Ostensible Owner

Introduction:
It is a general rule of law that no one can transfer a title greater
than he himself has. Section 41 provides that if real owner has
made another person as ostensible owner, and if a person
bonafide purchases that property, than title stands transferred to
purchaser and real owner shall not be allowed to overthrow it by
denying authority of ostensible owner.
Relevant Provision:
Section 41 of Transfer of Property Act, 1882.
Cross Reference:
Section 27 & 28 Sale of Goods Act, 1930.
Article 114 Qanoon.e.Shahdat Ordinance, 1984.
Meaning of ostensible owner:
Blacks Law Dictionary:
Apparent owner
Case Law Meaning:
2000 MLD 1984
Ostensible owner is the person, in whose favor, a prima facie
title of ownership exists, such title is a valid document of right,
and is available against the whole world except the true owner.
General Rule as to transfer of property:
Nemo plus juris ad alium transferee potest quam ipse
habet.
No man can transfer a right or title greater than he himself.
Nemo dat qui non habet
He gives not who hath not
Section 41, an exception to general rule:
Section 41 is an exception whereby a person who is not owner
confers a valid title to third person, if requirements of section are
fulfilled.

Ostensible Owner
Basis Of section:
Doctrine of Equitable estoppels
Ram Coomar Vs. Macqueen (1872)
This section is based on the principle that, where one of the two
innocent persons must suffer from fraud of third party, the loss
should fall on him, who has created, or could have prevented, the
opportunity for fraud.
Essentials conditions for application:
Transferor is Ostensible Owner:
An ostensible owner is one who has all the indicia of ownership
without being the real owner. The transfer must be made by
ostensible owner.
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.
2007 YLR 1636 Lah
Legal heirs by not getting their names brought on revenue
record, had induced innocent purchaser to buy property from
ostensible owner.
Transfer for Consideration:
The transfer by ostensible owner must be made for some
consideration.
Reasonable Care:
The transfer must have taken reasonable to ascertain that the
transferor had power to make transfer.
Azima Bibi Vs. Shamalanand (1913)
The expression reasonable care means, such care as a man of
ordinary prudence would take.

Ostensible Owner
Transfer must not be Voidable
The transfer of property by the ostensible owner must not be
voidable. But it must be valid one.
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.
Legal Effect:
2012 CLC 1268
When an ostensible transfer is made for consideration, with the
consent, express or implied, of persons interested in immovable
property, such transfer shall not be voidable.
Burden of Proof
The burden of proof is on the transferee to prove that the
transferor was actually the ostensible owner and had the consent
to sell the property.
Conclusion
Section 41 of the Act has done a fair job in protecting the interest
of the innocent third party. Though this section may seem to be a
bit biased towards the third party but this is mainly if the real
owner is himself at some fault. No one can simply say that he has
now acquired the property and he cannot be evicted now. The
third party has to take a lot of care while purchasing the property
and these necessary requirements has been put by law itself to
check the misuse of this section by ostensible owner and the third
party. This, in a way protects the interest of the real owner also.