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UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

B.A., LL.B. (Hons.) Criminal laws Batch 1

Session -: 2017-22
ACADEMIC YEAR: 2019-20 SESSIONS: AUGUST – DECEMBER

TPA Case Comment on

ostensible owner
UNDER THE SUPERVISION OF:

DEBARTI PAL MA’AM

Submitted by –

Name Sap id Roll no

Ashan Thind 500062162 R154217023
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Ramcoomar Koondoo v. Macqueen -A transfer by ostensible owner

Section 41 of the Act deals with ostensible owner and it has been 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 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.”

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.

• 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.

• It goes without saying that this section is applicable only to transfer of immovable property and
not in case of movable property. The law incorporated in Section 41 is based on the rules laid
down by Privy Council in the leading case Ramcoomar Koondoo v. Macqueen. The facts and
law laid down in this case were as follows.

Facts-
Alexander Macdonald, who lived in Calcutta, and cohabited with Bunnoo Bebee as his mistress,
had two children by her, Alexander Macdonald, who is dead; and Maria, one of the respondents,
who married Mr. McQueen, the other respondent. The father died in 1834.

The history of the property appears to be this:-

The land, which is perpetual leasehold, at a fixed rent, was conveyed in August 1831 by the then
proprietor to Bunnoo Bebee by a deed of sale, and the price paid at that time was only Rs. 130.
In the following September the deed was registered, and thereupon the zamindar granted a fresh
pottah to Bunnoo Bebee, at the fixed rent of Rs. 35. It does not appear with any certainty that
Macdonald, the father, was in possession of the land and the buildings. At all events, it is not
clear upon the evidence that he ever resided upon the property. There are two witnesses who
speak to his residence. One of them says that he did not live in the new bungalow, and the other
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says he did. The evidence is far from satisfactory to establish the fact that he really did reside
upon the property.

But it is clear that, after his death, Bunnoo Bebee did go to reside upon it, and she resided there
for some time. Afterwards she left the property and received rents from the tenants. Then, in
June 1843, she sold the property to Ramdhone Koondoo, and conveyed it to him by a deed of
sale. The price she obtained was Rs. 945, and there is nothing to show that that was not the full
value of the property, At the time she sold, she made a surrender to the zamindar of the leasehold
interest, and a fresh pottah was granted to the purchaser, under which undisputed possession was
held for 24 years. During that time the purchaser erected important buildings upon the land, and
increased the value to such an extent that the property is valued Rs. 40,000 at the time of
institution of suit. Bunnoo Bebee died before the commencement of the present suit; there is a
contest as to the time of her death, which was material only as regards the the price at which she
sold the land was Rs 945, the original price having been Rs. 130 when the lease was bought by
Macdonald. The zamindar accepted Ramdhone as lessee in her place, and he got possession.

He then built a house upon it, and let it to the male respondent, who, having married the female
respondent, remained in possession, and having failed to pay the rent, Ramdhone brought an
action of ejectment in the Supreme Court, which, being undefended, resulted in judgment against
the casual ejector, and possession being obtained. Soon afterwards, Bebee Bunnoo being dead,
the respondents brought the present suit as devisees in remainder to eject Ramdhone's family.
The Calcutta High Court decided in favour of Macqueen whereupon Ramcoomar (son of
Ramdhone who was then substituted in the place of his father) went in appeal to the Privy
Council.

Issues-
1. Whether the property was Macdonald's.
2. Whether it came by his will to Maria McQueen.
3. Whether the appellants purchased bond fide for valuable consideration without notice.

Arguments of appellants
With regards to whether the Koondoos bought bona fide and for valuable consideration, being
induced to believe that the property was Bunnoo Bebee's own absolutely, by the fact that the
conveyance and pottah were in her name, and after having made all enquiries which a prudent
man would have made under the circumstances, and being without notice of any other title.

The appellants relied upon Varden Seth Ram v. Luckpathy Royjee Laltah, that stated that
how much evidence or what sort of evidence the party must produce, will depend on the
circumstances of the case; but at any rate it must be made quite clear that every possible source
of evidence has been exhausted, and that every search has been made, and every effort used to
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show affirmatively the complete good faith of the purchaser. All such efforts were made by the
appellant.

The appellants contended that they purchased the land in dispute from Bunnoo Bebee as owner.
The real owner looking on and actually dealt with them as owners, saw them build a large house,
and now coming forward and saying that our vendor had only a benami title combined with a
life-interest given by the person for whom she was benamidar. This cannot be allowed.

They neither had express notice nor constructive notice. The zamindar accepted Bamdhone as
lessee, and there was nothing to cause even suspicion. Even the action of ejectment was not
defended, or any doubt there thrown on the purchaser's title. Argument of Respondent- The
counsel on behalf of respondent stated that duty to take notice of every fact relating to property
has been neglected in the present case. Only two witnesses are called who speak at all to the
circumstances under which the Koondoos purchased, Ram Kristo Banerjee, a karpardas (agent)
of Ramdhone Koondoo and the person who wrote the documents, but they really proved nothing
more than appears on the face of the documents.

They didn’t institute a very strict inquiry as to how Bunnoo Bebee became possessed of the
property. The slightest investigation would have shown the appellants' father that the title was a
doubtful one. It was notorious in the neighbourhood that Macdonald was the owner, and had
built on the premises, and the wording of the conveyance that Bebee Bunnoo had had the consent
of her family to convey must have shown that she had only a limited right

Judgment:
The answer of the appellants is that their father purchased the estate of Bunnoo Bebee without
any notice of the benami title, and that they are entitled to hold it, notwithstanding there may
have been, originally, a resulting trust in favor of Macdonald. It certainly would require a strong
case, to be established on the part of the respondents, to defeat a possession for so long a period,
of property for which full value had been given to the person in the apparent ownership of it.

The burden of proof lies very strongly on them in such a case. They have of course to establish,
in the first instance, the fact that the purchase was really made by Macdonald, and with
Macdonald's money, on his own behalf. The respondent failed to produce the evidence for this.
Moreover, after Macdonald's death, Bunnoo Bibee treated the property as part of the estate of
Macdonald. Their Lordships held that the appellants have established their right to hold the
property against the benami title.

It is scarcely suggested that the purchaser had any notice that the title was other than or different
from the apparent one. None of the documents give any notice whatever that the transaction was
other than it appeared to be. On the contrary, all the documents are entirely consistent with the
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purchase having been made by Bunnoo Bebee herself, or by somebody for her benefit. Allowing
the appeal of Ramcoomar, the Privy Council held that even assuming that Macdonald was the
real owner and that Bunnoo Bibee was merely an apparent (ostensible) owner, Since Macdonald
had allowed (i.e. given implied consent to) Bunnoo Bibee to hold herself out as the real owner,
he or his representatives could not recover upon secret title unless they could prove Delivering
its judgment the privy council made following well-known observation- “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.” 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.

Conclusion
The principle entailed in S.41 of The Transfer of Property Act 1882 is against the general
principle which states that no person can transfer title better than himself (nemo dat quad non
habet). It is an exception to this principle because here the real owner is giving permission to
ostensible owner or benamidar to portray himself as real owner. So the real owner cannot claim
against the ostensible owner once he sells the property because the real owner allowed this
situation to prevail in the first place.

The following three things must be there to make a transfer by an ostensible (apparent) owner
valid:
• Transfer is with consideration- S.41 does not apply to gifts or gratuitous transfers. If the
transfer is with consideration, it may be any kind of transfer of property eg. sale, exchange,
mortgage or lease.

• Transferee acts in good-faith.- It is necessary that transferee acts in good faith, i.e. he has
purchases the property in honest belief that transferor has power to transfer the property. Good-
faith means bona fide intention. If the person purchasing the property knows that transferor is
merely an apparent owner his intention is not bona fide and there is no good faith on his part.
Thus he won’t be protected.

• Reasonable care by the transferee- The transferee must have exercised reasonable care in
ascertaining the title and authority of transferor. Reasonable care means that care which a man of
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ordinary prudence should take while making inquiries regarding the title of and immovable
property.