Chandrasekhara Aiyar, J.
1. The plaintiffs are the appellants and the question is whether Section 43 of the Transfer of Property Act applies to the facts of this case and can be invoked by the plaintiffs in their favour so as to operate on the title which the first defendant acquired to the property subsequent to the safe in favour of the plaintiffs. Both he Courts have found that the section has no application because the plaintiffs had notice of the charge decree under which the property was brought to sale by the lady who had a right to maintenance. She purchased it in execution of her own decree and subsequently sold it to the first defendant, who is now resisting the title of the plaintiffs who claim under a sale deed executed by the fifth defendant and the first defendant on 21st October, 1929, when the first defendant was a minor represented by his father, the fifth defendant.
2. It is argued for the appellants that, in a case where there is an express covenant that there were no prior alienations, mere knowledge of any subsisting encumbrance on the part of the vendee is not sufficient to prevent the applicability of Section 43 where the vendor subsequently acquires a full interest in the property and that there is no duty on the part of the vendee to make any enquiries about the title which the vendor professes to transfer, as there is, for instance, in a case of a transfer by an ostensible owner governed by Section 41. In this connection, the famous passage of Lord Halsbury in Bloomenthal v. Ford (1897) A.C. 156.
I told you so-and-so; but you ought not to have believed me. You were too great a fool. I had a right to mislead you because you were too great a fool.' was cited and relied upon.
3. It may be conceded that there is no duty cast on the vendee to make any enquiries in a case to which Section 43 applies and that mere notice of encumbrances on the part of the vendee would not make the transaction of sale any the less a sale free from encumbrances, when the document says so. But, before Section 43 can apply it is necessary that there should be a misrepresentation, fraudulent or erroneous, about the right to transfer the property. If on the facts there was no such misrepresentation, the very foundation for the application of the section is gone. Both the lower Courts have found on the evidence given by the fifth defendant as D.W. 7 that he showed the sale deed, Ex. XII to the plaintiffs and told them about the maintenance decree of the second defendant. There is no evidence of the plaintiffs to the contrary; in fact they did not go into the witness box. They examined only P.W. 1, who was their agent with a power of attorney; he no doubt states that the plaintiffs were not aware of the decree at the time of Ex. A and that it was not mentioned in the encumbrance certificate, which was produced by the fifth defendant. But this evidence was not accepted. It is thus not a case of constructive notice of an encumbrance sought to be fastened on the strength of a reference in the schedule to the sale deed, Ex. A, to the prior sale deed, Ex. XII. On the other hand, it is a case where it has been found by the Courts below that the plaintiffs were expressly told about the prior maintenance decree. What the sale deed professes to transfer is not the only subject to be considered for applying Section 43. If at the time of its coming into existence facts relevant to or having a bearing on the sale were mentioned by the vendor to the vendee, and evidence about the same is not ruled out under Section 92 of the Evidence Act, they must be taken into account in considering what the vendor professed to transfer; and to that extent it cannot be said that there was any misrepresentation, fraudulent or erroneous. Consequently Section 43 does not apply.
4. Plaintiffs asked to be allowed to redeem the charge and their suit contained a prayer for this relief, but it appears from paragraph 6 of the judgment of the Subordinate Judge that this alternative relief was not pressed. It cannot be allowed to be raised now, whatever might be the view to be taken on its sustainability.
5. The second appeal is dismissed with costs.