Francis William Maclean, C.J.
1. This appeal raises a short point of law, and the point of law is, whether, having regard to Sub-Section (2) of Section 55 of the Transfer of Property Act, a vendor of immoveable property must be, in the absence of any contract to the contrary, taken to covenant for title. The facts in this case lie within a very narrow compass. The plaintiff bought a small piece of land of the defendant in the year 1295 B.S. (1888) and the consideration money was thirty rupees. A conveyance was duly executed and registered. It appears that subsequently, after the conveyance to the plaintiff had been executed and registered, a question arose as to the title of the defendant, and certain proceedings were taken in which it was virtually decided that the defendants had no title. I may here remark that, in his defence in the present suit, the defendant does not allege that he has a title to the property in question.
2. Under these circumstances the plaintiff sues the defendant, and asks, amongst other things, for the recovery of his purchase money and interest.
3. No doubt the plaintiff based his case in a great measure, if not entirely, upon allegations of fraud, which view has not been adopted by either of the Judges in the Courts below. But although he has so based his case, to my mind he is entitled to urge before us that, even if he cannot sustain a case of fraud, as a matter of law he is entitled to succeed upon the ground that there was a covenant for title on the part of the vendor. The learned District Judge has decided that in this case 'the doctrine of caveat emptor applies, and that therefore the plaintiff is not entitled to succeed.' But it does not appear that the section of the Transfer of Property Act to which I have referred was called to the learned District Judge's attention. In my opinion, and having regard to that section, there was a covenant on the part of the vendor that the interest which he professed to transfer to the plaintiff subsisted, and that he had power to transfer the same. I have two or three times invited the learned Vakil to say what his answer was to that section, but my invitation was not accepted. This section is to some extent analogous to Section 7 of the English Conveyance Act of 1881, and in my opinion, in the absence of any contract to the contrary, which is not suggested in the present case, Sub-Section 2 of Section 55 of the Transfer of Property Act must be taken as incorporated into the present contract between the plaintiff and the defendant, which in effect is tantamount to a covenant for title on the latter's part. I do not appreciate what that section can mean unless it means what I have indicated above. I think, therefore, that quite apart from the question of fraud, there was a covenant for title in this case on the part of the vendor, and that, in that respect, the learned District Judge has miscarried. The appeal must therefore succeed.
4. We think that the proper order to make as to costs is this: Inasmuch as the appellant launched and argued his case on the question of fraud in the Courts below he will get no costs (except the institution fees) in those Courts, but he must have his costs of this appeal.
5. I am of the same opinion. The question that arises in this appeal is whether the effect of Sub-Section 2 of Section 55 of the Transfer of Property Act is to imply a covenant for title in the absence of any contract to the contrary. I think that the question ought to be answered in the affirmative and in favour of the appellant who was the plaintiff in the Court below, and who brought this suit to recover compensation owing to the title of his vendor, defendant No. 1, having been found to be wanting in reference to the property conveyed to him.
6. The only grounds upon which the learned Vakil for the respondent sought to meet the appellant's contention were, first, that the suit was based upon fraud, as to which the Courts below have found against the plaintiff; and, secondly, that having regard to the fact found by the first Court that the plaintiff knew, or was expected to know, all about the property conveyed to him, he is not entitled to succeed in a suit like this.
7. As to the first answer, though no doubt the plaint makes several allegations imputing fraud to the defendant No. 1, still the main fact now relied upon by the learned Vakil for the appellant is also alleged, viz., that it was found in a suit brought by the plaintiff against one Janadolla, a suit to which the present defendant No. 1 was also made a party, that the present defendant No. 1 had no title to the property in dispute. Having regard to that fact, and having regard to the absence of any allegation by the defendant No. 1 that he had a title to the property, we do not think that the first answer can avail the respondent.
8. As to the second answer, the only way in which it could possibly have availed the defendant was by showing that there were circumstances in the case from which a contract to the contrary might have been implied---a contract, namely, that the plaintiff took a conveyance with all defects in the vendor's title. We do not think that there has been any finding to that effect, and the second answer must in my opinion therefore also fail.
9. There can be no doubt as to the meaning of Sub-Section 2, Section 55 of the Transfer of Property Act. Its effect is clearly to imply a covenant for title somewhat in the same way as such covenants are implied according to the provisions of Section 7 of the English Conveyance Act of 1881, 44 and 45 Victoria, Chapter 41.