Chief Justice.-This is an appeal by the first defendant in O.S. No. 50 of 1944 in the Court of the Subordinate Judge of Anantapur against a decree granting specific performance of an agreement to sell executed by the appellant and the second respondent (second defendant) on 3rd July, 1944. There is no dispute as to the execution of the agreement. The two defences in the lower court were (1) that as there were four sons of the first defendant, he could not convey anything more than his share and (2) that the breach was on the part of the plaintiff, as time was of the essence of the contract. The learned Subordinate Judge held that as the agreement did not make any reference to the sons of the first defendant or the binding nature of the alienation such pleas need not be gone into in this suit. He also held that time was not of the essence of the contract and the breach was by the defendant. He, therefore, held that the plaintiff was entitled to specific performance.

The learned counsel for the appellant has pressed before us only one of the points, and that is that the suit for specific performance must fail so far as the first defendant at least is concerned, because he coul