CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA-800001

“Transfer of Property by Person Other Than Full Owner ”

FINAL DRAFT SUBMITTED IN THE PARTIAL FUILFILMENT OF

THE COURSE TITLED-

Property Law

SUBMITTED TO:
SUBMITTED BY:

Dr. Vijay Kumar Vimal NAME-Aayush Kumar

Faculty of Property Law COURSE-BBA.LL.B (Hons.)

ROLL NO. -2201

SEMESTER- Ist
DECLERATION BY THE CANDIDATE

I, AAYUSH KUMAR, student of Chanakya National Law University, hereby declare that
the work reported in the BBA LL.B (Hons.) Project Report titled “Transfer of Property by
Person Other Than Full Owner” submitted at Chanakya National Law University is an
authentic record of my work carried out under the supervision of Dr. Vijay Kumar Vimal. I
have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

(SIGNATURE OF CANDIDATE)

NAME OF CANDIDATE: AAYUSH KUMAR

ROLL NO: 2201

COURSE: B.B.A LL.B ( Hons.)

SEMESTER : 1st

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Vijay Kumar Vimal whose guidance helped me a lot
with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn’t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

THANK YOU,

NAME: Aayush Kumar

COURSE: BBA. LL.B. (Hons.)

ROLL NO: 2201

SEMESTER – 1ST
 Index

1. Transfer of ownership
2. What does ‘Property’ mean
3. Section 44, Transfer of Property Act,1882
4. ESSENTIALS OF A VALID CONTRACT :
5. ESSENTIALS OF VALID TRANSFER :
6. TRANSFER BY PERSONS OTHER THAN OWNER :
7. Ostensible Owner
8. Transfer by unauthorized person
9. Transfer by persons having limited powers
10.Conclusion
 Transfer of ownership

Ownership means a person has a right over a property, and owns it. An owner will have the
right of possession, right to its use, right of way, right to transfer it and the right to earn rent
from the property.

An owner can transfer his property by gifting or selling it. A sale deed, or any document
through which the ownership rights are transferred, is a document that gives evidence of an
individual's ownership of a property. Rights in property can be transferred only on execution
and registration of a sale deed in favour of the buyer.

A conveyance deed is executed to transfer title from one person to another. Generally, an
owner can transfer his property unless there is a legal restriction barring such transfer. Under
the law, any person who owns a property and is competent to contract can transfer it in favour
of another. If the owner gives another individual a power of attorney (POA), that person can
sell it under this authority. A POA gives another person the p ower to act on behalf of the
owner. However, if the POA only grants a person the authority to manage the property, he
cannot sell it.

Agreement to sell precedes execution of a sale deed. The subsequent sale deed is based on the
agreement to sell. The agreement is signed and executed by the seller and buyer on a non-
judicial stamp paper. As such, it has legal value and can be produced as evidence. Agreement
to sell is the base document on which the conveyance deed is drafted. Every document of
transfer of property by way of sale would be preceded by an agreement to sell. The
agreement to sell is also in writing.

Any instrument indicating transfer of property must be registered. The sale deed and other
relevant documents have to be stamped and registered at the subregistrar's office having
jurisdiction over the property. The purpose of registration is to prevent fraud and provide
security. It also ensures that every person dealing with property, where such dealings require
registration, may rely with confidence on the statements contained in the registered document
as a complete account of all transactions by which his title may be affected.
A transfer of title in real estate is not valid if the sale deed is not registered. Registration in
the name of the seller by the person transferring property is crucial for the transfer of clear
title in favour of the new owner. Registration is to be done after payment of appropriate
stamp duty, as prevalent in the State.

Once purchased, the property should be mutated in the name of the purchaser. Mutation is not
a legal title given to the new owner. It basically means rectification in the records of the
municipal authorities (in case of urban properties) and local revenue officers (in case of other
properties), replacing the name of the owner with that of the new owner. The new owner, in
whose favour the title and other properties), replacing the name of the owner with that of the
new owner. The new owner, in whose favour the title and other rights pass on, must apply to
the local municipal authorities for mutation.

Mutation of property is recorded on the presentation of registered documents showing

evidence of transfer of property. Mutation of property in the municipal or revenue records is
mainly for the purpose of payment of property taxes.

What does ‘Property’ mean

The term property in common parlance indicates the economic status of a person. Any
property is held by an individual to draw out benefit from it. Transfers are made by owners
themselves, ostensible owners and the co-owners or we can say joint owners. When two or
more persons enjoy common ownership of a property, for example say in a coparcenary, the
male members and now even daughters have a common and an equal interest in the ancestral
property, any co-owner can transfer his own share in the property to a stranger or another co-
owner. And that transferee steps in the shoes of the co-owner (transferor) and gets clothed
with all his assets and liabilities. We can say that the transferee becomes the co-owner.

Section 44, Transfer of Property Act,1882

Section 44 of the Transfer of Property Act, 1882, deals with transfers by one co-owner. It
also deals with the rights of a transferee in this type of a transaction.
In my project I have dealt with the following topics-
# Who is a co-owner
# What are the rights and liabilities of a transferee under this section
# Can a co-owner make a transfer without the consent of other co-owners
# What is a dwelling house and undivided family for the purpose of this section.

EXPLANATION OF SECTION 44 TPA, 1882 ( With reference to Section 4 of the

Partition Act, 1893)
Section 44 says -
Transfer By One Co-Owner- Where one of two or more co-owners of immovable property
legally competent in that behalf transfers his share of such property or any interest therein,
the transferee acquires, as to such share or interest, so far as is necessary to give effect to the
transfer, the transferors right to joint possession or other common or part enjoyment of the
property, and to enforce a partition of the same, but subject to the conditions and liabilities
affecting, at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling house belonging to an undivided family is not a
member of the family, nothing in this section shall be deemed to entitle him to joint
possession or other common or part enjoyment of the house.

This section of Transfer of Property Act deals with rights and liabilities of a transferee from a
co-owner, as to the enjoyment of the property transferred ( should be immovable for this
section). The first part of the section merely incorporates the principle that a person who
takes transfer from another, steps into the shoes of his transferor, and is clothed with all the
rights and becomes subject to all the liabilities of his transferor. In short, we can say that he
becomes as much a co-owner as his transferor was before the transfer. The second part of the
provision provides an exception to the general rule stated in the first part and is based on
convenience. It is designed to prevent an outsider from forcing his way into a dwelling house
in which other members of the transferors family have a right to live.

But the remedy is to claim partition. When we read the section there are some terms which
we need to understand like-
Who is a co-owner ?
Legal Competency of a Co-owner to Transfer ?
Rights and liabilities of a transferee from a Co-owner ?
What is a dwelling house and Undivided family ?
Who Is A Co-Owner ?

Ownership consists of innumerable number of claims, liberties, powers with regard to the
thing owned. Ownership is of different kinds. There are absolute and limited, sole ownership,
co-ownership, vested ownership, contingent ownership, corporeal, incorporeal. When a
person owns a property in one time it is called sole ownership, but if the property is owned by
more than one person then it is called joint ownership. By means of partition one can have
co-ownership changed into sole ownership.

The expression co-owner is wide enough to include all kinds of ownership such as joint
tenancy, Tenancy in common, Coparcenary, membership of undivided Hindu family, etc. The
very fact of the reference to the property that the parties have certain shares, indicates that
they are co-owners.

In Indian Law a co-owner is entitled to three essentials of ownership-

# Right to possession
# Right to enjoy
# Right to dispose

Therefore, if a co-owner is deprived of his property, he has a right to be put back in

possession. Such a co-owner has an interest in every portion of the property and has a right
irrespective of his quantity of share, to be in possession jointly with others. This is also called
joint-ownership.

The following are the types of co-ownerships:

Tenants in Common

When the type of co-ownership is not specifically stated, by default a tenancy in common is
likely to exist. Each tenant in common has a separate fractional interest in the entire property.
Although each tenant in common has a separate interest in the property, each may possess
and use the whole property. Tenants in common may hold unequal interest in the property but
the interests held by each tenant in common is a fractional interest in the entire property For
e.g. B owns a 25% interest in the property and A owns a 75% interest. Each tenant in
common may freely transfer his/her interest in the property.

Tenants in common do not have the right of survivorship. Therefore, upon the death of one
tenant in common, his/her interest passes via will or through the laws of intestacy to another
persons who will then become a tenant in common with the surviving co-owners.

Joint Tenancy

The most attractive feature of joint tenancy is the right of survivorship. Upon the death of one
joint tenant, his/her interest immediately passes to the surviving joint tenants and not to the
decedents estate. Joint tenants hold a single unified interest in the entire property. Each joint
tenant must have equal shares in the property For e.g. B and A each hold a 50% interest. Each
joint tenant may occupy the entire property subject only to the rights of the other joint
tenants.

Unlike tenants in common, joint tenancy has several requirements that must be met in order
to be properly created. Massachusetts law requires that in order for a joint tenancy to be
created specific language must be included in the conveyance or devise. Such language
includes that the grantees take the land: "jointly"; "as joint tenants"; "in joint tenancy"; "to
them and the survivor of them"; or using other language in the instrument that it was clearly
intended to create an estate in joint tenancy. However, even if such language is contained in
the conveying instrument, a joint tenancy may not exist. There are four additional common
law requirements necessary in order to create a joint tenancy.
The four unities are
(1) Unity of time. The interests of the joint tenants must vest at the same time

(2) Unity of possession. The joint tenants must have undivided interests in the whole
property, not divided interests in separate parts

(3) Unity of title. The Joint tenants must derive their interest by the same instrument (e.g. a
deed or will)

(4) Unity of interest. Each joint tenant must have estates of the same type and same duration.
All four unities must exist. If one unity is missing at any time during the joint tenancy, the
type of co-ownership automatically changes to a tenancy in common. A joint tenancy may be
created by a will or deed but may never be created by intestacy because there has to be an
instrument expressing joint tenancy. A joint tenancy is freely transferable.

Tenancy by the Entirety

This type of co-ownership is exclusively for husband and wife. Similar to joint tenancy,
tenancy by the entirety provides the right of survivorship. To exist, tenancy by the entirety
requires that the four unities of joint tenancy exist plus a fifth unity of marriage between the
two co-owners. However, even if all five unities exists, the type of co-ownership may still be
joint tenancy if the conveying instrument indicates such. Unlike joint tenancy, tenancy by the
entirety does not allow one spouse to convey his interest to a third party. However, one
spouse may convey his/her interest to the other spouse. A tenancy by the
entirety may only be terminated by divorce, death, or mutual agreement by both spouses. A
terminated tenancy by the entirety becomes a tenancy in common.

In Konchunju Nair v. Koshy Alexander it was held that if a co-owner wants to erect a
dwelling house on the land he is free to do so. If division of co-ownership of property takes
place, the co-owner can claim, that, the said property be allotted to his share. The Court
would ordinarily grant such an equitable right.

When Is A Co-Owner Legally Competent To Make A Transfer?

Section 7 of the Transfer of Property Act, 1882 provides that every person competent to
contract i.e. a major and of sound mind or is not disqualified by law for contracting.
Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to
another co-sharer or to a stranger. The fact that the partition has not taken place by metes and
bounds , does not stand in the way of the interest of a co-owner.
According to the law prevailing in some areas, a coparcener of a Hindu Joint Family can
alienate his share in the Joint Family Property for consideration. Such a coparcener is a
legally competent person. But in some cases of Mitakshara coparcenary, the consent of other
coparceners is required before any such transfer.

Also, where one co-owner is in exclusive possession of a plot of a joint land and lets it out to
a tenant without the consent of other co-sharer landlords, such a tenancy will not bind the
latter. The lease in such a case will only be confined to the interest and share of the lessor.

In Baldev Singh v. Darshani Devi it was held by the Court that a co-owner who is not in
actual physical possession over a parcel of land cannot transfer a valid title of that portion of
the property. The remedy available to the transferee would be to get a share out from the
property allotted after the partition or to get a decree for joint possession or can claim
compensation from the co-owner.

In Rukmini and others v. H.N T. Chettiar it was held by the High Court of Madras that a
co-sharer cannot be allowed to cause prejudice to the other co-sharers by putting up a
substantial construction during the pendency of a suit for partition filed by the other co-
sharers.

The High Court of Punjab and Haryana in a case of Hazara Singh v. Faqiria where a co-
owner contended that he had, by adverse possession, a peaceful undisturbed possession by
the other co-owners had become the sole owner of a land, held that the possession of a co-
owner is possession of all the co-owners. It cannot be adverse to them unless there is a denial
of their right to knowledge by the person in possession. If a co-sharer is in possession of the
entire property, his possession cannot be deemed to be adverse he possesses the property on
behalf of all others.

What are the Rights of a Transferee in such a Transaction

Basically this section deals with the rights of a transferee and also safeguards their rights. The
transferee steps into the shoes of his transferor ie the co-owner, and is clothed with all the
rights and becomes subject to all the liabilities of his transferor. In short, we can say that he
becomes as much a co-owner as his transferor was before the transfer. Following are his
rights after the transfer-

Right to joint possession

Every joint owner or co-owner of property has a proprietary right in the whole estate. After
the transfer, the transferee becomes the co-owner and gets all his rights. He also has the right
to joint possession in property except a dwelling house. If a co-owner or his transferee is
ousted from joint possession, he is entitled to joint possession by a suit, and is not necessary
forced to sue for partition. A co-sharer can sue for possession either for the benefit of the
entire body of co-sharers or for the partition and possession of the plaintiffs share.

Right to peaceful possession

If instead of remaining in exclusive possession of his separate plot, the co-owner transfers it,
his transferee cannot be disturbed by the other co-owners until and unless a final partition
takes place. It was also held that where a tenant of a land who derives his title from all co-
owners cannot be disturbed by one co-owner without the consent of all. But where the co-
owners are enjoying the common property in separate plots for the sake of convenience, the
court will not decree to one co-owner joint possession of the portion in the actual cultivation
of the other.

Right to make improvements

If a co-owner can make out a case that he is entitled to make construction on any part of the
joint land, he should be allowed to do so. But he is not entitled to make construction on any
other portion of the joint holding or to the detriment of the other co-owners.

Right to enforce partition

In all cases of joint partnership, each party has a right to demand and enforce a partition; in
other words a right to be placed in a position to enjoy his own right separately without
interruption and interference by others. Under this section, not only a transferee of a share in
the property but a transferee of any interest can sue for partition. A lessee, a mortgagee and
even a life tenant is entitled to seek partition so far it is necessary to give effect to the
transfer.

A claim of partition will only be refused on the ground of inconvenience. Partition does not
depend on the duration of right. In a celebrated case a monthly tenant was also entitled to
partition just to protect the rights of the plaintiffs. But a partition effected at the instance of a
person having a temporary interest, lasts only till the expiry of that interest.

The transferee also gets the liabilities with all the benefits. The rights of the transferee are
subject to the conditions and
liabilities that attach at the date of the transfer to the share or interest so transferred.

Lalitha James and others v. Ajit Kumar and others AIR 1991 MP 15

Facts:
P.S. Chouhan held vast properties. He died unmarried and issueless and he decided to give
away the said properties to his 2 sisters (Mrs. Dayabai and Gracebai) and executed a gift deed
in 1935. There had been no partition between them. Mrs. Dayabai was survived by appellants
2,3and 4. Gracebai is survived by appellant 1, Mrs Lalita Jaems and respondent no. 3. Mrs.
Park. The 5.74 acres of land was divided between the survivors of Gracebai. Respondent no.
3 sold her share to Respondent no. 2 for Rs. 14,000/-.After the purchase, the transferee started
digging on the land to raise a structure, it was objected by appellant no.1. A suit was filed by
the Respondent 2.

At the Trial Court the suit was dismissed as the vendor was not in possession and the sale did
not confer any right or title on them and they can get their money refunded

In the First Appeal Court it was held that the respondent no 3 was in exclusive possession of
the land and rightfully sold it to the respondent no 2.

Final Judgement:
The Madhya Pradesh High Court emphasized that it is the strength of the plaintiffs title and
not the absence of title of the defendant that matters. A purchaser from a co-owner of a
portion of undivided property is not entitled to possession of any particular part of the joint
property. His right would be for joint ownership and not for exclusive ownership of any
particular part of the joint property. A transferee is not in a better position than the co-owner
himself. Section 44 gives sanction to this principle.

The Respondents will be only entitled to enforce partition of the joint estate. The sale of the
exclusive property cannot be accepted. Therefore, the appeal was allowed.

Second part of the Section 44

This is an exception to the rule provided in the first part. Where a share in a dwelling house
belonging to an undivided family is transferred to a stranger; the transferee cannot claim joint
possession or any common part or enjoyment of the house. He can enforce his right over the
property by a suit for partition. The principle underlying the provision is that it is inequitable
to permit a stranger to intrude himself upon the privacy of an undivided family residence.
Restriction contained in this part is applicable even if there is only one male member of
family in occupation of family dwelling house.

In Balaji Anant v. Ganesh Janarthan Westropp C.J, observed as follows:

We deem it a far safer practice to leave a purchaser to a suit for partition than to place him by
force in joint possession in the Hindu Family, which may be not only of a different caste from
his own, but also different in race and religion.

In order to grant relief under section 44 there should be two things satisfied
1) the property transferred should be a dwelling house
2) the transferee should not be a member of the family.

In other words he should be a stranger. The right of a stranger transferee to have the house
partitioned is, subject to Section 4 of the Partition Act, 1893. Under this section, a stranger
claiming partition by metes and bounds may be compelled, at the option of the other
members of the family to forego his legal right to partition and accept pecuniary
compensation.

Explanation of Dwelling House

In the case of Durga v. Debidas, the members of the family were separated in mess and were
residing in different places. They stayed in the house in the village for attending kali pooja.
The house was otherwise used for collection of paddy. The court said that the stray use of the
propert for a short residence for a specific purpose will not turn it into a dwelling house.
There must be ancestral dwelling in existence on the suit land. The members of the family
must not have abandoned the property.

Aahim Ranjan Das v. Smt. Bimla Ghosh AIR 1992 Cal 44

Facts:
The disputed property belonged to 4 brothers A, B, C, D. A purchased 1/5th share of D by a
deed in 1969. A died in 1975 leaving behind him the plaintiffs as his legal heirs. B died
leaving four sons and daughters. C is alive and the property is an undivided family dwelling
house of the plaintiffs and co-sharers. C and B transferred their interest to the defendants. A
monthly tenancy was created in favour of the lessee-defendant and he was also delivered the
possession of the same.

The Plaintiffs filed a suit under Section 44 to restrain the lessee from interfering with their
possession.The Judgment of the court was that the plaintiffs can very well ask for a
protection. There is no controversy that the defendant is a stranger to the family. The co-
sharer is entitled to protection under section 44.There was enough evidence to show that the
house was a dwelling house and that the family was undivided and event the defendant was a
stranger. The court relied on various judgments where it was held that upon a transfer of an
undivided share of a dwelling house by a co-sharer, the other co-sharer may maintain a suit
for injunction to restrain the transferee from getting into possession. Moreover it was said
that a stranger purchaser is reduced to a trespasser. Section 4 of the Partition Act spells out
the right to partition of such a stranger. Thus the appeal was dismissed.

In the case of Ramdayal v. Mannaklal where the defendant had purchased a house from the
plaintiffs father and was put in possession thereof. The Plaintiff filed a suit challenging the
validity of the sale for the absence of a legal necessity. The court was of the opinion that if
the purchaser files a suit for partition in a certain period then he can be in possession till the
pendency of the suit. He can be legally handed over that property if it is not in excess of the
share of the coparcener. But if the coparcener transfers more than his share then in such a
situation the purchaser can acquire what belongs to the co-owner
i.e only his share. On looking at the material in records it was found that the property
purchased was less than the share of the vendor. So the defendant was given possession.

In the case of Gautam Paul v. Debi Rani Paul the facts were-
There were three sons A, B, C. they received the property via gift deed. D, Son of C,
purchased the share of A. The share of B also came to soc of C by partition. The appellants
who were the heirs of A still occupied a room in the suit property and also purchased certain
share from the heirs of D. The other heirs filed a suit for partition and also challenged the
sale.

The Court opined that undoubtedly it is the undivided family of D who holds the dwelling.
The appellant cannot be said to be the member of the joint family of D. Merely because he is
related by blood to D will not make him a member of the family.

ESSENTIALS OF A VALID CONTRACT :

The agreement for sale is a contract. It has to comply with the stipulations of Indian Contract
Act. The Act stipulates that any contract has to be made between the parties competent to
contract. The competent parties are the persons who have attained the age of majority i.e. the
persons who have completed the age of eighteen years. Apart from attaining majority, the
parties should be of sound mind and not disqualified by provisions of any law in force for
time being, like insolvency Act etc. Though the parties are majors and of sound mind yet if
they are disqualified under provisions of any law in force, they are not competent to contract.

The parties to contract should agree to the terms of contract out of free consent. Consent
means agreement of the parties upon the same thing in the same sense. Consent is said to be
free when it is not caused by compulsion, force, misrepresentation or mistake. If the consent
is not free it is not void but voidable. There is subtle difference between void and voidable.
The contract is said to be voidable, if the parties to the contract have an option to cancel the
contract or to abide by it. Contract is void, if it is not enforceable by the parties as per the
provisions of law. In case of void contract, the parties have no option as the law treats such
contracts as void. If the sale of the immovable property is not out of free consent, the seller
has an option to treat the sale as valid or invalid, and the title of the purchaser is subject to the
option exercised by the seller. Other important ingredients of valid contracts are the lawful
consideration and lawful object. In case the transfer of immovable property is made for
illegal consideration and for illegal object, the transfer is void i.e. law treats such transfers
illegal and parties have no option for it. The transferee does not get any legally valid title to
the property. The Sections 10 & 11 of Indian Contract Act deals with the above points.
 ESSENTIALS OF VALID TRANSFER :

The Transfer of Property Act, 1882, has prescribed certain conditions for legally valid
transfers under Section 5. The conditions are that both the parties must be living and the
transfer may be either in present or future. The word living persons means legal persons,
which includes a company, association, and body of Individuals. We may add here that a
minor cannot transfer any property but he can be transferee, he can purchase and receive the
property.

TRANSFER BY PERSONS OTHER THAN OWNER :

Apart from the discussed requirements of a valid contract and valid transfer, the most
important is that the title of the transferor should have legal marketable title to the property.
A person having a defective or no title to the property cannot pass on a better title to
purchaser than what he has and the purchaser will acquire defective or no title.
There are certain exceptions to this which are dealt in Transfer of Property Act. They are
transfer by:
– Ostensible owner.
– Unauthorised person who subsequently acquires valid title.
– The person authorized under certain circumstances only.
We have discussed each of the above in detail in the next part of the Article.

Ostensible Owner

Ostensible owner is not the real owner but one who can represent himself as the real owner to
the third parties for such dealings. He has acquired that right by the willful neglect or
acquiescence by the real owner of the property thereby conferring on him the status of
ostensible owner. For instance, when the property is in wife’s name however the husband
taking care of it and entering into transactions on her behalf is the ostensible owner and has
the authority to dispose it off.
The phenomenon of appointing an ostensible owner 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.                                         

The provision for its application 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 ( as explained above)

 There should be either implied or express consent from the owner of the property.

 The transfer should be for some consideration in return.

 Reasonable care has to be taken by the transferee regarding the authority of the
transferor to effectuate the transaction and also of the fact that he has acted in good
faith.

 The doctrine of transfer by ostensible owner is based on the doctrine of estoppel that
when real owner of property makes some one apparent to be the owner to third parties
and they act upon it, he cannot go back his representation.

 These rules and the section is available only to immovable property and not on the
movables.

For determining whether a person is ostensible owner or not some practical tests could be
done;

Firstly the documents concerned with the property has to be checked whether they contain the
name of transferor as owner or not. 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 determining whether a person is ostensible owner is that who
is the possession of the property and who is enjoying it. If the person who is the owner as per
the records and the documents of  the property in the matter at hand  the chances of being it a
property of an ostensible owner or he being an ostensible owner is quite less. However 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 full filing the wishes of the real
owner.                                                                                                                       

However enjoying the property here does not only mean the mere enjoyment of the property
being in the possession of the property but includes the selling rights, right to lease out the
said property and get the consideration from the same , to enjoy the benefits out of the
said property etc. Enjoyment has been given a broader aspect in this aspect and particular
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.

Authority of ostensible owner and not the title is necessary:

Looking at examples of such transactions, a benami transaction is one where one buys
property in the name of another or in the disguise of a beneficiary transfer, without indicating
an intention to benefit the other. The benamidar though has a property in his name, has no
beneficial interest existing in the same. He represents in fact the real owner and as far as their
relative legal position is concerned, he is a mere trustee for him. Benami transaction results in
creation of a trust. The general rule and principle of the Indian law as to resulting trusts
differs a little from the general rule of English law upon the same subject. In India, a
benamidar is an ostensible owner and if a person purchases from a benamidar, the real
owner cannot recover unless he shows that the purchaser had actual or constructive notice of
the real title. But from this it does not follow that the benamidar has real title to the property,
he is merely an ostensible owner thereof.

Consent of owner and authority of ostensible owner is material:

Actions of owner also establish whether he has authorized an individual as ostensible owner
or not. Consent of owner over this authority is the prerequisite of this provision to apply. If an
owner with his free consent gives apparent authority to some -one to enter into transactions
on his behalf, then that apparent authority is deemed to be real authority In the
case Ananthula  Sudhakar v. P.Bucha Reddy , the defendant  Damodar Rao negotiated with
plaintiffs, for sale of the two sites, on behalf of his sister Rukminibai, representing that his
sister was the owner thereof . He attested the sale deeds in the favor of plaintiffs as witness
and by making his sister as vendor executant. Those acts of Damodar Rao supported the
claim of Rukmanibai that there was an oral gift. However even there has not been an oral gift
in favor of Rukmanibai and Damodar Rao still remains the owner, the aforesaid acts of
Damodar Rao showed that he has given implied consent for her representation as
ostensible owner of the suit property and to transfer the same to plaintiffs for consideration.
This attracted the provision of section 41 of Transfer of Property Act, 1882 and therefore the
transfers in favor of plaintiffs was not voidable at the instance of Damodar Rao or his
successor alleging that Rukmanibai was not the owner of the property. For being an
ostensible owner, not the title but the authority arising from either express or implied consent
of owner is needed.

In the landmark case Shafiquallah v. Samiulah, after the death of owner, the property was in
possession of his illegitimate sons who were legally ineligible to hold the property. The real
heir filled a suit claiming his rights of inheritance. However the possessors retained the
possession and sold it to a third party, claiming themselves to be ostensible owners. However
present legal position cannot attract section 41 as the possession was not neither with express
nor implied consent of the legitimate owner. Additionally consent must not be understood to
be including an intention to deceive the transferee on the part of the real owner nor is the
need to prove it.
Transfer does not include an involuntary transfer:

This section only applies to voluntary transfers not to involuntary or legally mandated
transfers like ones by the order of the court such as an auction sale.

Transfer include a partial transfer:

For the provision to apply there is no necessary sale or exchange to take place. It just denotes
to a transfer of interest which could be mortgage, lease etc. and hence an ostensible
mortgagee could be held as an ostensible mortgagee.

The transfer has to be against some consideration:

The transaction entered by ostensible owner has to be for consideration. There has to be an
element of quid pro quo. This section does not contemplate gratitutious transfers.

Extent of rights of transferee:

Also the rights of the transferees making a purchase from ostensible owner depends upon the
extent to which the ostensible owner has rights in the said property. In the case State of
Punjab v. Surjit , owner’s widow had an authority over his estate as an ostensible owner,
however it being limited only to life interest. Hence the rights of the transferee purchasing the
property from her would be co-extensive with her and hence will cease to exist with her life
time.

Duties of Transferee during transaction:

Section 41, along with mentioning nature of authority of an ostensible owner also lays
emphasis on intention of transferee and the duty of care he has to oblige to during the
transaction. It provides that a transfer by an ostensible owner cannot be avoided on the
ground that the transferor was not authorized therefor, subject to the condition that the
transferee should take reasonable care to ascertain that the transferor had power to make the
transfer and to act in good faith before a benefit thereof is claimed by him.

Burden of proof:

The burden of proof is on the transferee to prove that the person making the transfer was
infact the ostensible owner and had the requisite authority for such transactions. He should at
least prove that is a benami transaction. Also he must prove that he took reasonable care to
protect his interest and hence also must make relevant inquiries.

The Transfer is not voidable at the option of owner:

When a transfer is made by ostensible owner this section provides that the transfer shall not
be voidable on the ground that the transferor was not authorized to make it ; provided the
transferee has taken due care and must have acted in good faith. The principle applies when
the whole transaction is not voidable.
 Transfer by unauthorized person

 who subsequently acquires interest in property transferred. This is slightly a different

situation from a transfer by ostensible owner. Here the transferor is not ostensible owner,
does not have consent of the owners to act as owner and the transferor fraudulently or
erroneously represents that he is authorized to transfer the property. But subsequent to such
transfer, the transferor (seller) gets valid title. Such transfer is also valid.
The relevant section 43 of the Transfer of Property Act 1882 stipulates certain conditions as,

1. The transferor erroneously/fraudulently represents that he is authorized to transfer the

immovable property.

2. The transfer for consideration.

3. The transferee has not rescinded that contract, opts for transfer.

4. There are no other transferees for consideration, who have acted in good faith and not
aware of existence of such option/transfer.

5. The transferor subsequently acquires title in the immovable property transferred,

during the subsistence of contract.

The use of word “option” in the Act has given various remedies to the purchaser that he may
cancel the contract and elect to ask for damages or get the property transferred to him. The
important thing is that the transferor, who was unauthorized to transfer the property, acquires
the title in same property transferred subsequently. If the transferor does not get any title
during the subsistence of contract, the section does not apply.

Example:- ‘A’ transfers property to ‘B’ by falsely representing that he is owner of property.

Later ‘A’ acquires that property then ‘B’ has right to take the property as transferee without
further act on the part of the transferor.

Transfer by persons having limited powers

Various laws have prescribed limited rights to certain individuals to transfer that property,
though they are not owners. Such transfers have to be done only under special circumstances
enunciated in respective laws. Section 38 deals with this situation. Some of such persons are
– The Kartha of a Mithakshara family
– Executor
– A mortgagee
– A guardian of minor’s property.
These persons have power of sale only for compelling and legal necessities. If these persons
as transferor allege the existence of such circumstances and the transferee has made an
inquiry and after using reasonable cares has acted in good faith then transferee will get a good
title to the property.
In case of sale of minor’s property by his natural or legal guardian there should be a legal
necessity for the transfer itself and court permission is necessary for any sale. The burden in
all such cases is laid on the transferee to justify the transfer in his favour. The reason for this
rule is that no transferee of immovable property can safely take a transfer of such property
without enquiring into the title of the person who is his proposed transferor. If the latter’s title
is perfect, then the question of enquiry becomes immaterial. But if it was dependent upon
variable circumstances, then the transferee must justify his transfer.
In case of wife and children of transferor have right to maintenance over the transferred
property then such wife and children are entitled to enforce right to maintenance against such
transferee on that transferred property, u/s 39 or Transfer of Property Act. But this right is not
exercisable against transferee for consideration and in cases where transferee does not have
notice of such right.
Sec 39 of Transfer of Property Act, provides that a person shall not transfer the immovable
property without the concurrence of wife and children who have a right to receive
maintenance or a provision for advancement or marriage for the profits of immovable
property. In case such property is transferred without concurrence it is not that transferee will
not get a title, he will get a title but he is liable to give maintenance from the profits of
immovable property which he acquired, and settle any other claims if he has notice of such
rights or claims. In case if such transfer is gratuitous such rights or claims can be enforced
against transferee.
 Conclusion

The project stresses on the legal provision in Transfer of Property Act, 1882 defining the
powers of Section 44 and ostensible owner and discussing the nature of transactions entered
by him.A co-owner can transfer property under the jurisdiction of Section 44, Transfer of
Property Act, 1882.Ostensible owner has as its more prominent characteristic the authority
given by the owner of the property to enter transactions on his behalf. The consent for this
authority could be either express or implied which could be understood by various landmark
case laws. However consent does not include an intention to deceive. Also once made the
transfer of property is not voidable at the option of the owner. This transfer also include
partial transfers like mortgage, lease along with complete transfer of rights like sale,
exchange. Also the law places burden of proving that the transferor is ostensible owner, on
the transferee. He must also act bona fide in good faith and make proper inquiries as to the
status of transfer and be vigilant.