JUDGMENT
1. This appeal arises out of a suit brought under the following circumstances. Defendants Nos. 2 and 3 had sold some property to Moti Ram, defendant No. I. As the result of that transaction Moti Ram owed the defendants Nos. 2 and 3 the sum of Rs. 800. Defendants Nos. 2 and 3 sold their rights to the plaintiff by a deed, dated the 19th of May 1914. The consideration as set out in the sale-deed was as follows: Rs. 188-8-0 already due by the ladies to the plaintiff, Rs. 150 paid before the Registrar and a covenant to pay the balance of the purchase money (Rs. 750) by monthly instalments of Rs. 20. The plaintiff instituted the present suit and he made parties thereto the original debtor, Moti Ram and the two ladies. Moti Ram pleaded that he had already paid the debt. The ladies pleaded that they had not got the consideration which the plaintiff agreed to give them. It is true that they alleged in the written statement that the deed was "fictitious," but it is equally clear from their evidence and from the details of their pleas that they never intended to allege that the deed was never intended to be acted upon or that they did not intend to transfer the right to sue Moti Ram to the plaintiff. On the contrary it is quite clear from the evidence of the ladies themselves that they intended that the right to sue should pass to the plaintiff. Their real allegation was that the plaintiff had not fulfilled his bargain with them. The Courts below have found that Moti Ram never paid the ladies. There was also a finding by the Courts that the consideration for the assignment had not been paid by the plaintiff to the ladies. This finding was arrived at in this way. The Court found that the Rs. 188-8-0 was never due. If this finding be correct, it would rather go to show that the price which the plaintiff is supposed to have given to the ladies was intentionally inflated by both sides. This would not be at all an unreasonable view to take, and it is supported by some remarks which the learned District Judge makes in the course of his judgment. He seems to consider that Rs. 750 would have been a very large sum for the plaintiff to pay for the right to recover Rs. 800 from Moti Ram. Rs. 150 was really paid before the Registrar but the ladies say, and their evidence was believed by the District Judge, that immediately after the payment of the Rs. 150 the plaintiff said to the ladies that he wanted that money to commence the litigation against Moti Ram. This would really mean that the Rs. 150 part of the consideration was paid but was immediately borrowed again by the plaintiff. With regard to the rest of the consideration it was not intended by the terms of the deed that it should be paid at once. But there was a covenant that the balance should be paid by monthly instalments of Rs. 20. We may at once remark that where parties enter into a bargain for the sale of property of any nature, if the real intention is that the right to the property should pass, the mere fact of non-payment of part or even the whole of the consideration will not make the deed of transfer "fictitious". The non-passing of consideration may often be very strong evidence that the deed was not intended to operate. But in the present case upon the pleas of the ladies themselves and on their evidence it is absolutely clear that the intention was that the right to sue Moti Ram for the Rs. 800 should pass to the plaintiff. The very evidence which was given with regard to the Rs. 150 shows this, because the ladies themselves say that the plaintiff told them he wanted the Rs. 150 to bring a suit. Both the Courts below have dismissed the suit against Moti Ram. Having regard to the finding that Moti Ram owed the money and that he had not repaid the money to the ladies, this decision seems to have been a very unsatisfactory one to every one concerned except to Moti Ram. The ladies, assuming that they were defrauded to some extent by the plaintiff, would get absolutely nothing. We think, upon the facts as found by the Court below, the plaintiff was clearly entitled to a decree for the full amount claimed against Moti Ram. Defendants Nos. 2 and 3 have not appealed but even in their absence, we think, we can give some effect to the finding of the Court below, namely, that they did not receive the consideration. We think that they should have a lien or charge on the amount which the plaintiff realises under the decree which we intend to pass for the sum of Rs. 600.
2. We allow the appeal, set aside the decree of both the Courts below, grant the plaintiff a decree against Moti Ram for the amount claimed including interest up to the date of the decree at the rate claimed, with further interest from the date of the decree to the date of realisation at 6 per cent. per annum on Rs. 800, the principal amount claimed, and costs. We allow costs in all Courts including in this Court fees on the higher scale. We direct that the defendants Nos. 2 and 3 shall have a lien or charge against the plaintiff for the sum of Rs. 600 on the amount realised by the plaintiff from Moti Ram, that is, when the amount is realised it will be allocated in the following way, namely, in the first place in payment of the plaintiff's costs and in the next place in payment to the defendants Nos. 2 and 3 to the extent of Rs. 600 and the balance to the plaintiff.