JUDGMENT 1. Defendants Nos. 1 and 2 executed a mortgage in favour of the Defendant No. 3. Years after the execution of the instrument, the Defendant No. 3 purported to assign over the interest created by the deed to the Plaintiffs Nos. 1 and 2. The Plaintiffs have instituted the present suit for recovery of the money covered by the mortgage and for sale of the immoveable property covered by it. The defence was that the transaction between the Defendant No. 3 and the Plaintiffs was colourable and intended to cause unnecessary harm to the Defendants Nos. 1 and 2. 2. The lower Appellate Court has found that no consideration passed on the alleged transfer by the Defendant No. 3 to the Plaintiffs, that there was really no intention to transfer and that the Plaintiffs Nos. 1 and 2 got a colourable document in order to do unnecessary harm to the Defendants Nos. 1 and 2. 3. There were various issues raised in the case all of which were not touched by the lower Appellate Court. 4. The Plaintiffs have appealed from the decree of the lower Appellate Court and it has been contended before us on their behalf that on the findings of fact arrived at by the Court, the suit should not have been dismissed and reliance has been placed on the decision of the Judicial Committee of the Pivy Council in the case of Lal Achal Ram v. Raja Kazim Husain 9 C.W.N. 477: s. c. L.R. 32 I. A. 113; ILR 27 All. 271 (1905). 5. That the finding of fact arrived at by the lower Appellate Court amounts to a finding that the Plaintiffs were benamdars of the Defendant No. 3 cannot be denied. One of the principal elements for determination of the question whether a conveyance is benami or not is 'did consideration pass? The finding is that no consideration passed But mere non-passing of consideration is not sufficient to show that a transaction is benami. There might be a promise to pay not disclosed in the instrument itself. Sec. 54 of the Transfer of Property Act would lead us to conclude that there may be a transfer without present consideration passing. The present case is, therefore, distinguishable from a case in which there was an intention to transfer, though no consideration passed. There might be a promise to pay not disclosed in the instrument itself. Sec. 54 of the Transfer of Property Act would lead us to conclude that there may be a transfer without present consideration passing. The present case is, therefore, distinguishable from a case in which there was an intention to transfer, though no consideration passed. Here the deed expressly stated that consideration did pass and that was a false allegation, as found by the lower Appellate Court. It was also been found that the intention of the vendees, the Plaintiffs, was not that they should recover any money but that they should put the Defendants Nos. 1 and 2 to difficulty. It is not in so many words found that the transaction was benami; but the whole tenor of the judgment would lead to the conclusion that the Court intended to find that there was no bond fide transfer to the Plaintiffs. That being so, the question really is whether a benamdar can sue for recovery of a mortgage debt. The decisions of this Court are practically uniform, though some of the (1) 9 C.W.N. 477: s. c. L. R. 32 IndAp 113; ILR 27 All. 271 (1905) other High Courts in India have differed from this Court. That a benamdar cannot sue for recovery of immoveable property is, so far as Bengal is concerned, laid down by the Judicial Committee in the case of Gopee Krista Gosain v. Ganga Persad Gosain 6 M.I.A. 53 (1859), (the remarks of the Judicial Committee will be found at p. 73 of the report). This decision has been followed consistently in this Court and we may refer to the oases of Hari Gobind Adhikari v. Akhoy Kumar Mosumdar ILR 16 Cal. 364 (1889), and Mohendra Nath v. Kali Proshad ILR 30 Cal. 265 (1902) 6. In Sari Gobind v. Akhoy Kumar ILR 16 Cal. 364 (1889), reliance was placed on the statement made by the vendor in the course of the Buit admitting the execution of the document and receipt of consideration; but the learned Judge declined to place any reliance on such statement as the admission was made subsequent to the institution of the suit and reliance was properly placed on the decision of the Judicial Committee in the case of Amrita Lal v. Rajani Kant 15 B.L.R. 10; 2 I.A. 113 (1875). In Mohendra Nath v. Kali Proshad ILR 30 Cal. 265 (1902), the Court observed that a suit by a benamdar is liable to dismissal on the ground that no specific performance of the contract could be enforced against the vendor and reliance was placed on sec. 20, cl.(b) of the Specific Relief Act. All the earlier decisions were collected in those two reports and it is not necessary for us to refer to any other case. In Lal Achal Ram v. Kazim Husain 9 C.W.N. 477: s. c. L.R. 32 I. A. 113; ILR 27 All. 271 (1905), the transaction was allowed to stand as between the Plaintiff and the Defendant inasmuch as, though no consideration passed, the terms were reasonable in themselves and the transaction was neither champertous nor contrary to public policy. That was the distinguishing element in the conveyance in favour of the Plaintiff in the case before the Judicial Committee. In the present case, the contrary facts have been found and we do not see how it can be held that a transaction admittedly without consideration was valid, notwithstanding the facts found as to the intention of the vendor and the effect which it would have as regards the rights of the parties. We, therefore, see no reason to differ from the judgment of the lower Appellate Court and we dismiss this appeal with costs.