The word ostensible
signifies something that seems, by all accounts, to be
valid. The ostensible proprietor is subsequently not the genuine owner of a
property. He just addresses himself out as genuine owner to the outsiders. Such
an ostensible owner has every one of the privileges of possession in a property
without being its genuine owner. He secures these rights from the genuine owner
by the express or inferred assent of a particular owner. He is the full and
inadequate owner and the genuine owner is the certified proprietor of the
People who can't be ostensible owner:
- Claimed specialists
- Guardians or some other individual acting under trustee character
For instance, Y possesses a property in India, he approves Z to play out all
privileges of proprietorship identifying with the property and leaves for the
U.K. Z will be the ostensible owner of such a property and everything done by
him will be considered at the demonstrations of Y. Z further offers the property
to X for thought. Y can't recuperate from X his property in future. As X has
trusted Z to be the proprietor of the property and has acted in compliance with
Transfer of Property by the Ostensible Owner
The doctrine of transfer of property by ostensible owner is an exemption for the
saying 'nemo dat quod non habet' which implies nobody can present a higher right
on the property that he, at the end of the day, has. Section 41 shields the
innocent parties from the fake demonstrations of the outsider. The misfortune
emerging from such an act will fall on the individual who made or neglected to
forestall the fraud.
Section 41 of the Act sets out that “when a person acts on the express or
implied consent of a person who is interested in an immovable property, the
person who acts on such consent is the ostensible owner of the property.” He has
all the indicia of proprietorship like the option to title, ownership, archives
and so forth He can move the property for thought to the transferee.
The transferee should act in accordance with some basic honesty and accept that
the ostensible owner is the genuine proprietor of the property. The genuine
proprietor who permits the other to hold himself out can't be permitted to
recuperate from his mysterious title. Consequently the exchange isn't voidable
on the ground that the ostensible owner was not approved to execute an exchange.
Notwithstanding, the owner can recuperate from the buyer on the off chance that
he demonstrates that the buyer had information or notice of the title of the
genuine proprietor. He further demonstrates that the transferee has not acted in
accordance with some basic honesty and has not taken sensible consideration
which a man of standard reasonability would take for executing such an exchange.
Ostensible owner isn't simply the genuine proprietor however who can address
himself as the real owner to the outsider for such dealings.He has procured that
directly by the tenacious disregard or submits by the genuine proprietor of the
property accordingly making him an apparent proprietor. An individual who has
traveled to another country for certain years has given his property to his
family relative for utilizing it for farming reasons and for any remaining
purposes as he may consider fit. For this situation the family relative is the
apparent proprietor and assuming during that period he offers the property to an
outsider, the real owner in the wake of returning can't guarantee his property
and say that the individual was not approved to move his property.
case can be the point at which the property is in spouse's name yet husband used
to deal with it and different dealings identified with the property. In the
event that the spouse subsequently sells this property, the wife can't guarantee
her property back or on the other hand as it was in the Mohamad Shakur v Shah
Jehan in which the genuine proprietors had lived in an alternate town, and had
approved to a widow to properly utilize the property as she enjoyed and
subsequently she sold it. The genuine proprietor lost the case and the transfer
was a legitimate one.
Benami transactions are an illustration of transfer by an ostensible owner. If
there should be an occurrence of such exchanges, the weight of evidence lies on
the individual who professes to be the genuine proprietor of the property.
Encompassing realities and conditions like the aim of the parties, lead,
wellspring of procurement and so on will likewise be considered for learning the
burden of proof..
Illustration 2 & Analysis
For instance, X purchases a property for the sake of Y. X pays thought for
executing the deal. Y thus offers the property to Z and covers the deal from X.
X can't keep away from such a deal except if he demonstrates that Z knew about
the genuine title of the property and has committed fraud.
To decide if a transfer is made by an apparent owner, the accompanying rules
ought to be satisfied. Regardless of whether one of the beneath referenced
focuses is not satisfied, it won't be viewed as a transfer by an ostensible
- The exchange executed by the transferor ought to be of an undaunted
property and not a versatile property
- The ostensible owner should give an express or an implied consent to the
individual to approve him to go about as the ostensible owner
- The individual who therefore moves the property ought to be simply the
- The ostensible owner will get thought for the moved property from the
- The buyer should accept the ostensible owner to be the genuine owner and
act with acceptable confidence. He ought to have additionally practiced
sensible consideration while executing the exchange of the property by the
The Case of Ramcoomar Koondoo V. John And Maria McQueen Case
For this case, the offended party who had acquired a property via a will came to
realize that another person had effectively bought this property in her name and
therefore offered this property to a third individual, by causing him to accept
that he had great title over that property. The entire exchange was a benami
however was not known to anybody aside from the individual who sold the
property. The offended party sued the outsider for recuperation of the ownership
of the land however the committee held that:
" It is said to be a standard of natural equity, which should be an all around
material, that where one man permits another to hold himself out as the owner of
a bequest, and a third individual buys it for esteem from the obvious owner in
the conviction that he is the genuine proprietor, the one who so permits the
other to hold himself or will not be allowed to recuperate upon his said
mysterious title, except if he can actually oust that of the buyer by appearing
or seeing, either that he had direct notification, or something which adds up to
useful notification, of the genuine title, or that there existed conditions
which should have put him upon a request that, whenever indicted would have
prompted disclosure of it."
It was held there that the offended party can't reclaim the property structure
of the outsider and that the transfer was a genuine trade according to the law.
This phrasing utilized for this situation can be found in the Section 41 of the
Act which manages Ostensible owners.
Essentials of Section 41 Consent
The consent that is alluded to under Section 41 ought not be essentially given
by the real owner. Nonetheless, the real owner ought to have the legitimate
ability to give such assent. Consent given by minors isn't substantial as they
have no power to give assent under the arrangement of transfer by ostensible
owner. The consent given should be free assent and will without any excessive
impact or deceitfully plan.
This consent ought to be express or suggested.
Express consent implies when one individual approves another to accomplish
something or not to accomplish something in clear words which may be expressed
or composed. The position given ought to be clear through such words. Suggested
consent implies assent which is derived from the words or activities of another.
Consent in such cases isn't expressly given yet it has odds of being deciphered
then again. In the case of Shamsher Chand v Bakshi Meher Chand
, it was held that
if a party doesn't know about his privileges or is quiet about them, at that
point in such case it can't be said that the real owner had assented to the
transfer of the property. It is necessitated that an individual who doesn't know
about his privileges would never have assented to that and such a transfer won't
It isn't expressed in the part that the real owner should have really
agreed to the transfer, since, in such a case that that was the situation, at
that point the the real owner would never have made any issue with such a
transfer. It is only that the real owner is uninformed of this transfer or is
careless. Silence may add up to assent if the quiet with respect to the real
owner drives the outsider to accept that the apparent proprietor is the genuine
proprietor of the property.
In any case, on account of the case law of Gurucharan
Singh v. Punjab State Electricity Board Patiala
, where the land in the dispute
was moved to another person and such an individual had idealized his entitlement
to the property by paying the cash. The new owner, who was the genuine owner had
not taken the ownership of the land and the past owner subsequent to having sat
tight for a very long time, offered the land to an outsider. The real owner at
that point approaches and case his directly ridiculous and the court said that
the real owner was a minor at the hour of move of land and thusly couldn't take
the ownership of the land and along these lines it would not add up to quiet
with respect to the real owner as he would never have agreed to the exchange.
Accordingly the resulting move was held to be invalid.
The transferee should offer consideration to the transferor as a trade off for
the property. There can't be an unnecessary exchange of property. Consideration
is a mandatory measure for summoning move under Section 41 of the Act.
Reasonable care and good faith
The term reasonable care implies care which a man of customary judiciousness
would take. The transferee should take satisfactory consideration to decide the
genuine title of the property. He ought to determine whether the transferor is
the real owner of the property and he has acted in great faith.Sufficient care
ought to be taken by the transferee in assessing the applicable reports and
title of the property. He should make appropriate requests to shield himself
from the real owner.
Like in the case of Nageshar Prasad v. Raja Pateshri
there was a mistake in the income records with respect to the name of the
proprietor. The name composed was of some other individual and the real owner
had effectively submitted a question about this mistake. The individual whose
name was in the income records therefore offered it to a third individual and
the third individual without making appropriate requests took the property and
the real owner subsequently protested to it.
The court held that the outsider has not taken sensible consideration which was
expected of him and accordingly he won't be ensured by this part. The guidance
of a specialist won't be sufficient to demonstrate that the outsider has taken
sensible consideration in deciding the title of the property. The outsider is
required every one of the accessible archives which can give some more data with
respect to the title of the property and these records may incorporate police
registers, metropolitan registers separated from different reports.
There is likewise a protection for the real owner. On account of Mathura v.
, where the real owner had offered the property to someone else and got it
enlisted before the transfer by the apparent owner could be enrolled, at that
point it was held that the exchange by the real owner would be held substantial
as he has a more noteworthy title over the property than the apparent proprietor
and the privileges of third individual who had bought this property from the
apparent would not be ensured under this part.
In the Supreme Court case of Gurbaksh Singh v Nikka Singh Subba Rao J
. said that
being on an exemption, the onus absolutely is on the transferee to show that the
transferor was actually the ostensible owner of the property and that he had, in
the wake of taking sensible consideration to learn that the transferor had
ability to make the transfer acted in accordance with some good faith.
Burden of Proof
If there should arise an occurrence of a debate or if the lawfulness of transfer
is addressed, the weight of verification will lie on the transferee. The
transferee needs to demonstrate that the transfer was executed in accordance
with some basic honesty by him. Furthermore, he should demonstrate that he had
taken sensible consideration to determine that the transferor was the valid and
genuine proprietor of the property anyway he can demonstrate that material
realities were disguised by the transferor while executing the transfer.
Rule of Estoppel over the real owner of the property
Estoppel means a circumstance where an individual causes others to put stock in
something or some reality which isn't correct/which is bogus and afterward the
individual demonstrates over that conviction, the individual who made the
portrayal can't decline to follow up on that portrayal at that point.
- The genuine owner of the property makes the other individual
(transferee) accept that the individual managing the property (apparent
owner) has the power to manage it as the owner of that property and that
incorporates the position to distance the property, regardless of whether
impliedly or explicitly
- The individual distancing doesn't have the power to estrange the
property yet he estranges it as the apparent owner.
- For a certain consideration.
- The transferee, even subsequent to taking sensible consideration,
accepts that the transferor has the position to make the exchange.
- Presently the genuine owner is kept from questing the transfer on the
ground that the transferor was not equipped to do as such.
This depends on the rule that as a result of the lead of one individual the
exchange occurred. Regardless of whether the two gatherings were duped by the
transferor, one empowered the extortion to happen (the genuine proprietor due to
the assent). The other innocent party ought not endure along these lines.
Section 41 of the Act has made a reasonable showing in ensuring the interest of
the innocent third party. In spite of the fact that this section may appear to
be somewhat one-sided towards the third party yet this is basically if the
genuine owner is himself at some issue. Nobody has the authority to say that he
has now obtained the property and he can't be expelled for that now. The third
party needs to take a ton of care while buying the property and these essential
necessities have been put by law itself to check the misuse of this section by
the ostensible proprietor and the third party. This, in a manner secures the
interest of the genuine proprietor.
Thus the teaching of ostensible proprietors expresses that an ostensible
proprietor is an individual who only addresses the genuine proprietor. He
executes moves for the benefit of the proprietor with his assent. The genuine
proprietor can't keep away from such an exchange made by the ostensible
proprietor if the transferee has acted in accordance with some basic honesty,
has taken sensible consideration while executing the exchange and given thought
for something similar.
- Tripathi G.P., The Transfer of Property Act, Central Law Publications,
11th edition 1999
- Sinha R.K., The Transfer of Property Act, Central Law Agency,
4th edition 1999
- Mulla D.F., The Transfer of Property Act, Butterworths, 9th edition,
- Sarathi V.P., Law of Transfer of Property, Eastern Book Company,
2nd edition 1979