vustudents
08-29-2012, 06:13 PM
Q. Who is ostensible owner? discuss in detail the law regarding transfer of property by ostensible owner. (2001) (2003)(2007)
1. Introduction:
If transfer of property is made by ostensible owner, such transfer is not void. ostensible owner is not real owner, but the real owner of the property permit him to hold himself out as a real owner. reasonable care must be taken by ostensible owner.
2. Relevant provisions:
Sec. 41. transfer of property act.
3. Meaning of ostensible owner:
According to black law dictionary:
:Ostensible owner: is the "apparent owner".
4. General rule:
General rule regarding the transfer of property is that on one can transfer a better title than what he himself possess.
5. Exception to general pule:
According to sec. 41
"Where with the consent, express or implied of the person interested in immoveable property a person is the ostensible owner of such property and transfer the same for the consideration the transfer shall not be void on the ground 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."
Case law:
Pickering v/s busk 15 est 38.43
It was held if a person authorizes another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that apparent authority is the real authority.
6. Essential conditions for the applicability:
(i) Ostensible owner:
The transfer must be made by ostensible owner.
(ii) Immoveable property:
The property must be immoveable.
(iii) Consent:
The real owner should have given consent to the apparent authority.
Form of consent
Following are the two forms of consent.
(i) Express consent
(ii) Implied consent
(iv) Transfer for consideration:
The transfer by ostensible owner must be for some value or consideration.
(v) Can not be avoided by real owner:
Once the transfer is made by the real owner it can not be avoided by the real owner.
(vi) Reasonable care must have been taken by transferee:
The transferee must have taken reasonable care to ascertain the true authority of the transferor.
(vii) Good faith:
The transferee must have acted in god faith.
7.Burden of Proof:
The burden of proof in the first instance is on the transferee to show that he acted in good faith and has taken reasonable care. secondly the burden of proof is on the real owner.
8. Rule of evidence
Sec. 41 of T.PA. provides a rule of evidence against the real owner that once the consent is given by his, he will not be allowed to restrain the transfer.
9. Application of law of estoppels:
Sec. 41 based upon equitable doctrine of estoppel operating between true owner and the transferee. as a matter of fact sec. 41 is a statutory application of the law of estoppel.
10. Basis:
Sec 41 based upon the equitable doctrine of estoppels.
Case law 1981 CLC 1260.
It was held basis of sec 41 is doctrine of estoppel operation between the owner and transferee in good faith. estoppel orose only is case of transferor held ostensible owner of property with consent express or implied of person interested in immovable property.
11. Conclusion:
To conclude i can say that an ostensible owner can transfer the property if conditions is sec. 41 are fulfilled by him. it is on natural justice and equity. such doctrine is applicable to voluntary transfers. the transfer must be consideration and the transferee must take reasonable care to ascertain that the transferor has power to make the transfer and must act in good faith.
1. Introduction:
If transfer of property is made by ostensible owner, such transfer is not void. ostensible owner is not real owner, but the real owner of the property permit him to hold himself out as a real owner. reasonable care must be taken by ostensible owner.
2. Relevant provisions:
Sec. 41. transfer of property act.
3. Meaning of ostensible owner:
According to black law dictionary:
:Ostensible owner: is the "apparent owner".
4. General rule:
General rule regarding the transfer of property is that on one can transfer a better title than what he himself possess.
5. Exception to general pule:
According to sec. 41
"Where with the consent, express or implied of the person interested in immoveable property a person is the ostensible owner of such property and transfer the same for the consideration the transfer shall not be void on the ground 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."
Case law:
Pickering v/s busk 15 est 38.43
It was held if a person authorizes another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that apparent authority is the real authority.
6. Essential conditions for the applicability:
(i) Ostensible owner:
The transfer must be made by ostensible owner.
(ii) Immoveable property:
The property must be immoveable.
(iii) Consent:
The real owner should have given consent to the apparent authority.
Form of consent
Following are the two forms of consent.
(i) Express consent
(ii) Implied consent
(iv) Transfer for consideration:
The transfer by ostensible owner must be for some value or consideration.
(v) Can not be avoided by real owner:
Once the transfer is made by the real owner it can not be avoided by the real owner.
(vi) Reasonable care must have been taken by transferee:
The transferee must have taken reasonable care to ascertain the true authority of the transferor.
(vii) Good faith:
The transferee must have acted in god faith.
7.Burden of Proof:
The burden of proof in the first instance is on the transferee to show that he acted in good faith and has taken reasonable care. secondly the burden of proof is on the real owner.
8. Rule of evidence
Sec. 41 of T.PA. provides a rule of evidence against the real owner that once the consent is given by his, he will not be allowed to restrain the transfer.
9. Application of law of estoppels:
Sec. 41 based upon equitable doctrine of estoppel operating between true owner and the transferee. as a matter of fact sec. 41 is a statutory application of the law of estoppel.
10. Basis:
Sec 41 based upon the equitable doctrine of estoppels.
Case law 1981 CLC 1260.
It was held basis of sec 41 is doctrine of estoppel operation between the owner and transferee in good faith. estoppel orose only is case of transferor held ostensible owner of property with consent express or implied of person interested in immovable property.
11. Conclusion:
To conclude i can say that an ostensible owner can transfer the property if conditions is sec. 41 are fulfilled by him. it is on natural justice and equity. such doctrine is applicable to voluntary transfers. the transfer must be consideration and the transferee must take reasonable care to ascertain that the transferor has power to make the transfer and must act in good faith.