A Critical study on

Transfer of property
on ostensible owner
(Section 41)
The word 'ostensible' can be explained as something that appears
to be true but is not actually true. The ostensible owner of a
property thus cannot be a real owner of a property. He can merely
represent himself as the real owner to third parties or to the public
at large. The ostensible owner of a property possesses all the rights
of ownership in a property but without being the real owner of the
same .The doctrine of transferring property by ostensible owner can
be seen as an exception to the maxim "nemo dat quod non habet"
i.e.

By Samprit Acharyya
Transfer by ostensible owner(Section41)
Ostensible Owner Exception to"Nemo Dat Ǫuod Non Habet"
The word 'ostensible' can be explained as The doctrine of transferring property by ostensible
something that appears to be true but is not owner can be seen as an exception to the maxim
actually true. The ostensible owner of a property "nemo dat quod non habet" i.e. a person cannot
thus cannot be a real owner of a property. He can transfer a superior title to property than what he
merely represent himself as the real owner to third holds.**Section41**of the Transfer of Property Act
parties or to the public at large. The ostensible states that when a person is acting on the
owner of a property possesses all the rights of express/implied consent of a person who is
ownership in a property but without being the real interested in immovable property, the person who
owner of the same. is acting on such consent is considered to be the
ostensible owner of the property. **He is in the
possession of all the indicia of ownership like the
right to possession, title ,documents, goodwill, etc.
He has the power to transfer the property for
consideration to the transferee.** The transferee
should act in good faith and should believe that
the ostensible owner is the actual owner of such
property.
Transfer by ostensible owner
(Section 41)
1 General Rule
The general rule for transfer of property is that a person
cannot transfer a property if he himself doesn't have a good
title over it, but if the essentials of section41 are fulfilled
then such transfer can become voidable on the ground that
the transferor was not in the capacity to make it. Hence
section 41 is an exception to the above- mentioned rule.

2 Intention of Section 41
The intention of this section is to safeguard the purchaser
from a situation where the real owner of the property tries to
avoid the transfer on the ground that the transferor was not
authorized to do so.Thereforeiftheconditionsofsection41 of
the Act are met then it eliminates the probability of
questioning a transfer of a property on the ground of the
authority of the transferor.

3 Applicability
The idea in this section does not apply if there is no
ostensible owner and/with if there is a real owner.

4 Section41
**Section 41 “Transfer by Ostensible Owner: Where, with the
consent, express or implied, 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.**
Essential conditions for
application of Section 41:
Transfer of Immovable Property
There is a transfer of immovable property by the ostensible
owner with express or implied consent of the owner.

Consideration
The transfer is for consideration. The real owner is not
precluded from denying a gift made by the ostensible owner.

Good Faith
The transferee has acted in good faith.
This section of TP Act enacts the rule f estoppels against the
real owner of a property who:

Real Owner's Belief

1 This section of the Transfer of Property Act enacts the rule of estoppel against the real
owner of a property who:

Unauthorized Alienation
2 - Makes others believe that one individual has complete control over his property including
the power of alienation.

Alienation by Ostensible Owner

3 –Although such a person is not authorized for such alienation of the property.

Transfer for Consideration

4 -But the person alienates the property in the capacity of an ostensible owner.

Bona Fide Transferee

5 –Such transfer is nota gift and is done for a value or consideration in exchange of the
property.

Estoppel
6 – If the above conditions are fulfilled then the real owner of the property will be prevented
by this section
fromquestionthevalidityofsuchtransferonthegroundofthecapacityoftheostensibleownerto
transfer such property, i.e. whether the ostensible owner was competent to transfer the
property or not.
Transfer by ostensible owner (Section41)
Implied Consent The consent of the real owner need not be
express or written; Section 41 also includes
implied consent of the real owner. As aforesaid,
the ostensible owner has to be in the possession
of the property by the consent of the real owner
and has to hold himself out as the real owner of
the property and allows others to deal with the
property as his own.

Intention to Deceive It is essential to note that the principle of

ostensible owner with the consent of the real
owner, whether expressed or implied, should
not have the intention to deceive the third party
on behalf of the real owner. It is not even
necessary to prove that the intention of the
ostensible owner was to deceive the purchaser
or real owner, and the transaction would be
considered as valid.

Protecting Transferee's Interest The intention of this section is the protecting the
interest of the transferee. The real owner of the
property may be innocent and allows the world
to think that someone else is the owner of his
property, but if the transferee has done a proper
inquiry and in a bona fide manner as mentioned
in the section then the interest of the transferee
will be protected.

Reasonable Care It is absolutely essential as per section 41 to

make sure that the transferee has taken due
care like an ordinary man would have taken.
Even otherwise, in every case,it is the duty of
the transferee to be vigilant in protecting one's
rights and interests and do proper due diligence
of the property as an ordinary prudent person
before getting engaged in the transfer.
Transfer by ostensible owner(Section41)
Benami Transactions
The true owner cannot assert his ownership Prohibition of Litigation
rights against the benami owner under any No litigation, actions, or claims to enforce
circumstances.The Benami Transaction any right concerning the property held
(Prohibition) Amendment Act, 2016 prohibits the benami against the person in whose name
transfer by an ostensible owner and has made it the property is held, or any other person
illegal and unlawful with certain exceptions. claiming to be the real owner of the
property, is allowed under the Act.

1 2 3

Benami Transactions(Prohibition)Act
The Benami Transaction (Prohibition) Act states
that when the transfer of a property is done
benami (that is, under the name of some other
person), the person who holds the property
becomes the real owner. The benamidar is only
a trustee for the real owner and merely acts as
a representative. If a property is acquired in the
guise of a benamidar and the indicia of
ownership are entrusted to him, the real owner
can only overcome the impact of alienation by
demonstrating that it was done without his
consent and that the buyer was aware of it.
Persons who are not ostensible owners include:

Manager Licensee Agent and Servant Co-sharer

A manager in A licensee in possession A professed agent and A co-sharer in
possession of the of the property. a servant in occupation in a jointly
property. occupation of a shared family property
property. of residence.

Trustee or Manager
of Idol
The trustee or manager
of the idol, because the
idol is neither conscious
nor capable of providing
consent.
CONCLUSION
Section 41 of the Transfer of Property Act provides protection to innocent third-party buyers who acquire
property from an ostensible owner. It establishes the principle of estoppel, where the real owner is barred
from challenging the transfer if the transferee acted in good faith and took reasonable precautions to
verify the transferor's authority. The burden of proof lies on the transferee to establish their status as an
ostensible owner. This provision aims to protect the interests of bona fide purchasers and ensure stability
in property transactions. It serves as a safeguard against the claims of the real owner and promotes
certainty in property rights.