JUDGMENT : Satyeshwar Roy, J. Title Suit Nos, 113 of 1972 and 161 or 1975 were heard analogous and were disposed of by one JUDGMENT :. Both the suits were decreed. The appellant who was defendant no. 2 in both the suits filed two appeals, namely Title appeal No. 31 of 1979 and Title Appeal No. 33, of 1979. Both the appeals were heard together and were dismissed by a common JUDGMENT :. These appeals arise out of the JUDGMENT : and decree passed in those two appeals. 2. The admitted facts are that the plot in question belonged to one Baidyanath Gorai. According to the defendant no.2/appellant, on 27.12.1965, Baidyanath Gorai Bold to the appellant his wife the whole of the plot in question, besides other properties. According to the plaints of both the suits on 17.4.1972, Paidyanath transferred paras of the plot in question, that is plot no. 926 by two different sale deeds each of the respondents. According to the appellant, in view of the fact that on 22.12.1965 Baidyanath Gorai had already transferred the property by a registered deed to her, he had no interest left in the property which he could have transferred to the respondent on 17.4.1972. 3. It appears that Baidyanath on 18.5.1972 executed two instruments canceling the two sale deeds executed by him on 17.4.1972 on the ground that no consideration had been paid to him. Both the parties have admitted and rightly so that if the respondents had acquired valid title by deeds dated 17.4.1972, the deeds of 18.5.1972 are of no consequence. 4. Baidyanath Gorain was defendant no. 1 in both the suits. He, however, died after the trial. Therefore his name was expurged. 5. By ORDER :dated 18.7.1981, the following substantial question of law were formulated in 8.A.84 of 1981 (R) :- 1. Whether in absence of any pleading by the plaintiffs -respondents 1 and 2, the courts below could have given a finding that the sale deed executed. by Baidyanath Gorai on 22.12.1965 in favour of the appellant was sham and inoperative ? 2. Whether in absence of any pleading by the plaintiffs -respondents 1 and 2, the courts below could have given a finding that the sale deed executed. by Baidyanath Gorai on 22.12.1965 in favour of the appellant was sham and inoperative ? 2. If it is held that although there was no such pleading, as stated in point no.1, but the parties went to trial knowing full well the facts in issue, whether the finding of the courts below that the sale deed dated 22.12.1965 executed by Baidyanath Gorai in favour of the appellant is sham and inoperative, is vitiated by mis-application of the elements of the benami transaction to a case where the transaction is sham and inoperative ? In S.A. 85 of 1981(R), the following substantial question of law wag formulated:- Whether the findings of both the courts below that the sale deed dated 22.12.1965 executed by Baidyanath Gorai in favour of the appellant is sham and inoperative is vitiated by mis-application of the elements of benami transaction to a case where the transaction is sham and inoperative ? It will be noticed that one issue, was common in both. 6. Mr. N. K. Prasad, learned counsel appearing for the appellant, has submitted that the courts below had lost sight of the distinction between benami transaction and sham transaction and for that reason the circumstances which are required to be investigated in the case of benami transaction were applied for determining the suits; The findings of both the court below, therefore, are vitiated and cannot be supported in law. In support of this submission, Mr. N. K. Prasad placed in detail the JUDGMENT : of the court below particularly paragraph 17 were the circumstances noticed were enumerated. He particularly emphasised that payment of non-payment of consideration with regard to Ext. 3, i.e. sale deed dated 27.12.1965, was of no consequence because it was not a case of benami transaction. According to Mr. Debi Prasad, learned counsel for the respondent, that was an important factor for finding out whether transaction between Baidyanath and his wife was a sham transaction or a genuine one. 7. 3, i.e. sale deed dated 27.12.1965, was of no consequence because it was not a case of benami transaction. According to Mr. Debi Prasad, learned counsel for the respondent, that was an important factor for finding out whether transaction between Baidyanath and his wife was a sham transaction or a genuine one. 7. The fundamental different between a benami transaction and a sham transaction in that whereas in former where is an effective transfer resulting in yesting of title in the transferee, in the latter there is absence of this and the transferor continues to retain title passes and the only question that may arise under such transaction is who was the real transferee under the instrument. In a sham transaction it is never the intention of the transferor to transfer his title to the transferee. There cannot be a sale without a consideration. The important factor to find out whether the transaction was benami is the source of consideration, where al in a case of sham transaction, it has to be seen whether any consideration was paid and not the source of consideration the authority for this is Sree Meenakahi. Mills Ltd. V. I. T. Commissioner (A.I.R. 1957, Supreme Court, 49), be, however, comended that for the purpose of a affecting transfer of title, it is not necessary that the, consideration should be paid before or at the time of the transaction, for, under the, law, transfer may, also be effected on a promise made to pay the lame. As a legal proposition this cannot be disputed. Another legal position submitted by Mr. N. K. Prasad was that if there is nothing to show that the transferor had no intention to transfer the title, the transfer cannot be said to be sham. This legal position also cannot be disputed. 8. With regard to the fact whether consideration was paid for Ext. B, it bas been held by both the courts that no consideration was paid by the appellant to her-husband. This is a finding of fact and cannot interfered within second appeal. Mr. N. K. Prasad, however, comended that the respondents cannot be said to be strangers to the transaction under. Ext. B and, therefore, they were not entitled to challenge whether any consideration was paid. That the respondent were not strangers was argued by Mr. This is a finding of fact and cannot interfered within second appeal. Mr. N. K. Prasad, however, comended that the respondents cannot be said to be strangers to the transaction under. Ext. B and, therefore, they were not entitled to challenge whether any consideration was paid. That the respondent were not strangers was argued by Mr. N. K. Prasad on the basis of the fact that they were claiming through Baidyanath Gorai who was a party to Ext. B. The general rule is that a stranger to an, instrument which was intended to be operative between the patties thereto cannot dispute payment or non-payment of consideration. But where a transaction is challenged as sham payment of consideration can be challenged by a person, be he a party to the transaction or a stranger to it. As it was the definite case of the appellant that Ext, B was not sham it was necessary for the courts below to come to a finding whether the consideration was paid to Baidyanath. In view of the concurrent finding of both the courts that no. consideration was paid for the transfer of the property in-question to Baidyanath. Bxt. B must be held to be a sham document. Mr. N. K. Prasad, then, submitted that even if it is found that the consideration wall not paid. Ext B. cannot be held to be sham for there might have been a promise to pay the same. It is not the case of the appellant that at the time of execution or registration of the sale deed, it was agreed between the parties that the consideration would be paid at a future date. In view of the absence of any such pleading in the written statement that there was a promise to pay the consideration which was paid to Baidyanath at a subsequent the date the courts below were not required to investigate whether at a later date, the consideration promised to be paid, was actually paid. 9. Mr. N.K. Prasad contended that even if it be held that no consideration was paid to Baidyanath be or persons claiming through him were entitled to file suit for recovery of the consideration. He urged that notwithstanding payment of consideration title passes to the transferee. As a proposition of law the submission is correct. But the question in this case in whether Ext. He urged that notwithstanding payment of consideration title passes to the transferee. As a proposition of law the submission is correct. But the question in this case in whether Ext. B was intended to be operative, if not, title did not pass. 10. Mr. N.K. Prasad submitted that the respondents neither pleaded nor stated the reason for Baidyanath to create a sham document in favour of his wife. It is true that there is no pleading in the plaint as to why a sham document was brought into being it is no doubt true, as noticed above, that it must be found for holding a deed sham that the transferor had no intention to transfer the title. Intention may be gathered from the surrounding circumstances. One such circumstance was that no consideration was paid for the sale of the property under Ext. B. That certainty is an important circumstance which goes to show that Baidyanath had appellant. Further, although Exh.bit B is of 27.12.1965 the appellant did not take any step for mutation of her has before T.S. 113 of 1972 was filed. This itself is irrocous but in this case this is another circumstances . It is admitted case that baidyanath dealt with the property even after Ext. B. There is no evidence that at any time appellant resisted it. The totality of the circumstances shows that Baidyanath did not intend Ext. B to be operative. 11. Mr. N. K. Prasad next submitted that in Title suit No. 161 of 1975 giving rise to Second Appeal to No. 84- of 1981 (3) there is no averment in the plaint that Ext. B. was sham and in view of the same the courts below in that suit could not have held that Ext. B was sham. Mr. Devi Prasad could not contest the factual position as stated by Mr. N. K. Prasad. He however drew my attention to paragraph 12 of the written statement filed by defendants in that suit. In paragraph 12 of the written statement it was stated that defendant No. 1. B was sham. Mr. Devi Prasad could not contest the factual position as stated by Mr. N. K. Prasad. He however drew my attention to paragraph 12 of the written statement filed by defendants in that suit. In paragraph 12 of the written statement it was stated that defendant No. 1. that is Baidyanath Goral had perfect title to the suit property N. K. Prasad with regard to this statement urged that the word has been used in past tense and, therefore, what was intended to be stated in paragraph 12 was that Baidyanath bad title at one point of time, but they did not admit in the written statement that Baidyanath had title after 1965. The contention of Mr. N.K. Prasad cannot be accepted in view of the clear statement made, in paragraph 12 of the written statement. There is another they difficulty for accepting the contention of Mr. N.K. Prasad. Both the suits, as noticed above were heard together. In T.S.113of 1972 there is averment that Ext. B was sham. Specific issue was framed with regard to this. Parties went to trial knowing full well the issues involved and led evidence accordingly. Now the appellant cannot be heard that in T.S. 161 of 1975 sham nature of exhibit was not pleaded. I, therefore, hold that the finding of the courts below cannot be challenged. 12. In the result, I do not find any merit in these appeals and the same are dismissed. In the circumstances of the case, there shall, however be no ORDER :as to costs.