Ostensible Owner(Sec 41) under TPA by Zainub @LEXCLIQ

Ostensible Owner Under Transfer of Property Act, 1882. An ostensible owner is a person who has all the proprietary signs and looks like the owner of a property but is not the real owner here B is an ostensible owner.

In the case Annoda Mohan v Nilphamari here husband bought the property in wife’s name  and she mortgaged it Privy council here held that Wife is the ostensible owner an the transaction is valid .there is a similar condition in the given question hence here the wife can be considered as an ostensible owner.

Section 41 of the Act deals with ostensible owner

The section sets out other conditions for this section to take advantage of are as follows:

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

The real owner should have consent form, which can be implied or expressed.In return for the property, the ostensible owner should get some consideration.

The transferor must take reasonable care regarding the transferor authority to the property and the transferor has acted in good faith.(It have been mentioned  that C have taken sufficient care and precaution and have done the deale with B in god faith.

Ramcoomar Koondoo v. John and Maria McQueen

Is the land mark case 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 clause is, of course, only applicable to the transfer of immovable property and not in the case of movable property.

Chandini Prasad Ganguly v Gadadhar Singh Roy, The transferor must take reasonable care regarding the transferor authority to the property and the transferor has acted in good faith. Which C has taken.

Abdul Gaffer v Nawab Ali, . Held that The real owner should have consent form, which can be implied or expressed. By the death of the husband there is implied consent for B.

Mohamad Shakur v Shah JehanWhere the real owners lived in another village, authorizing the widow to use the property as she liked, and then selling it. The actual owner lost the lawsuit, which was a legal move. On this basis the legal right of widow of A as ostensible owner can be up held and hence the transaction with C can be held valid.And hence C has legal right on property

According to Section 2(a) of this Act, “benami transactions” means any transaction involving the sale of property to one person for a compensation paid or received by another. This act stipulates when a property is transferred benami, the person in whose name the property is owned, is the real owner.

Section 4(1) of the Act specifies that- No suit, allegation or action to enforce any right in respect of any property held benami against a person in whose name the property is held or any other person shall lie on behalf of or on behalf of a person claiming to be the real owner of that property.

In addition to the two exceptions , the provisions of this Act do not apply, also in ordinary bonafide transactions where a person buys property in the name of his wife or unmarried daughter. Section 3(2) states that these transactions are not forbidden, and it is assumed that the property was acquired for the benefit of the wife or unmarried daughter unless the contrary is proved.

Section 4(2) provides that – No protection based on any right in respect of any property held benami, whether against the individual in whose name the property is kept or against any other property, shall be allowed in any action by or on behalf of a person pretending to be the real owner of that property.

When the owner A himself didn’t have any right on the property then D wont be able to recover the money from C.

Bibi Hazra in Jaydayal

The Supreme Court observed that it is a subjective issue to determine if a individual is an ostensible owner on the basis of evidence. The Court further observed that when determining whether or not a individual is an ostensible owner, considerations must be taken into account following:

1 .Purchase source-money i.e. who paid the price?

  1. Type of ownership following purchase i.e. who possessed it?
  2. Reasons for Benami transaction i.e. why the property was purchased in the otherperson’s name?
  3. Relationship between the parties i.e. whether the real owner and the ostensible owner were related or alien or friendly?
  4. Conduct of the parties involved in dealing with the property i.e. who used to take care of the property and control it?
  5. Property deeds Custodyor not?

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