lOMoAR cPSD| 4056819

Property law project - This is an assignment prepared and

submitted by me. The title of this assignment
European Union Politics and Policy (Dr. Shakuntala Misra Rehabilitation University)

StuDocu is not sponsored or endorsed by any college or university

Downloaded by Ankit Nande (nande.ankit5@gmail.com)
 lOMoAR cPSD| 4056819

DR. SHAKUNTALA MISRA NATIONAL

REHABILITATION UNIVERISTY

LUCKNOW

AN ASSIGNMENT ON

TRANSFER BY OSTENSIBLE OWNER

(UNDER THE SUPERVISION OF MR. AMIT PATHAK)

A PROJECT ON TRANSFER BY OSTENSIBLE OWNER

SUBMITTED TO: : SUBMITTED BY

Mr. Amit Pathak Shivam Tiwari

Research Scholar, ROLL NO. 38

FACULTY OF LAW B.COM.LLB(HONS.)

DSMNRU, LUCKNOW 5TH SEMESTER.

Transfer by Ostensible Owner Page 1

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

SYNOPSIS

1. Research methodology:

The methodology used in this research project is simply based on the contents provided in the
different book and self analysis through internet sources as well meaning thereby sources of
this project is based on the method of book reading and internet.

a) Aims and Objectives Of Research:

The main aim behind the making of this project is to find out way by which a immovable
property can be transferred by an ostensible owner and in addition to this, meaning of
ostensible owner is also to be explained under this assignment.

The main objective of this project is to explain a exception to the rule which clearly says that
neon quod non-habet, i.e., no one can transfer better title he himself has because the general
principle of law of transfer of property is that no person can transfer to another a right or title
greater than he himself possesses.

b) Research Problem:

The problem of this research project is based on “Transfer by ostensible property– A Critical
Analysis ” in which it is to be discussed that how can a immovablw property can easily be
transferred by an ostensible owner.

c) Research hypothesis:

The term “transfer by ostensible owner” is defined under section 41 of Transfer of Property
Act, 1882. And it is also explained what does ostensible owner stands for along with help of
certain landmark case laws.

d) Scope and Limitation:

The scope of this assignment is that, a person having a title or right over an mmovable
property, can transfer that right or title to another with the help of provision as explained
under section 41 of TPA, 1882.

Transfer by Ostensible Owner Page 2

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

There is a limitation on this section 41 provision that if the property is transferred for
consideration in good faith without misrepresentation or fraud and transferee has taken
reasonable steps to ascertain title of transferor, then such transfer would not be void Nemo
dat quod non habet.1

e) Types of research:

The type of this assignment is Doctrinal as the project is made by book reading and taking
guidance and assistance from the internet.

INDEX

S.NO TOPIC PAGE NO.

1. Transfer by ostensible owner 4

2. Introduction 5

3. Ramkumar koondoo Vs. Maria Queen Case 5

4. Meaning of ostensible owner 6

5. Consent from the real owner 7

6. Implied Consent 8

7. Consideration 8

8. Reasonable care 9

9. Proper Enquiry, good faith and Burden of proof 10

10. Difference between ostensible owner and Benamdar 11

11. Conclusion 13

1
Chandrashekaran V. Administraive Oicer, (2012) 12 SCC 133

Transfer by Ostensible Owner Page 3

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

TRANSFER BY OSTENSIBKE OWNER [SECTION 41]:-

The general principle of law of transfer of property is that no person can transfer to another a
right or title greater than what he himself possesses. The maxim on which this principal is
based is nemo dat quod non – balet, i.e., no one can transfer better title he himself has. This
section is an exception of the rule.

Section 41 of Transfer of property Act, 1882 says that –

(1) Where with the consent (express or implied) of the persons interested in immovable
property,

(2) A person is the ostensible owner of such property, and

(3) Transfer the same for consideration,

(4) The transfer shall not be voidable on the ground that the transferor was not authorised to
make it,

(5) Provided that the transferee, after taking reasonable care to ascertain that the transferor
had power to make the transfer, has acted in good faith.

Transfer of property by an ostensible owner is a concept which was incorporated to protect

the rights of innocent third parties vis-à-vis the property owners. This paper examines the
landmark judgment of Ramcoomar Koondoo v. John and Maria McQueen, the decision
which found its way to be codified as section 41 of the Transfer of Property Act. It also
examines the various aspects and essentials that must be fulfilled for the plaintiff to avail of
the benefits of this principle. This doctrines seeks to protect the interests of innocent third
parties.2

INTRODUCTION:

The Transfer of Property Act, 1882, was passed with the purpose of making transfer of
property easier and makes it accessible to the population at large. This Act lays down certain

2 htp://www.lawctopus.com/academike/ostensible-owner-under-tpa/

Transfer by Ostensible Owner Page 4

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

general principles as to transfer of property which has to be followed. Transfer of a property

by and ostensible owner is such a concept which was incorporated to protect the rights of
innocent third parties vis-à-vis the property owners. This principle was first used in the much
celebrated case of Ramcoomar Koondoo v. John and Maria McQueen 3by the Judicial
Committee.

Ram Kumar Koondoo v. John and Maria McQueen case:-

In this case, the plaintiff who had inherited a property by way of a will came to know
that someone else had already purchased this property in her name and
subsequently sold this property to a third person, by making him believe that he had
good title over that property. The whole transaction was a ‘benami’ transaction but
was not known to anyone except the person who sold the property. The plaintiff sued
the third party for recovery of the possession of the land but the committee held that:

“ It is a principle of natural equity, which must be universally applicable, that where one man
allows another to hold himself out as the owner of an estate, and a third person purchases it
for value from the apparent owner in the belief that he is the real owner, the man who so
allows the other to hold himself our shall not be permitted to recover upon his secret title,
unless he can overthrow that of the purchaser by showing, either that he had direct notice, or
something which amounts to constructive notice, of the real title, or that there existed
circumstances which ought to have put him upon an inquiry that, if prosecuted would have
led to discovery of it.”4

It was there by held that the plaintiff cannot take back the property form the third
party and that the transfer was a legitimate transfer in the eyes of the law. This
wordings used in this case can be seen in the S. 41 of the Act which deals with
Ostensible owner.

SECTION 41 IS DEFINED AS:-

“Transfer by Ostensible Owner: Where, with the consent, express or implies, of the persons
interested in immovable property, a person is the ostensible owner of such property and
transfer the same for consideration, the transfer shall not be voidable on the grounds that the

3
(1872) 11 Beng LR 46, p 52
4
ibid

Transfer by Ostensible Owner Page 5

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

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.”5

The section lays down certain requirements to avail the benefit of this section. They are:

The primary condition is that the person who is transferring the property should be
ostensible owner.

There should be consent form the real owner, which can be implied or express form.6

The ostensible owner should get some consideration in return of the property.

Reasonable care has to be taken by the transferee about the authority of transferor to
the property and the transferee had acted in good faith.7

It goes without saying that this section is applicable only to transfer of immovable
property and not in case of movable property.

MEANING OF OSTENSIBLE OWNER:-

Ostensible owner is not the real owner but who can represent himself as the real owner to the
3rd party for such dealings8. He has acquired that right by the willful neglect or acquiesces by
the real owner of the property thereby making him an ostensible owner. A person who has
gone abroad for some years has given his property to his family relative for making use of it
for agricultural purpose and for all other purposes as he may deem fit. In this case the family
relative is the ostensible owner and if during that period he sells the property to a third party,
then the real owner after coming back cannot claim his property and say that the person was
not authorized to transfer his property. An alternative case can be when the property is in
wife’s name but husband used to take care of it and the other dealings related to the property.
If the husband thereby sells this property, the wife cannot claim her property back. Or as in
5
Section 41, Transfer of Property Act, 1882
6
Abdul Gaffer v Nawab Ali, [1949] A.I.R. 17 (Assam).

7
Chandini Prasad Ganguly v Gadadhar Singh Roy, [1949] A.I.R. 666 (Cal).

8
Kannashi Vershi v Ratnashi Nenshi, [1952] A.I.R. 85 (Kutch).

Transfer by Ostensible Owner Page 6

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

the Mohamad Shakur v Shah Jehan9, in which the real owners lived in a different village, and
had authorized a widow to use the property as she liked and afterwards she sold it. The real
owner lost the case and the transfer was a valid one.

CONSENT FROM THE REAL OWNER:-

The main purpose of this section is to protect the rights of the innocent third party who had
purchased the property, when the real owner was himself at fault by not protesting the
transfer.10 But a necessary requirement is that the real owner should have the capacity to give
the consent11 and that consent should not be obtained from any unlawful act. In the case of
minors, even if the ostensible owner claims that he has the consent of the minor, it will be
held to be no consent as minors do not have any capacity to give the required consent.12 And
it was laid down in the case of Satyanarayana Murthi vs. Pydayya13, that consent need not be
taken from the true owner and it might also be the case that the true owner had no knowledge
of the transfer.

The consent in such transactions can be express or implied.

IMPLIED CONSENT:-

Implied consent can be made out from the conduct of the real owner. It is not required that
the real owner has to give express consent or give his consent in writing.14 Therefore, where
another person is dealing with the property of the real owner, as if the property was his own,
and the real owner knows about it, then it will said to be implied consent on the part of the
real owner.15 In the case of Shamsher Chand v Bakshi Meher Chand16, it was held that if a
party is not aware of his rights or is silent about them, then in such case it cannot be said that

9
63 IC 125.
10
Lickbarrow v. Mason, (1787) 5 Term Rep 683; In this case, it was held that where court has to choose
between two innocent parties, it will protect the rights of that party who had by no fault of his own has suffered.
The pther party who had the option to stop it or because of whose negligence this has happened will not be
protected
11
Sambhu Prasad v. Mahadeo Prasad, [1933] A.I.R. 493 (All).

12
This principle was followed in many cases such as Abdulla Khan v Bundi, (1912) ILR 34 All 22; Gadigeppa
v Balangauda, [1931] 741 (ILR 55 Bom).

13
[1943] A.I.R. 459 (Mad)
14
Dr. Poonam Pradhan Saxena, Property Law (2nd, LexisNexis , Gurgaon, India 2011) 181
15
Sara Chunder v. Gopal Chunder, (1893) ILR 20 Cal 296
16
AIR 1947 Lah 147

Transfer by Ostensible Owner Page 7

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

the real owner had consented to the transfer of the property. It is required that a person who is
not aware of his rights could never have consented to that and such a transaction will not be
valid.17 It is not stated in the section that the real owner must have actually consented to the
transfer, because if that was the case, then the real owner could never have made any
objection to such transfer. It is just that the real owner is unaware of this transaction or is
negligent. Silence may amount to consent if the silence on the part of real owner leads the
third party to believe that the ostensible owner is the real owner of the property. But in the
case of Gurucharan Singh v. Punjab State Electricity Board Patiala18 , where the land in
contention was transferred to someone else and such person had perfected his right to the
property by paying the money. The new owner which is the real owner had not taken the
possession of the land and the previous owner after having waited for 12 years, sold the land
to third party. The real owner then comes forward and claim his right over the land and the
court said that the real owner was a minor at the time of transfer of land and therefore could
not take the possession of the land and therefore it would not amount to silence on the part of
the real owner as he could never have consented to the transfer. Therefore the subsequent
transfer was held to be invalid.

CONSIDERATION:-

Consideration is a must if there is a transfer by ostensible owner. He cannot give away the
property as a gift. As it has also been provided in the Indian Contract Act, 1872 that
consideration is necessary component of any contract and transfer of property by an
ostensible owner is done by way of contract only. Also it has been provided in S. 4 of the Act
that anything not expressly defined in this act shall be deduced form the general definitions
given under the Indian Contract Act, 1872.

REASONABLE CARE:-

Reasonable care can be understood as the care which a reasonable and ordinary man would
have taken.19 He has a duty to check the title of the transferor.20 Like in the case of Nageshar
17
Gulam Ahmed v Basheer Ahmed,[1960] A.I.R. 99( Mad)
18
[1989]A.I.R. 127 (P&H)
19
Kanhu Lal v Palu Sahu, [1920] 5 Pat LJ 521.

20
Chutabalakundu v. Sailen Bihari Paul, [1988] A.I.R. NOC 68 (Cal).

Transfer by Ostensible Owner Page 8

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

Prasad v. Raja Pateshri21 where there was an error in the revenue records regarding the name
of the owner. The name written was of some other person and the real owner had already
made a complaint about this error. The person whose name was in the revenue records
subsequently sold it to a third person and the third person without making proper inquiries
took the property and the real owner afterwards objects to it. The court held that the third
party has not taken reasonable care which was required of him and therefore he will not be
protected by this section. The advice of solicitor will not be enough to prove that the third
party has taken reasonable care in determining the title of the property.22 The third party is
required all the available documents which can possibly give some more information
regarding the title of the property and these documents may include police registers,
municipal registers apart from other documents.

There is also a safeguard for the real owner. In the case of Mathura v. Ambika23, where the
real owner had sold the property to another person and got it registered before the transfer by
the ostensible owner could be registered, then it was held that the transfer by the real owner
would be held valid as he has a greater title over the property than the ostensible owner and
the rights of third person who had purchased this property from the ostensible would not be
protected under this section.

PROPER ENQUIRY:-

As a person is required to make reasonable inquiries, sometimes it is difficult to make out

what will amount to proper inquiry. The courts in India have held that this being subjective, it
will depend on the facts24 and circumstances of each case and it can also be the case that
what amounts to proper inquiry in one case may not called proper inquiry in another case
with completely different facts. If the transfer is by Mahmomedans, it is a required of the
purchaser to inquire if there is any female heir also. In many cases it is such that only males
transfer the property without taking the consent of the females and this will not be a valid
transfer because they also have a share in the property and therefore the third person has to

21
1915) 265 , (20 Cal WN).

22
Punendu Nath v. Hanut Mull, [1940] A.I.R. 565 (Cal).
23
(1914) 993 (All) LJ.
24
Abdul v. Nawab, [1949] A.I.R. 17 (Assam)

Transfer by Ostensible Owner Page 9

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

inquire about such things.25 The ultimate test that is that the “transferee should show that he
acted like a reasonable man of business and with ordinary prudence.”26

GOOD FAITH:-

Good faith simply means that the transferee should have honestly believed that the ostensible
owner is the true owner after all the proper inquiries conducted by him.27 But where after
proper inquiries the transferee has knowledge that the person selling him the property is not
the real owner but only the ostensible owner, the transferee cannot neglect true fact. 28This is
because of the fact that a person cannot take advantage of his own negligence and then claim
protection of this act. The rights of real owner also need to be safeguarded against such
persons.

BURDEN OF PROOF:-

The burden of proof is on the transferee to prove that the transferor was actually the
ostensible owner and had the consent to sell the property.29 Also he has to prove that he
actually acted in good faith and had taken all reasonable care that was required from him
while taking the property.30 This is because he has to prove that he was not at fault while
taking the property and to shift the burden on the real owner. Alternatively, to shift his
burden, he can also prove that the transferor did not allow the transferee to know the real
facts and tried everything to suppress the facts.

RELATION BETWEEN OSTENSIBLE OWNER AND BENAMDAR:-

The word ostensible , according to Mitra’s Legal and Commercial Dictionary means ” Able
to be seen ; apparent ; assumable ; avowed ; deceptive ; pretended ; delusive ; delusory ;…
The word ‘ostensible’ has two meanings – a) that the object bears a certain from or

25
Azima Bibi v Shamalanand, (1913) ILR 40 Cal 378.
26
Fazal Husain vs Muhammad Kazim And Ors. , [1934] A.I.R. 193 (All).
27
Layak Ram v. Dharmavati, [2010] A.I.R. 95 (P&H).

28
Laxman Sakharam Salvi And Others vs Balkrishna Balvant Ghatage, [1955] A.I.R. 190 (Bom).

29
Ram v. Muktinath, [1956] A.I.R. 154 (Assam).
30
Gurbaksh Singh v Nikka Singh, [1963] 1 SCR 55 (Supp)

Transfer by Ostensible Owner Page 10

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

appearance without suggesting that it is or is not that of which it has the superficial

appearance , and b)that the object bears a certain appearance but is not really that of which it
bears the appearance. [case law : Debi Singh v/s Jagadish Saran AIR 1952 All 716 ].

DEFINITION:

Ostensible owner is the person who is though not the real owner but has all incidents and/or
characteristics as the real owner.The person on the face of it i.e apparently looks like the real
owner but in fact he is not the real owner.Though he owns the property and all the property
documents, papers and records are on his name on a minute scrutiny it can be found that he
has never the intention to own the property.The ostensible owner only fulfills and/or carries
somebody else’s wishes and/or aims. As per the wishes of the ostensible owner puts his name
as an owner on the records of the property although his has the intention to own the property.
The money required as the consideration of the property is funded by the real owner i.e. the
person whose wishes are carried on by the ostensible owner,that person who had the intention
to buy the property.

Case Laws :

1.Kannashi Vershi v/s Ratanshi Nenshi AIR 1952 Kutch 85 :-

It was held in the above mentioned case that an ostensible owner is one who has all the
indicia of ownership without being the real owner.

1.Jamanadas v/s Uma Shankar (1914) 36 All 308 ,25 IC 158.

2.Seshumull M shah v/s Sayed Abdul Rashid and ors AIR 1991 Kant 273 , 278.

3. Muhammad Sulaiman v/s Sakina Bibi (1922)44 All 674 ,69 IC 701 , AIR 1922 All 392 :-

Transfer by Ostensible Owner Page 11

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

It was held in the above mentioned cases that the possession of a manager cannot be treated
as an ostensible ownership with the consent of the real owner and it was held to be so even in
a case where the manager’s name had been entered in the Municipal House Register as the
real owner.

Real test for tracing whether a person is ostensible or not :

For determining whether a person is ostensible owner or not :

Firstly, we have to search the source of money which was needed for the purchase of
the property concerned whether it is the same person whose name is there in the property
documents or some other person’s name is there in those documents.

Secondly, whether the person having his name in the documents of the property in
question has any intention to purchase the same or not.

Thirdly, it is the most important test for determning whether a person is ostensible
owner or not that who is the person who is really enjoying the property so purchased or
some other person is enjoying the same on his behalf. If the person aho is the owner as per
the records and the documents of the proerty so concerned the chances of being ,it a
property of an ostensible owner or he being an ostensible owner is quite less. And if the
person whose name is there in the property documents is not similar then it enhances the
chances of it being a property of ostensible owner who is fullfiling the wshishes of the real
owner.

Enjoying the property here does not only mean the mere enjoyment of the property being in
the possesion of the property but includes the saling rights ,right to lease out the said
property and get the consideration from the same , to enjoy the benefits out of the said
proeprty etc. Enjoyment has been given a broadr aspect in this aspect and perticular case.

Fourthly , the reason behind it being given the aspect of ostensible ownership , i.e the
reason why the real owner has not purchased same in his own name .

REASONABLE CARE:

Transfer by Ostensible Owner Page 12

Downloaded by Ankit Nande (nande.ankit5@gmail.com)

 lOMoAR cPSD| 4056819

For the purpose for performing the real test the person has to take the reasonable care as a
man of ordinary prudence.

CONCLUSION:-

Section 41 of the Act has done a fair job in protecting the interest of the innocent third party.
Though this section may seem to be a bit biased towards the third party but this is mainly if
the real owner is himself at some fault. No one can simply say that he has now acquired the
property and he cannot be evicted now. The third party has to take a lot of care while
purchasing the property and these necessary requirements has been put by law itself to check
the misuse of this section by ostensible owner and the third party. This, in a way protects the
interest of the real owner also.

FOLLOWING REFERENCES ARE MADE TO THIS ASSIGNMENT:-

 The Indian Evidence act, 1882



 Dr. Poonam Pradhan Saxena, Property Law (2nd, LexisNexis , Gurgaon,
India 2011

www.academike/ostensible-owner-under-tpa/

https://advocateguru.com/transfer-by-ostensible-owner/

https://lawexplainedindia.wordpress.com/2013/04/30/ostensible-
owner-and-benamdar/















Transfer by Ostensible Owner Page 13



Downloaded by Ankit Nande (nande.ankit5@gmail.com)
 lOMoAR cPSD| 4056819

Acknowledgement
I would like to express my deepest appreciation to all those who provided me
the possibility to complete this project. A special gratitude I give to our teacher
whose contribution in stimulating suggestions and encouragement helped me to
coordinate my project especially in writing of this project.

Furthermore I would also like to acknowledge with much appreciation the

crucial role of my teachers who gave the permission to use all required
equipment and the necessary material to complete the assignment “Transfer by
ostensible owner”. I have to appreciate the guidance given by other teachers that
has improved our presentation skills thanks to their comment and advices.

Transfer by Ostensible Owner Page 14

Downloaded by Ankit Nande (nande.ankit5@gmail.com)