) 2 SCC 217 when the other side uses an attorney holder.
- Plead and prove both financial capacity (readiness) and conduct (willingness), per R. Shama Naik v. Srinivasiah.
- If an attorney holder must depose, confine his evidence to acts he personally did.
Key Takeaways
- Section 16(c) requires the plaintiff to prove continuous readiness and willingness.
- A power of attorney holder cannot testify about the principal’s personal knowledge or state of mind.
- Failure of the plaintiff to step into the witness box can sink a specific performance suit.
- The Calcutta High Court affirmed the dismissal of the suit; no direction on refund of money paid was made in this appeal.
Frequently Asked Questions
Can my power of attorney holder give evidence for me in a property suit?
Only about acts he personally performed. Following Janki Vashdeo Bhojwani v. IndusInd Bank Ltd., the Calcutta High Court held that an attorney holder cannot depose for the principal on matters within the principal’s personal knowledge.
What does ‘readiness and willingness’ mean?
Readiness refers to the buyer’s financial capacity to pay; willingness refers to the buyer’s conduct showing intent to complete the deal. Both must be continuous and proved.
Did the buyer get his advance back?
The judgment does not contain any direction on refund of the amounts paid; it simply affirmed the dismissal of the specific performance suit.
Conclusion
Specific performance is a discretionary relief, and courts insist that the person seeking it show, personally and consistently, that he was ready and willing to perform his side. Delegating that proof to a relative with a power of attorney, as this case shows, is a risk most buyers cannot afford.
Practical takeaway: In specific performance suits, the plaintiff must enter the witness box on readiness and willingness; attorney-holder evidence on these points will not suffice.
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