Mookerjee, J.:— (After stating facts his Lordship observed:) On behalf of the plaintiff, it has been contended in this Court that he has an enforcible title, notwithstanding the fact that there was no consideration for his purchase, and in support of this view reliance has been placed upon the cases of Achal Ram v. Kazim Husain Khan . [1905] 27 All. 271 and Baij Nath Singh v. Paltu . [1908] 30 A. 125. It has been argued in substance that in a case of sale of immovable property, non-payment of purchase-money does not prevent the transfer of ownership from the vendor to the purchaser and that the purchaser, notwithstanding such non-payment, can maintain a suit for possession of the property. This principle, in our opinion, has no application to the present case, because it has been found by the Courts below that the pre-existing debt mentioned as consideration for the transfer to the plaintiff had no existence, and the transfer was in essence fictitious. In these circumstances the appellant has been constrained to argue that the transfer might have been intended to take effect by way of gift. But there is no room for such a hypothesis in this case, and consequently the decision of the Judicial Committee in Ismail Mussajee Mookerdum v. Hafiz Boo . [1906] 33 Cal. 773, to which reference has been made, has no application. In that case the transfer was deemed operative as a gift, and the relationship between the parties, namely, that of mother and daughter showed that the theory of a gift might be supported on the ground of natural affection.
2. It is clear however that in the case before us there was no gift, there was an ostensible sale for no consideration and the transfer was in essence never intended to take effect. In a case of this description, the test to be applied is, was the transaction intended to transfer title? If it was intended to be operative, the mere fact that the payment of consideration was postponed would not affect the validity of the transaction; on the other hand, if the operation of the transaction was intended to be postponed till the consideration money had been paid, the transfer would become complete and operative only upon such payment. The essence of the matter is consequently the intention of the parties, and, in the present case, the Courts below have held, on the facts disclosed, that there was no intention on the part of defendant 3 to transfer the property to the plaintiff.
3. The result is that the decree of the Judicial Commissioner is affirmed and this appeal dismissed with costs.
V.B/R.K
4. Appeal dismissed.