What is transfer by ostensible owner?
“Transfer by Ostensible Owner: Where, with the consent, express or implies, 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: …
Can ostensible owner transfer property?
He can transfer the property for consideration to the transferee. The transferee must act in good faith and believe that the ostensible owner is the real owner of the property.
What is the meaning of ostensible owner?
An ostensible owner is a person who has all the indications of ownership and looks like the owner of a property but is not the real owner. Section 41 of the Transfer of Property Act, defines an ostensible owner. Such a situation may arise in case if a person purchases a property in the name of another person.
What are the elements necessary to make a transfer an ostensible owner binding on the real owner?
The essential conditions for the valid transfer by an ostensible owner are that: a person must be the ostensible owner of a property. he must be such owner with the consent express or implied of the real owner; the transferee must purchase the property from such ostensible owner for consideration.
What is marshalling and contribution?
Marshalling is the right of subsequent mortgagees whereas contribution is with respect to mortgagors. Marshalling is if a creditor has multiple funds to realize his debt, he must first pursue the multiple funds instead of prejudicing the creditor who is secured only by one fund.
What is difference between ostensible owner and Benami transaction?
Benami transactions are where the real ownership lies in another who pays the consideration, while the ostensible ownership lies in the benamidar who only lends his name to the title deeds.
What is marshalling by subsequent purchaser?
MARSHALLING BY SUBSEQUENT PURCHASER. Marshaling means to arrange, systematize or regulate. Section 81 of The Transfer of Property Act, 1882 deals with Doctrine of Marshalling.
What is meant by marshalling in equity?
Marshalling means “to arrange” and the Rule is first introduced in TOPA under Section 56. Section 56 may be explained in the following manner: There must be an owner of two or more properties, Thereafter, he must sell one or more of these properties to any person other than the one he mortgages the properties to.
What may be transferred?
The act of transfer may be done in the present or for the future. The person may include an individual, company or association or body of individuals, and any kind of property may be transferred, including the transfer of immovable property. It includes movable, immovable, tangible and intangible assets.
What is ostensible sale deed?
CONCLUSION. Mortgage by conditional sale is a type of mortgage where there occurs an ostensible sale, which is converted into absolute sale in the event that the ostensible seller is unable to repay the loan. The ostensible seller in such a mortgage incurs no personal liability as far as the debt is concerned.
Which of the following landmark cases explained the section 41 Topa?
In the judgment of landmark case of Ramcoomar Koondoo v. John and Maria McQueen[11], the decision which was codified as Section 41 of the TRANSFER of Property Act. It also examines the various aspects and essentials that must be fulfilled for the plaintiff to avail the benefits of this principle.
Why marshalling supersedes contribution?
The reason why marshalling supersedes contribution is because the last mortgagee is given an opportunity to make the mortgagor discharge the mortgage debt from other mortgaged properties first before he realizes the mortgage debt from the properties mortgaged to the person who holds the right of marshalling.
What is the law on transfer by ostensible owner?
The provisions regarding transfer by ostensible owner are governed by section 41 of the Transfer of Property Act, 1882.
Who is the ostensible owner of a property?
An ostensible owner is a person who appears to be the owner of immovable property even though he is not the real owner of the property. The provisions regarding transfer by ostensible owner are governed by section 41 of the Transfer of Property Act, 1882. PROVISIONS RELATED TO TRANSFER BY OSTENSIBLE OWNER:
Is transfer of property by ostensible ownership a benami transaction?
Thus transfer by ostensible ownership under section 41 is subject to provision of Benami Transaction under section 3 of Benami Transactions (Prohibition of the Right to Recover Property) Act, 1988. However, the principle laid down in section 41 is not restricted to sale.
When the real owner is binding by transfer of immovable property?
If the conditions specified in section 41 of the Transfer of Property Act, 1882 are fulfilled and none of the ground in exception can be proved, the real owner is binding by transfer of immovable property made by ostensible owner. This article is authored by Rashmi Nikam, student of Adv. Balasaheb Apte College of Law.