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    Sunday, 29 March 2015

    Ostensible Owner, its essentials and transfer of Property

    1. Introduction
    In respect of transfer of property, one settled principle is that a person cannot transfer to another person a right or title, which is greater than what he himself possesses. Therefore, a person cannot give what he does not have. However, Transfer of Property Act has provided an exception to this settled principle through concept of ostensible owner.

    2. Relevant Provisions
    Section 41 of Transfer of Property act 1882 relates to ostensible owner.

    3. Meaning of Ostensible Owner
    Ostensible ownership means apparent ownership which is derived from conduct or words.

    4. Definition of Ostensible Owner
    An ostensible owner is one who has all the indicia of ownership without being the real owner.

    5. Essentials of section 41

    (i) Ostensible Owner
    The transfer must be made by ostensible owner.

    (ii) Immoveable Property
    The property must be immoveable.

    (iii) Consent
    The transferor must be ostensible owner with the consent express or implied, of the person interested in the property. The section will not apply unless the ostensible ownership of a person is consented to by the persons interested in the property.

    (iii-a) Person interested
    A transfer by an ostensible owner is binding only on the person interested in the property with whose consent the transfer has been made.

    (iv) Transfer for Consideration
    The transfer by ostensible owner must be made for some consideration.

    (v) Cannot be avoided by Real Owner
    Once the transfer is made by the real owner it cannot be avoided by the real owner.

    (vi) Reasonable Care
    The transfer must have taken reasonable to ascertain that the transferor had power to make transfer.

    (vii) Transfer must not be Voidable
    The transfer of property by the ostensible owner must not be voidable. But in must be valid one.

    6. Transfer of Property By Ostensible Owner

    Following points to explanation it.

    (i) Authentic Transfer of Property
    When persons, who have interest in immoveable property, give their express or implied consent to some person to transfer this property to another person for some consideration, such transfer of property is not voidable on this ground that transferor was not authorized to make such transfer.

    (ii) Transferor
    For transfer of property by ostensible owner, it is essential that transferor should be ostensible owner.
     
    (iii) Express or Implied consent of real owner
    It is necessary for such transfer that a person should be ostensible owner through express or implied consent of real owner.

    (iv) Consideration
    For such transfer, it is essential that ostensible owner should transfer immoveable property to another person for some consideration.

    (v) Act In Good Faith
    It is also necessary for such transfer that transferee should act in good faith by taking reasonable care to ascertain that transferor has power to transfer immoveable property.

    Conclusion

    To conclude, I can say that section 41 affords protection to bona fide purchasers from ostensible owner, provided its condition is fully satisfied. The rule of ostensible owner is limited to voluntary transfer and does not extend to court sales.
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    Item Reviewed: Ostensible Owner, its essentials and transfer of Property Rating: 5 Reviewed By: Usman Ali
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