The doctrine of the transfer of property by a ostensible owner is no different from that of ‘nemo dat quod non habet’ which means that no one can give more rights than the property he owns. Article 41 protects innocent parties from third party fraudulent activities. Loss resulting from such action will befall the person who created or failed to prevent fraud. Section 41 of the Act states that “if a person acts in accordance with the express or implied consent of a person having an interest in immovable property, the person making such consent is the owner of the property.” You have all the patents, such as copyrights, patents, documents, etc. The transferor must act honestly and believe that the attractive owner is the real owner of the property. The real owner who allows the other holder will not be allowed to retrieve his or her private title. The transfer therefore does not work because the attractive owner was not authorized to make the transfer.
However, the owner can recover from the buyer if he proves that the buyer had the knowledge or notification of the title deed of the real owner. He also proves that the transferor did not act in good faith and did not properly care for the person with common sense in making that transfer.
Benami’s transaction is an example of a transfer by an ostensible owner. In the event of such a transaction, the burden of proof rests with the person who claims to be the real owner of the property. However the facts and circumstances surrounding it such as the purpose of the parties, the conduct, the source of the purchase etc. will be regarded as confirming the burden of proof.
For example, X buys a place in the name of Y. X pays the consideration of making a sale. He then sells the property to Z and hides the sale to X. X cannot avoid such a sale unless he proves that Z was aware of the real local topic and acted dishonestly.
To determine whether the transfer is made by a ostensible owner the following conditions must be met. Even if one of the points listed below is not met, it will not be considered a transfer by the ostensible owner.
1. The transfer by a transferor must be immovable property and not movable property.
2. The real owner must give clear or express consent to the person in order to authorize him or her to become the sole owner.
3. The person delivering the goods later must be the owner himself.
The unavailable owner will receive consideration for the location transferred to the buyer.
5. The buyer must believe that the owner appears to be the real owner and perform an act of good faith. He should also have exercised proper care while making the transfer of property by the transferor.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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