Ostensible is derived from the Latin ostendere, which means "to show," and it
denotes a discrepancy between a declared or implied aim or reason and the true
synonyms of ostensible are apparent, illusory, and seeming. While all these
words mean "not actually being what appearance indicates,"
"Ostensible" means "apparent" or "seeming"
In other words, a person may have possession and enjoyment of property, and his
name may be entered in official records, but he may not be the true owner of
Nemodat Quod Non Habet
- Section 41 of the transfer of property act,1882 says: transfer by
- This section only applies if the transferor is an ostensible owner.
However, determining whether a person is an ostensible or real owner is
difficult because he possesses all of the characteristics of an actual owner
except the intention to own the property.
- As a result, it is up to the court to determine whether the transferor
was an ostensible owner or not.
- Property includes everything that is owned and possessed by a person who
has a legal title over it.
means "No one can give what he does not have
This is one of the most important maxims under Transfer of Property.
"A person cannot convey a better title than he himself has," he said.
However, there are several exceptions to this principle, one of which is the
Owner who has legal status under the Transfer of Property Act of 1882
A person is the ostensible owner of such property and transfers the same for
consideration, the transfer shall not be voidable on the ground that the
transferor was not authorized to make it;
Provided that the transferee acted in good faith after taking reasonable
precautions to ensure that the transferor had the authority to make the
Where, with the consent, express or implied, of the persons interested in
immoveable property, a person is the ostensible owner of such property and
transfers the same for consideration, the transfer shall not be voidable on the
ground that the transferor was not authorized to make it.
Example of ostensible owner:
For example, A owns a property in India, he authorizes B to perform all rights
of ownership relating to the property and leaves for the U.K. B will be the
ostensible owner of such a property and all acts done by him will be considered
at the acts of A.
The right to property is guaranteed under article 31 of Indian constitution
which was abolished by the 44th amendment and subsequently made a constitutional
right under article 300A of the Indian Constitution which states no person shall
be deprived of his property except by authority of law.
The concept of ostensible owner originated to protect the interest of innocent
third parties and property owners.
To make use of Section 41 of the transfer of property act,1882, one must meet
They're as follows:
Questions related to ostensible owner:
What are the rights of ostensible owner?
- The most fundamental criterion is that the individual transferring the property
must be the ostensible owner.
- The actual owner's consent, which might be implied or expressed, is necessary.
- In exchange for the property, the ostensible owner must be compensated.
- The transfer is for consideration.
- This section, needless to say, does not apply not to the transfer of movable
property, and only to that of immovable.
- The doctrine of estoppel underpins the concept of ostensible owner transfer,
which states that if the actual owner of property portrays someone apparent as
the owner to third parties and those third parties act on that representation,
the real owner cannot retract his representation.
The ostensible proprietor is not the genuine owner of a property. He just
addresses himself out as a 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.
Can ostensible owner sell property?
A transfer made by an ostensible owner is not voidable because the transferor
was not allowed to perform it, as long as the transferee was: Taking reasonable
precautions to ensure that the transferor has the necessary authority to
effectuate the transfer, and Acting with bona fide intention.
What is difference between ostensible owner and Benami transaction?
Under Transfer of property act it is clearly mentioned that when the one person
pays consideration & purchases the property in the name of another person the
latter is considered as ostensible owner & the transaction is benami
transaction. Whereas, under the Benami Transaction Act it is prohibited.
What is ostensible authority of an agent?
This doctrine has an assumption that there is no authority at all. Conclusion:
Thus, the principal is not liable to any third party, if the principal has taken
all the due care that the agent is not conducting the business by following the
orders of the principal.
Which property can be transferred by ostensible owner?
Immoveable property, as already given under sec. 41 of transfer of property
act,1882 "when a person acts on the express or implied consent of a person who
is vested in a certain immovable property, that person is deemed the 'ostensible
owner' of that property".
- E.Yesodammal Petitioner v. E. Govindan, 2010 SCC ONLINE MAD 1388.
Where the real owner makes an attempt to enforce his right as against the
ostensible owner, quite against the letter and spirit of embargo found under
Section 4 of the said Act. The said provision would not have any application to
a case where the ostensible owner had relinquished his right to the property in
favor of the real owner of the property long prior to the coming into force of
the present Act.
- State Of Punjab v. Surjit Kaur (Dead) Through Lrs. And Others, 2012 SCC 12 155
The widow can be ostensible owner to the extent that she has a right during her
lifetime. She ceased to be an ostensible owner after her death and cannot pass
on a better title than what she had. Admittedly, she had a life estate in the
property and after her death; the title in the land would revert to the State of
- Sankara Hali & Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka
and Another, 1996 SCC 7 55.
This provision is clearly intended to protect the third-party transferees who
are bona fide and after due care and caution purchase the property from the
ostensible owner taking him to be the real owner.
It may next be noted that even
if it is so assumed, we are of the opinion that in the instant case Surender
Kumar having already released his right, title and interest as ostensible owner
of the property in Favour of the firm, the firm had acquired complete title over
the property long before the Act came into force. Such a transaction which
preceded the coming into force of the Act has not been voided by any specific
provision in the Act.
- Jay Dayal Poddar vs Biwi Hazara, 1974:
Supreme Court held that the person is an ostensible owner or not is a subjective
question to be decided based on facts and circumstances. The burden of proof
that a transaction is Benami lies with the person who claims that he is the real
- Ramcoomar Koondoo and Another v. John and Maria Mcqueen, 1872 SCC ONLINE CAL
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 out
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 a discovery of it.