ES दृश्यमान स्वामी द्वारा अन्तरण सम्बन्धी विधि की पूर्ण विवेचना कीजिए।

Law Relating to Transfer by an Ostensible Owner

1. Meaning of Ostensible Owner

An ostensible owner is a person who appears to be the real owner of a property but is not the actual owner. He holds and manages the property with the consent (express or implied) of the real owner, creating a belief in the public that he is the true owner.

The law relating to transfer by an ostensible owner is governed by Section 41 of the Transfer of Property Act, 1882 (TPA).

---

2. Section 41 of the Transfer of Property Act, 1882

Provision of Section 41:

"Where a person acts as the ostensible owner of a property with the consent, express or implied, of the real owner and transfers it for consideration to another person who takes it in good faith and after due diligence, the transfer shall not be voidable, and the real owner cannot reclaim the property."

Objective of Section 41

• To protect bona fide purchasers who buy property from an ostensible owner.
• To ensure certainty in property transactions.
• To prevent the real owner from misleading third parties and later claiming ownership.

---

3. Essentials of a Valid Transfer by an Ostensible Owner

For a transfer by an ostensible owner to be valid and binding on the real owner, the following conditions must be satisfied:

(i) The Transferor Must Be an Ostensible Owner

• The person transferring the property must appear as the real owner to the public.
• The real owner must have allowed the ostensible owner to deal with the property.
• Example: A father allows his son to manage and deal with family property, creating an impression that the son is the real owner.

(ii) Consent of the Real Owner

• The real owner must have given express or implied consent to the ostensible owner’s possession and dealings.
• Mere temporary possession (e.g., tenant or licensee) does not make someone an ostensible owner.

(iii) Transfer Must Be for Consideration

• The buyer must have paid a valid consideration (money or value) for the transfer.
• If the transfer is without consideration (e.g., a gift), Section 41 does not apply.

(iv) Purchaser Must Act in Good Faith

• The buyer must believe that the ostensible owner is the real owner.
• There should be no fraud or collusion between the ostensible owner and the buyer.

(v) Buyer Must Take Reasonable Care

• The buyer must conduct due diligence and inquire into the ownership status.
• Failure to verify title can result in the real owner reclaiming the property.

---

4. Legal Effect of a Transfer by an Ostensible Owner

• If all conditions under Section 41 are fulfilled, the transfer is valid and binding on the real owner.
• The real owner cannot claim back the property from the buyer.
• If the purchaser was negligent in verifying ownership, the real owner can challenge the transfer.

---

5. Judicial Interpretation

Ramcoomar v. Macqueen (1872)

• The Privy Council held that where the true owner allows another to appear as the owner, an innocent purchaser should be protected.

Bhanu Kumar Jain v. Archana Kumar (2005)

• The Supreme Court ruled that an ostensible owner’s transfer is binding on the real owner if the buyer exercised due diligence.

---

6. Exceptions to Section 41

The rule does not apply in the following cases:

1. If the real owner has not given consent – Unauthorized possession does not make someone an ostensible owner.
2. If the buyer fails to verify ownership – A careless buyer cannot claim protection.
3. If the transfer is without consideration – A donee or heir cannot benefit under this rule.
4. If the transfer violates statutory restrictions – Transfers restricted by law (e.g., tribal land restrictions) are void.

---

7. Conclusion

The doctrine of transfer by an ostensible owner (Section 41, TPA) is based on justice and fairness. It protects bona fide purchasers who act in good faith and with due diligence. However, the real owner must have consented to the ostensible ownership, and the buyer must verify ownership before purchasing.