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THE TRANSFER OF PROPERTY ACT, 1882

CHAPTER II1 TRANSFERS OF PROPERTY BY ACT OF PARTIES

Chapter II of the Transfer of Property Act, 1882 deals with transfers of property by act
of parties. This chapter has been divided into two parts:

Part-A—provides for rules regarding transfers of property in general, whether movable

or immovable.

Part-B—provides for rules regarding transfers of immovable property.

(B) TRANSFER OF IMMOVABLE PROPERTY

Part B of the Chapter II of the Transfer of Property Act, 1882 deals only with transfer of
immovable properties. This part consists of sections 38 to 53A. These sections will be
taken up in following groups or parts:—

I. Transfer by a person other than a full owner. (sections 38, 41 and 43).

II. Protection of third person's rights (sections 39-40).

III. Transfer by a person having authority to revoke a former transfer (section 42).

IV. Transfer by co-owners (sections 44 and 47)

V. Joint-transfers (sections 45-46)

VI. Priority of rights created by transfer (sections 48 and 78)

VII. Transferee's right under a policy (section 49)

VIII. Bona fide holders under a defective title (sections 50-51)

IX. Lis Pendens (section 52)

X. Fraudulent Transfer (section 53)

XI. Part-performance (section 53A)

[s 41] Transfer by ostensible owner.—

Where, with the consent, express or implied, of the persons interested in immoveable
property, a person is the ostensible owner of such property and transfers the same for
consideration, the transfer shall not be voidable on the ground that the transferor was
not authorised 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.

Comments

[s 41.1] Transfer by Ostensible Owner (Section 41)

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The section says that—

(1) where with the consent (express or implied) of the persons interested in
immovable property,

(2) a person is the ostensible owner of such property, and

(3) transfers the same for consideration,

(4) the transfer shall not be voidable on the ground that the transferor was not
authorised to make it,

(5) provided that the transferee, after taking reasonable care to ascertain that the
transferor had power to make the transfer, has acted in good faith.

[s 41.2] Principle

The general principle of law of transfer of property is that no person can transfer to
another a right or title greater than what he himself possesses. The maxim on which
this principle is based is nemo dat quod non-habet, i.e., no one can transfer better title
than he himself has. This general rule has certain exceptions too. One exception is that
if the true owner of property permits another to hold himself out as the real owner, a
third person who deals in good faith with that other person may acquire a good title to
the property as against the true owner.233 An example is to be seen in a Supreme Court
decision. A property was transferred to a person under a Will and he obtained a
probate. He did so without informing the other intestate heirs of the testator. But those
heirs allowed him to represent to the developers that he was the owner of the property.
He sold the property to the developers. It was held that the developers, having acquired
the property in good faith for a valuable consideration, the intestate legal heirs were
estopped from challenging the validity of the transaction.234 This is also the rule of
estoppel contained in section 115 of the Indian Evidence Act, 1872.

The House of Lords in Cairacross v Lorimer,235 observed: "If a man either by words or
by conduct, has intimated that he consents to an act which has been done and that he
will offer no opposition to it, although it could not have been lawfully done without his
consent and he thereby induces others to do that from which they might have
abstained, he cannot question the legality of the act, he had so sanctioned to the
prejudice of those who have so given to his words or to the fair inference to be drawn
from his conduct."

Following this, the Privy Council in Ram Coomar v Macqueen,236 observed: "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 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."

The difference between section 115 of the Evidence Act, 1872 and section 41 of this
Act is that under section 115 it is necessary that the party sought to be estopped
should have intended that the party pleading the estoppel should act on his
representation, whereas under this section it is not necessary that the real owner
should have intended that the transferee should take a transfer of property. In fact, in
most of the cases, the intention of the person placing property in the name of another
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person (ostensible owner) is to screen the property from the creditors and not that the
ostensible owner should transfer the property to anyone.237 The estoppel under this
section operates between the true owner and the transferee in good faith. It has no
application between the true owner and the ostensible owner, and, therefore, an
ostensible owner cannot invoke the provisions of this section for his benefit.238

[s 41.3] Benami Transactions

The law relating to transfer of property by an ostensible owner under this section are
now subject to the provisions of Benami Transactions (Prohibition of the Right to
Recover Property) Act, 1988, "Benami transaction" means any transaction in which
property is transferred to one person for a consideration paid or provided by another
person. In simple words, the person who purchases the property and pays the price for
it, does not purchase the property in his own name but in the name of any other person.
The other person whose name is used as the owner of the property is known as
benamidar (ostensible owner). In truth, he holds the property on behalf of the real
owner because he is not the real owner. The Benami Transaction Act of 1988 provides
that where a property is transferred benami (i.e., in the name of another person), the
person, in whose name the property is held, shall become the real owner.239

The Benami Transactions Act, 1988 provides that no suits, action or claim to enforce
any right in respect of any property held benami against the person in whose name the
property is held or any other person shall lie by the person claiming to be the real owner
of the property. In other words, the real owner now after the enforcement of this Act
cannot claim the property from the benamidar by any suit, claim or action. The defence
of being the real owner shall also not be allowed. However, an exception has also been
given in the Benami Transaction Act, 1988 where the above-stated rule will not apply:—

(a) Where the person in whose name the property is held is a coparcener in a Hindu
Undivided Family and the property is held for the benefit of the co-parceners in
the family, or

(b) Where the person in whose name the property is held is a trustee or other
person standing in a fiduciary capacity, and the property is held for the benefit of
another person for whom he is a trustee or towards whom he stands in such
capacity.

This means that now an ostensible owner or benamidar has become a real owner
except where he is a co-parcener in a Hindu Undivided Family or a trustee standing in a
fiduciary capacity. Therefore, the law laid down by section 41 of the Transfer of
Property Act, 1882 stands modified except where benamidar is a co-parcener or a
trustee standing in a fiduciary capacity.

For the purpose of deciding whether a transaction is of benami nature, the motive of
the person advancing the consideration for the transaction is the most relevant factor.
This view was expressed by the Supreme Court in a case in which the claim was for
partition by the daughter of the property of her father. Her brothers refuted this claim
saying that the properties in question were purchased by their father in their names and
were their personal properties. The court held that the transaction was in the nature of
a benami purchase. The Supreme Court reversed this decision because the lower court
had not taken into consideration the intention of the father who provided the
consideration and the totality of the circumstances.240 In another case the property
was purchased in the name of wife through power-of-attorney executed by her. The
husband was the attesting witness to the power-of-attorney. Thus he knew that it was
the transaction of his wife. Insurance policy also taken in her name. Mutation in her
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name was got done immediately. They had a son and seven daughters. The court said
that it could be inferred that the property was purchased in the name of wife to provide
for the children. It was, therefore, a genuine and not a benami transaction.241

The Act does not have retrospective effect. A suit for recovery of property held by a
name lender (benami) before the enforcement date of the Act was held to be not hit by
the prohibition under section 4 of the Act.242

[s 41.4] Property in the Name of Wife or Unmarried Daughter

The provisions of the Benami Transactions (Prohibition of the Right to Recover

Property) Act, 1988 does not apply to bona fide transactions too. For example, where a
person purchases property in the name of his wife or unmarried daughter. Section 3(2)
of this Act provides that there is no prohibition on the "purchase of property by any
person in the name of his wife or unmarried daughter and it shall be presumed, unless
the contrary is proved, that the said property had been purchased for the benefit of the
wife or the unmarried daughter."

The Supreme Court has held in Nand Kishore Mehra v Sushila Mehra,243 that where a
person purchases property in the name of his wife or unmarried daughter he can claim
the property later if he proves that it was not purchased for their benefit.

[s 41.5] Property Allotted for Life in Lieu of Meritorious Service

The State Government in lieu of meritorious service rendered by the late Havaldar
allotted land to his widow for maintenance during her life-time. It was held that after
the window's death the land was to revert to the concerned State. She could not have
transferred it even by a registered deed. The court said:

The widow can be ostensible owner to the extent that she has a right during her life-time.
She ceased to be an ostensible owner after her death and cannot pass on a better title than
what she had. Admittedly, she had a life estate in the property and after her death, the title in
the land would revert to the State of Punjab.244

[s 41.6] Displaced Person, Allottee of Government Land

The concept of "ostensible owner" has been held to include transferee from the Central
or State Government. An allottee under the Displaced Persons (Compensation and
Rehabilitation) Act, 1954, could be treated to be an ostensible owner and the
government as the real owner. Sale by such person would be valid and binding only if it
was under free consent of the ostensible owner. There was fraud in this case. The
court said fraud vitiated everything. The real owner was not bound by the sale. The only
remedy of the subsequent buyer was refund, etc.245

[s 41.7] Essential Requirements of the Section

The following conditions are necessary for the applicability of this section:—

(1) The transferor must be an ostensible owner,

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(2) The transfer of property to the ostensible owner must be with express or implied
consent of the real owner.

(3) The transfer by the ostensible owner must be for consideration.

(4) The transferee must have acted in good faith, taking reasonable care in
ascertaining that the transferor has the power to make the transfer.

Every one of these conditions must be satisfied for taking the benefit of section 41. The
transferee has to prove that the transferor was the ostensible owner of the property
with the consent of the real owner; he transferred the property for consideration, and he
himself (the buyer) acted in good faith after making a reasonable inquiry.246

[s 41.7.1] Ostensible Owner.—

The first requirement of the section is that the transferor must be an ostensible owner.
In simple words, an ostensible owner is that person who is not the real owner of the
property. An ostensible owner is one who has all the indicia of ownership without being
the real owner. He is a person who is apparently the unqualified and full owner and not
a person who is a qualified owner like a mortgagee or hirer of goods. Sometimes, there
may occur difficulty in ascertaining whether a person is real owner or ostensible owner.
The Supreme Court in the case of Jayadayal Poddar v Bibi Hazra,247 held that whether a
person is an ostensible owner or not is a substantive question to be decided on the
basis of facts and circumstances. The following considerations must be taken into
account in deciding upon the fact of ownership—

(i) Source of the purchase-money, i.e., who paid the price of the property?

(ii) Nature of possession after the purchase, i.e., who had the possession of
property?

(iii) Motive of giving benami colour to the transaction, i.e., why the property was
purchased in the name of other person?

(iv) Relationship between the parties, i.e., whether the ostensible owner and the real
owner were friends, strangers or relatives?

(v) Conduct of the parties in dealing with the property, i.e., the conduct who used to
take care of the property and who had control over the property?

(vi) Custody of the title deeds, i.e., who had the title-deeds?

In Suraj Ratan Thirani v Azamabad Tea Co Ltd,248 the Supreme Court held that for the
applicability of this section it must be shown that the transferor was the ostensible
owner of the property with the consent of the co-sharers where the property is the
subject-matter of joint ownership and that the transferee took reasonable care to
ascertain that the transferor had power to make transfer.

The burden of proof that the transaction is benami and the transferor is the ostensible
owner lies on the person who claims to be the real owner.249

The following persons do not come in the category of ostensible owners because they
are either restricted or qualified owners:—

(i) A manager in possession of property.250

(ii) A licensee in possession of property.251

(iii) A menial servant in occupation of property.251

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(iv) A professed agent.252

(v) A manager or trustee of an idol.253

(vi) A donor who has not reserved to himself any power of revocation of the gift
deed.254

(vii) A co-sharer in occupation of joint family property.255

(viii) A mahant of a math's property.256

A dohlidar is not an absolute owner of dohli property. A Dohli property is created in lieu
of some services to be rendered by dohlidar. Dohlidar can use such property only so
long he renders services for which dohli was created. He cannot transfer the same. Any
alienation of such property made by dohlidar would be void.257

[s 41.7.2] Express or Implied Consent of Real Owner.—

It is necessary that the transfer of property must be made by the ostensible owner with
the express or implied consent of the real owner. The consent must be a real consent.
It must not have been obtained by fraud, coercion, force or undue influence258
practised by the ostensible owner on the real owner of the property.

If either by words or by conduct, a man permits another person to hold himself out to
be the owner of the property and a third person purchases it for value from that person
who holds himself out to be the owner of the property after reasonable inquiry into the
title, then the real owner will be estopped from recovering the property upon secret title.
In the words of Ashurst J, "wherever one or two innocent persons must suffer by the
act of a third, he who has enabled such person to occasion the loss must sustain it."259

In case the real owner is incapable of giving the consent like minor or a religious
endowment, no one can hold himself out as an ostensible owner of such property.

Whether the real owner consented for the ostensible ownership or not is a question of
fact to be determined on the facts and circumstances of each case. Where the consent
is given in words, either written or spoken, it is an express consent. Where the consent
is given by conduct, it is implied consent. The consent is implied where the real owner
knows that the ostensible owner is dealing with the real owner's property as his own
but the real owner remains silent or acquiesces. Such acquiescence or silence
amounts to consent. But where the real owner is not aware of his ownership rights, his
silence would not amount to his consent. In such a case, his silence would not debar
him from claiming that the transfer is made by an unauthorised person. In this
situation, the real owner will be entitled to avoid the sale and this section will not come
to the protection of the transferee.

Attestation does not imply consent by itself. However, if it is proved that the attestation
took place in circumstances which involved knowledge of the real owner or consent of
him to the transaction, it may be regarded as implied consent.260

Illustrative Cases

(1) A, a Hindu husband, purchased property in the name of his wife, B. The property
(land) was entered in the name of the wife in revenue records. After A's death, his
widow B, mortgaged the land to C, who took the mortgage after due inquiry believing in
good faith that B was the owner of the property. C obtained a decree for sale on his
mortgage and purchased the land. But at that time D was in possession of the property
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for D had purchased the land in execution of a money decree against A. C's suit against
D for possession was decreed. D was the successor in interest of A who had held out
his wife B as the ostensible owner and could not defeat the mortgagee who was a
transferee in good faith from the ostensible owner.261

(2) A, a Hindu, died leaving a daughter B who took a limited estate by inheritance. B
made a statement to the revenue authorities that A's separated brother C was his heir
and allowed C to take possession of the estate. On B's death, her son claimed as
reversionary heir of A. C was held not entitled to the protection of section 41, because
his ostensible ownership was not created by the real owner A but by limited owner
B.262

(3) One Alexander purchased certain landed properties in Calcutta in the name of his
mistress, Bunnoo Bibee. One of the two children born to him by Bunnoo Bibee was
Macqueen. She used to manage the properties and the sale deed was also in her
name. During the life-time of Alexander, Bibee sold the properties to Ramdhone (father
of Ramcoomar). After the death of Bibee, Macqueen filed a suit against Ramdhone
claiming the properties on the ground that her father had left a will in her favour and
that the Bibee was only benamidar and Alexander was the real owner. However,
Ramdhone pleaded that he was a bona fide purchaser without notice of benami title of
the Bibee (the seller). The Calcutta High Court decided in favour of Macqueen. On
appeal, the Privy Council held that even assuming that the Alexander was the real
owner and Bibee was merely ostensible owner but since the Alexander had allowed
Bibee to hold herself out as the real owner, he or his representatives could not recover
upon secret title unless they could prove that the purchaser had direct or constructive
notice of the real title of Alexander.263

(4) The court said that the plaintiff, being co-sharer with the vendor could not be
regarded as the owner of the share of his sister by way of adverse possession. The
plaintiff had not ousted other co-sharers/vendor from the suit land. The vendor had not
abandoned her share in the property. The subsequent vendors made enquiries from the
revenue records. They satisfied themselves of the fact on the record that the vendor
was the half-owner of the share in the property. The same was then purchased. It was
held that in these circumstances, the subsequent vendees would be entitled to
protection under section 41 being bona fide purchasers for consideration.264

[s 41.7.3] No partition between joint owners.—

The property was jointly owned by three persons without any partition deed between
them. A transfer effected by only one of them was held to be no good. The transferee
exercised no care to see that there were other joint owners. He could not be regarded
as a bona fide purchaser.265

[s 41.7.4] Transfer for Consideration.—

The protection of this section is available only when the transfer is for consideration. If
the transfer is without consideration, i.e., gratuitous, this section will not apply. This
protection is also not available to gifts. Thus, the real owner will not be precluded from
denying a gift made by as ostensible owner.

[s 41.7.5] Good Faith and Reasonable Care.—

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Good faith means the bona fide intention, i.e., the transferee had acted honestly and in
the real belief that the ostensible owner was the real owner. Reasonable care is not
enough if there is absence of good faith. Where a man purchased a property after due
inquiry and honestly believing that the seller was the real owner, he will protected
against the real owner. But where the purchaser after enquiry found that the seller was
only ostensible owner not the real owner, and even then he purchased the property for
him, he would not be taken to act honestly. Therefore, the protection of this section will
not be available to him. The rule of law is that "he who seeks equity must do equity".
Thus, the protection of this section will be available only for that person (transferee)
whose own conduct is just and equitable. In the absence of good faith the court will
presume a collusion between the ostensible owners and the transferee. For example,
where the real owner and the transferee lived in the same village and the transferee
was acquainted with the circumstances of his family, even then he purchased the
property from some other person, the court was slow in believing the good faith of the
transferee.266

Mere misconception of the rights of the transferor will not avail. When a person bought
a property belonging to a female, who had been outstayed for unchastity, believing that
her interest was forfeited, he was not protected by this section.267

In Qandhara Singh v UOI,268 the plaintiff migrated to India from Pakistan during
partition. He had left some land in Pakistan and in lieu of that land he was allotted land
in India. It was found later on that some part of the land left by him in Pakistan was
mortgaged to Muslims. A notice was served on him to pay the mortgage money back
but he did not. Therefore, a part of the land allotted to him was auctioned. Both the
defendants and plaintiff took part in the bidding. The defendants got the land in auction
but the plaintiff did not challenge the order of auction in appeal. This conduct of the
plaintiff was enough to create a belief in the mind of defendants that he consented to
the auction sale and, therefore, the purchasers acted in good faith in purchasing the
land at the time of auction.

Mere good faith is not sufficient. The purchaser must establish that he made
reasonable enquiries.269 Reasonable care means such care as the person of ordinary
prudence would take in his own case. It means such care as an ordinary man of
business would take. Reasonable care is to be expected from everyone who claims to
have purchased free from a really existing right.270 It is not possible to lay down any
general rule of enquiry which may be called reasonable care for all the cases. The
standard of enquiry expected from the transferee depends upon the facts and
circumstances of each case.

Revenue records are not documents of title and it is not safe to rely on the entry of the
transferor's name in the revenue registers. A transferee who omits to enquire into title
is not protected by this section.271 In order to avail the protection of this section, the
purchaser must inspect the records of at least 12 years in the Registration Office.272

In case of transfer of suit land by ostensible owner when the documentary and oral
evidence showed that the real owner by his conduct allowed the world at large to
believe that he had no right in the properties and was in fact not in possession of the
property and the transactions reflected in the revenue records and in the registered
documents fully supported the ostensible title and the possession of the ostensible
owner, it was held that the purchasers under such circumstances guided by the land
revenue records and title deeds were entitled to protection under section 41 of the
Act.273

An illustration may be taken in which A was the owner of a property which was entered
in the revenue records in the name of B. B mortgaged the property to C who accepted
the mortgage relying on the revenue register. If C had made further inquiry he would
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have found that A had objected to the entry of the property in B's name and that the
property had been left to A by will. C was not protected by this section.274

The persons who want to take the benefit of this section must be able to show that
they have made an enquiry about the transferor's title. Only such persons are entitled to
claim protection under section 41 of the Transfer of Property Act, 1882 who despite the
inquiry, have not been able to discover who is the real owner of the property and who
have full belief that the person making a transfer in their favour is really entitled to that
property.

In a case, a tahsildar purchased land in the name of his minor sons and entered that in
their names in the revenue records. The tahsildar was forbidden by the departmental
rules from acquiring land within the limits of his tahsil. The sons afterwards sold and
mortgaged the property to a person who acted in good faith and relied on the entries in
the revenue records. The purchasers and mortgagees were held not entitled to the
protection of this section because they should not have been satisfied with the entries
in the revenue records.275

The transferee must show that he has made the usual enquiry into the title of the
transferor, otherwise the protection of this section will not be available to him.

In Bailey v Barbes.276 Lord Lindley observed, "A purchaser of property is under no

obligation to investigate his vendor's title. But in dealing with real property, as in other
matters of business, regard is had to the usual course of business and a purchaser
who wilfully departs from it in order to avoid acquiring a knowledge of his vendor's title
is not allowed to derive any advantage from his wilful ignorance of defects which would
have come to his knowledge if he had transacted his business in the ordinary way."

Where the suit land was situated in a small village and all parties belonged to that
village, it was held that the subsequent purchaser could not be held to be a bona fide
purchaser because he must be knowing the earlier transaction of sale of the same
land.277

Where the transferee had knowledge of the fact that the land belonged to a lady who
had a grandson, it was held that this fact of knowledge ruled out the application of
sections 41 and 43. Consent letter is not a document of authority even if it was found
to be genuine.278

Where the subsequent purchaser had sufficient time to enquire prior to getting sale-
deed registered in his favour but no genuine enquiries were made around the area
where the property was located and parties were residing, the subsequent purchaser
could not be a bona fide purchaser.279

[s 41.8] Doctrine of Holding Out

Section 41 protects the transferee from an ostensible owner by applying the doctrine of
holding out. This section comes into play when the rights of two innocent parties come
into conflict. If a property is owned by A but B is allowed by A to appear as owner in the
eyes of the public and taking advantage of his appearance B sells the property to a
bona fide purchaser, the question arises whether A can recover the property back from
the bona fide purchaser. The owner has rendered the fraud by B possible by holding out
B as the owner and, therefore, he has to suffer. However, the following conditions are to
be satisfied:—

(i) The transferor should be the ostensible owner of the property.

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(ii) He must have held the property with the consent (express or implied) of the real
owner.

(iii) The transferee had purchased the property for value (consideration) and had
acted in good faith and with reasonable care.

(iv) The onus is on the transferee to show that he purchased the property for value
and in good faith without the knowledge of the real state of the title.

When the above-stated conditions are satisfied, the transferee from the ostensible
owner is protected against the claims of the real owner.

[s 41.9] Burden of Proof

In the first place, the burden of proof lies on the transferee to show that the transferor
was the ostensible owner and that he acted in good faith and with reasonable care. The
onus is then shifted to the party who wants to defeat the transferee's title to show that
there was something which called for inquiry and attention. This is because the real
owner having created the appearance of title in another person, it is incumbent on him,
or on those who derive title from him to show something which amounts to
constructive notice of the real title, some specific circumstance as the starting point of
an inquiry which would have led to the discovery of it.280

The subsequent purchaser in supercession of an earlier agreement to sell has to prove

his bona fide. The burden of proof lies upon him and in case he fails to discharge the
burden, he would be disentitled to claim protection of section 41. He cannot plead
failure of earlier agreement holder to prove any notice of agreement to him. Where both
the parties are living in the same locality or in a small village, knowing each other
personally, presumption is of notice of agreement to one another. Therefore, when the
plaintiff and defendant are real cousins having adjoining houses, no notice of prior
agreement canbe pleaded.281 Where the subsequent vendee entered into agreement to
sell and executed sale deed despite receiving notice from the earlier agreement holder,
he could not claim to be a bona fide purchaser.282

Impact of Securitization and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002.

It has been held that an enforcement of security interest under section 13 of SARFAESI
Act cannot be opposed on the ground of the purchaser being only the ostensible owner
of the property. The Act is a complete code in itself. Taking recourse to the provisions
of section 41 of the Transfer of Property Act, 1882 was held as not tenable.283

1 Nothing in Chapter II is to be deemed to affect any rule of Muhammadan Law, see section 2,
Act 20 of 1929.
233 Broom, A Selection of Legal Maxims, 10th Edn, 1939.
234 Crystal Developers v Asha Lata Ghose, AIR 2004 SC 4980 : (2005) 9 SCC 375 : (2004) 8
Scale 390 .
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235 (1860) 3 Macq 837 (829).
236 18 NR 166 : 11 Beng LR 46 : IA Sup Vol 40.
237 (1957) 2 Mad LJ 603 (609) (DB).
238 State of Bihar v Dukhulal Das, AIR 1962 Pat 140 (146).
239 The Act does not apply to transactions completed before it came into force, Samittri Devi v
Sampuran Singh, AIR 2011 SC 773 : 2011 AIR SCW 680 : (2011) 3 SCC 556 , a suit filed prior to
the enforcement of the Act would not be hit by the prohibition in section 4 of the Act.
240 V Shankaranarayana Rao v Leelavathy, AIR 2007 SC 2637 : 2007 AIR SCW 4757 : 2007 (7)
Scale 73 . The court relied upon its own decision in Binapani Paul v Pratima Ghosh, (2007) 6
Scale 398 : 2007 AIR SCW 7539 : (2007) 6 SCC 100 where also it was emphasised that the role
and motive of the person who provided the amount of consideration plays an important part in
determining the character of the transaction.
241 Thakur Bhim Singh v Thakur Kan Singh, (1980) 3 SCC 72 : AIR 1980 SC 727 .
242 Samittri Devi v Sampuran Singh, AIR 2011 SC 773 : 2011 AIR SCW 680 : (2011) 3 SCC 556 .
243 JT 1995 (5) SC 130 : AIR 1995 SC 2145 : 1995 (1) SCC 519 .
244 State of Punjab v Surjit Kaur, JT 2001 (10) SC 42 : 2001 (8) SLT 486 ; (2012) 12 SCC 155 ;
(2013) 2 SCC Civ 155 ; (2002) 46 ALR 374 .
245 Niranjan Kaur v Financial Commissioner, Revenue and Secretary to Government, Punjab, AIR
2011 P&H 1 : 2010 (1) AIR Kar. R 522 (FB).
246 V Chandrasekaram v Administration Officer, (2012) 12 SCC 133 : (2012) 120 AIC 58 .
247 AIR 1974 SC 171 : (1974) 1 SCC 3 : (1974) 2 SCR 517 .
248 AIR 1965 SC 295 : 1965 SCD 23 : (1964) 6 SCR 192 ; Crystal Developers v Asha Lata Ghose,
AIR 2004 SC 4980 : (2005) 9 SCC 375 : (2004) 8 Scale 390 , a probate was obtained by the
legatee without informing other intestate heirs. The latter allowed him to represent to the
developer that he was the sole owner of the property and thus the property was sold to the
developer. The developer was held to be a bona fide purchaser for value. Kashmir Singh v
Panchayat Samiti, AIR 2004 SC 2438 : 2004 AIR SCW 2970 : (2004) 6 SCC 207 , a purchaser from
the State Government was held to be not a bona fide purchaser because he knew that the land
belonged to the Panchayat Samiti and not to the State Government.
249 Raj Ballav Das v Haripada Das, AIR 1985 Cal 2 . Kammana Sambamurthy v Kalipatnapu
Atchutamma, AIR 2011 SC 103 : (2011) 11 SCC 153 : (2011) 85 ALR 221 , in this case it was not
even the case of the vendee that the vendor was the ostensible owner of the whole property
alongwith being the joint owner.
250 Mohd. Suleman v Sakina Bibi, (1922) 44 All 674 .
251 Chunilal Khemani v Nilmadhab Barik, (1925) 41 Cal LJ 374 : AIR 1925 Cal 1034 .
252 Dambar Singh v Javitri, (1907) 29 All 282 .
253 Ratan Sen v Suraj Bhan, AIR 1944 All 1 : 1943 All LJ 535 : ILR 1944 All 20 .
254 Aukumma v Narsaya, (1947) AM 127.
255 Lakshmi Bai v Ravji, (1949) A Kutch 34.
256 Besdeo Gir v Jugraj Parshad, 1949 Oudh WN 156.
257 Ghiga Ram v Surat Singh, 2003 (4) RCR (Civil) 23 (P&H).
258 Section 14, Indian Contract Act, 1872.
259 (1787) 1 Smith LC, 11th Edn, 693; Samai Singh v Hukam Singh, AIR 2007 (NOC) 2054 (Utr),
by virtue of the power given by the real owners of land, the attorney was found to be fully
competent to execute sale deed of the land in question, purchaser paid the sale consideration in
good faith. Section 41 applied preventing the plaintiffs from seeking an injunction against the
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sale; vendor executed sale deed without the consent of owner of property, sale deed held void,
defendant was not a bona fide purchaser, Wazir Singh v Avtar Singh, AIR 2018 (NOC) 859 P& H.
260 Tarabag Khan v Nanak Chand, (1932) 138 IC 263 : AIR 1932 Lab 566 .
261 Ananda Mohan v Nilphamari, (1922) 26 Cal WN 436 : AIR 1921 Cal 549 .
262 Shambhu Prasad v Mahadeo Prasad, (1933) 55 All 554 .
263 Ramcoomar Koondoo v Macqueen, (1872) 11 Bang LR 46 : 52 IA (Supp) 40 (43).
264 Layak Ram v Dharamwati, AIR 2010 P&H 95 : 2010 AIHC 836 (NOC).
265 Manjari Devi v Usha Devi, AIR 2014 Chha 22 : 2014 (135) All Ind Cas 293 : 2014 (1) Cg LJ
636.
266 Gurbaksh Singh v Nikka Singh, (1963) Supp 1 SCR 55 : AIR 1963 SC 1917 : 1963 (2) SCJ 285
; Mohammad Ibrahim v Mohd Yusuf, AIR 2007 (NOC) 1923 (All), transfer by ostensible owner by
registered document, suit was for specific, performance, transferee had not taken care to verify
from the office of the Sub-Registrar, not entitled to benefit of section 41. Arjan Singh v Thakar
Singh, AIR 2007 (DOC) 85 (P&H), transferee made no inquiry from office of Sub-Registrar about
earlier sale of the same property, he did not take any precautions or exercise due care, thus
suffered from lack of good faith in getting the sale deed registered, not entitled to protection of
section 41. Kashmir Singh v Panchayat Samiti, (2004) 6 SCC 207 : AIR 2004 SC 2438 : 2004 AIR
SCW 2970, a person purchased certain land from the State Government knowing that the land
belonged to the Panchayat Samiti, not allowed to claim protection under section 41.
267 Angammal v Venkata Reddi, (1903) 26 Mad 509.
268 AIR 1984 P&H 51 : 1983 Rev LR 487 : (1983) 2 Land LR 444 ; Sushima Kishandev Kaushal v
Council for Tibetan Education, AIR 2006 HP 122 , sale by plaintiff's mother with full connivance of
the plaintiff to whom the property belonged, representation of the plaintiff to mutation
authorities that the property belonged to her, she was shown to be owner in possession, held,
sale passed good title, no further enquiry was necessary.
269 Khwaja Afzal v Md Saheb, (1936) Nag 177. Baby Rani Deb v Manik Dey, AIR 2014 Gau 56 :
2014 (2) Gau LR 94 : 2014 (1) Gau LT 138, absence of pleading by purchaser that his seller was
ostensible owner with the consent of original owner. No effort made to ascertain that the seller
had the power to transfer.
270 Zungabai v Bhawani, (1907) 9 Bom LR 388 .
271 Nageshar Prasad Pande v Raja Pateshri Partab Narain Singh, (1915) 20 Cal WN 265 : AIR
1915 PC 103 (V2) : 34 Ind Cas 673; Gurcharan Singh v Surjit Kaur, AIR 2006 P&H 18 : 2005 (3)
Punj LR 232 : 2006 AIHC 1017 , widow and daughter of the deceased became entitled to inherit
his property, his brothers claimed that they were bona fide purchasers and mutation of their
purchase had been sanctioned, they were of the same village and, therefore, fully aware of the
right of the decreased, hence, not entitled to protection of section 41, sanction of mutation in
utter disregard of the legal position was not valid.
272 Mazhar Hasan v Mukhtar Hasan, AIR 1938 All 64 .
273 Neelakanth v Siddalingayya, AIR 2004 Kant 258 : 2004 AIR Kant HCR 1061 : 2004 (1) KCCR
432 .
274 Nageshar Prasad Pande v Raja Pateshri Partab Narain Singh, (1915) 20 Cal WN 265 : AIR
1915 PC 103 (V2) : 34 Ind Cas 673.
275 Pratap Chand v Saiyida Bibi, ILR (1901) 23 All 442 : 1901 All WN 137.
276 (1894) 1 Ch 25 .
277 Sree Brahadambal Agency v Ramaswamy, AIR 2002 Mad 352 ; Baldev Singh v Chhota Singh,
AIR 2002 P&H 47 : 2001 (2) CCC 503 : 2001 (3) ICC 673.
278 Atal Shrivastava v Devprasad, AIR 2012 Chh 117 .
279 Bailey v Barnes, (1894) 1 Ch 25 (35).
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280 Rajani Kanta v Bashiram Mestari, (1929) 49 Cal LJ 532 : 121 Ind Cas 409.
281 Balwan Singh v Mange Ram, 2003 (3) RCR (Civil) 590 (P&H).
282 Gurbachan Singh v Gurmit Singh, 2003 (4) RCR (Civil) 223 : 2003 (3) CCC 597 (P&H).
283 Sudha Sharma v Punjab National Bank, AIR 2016 Utr 1 .