Section 43 of the Transfer of Property Act does not apply where the true facts are known to the purchaser and there is no fraudulent or erroneous representation.

This is a defendants second appeal arising out of a judgment and decree of the First Additional Distric Judge, Varanasi dated 22-2-1973 dismissing the appeal of the defendant-appellant. For deciding the controversy involved in the present appeal, the follow ing pedigree may be noted;

Smt. Asgari (wife No. I)

Abdul Mannan

Smt. Wahidunnisa (wife No. II)

Abdul Naeem

Abdul Alim

Abdul Halim (Plff.)

Abdul Nasim Abdul Fahim Abduf Jalil

(Defendt 3) (Defendt. 2) (of unsound mind ).

The house in suit No. C-18/19, situated in Mohalla Matakund, Varanasi was purchased in the name of Smt. Wahidunnisa, the second wife of Abdul Mannan Upon her death in 1934, Abdul Mannan, her husband, filed suit No. 26 of 1953 for declaration against his three sons from his second wife that the sale-deed in favour of Smt. Wahidunnisa was a Benami. He alleged himself to be its real owner. The suit was contested by Abdul Nasim, Abdul Fahim and Abdul Jalil, who were his three sons from his second wife Smt. Wahidunnisa. They pleaded that the house belonged to their mother.

On 11-4-1956, the suit was dismissed, holding that Smt. Wahidunnisa was the real owner and the share of her husband Abdul Mannan and her three sons was equal, being 1/4th each. Abdul Mannan filed an appeal which was numbered as 282 of 1966. During the pendency of this appeal, Abdul Mannan sold the disputed house to his son Abdul Halim from his first wife. Abdul Halim is the plaintiff of the present suit. A sale-deed was executed by Abdul Mannan holding out that he was the sole and exclusive owner of the aforesaid house. Abdul Mannan also died on 6-11-1957, First Appeal No. 282 of 1916 was finally dismissed.

Subsequently on 24-8-1959, Abdul Nasim and Abdul Fahim executed a sale-deed on their behalf and as guardian of Abdul Jalil (the latter being of unsound mind) in favour of Anwar Ali, defendant No. 1. Abdul Jalil died some time before 1967. As already stated above, the First Appeal No. 282 of 1956 was dismissed.

Upon the death of their brother Abdul Jalil, Abdul Nasim and Abdul Fahim claimed his share to the extent of l/8th each, i. e. two Annas each. Abdul Jalil had himself 1/4th share in the disputed house having inherited the same from his mother Smt. Whidunnisa on 26-12-1967. Abdul Fahim sold his two annas share in favour of the plaintiff Abdul Halim. Thus, according to Abdul Halim, the plaintiff, his share became six annas (four Annas obtained through the sale-deed dated 1-6-1767 executed by his father Abdul Mannan plus two annas obtained through the sale-deed dated 26-1 2-1967, executed by Abdul Fahim ).

Claiming six annas share in the disputed house, the plaintiff Abdul Halim brought the suit giving rise to the persent appeal, for partition of his share. In this suit, he imp leaded Anwar Ali defendant No. 1 and Abdul Fahim, defendant No. 2. Both these defendants filed their written statements disputing the claim of Abdul Halim.

The trial Court decreed the suit finding that the plaintiffs share in the house in suit was six-annas. Against the decree of the trial Court, the defendant No. 1 went up in appeal. In the appeal, the lower appellate Court framed the following three points :

1. That the registered sale-deed dated 1-6-1957 (Ex. 8) executed by Abdul Mannan in favour of his son Abdul Halim plaintiff was not genuine and not for consideration.

2. That the registered sale-deed dated 26-12-1567 executed by Abdul Fahim, defendant No, 2 in favour of the plaintiff Abdul Halim is also fictitious and without consideration.

3. That the provisions of Section 43 of the Transfer of Property Act are attracted in this case and the defendant No 1 Anwar Ali is entitled to its benefit.

All three points were decided against the defendant No. 1 and the appeal was dismissed.

Consequent upon the dismissal of the appeal, the defendant No. 1 filed the present second appeal.

Out of the three points mentioned in the judgment of the lower appellate Court, the learned counsel for the defendant-ap