1|State of Punjab v. Surjit Kaur and ors.

State of Punjab vs. Surjit Kaur and ors.

Manu/SC/1081/2002 the case appeared before the division bench of V. N. Khare and B. Agrawal JJ over the validity of Section 41- Transfer by Ostensible Owner (Transfer of Property Act, 1882). An appeal was allowed in light of the observations under Phool Kuer v. Prem Kuer, MANU/SC/0076/1952.

1. The erstwhile Pepsu government in lieu of meritorious services rendered by late Jangir Singh, Havaldar in Sikh regiment decided to allot land to Smt. Bachan Kaur, widow of late Jangir Singh for maintenance during her lifetime. On 1.4.52, the deputy commissioner, Sangrur in pursuance of the decision of the then government, allotted the land to Smt. Bachan Kaur. The allotment order indicated that Smt. Bachan Kaur shall have only life estate in the said land. In pursuance of the said order of allotment, Smt. Bachan Kaur came into possession over the said land. It appears that on 10.2.64, Smt. Bachan Kaur executed a registered sale deed in favour of respondent S in respect of the said land allotted to her for a consideration of amount of Rs. 24,000/-. It further appears that in pursuance of the said sale deed, respondent S came into possession over the said land. The said respondents also applied for mutation of their names in the revenue records, which was granted. However, the State of Punjab filed an objection against the said mutation, which was allowed. On appeal before the financial commissioner, the order was set aside and the parties were directed to establish their right in the civil court.

2|State of Punjab v. Surjit Kaur and ors.

2. In pursuance of the aforesaid order, the State of Punjab instituted a civil suit on 2.9.74 for a declaration that the sale deed executed by Smt. Bachan Kaur in favour of respondents is illegal and void and the same does not confer any title on these vendees. Respondents were arraigned as defendants in the said suit along with Smt. Bachan Kaur, Respondents filed a separate written statement, wherein they took the plea that they being the bona fide purchaser of the land for consideration, have acquired title under Section 41 of the Transfer of Property Act. The trial court framed several issues and after considering the matter, decreed the suit. Aggrieved respondents preferred an appeal before the first appellate court against the decree of the trial court, which was dismissed. The respondents thereafter preferred a second appeal before the High Court, The High Court was of the view that since respondents were the bona fide purchasers for the consideration, the sale deed executed by Smt. Bachan Kaur is not a voidable document. In view of that matter, the appeal preferred by the respondents was allowed and the decree affirmed by the first appellate court was set aside. It is against the said judgment of the High Court; the State of Punjab is in appeal before the honourable apex court. 3. Ms. Monika Gusain, learned counsel 'appearing for the State of Punjab urged that since the widow having limited right during her lifetime, she could not have transferred the interest in the land beyond her lifetime. Ms. Amita Gupta, learned counsel for the respondents, however, argued that the respondents being bona fide purchasers from ostensible owners for a consideration and in good faith, the sale deed is valid under Section 41 of the Transfer of Property Act.

3|State of Punjab v. Surjit Kaur and ors.

The question, therefore, arises is as to whether the widow, who had only life estate during her lifetime, could sell the interest in the land beyond her lifetime. This matter came up for consideration before this Court in the case of Mt. Phool Kuer v. Mt. Prem Kuer, wherein it was held that where a person who has allowed another to occupy the position of an ostensible Owner has a limited estate, the rule of Section 41 applies only during the lifetime of the limited owner and is not available to protect transferees against the claim of the reversioners. Learned counsel, appearing for the respondents, referred to Sankara Hali & Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka and Anr. (2). This case has no application as this case arose out of benami transaction. In the case of Syed Abdul Khader v. Rami Reddy and Ors. (3), the father was found to be ostensible owner and in that context, it was held that Section 41 of the Transfer of Property Act would apply, which is not the case here. The widow can be ostensible owner to the extent that she has a right during her lifetime. 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 Slate of Punjab. 4. In view of the matter, the appeal deserves to be allowed. The order and judgment of the High Court is set aside and the decree of the trial court is affirmed. There shall be no order as to costs.

Appeal allowed.

4|State of Punjab v. Surjit Kaur and ors.

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.

Further, it can be explained that since an ostensible owner is not a real owner of a property, he has no authority to make the transfer. But under the circumstance laid down in this section, the transfer is binding upon the real owner; it cannot be denied by him. Thus, the law incorporated in this section is similar to the rule of estoppel given under Section 115 of the Indian Evidence Act, which provides that where a person by his act or declaration permits another person to believe a thing to be true and to act upon such a belief, he shall not be allowed later on to deny the truth of that thing.

Ostensible Owner
A person does not become an Ostensible Owner if the real owner has entrusted him with temporary control over the property only for some specific purposes. Therefore, a manager cannot be an ostensible owner even though his name is entered in the Municipal records as a real owner. Karta of a joint Hindu family is also not an ostensible owner of the joint family. Similarly, a trutee is an ostensible owner of the endowed property held by him.

5|State of Punjab v. Surjit Kaur and ors.

In Jaydayal v. Hazra Bibi, the Supreme Court observed that whether a person is an ostensible owner is a subjective owner to be decided on the basis of fact circumstances and that certain considerations laid down herein must be taken into account.

Essential Conditions for Section 41 of ToPA

1. There is transfer of an immovable property by ostensible owner with express or implied consent of the real owner; 2. Transfer is with consideration; 3. Transferee acts in Good-Faith; 4. Reasonable care of the transferee.

Hence, we can conclude that an ostensible owner is not a real owner, and has no authority to make a transfer.

6|State of Punjab v. Surjit Kaur and ors.

Bibliography

Mulla D. F., The Transfer of Property Act, Butterworths, 9 th edition, 2000.

Manupatrafast.in

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