( 1 ) THIS Letters Patent Appeal is preferred by the defendants in a suit for specific performance. The rerpondent-plaintiff instituted the suit on the basis of an agreement of sale dated 27-10-1977 executed by the 1st defendant in favour of the plaintiff. The agreement of sale pertains to a shop-cum-house situated at Old Gunj, Mahboobnagar. The agreement recites that though the property stands in the name of the 1st defendant s mother (defendant No. 2), it had fallen to his share in the partition, and that be has agreed to sell the same to the plaintiff for a consideration of rs. 30,000/ -. On the date of agreement the 1st defendant received a sum of Rs. 10,000/ -. He agreed to receive the balance of Rs. 20,000/- on the date of registration of the sale-deed, within one month. The plaintiff was a tenant in the said shop-cum-house since several years prior to the said agreement. She instituted the suit with the allegations that the 1st defendant refused to receive the balance consideration and execute the sale-deed as per the agreement, deed and that when a notice was given calling upon him to execute the sale-deed, he put forward a false plea that the said property is a joint family property of himself, his brothers, and his mother, and inasmuch as the said property had fallen to the share of his brothers, he cannot execute the sale-deed. The plaintiff s case was that the theory of partition set up by the 1st defendant is false, and that he is bound to execute the sale-deed.

( 2 ) THE 1st defendant filed a written statement stating that the saidagreement was executed by him under a be lief that the property in question would fall to his share in the partition, and that his mother, the 2nd defendant, would also agree to execute a sale-deed. According to him, there was an understanding between him and the plaintiff s husband at the time of agreement of sale that, in case the 2nd defendant does not give her consent, cr if the property does not fall to the 1st defendant s share, the earnest money will be returned.

( 3 ) DEFENDANTS 2 to 4 filed a separate writtenstatement contendingthat the property in question is the exclusive property of the 2nd defendant, and that the 1st defendant had no right or authority to agree to sell the same.

( 4 ) ON behalf of the plaintiff two witnesses were examined, includingthe plaintiff (P. W. . 1 ). P: W. 2 is an attestor to the agreement of sale. The plaintiff also adduced documentary evidence, Exs. A-1 to A-5. On behalf of the defendants no evidence whatsoever was let in, either oral or documentry

( 5 ) ON a consideration of the material placed before him, the learned trial Judge decreed the suit holding (i) that the agreement of sale is true and binding upon all the defendants 1 to 4; (ii) that the 1st defendant was competent to sell the property in question, inasmuch as it had fallen to his share in partition; (iii) that the partition set up by the defendants (said to have taken place after the agreement of sale), is not true; and (iv) that the plaintiff is entitled to specific performance of the agreement. On appeal, the learned single Judge has affirmed the findings of the trial Judge and dismissed the appeal.

( 6 ) IN this Letters Patent Appeal, it is contended by Sri M. S. K. Sastry, learned counsel for the appellants, that the plaintiff has failed to adduce any evidence in proof of her contention that there was a partition between defendants 1 to 4, and that the suit property had fallen to the share of the 1st defendant He submitted that the partition evidenced by registered deed (effected subsequent to the suit agreement is true and binding on the defendants, and that even if the said partition deed is disbelieved for any reason, the property would be joint family property of all the defendants 1 to 4. He submitted that in such a situation, the present suit must be dismissed, leaving the plaintiff to work out her rights in accordance with law. We. are not prepared to agre