A real owner who allows another person to hold himself out as the ostensible owner of immovable property and transfers the same for consideration cannot avoid the transfer on the ground that the transferor was not authorized to make it, provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

JUDGMENT :- The plaintiff files this appeal against the reversing judgment of the Additional Subordinate Judge of Puri dismissing the suit for declaration of the title and confirmation of possession with regard to 1.64 acres of land situated in Apila.

2. The plaintiffs case is that in order the screen the properties from his creditors he executed a nominal sale deed (Ext. 1/a) in favour of his sisters son (defendant No. 2) who resides in another village; that he continued to be in possession of the properties till the date of filing of the suit; that the sale deed executed by him was in his custody; that he was paying the rent due on the lands and that defendant No. 1 took a sale deed (Ext. B/1) of these properties from defendant No. 2 and was threatening to dispossess him. Hence he filed the suit for declaration of his title to the properties and for confirmation of possession.

3. Defendant No. 2 was ex parte in the case. He was also not examined by any party. Defendant No. 1 contended that the sale deed in his favour was executed for a sum of Rs. 1000/- which was paid to the vendor; that he was in possession of the properties; and that the sale deed in favour of defendant No. 2 executed by the plaintiff was a real and bona fide transaction, it having been executed for the purpose of discharging the previous debts of the plaintiff.

4. The sale deed in favour of defendant No. 2 (Ext. 1/a) was executed by the plaintiff for a sum of Rs. 300/- on 2-12-41. The sale deed in favour of defendant No. 1 (Ext. B/1) was executed by defendant No. 2 for a sum of Rs. 1000/- on 29-4-50. Subsequent to the execution of this sale deed and within a month from that date, defendant No. 2 executed a deed of cancellation (Ext. 2) of the sale deed in favour of defendant No. 1 reciting in the same that in the sale deed (Ext. B/1) in favour of defendant No. 1 he intended to sell some other properties and not the properties actually conveyed under the said sale deed.

5. The learned Munsif decreed the suit mainly on the ground of the plaintiff having the custody of the sale deed executed by him and on the ground that the plaintiff was in possession of the properties even after the execution of the sale deed till the date of the suit. He held that the motive alleged for the transaction of 1941 was not improbable. He also held that the sale deed was not for consideration.

The learned Additional Subordinate Judge, after a very careful discussion of the evidence in the case, held that there was no motive and no reason to execute a benami sale deed in favour of defendant No. 2 and the motive alleged was not established; that the sale deed (Ext. 1/a) on the strength of the evidence of D. W. 3 was for consideration and that the trial Court erroneously placed the onus of proving the passing of consideration on defendant No. 1.

With regard to possession of the suit properties, he observed that the rent receipts filed by the plaintiff did not clearly show that they were paid in respect of the suit lands but were paid in respect of a land 1.83 acres in extent whereas the suit lands are 1.64 acres; that the custody of the document was with the plaintiff; and that the plaintiff was in actual physical possession of the lands.

6. Mr. B. Mohapatra, the learned counsel for the appellant strenuously contended that the findings of the appellate Court that the plaintiff was in custody of the sale deed impugned and that he was in possession of the properties are enough to come to a conclusion that the sale deed executed by the plaintiff in favour of defendant No. 2 was a benami transaction; and that the learned Additional Subordinate Judge erred in placing the burden of proof upon the plaintiff.

The circumstances present in this case, namely, that defendant No. 2 is the sisters son of the plaintiff; that there was a mortgage in favour of Nilakantha, brother of defendant No. 2 (Ext. 4) which according to defendant No. 1, was discharged by the consideration amount received under Ext.