Whether the purchase of Sakina’s house by Kasim get protection under the Transfer of

Property Act, 1882?

Facts of the Case – Sakina was possessing a house in the city of Kanpur. In the year 1990,
she left for Mecca, on pilgrimage and left the house in charge of Abdulla who was her
relative. Three years passed and there was no news of Sakina and because of that, Abdulla
prayed to the Municipality for entering the house in his name as he was the legal heir of
Sakina. He argued that “he was not even aware about the whereabouts of Sakina and nor the
whether she was alive or dead.” The Municipality accepted his prayer and two years later,
means in the year 1995 he sold that house to Kasim who purchased it in a good faith in the
wake of examining municipal records. However, one year later Sakina returned and
demanded her house back.

Section dealing with the Issue – The present case is concerned with Section 41 of the
Transfer of Property Act, 1882 which states:

“Where, with the consent, express or implied, of the persons interested in immovable
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.”

In order to apply this Section, there are 4 condition which are needed to be satisfied, they are:

 The person who transfers the property must be an ostensible owner – In layman’s
language, Ostensible Owner is the one who is not the real or actual owner of the
property. In Jayadayal Poddar v. Bibi Hazra 1, it was held that it is truly a question of
fact that whether a person is an Ostensible Owner or not and while determining this,
various factors are taken into consideration, like the nature of possession, relationship
between the parties, etc. Moreover, in Jamna Das v. Uma Shankar 2, it was ruled that a
manager in possession of the property cannot be an Ostensible Owner.

1
AIR 1974 SC 171
2
12 A.L.J. 411
  There should be an express or implied consent of the real owner regarding the
transfer – The consent of the real owner is essential in order to transfer a property
under this Section, and this consent must be real. However, it is not mandatory that
there should be influence of some fraudulent intention on him, as his liability depends
upon his action of putting the transferor in such a position which enabled him to
commit the fraud. This thing has been based on the principle that “when one of two
innocent persons must suffer from the fraud of a third, he shall suffer who, by his
indiscretion, has enabled such third person to commit the fraud.”3 The same thing
was said in by J Ashurst in Lickbarrow v Mason.4
 There should be some consideration involved in the transfer – This Section
applies only if there is an involvement of some valid consideration and in case there is
no consideration, i.e., the transfer is gratuitous in nature, then this Section will not be
applied. Moreover, this Section does not apply in cases of gift deeds.
 There should be a good faith on the part of transferee and he must have taken
reasonable care in confirming that the transferor is qualified to make the
transfer – Bona Fide intention means the good faith is essential in order to apply this
Section. It must be proved that the transferee must have acted in good faith and in the
belief that Ostensible Owner is not the real owner. If he does so, he will be protected
against the real owner. Moreover, only bona fide intention is not sufficient, it must
also be proved that he made a reasonable inquiry. 5 In Bailey v Barnes6, it was ruled
that “where the subsequent purchaser had sufficient time to enquire prior to getting
sale-deed registered in his favour but no genuine enquiries were made around the
area where the property was located and parties were residing, the subsequent
purchaser could not be a bona fide purchaser.”

Judgement – The facts of the present case is somewhat similar to the case of Muhammad
Sulaiman v. Sakina Bibi and Anr7 and thus, the judgement of this case applies to the present
case.

3
By CJ Savage in Root v French, (1835) 13 Wendell 570.
4
Lickbarrow v Mason, (1787) 5 Term Rep 683
5
Khwaja Afzal v Md Saheb, (1936) ILR Nag 177.
6
(1894) 1 Ch 25 (35).
7
1922) 44 All 674
In the present case, it could be ascertained that Kasim was aware of the fact that Sakina was
the real owner of the house as he examined the municipal records. If he had made some more
enquire, he would have known about that application of Abdulla in which he expressly
accepted that he was not aware of the fact that whether Sakina was dead or alive. Sakina was
absent for not more than 6 years and for presuming a person to be dead, as per S. 108 of
Indian Evidence Act, at least the time period of 7 years is required. Moreover, there was no
satisfactory information available to prove that she was dead. Abdulla was just like a
manager of Sakina’s property and as per the case of Jamna Das v. Uma Shankar, a manager
cannot be an Ostensible Owner. In Partap Chand v. Saiyida Bibi,8 there was some Zemindari
property belonging to a Government Official. He recorded that property in the name of his
young sons in revenue papers. Later, he sold and mortgaged some portions of that property.
The purchaser and the mortgagee confirmed the fact that the property was recorded in the
name of sons, but they made no efforts to find that whether the property really belonged to
the sons or not. It was held by the Court that “the transferee, though acting in good faith, had
not taken reasonable tare to ascertain that the transferor had power to make the transfer.”

Similarly in the present case, the enquiry made by Kasim was not sufficient, he knew that
Sakina was the real owner, but if he had carried his enquiries further, he would have got to
know the full story that Abdulla had admitted the fact in the application to the Municipality
that he was not aware whether Sakina was alive or dead and it’s been only 6 years since he
got lost and thus the principle of presumption of death will not apply. Thus, Section 41 of the
TPA is not applicable in this case and thus, the purchase of Sakina’s house by Kasim will not
get protection under the TPA, 1882.

8
 A.W.N. (1901) 137
WHETHER THE INDIAN EVIDENCE ACT BE APPLIED IN THE SAKINA’S
MISSING INFORMATION AS SUBMITTED TO MUNICIPLAITY?

The provision of Indian Evidence Act, 1872 which deals with the present case is Section 108,
it states:

“Provided that when the question is whether a man is alive or dead, and it is proved that he
has not been heard of for seven years by those who would naturally have heard of him if he
had been alive, the burden of proving that he is alive is shifted to the person who affirms it.”

According to this Section, in case a person has not been heard for seven years, then the law
presumes him to be dead9 and the burden of proving that he is not dead shifts from the
plaintiff to the defendant.10 The same thing was held in the cases of Shailesh N Shah v
Regional Commr., Employees' Provident Fund11 and was subsequently followed in
Nagalakshmi v Thirugnansambhandan12

In Gurdit Singh and Ors. v. Munsha Singh and Ors,13 8 years were passed and there was no
evidence to support that the person named Kishan Singh was alive or not, thus the Supreme
Court of the nation presumed him to be dead.

In Sahdeo v State of UP14, a boy was missing for around 4 years 6 months. The High Court
presumed him to be dead, however the Apex Court of the nation declined to presume him to
be dead as the time frame of 7 years was not completed.

Similarly, in the present matter Sakina left for pilgrimage in the year 1990 and she returned to
Kanpur in the year 1996, so she was like missing for approx. 6 years. However, according to
Section 108 of Indian Evidence Act, 1872 a person is presumed to be dead only if he/she is
missing for the past 7 years or more. In the present matter, this time period has not been
completed and thus, Section 108 of IEA does not apply. Therefore, Sakina cannot be
presumed to be dead.

9
Ramrati Kuer v Dwarka Prasad, AIR 1967 SC 1134.
10
HJ Bhagat v LI Corp, AIR 1965 Mad 440.
11
(1993) 1 Mad LJ 328
12
AIR 1995 Mad 120
13
 1977 AIR 640
14
(2010) 3 SCC 705.
WHAT IS THE SCOPE OF REASONABLE CARE FOR THE PURPOSE
OF TRANSFER OF IMMOVABLE PROPERTY?

In layman’s language, Reasonable Care is the amount of care which a person of ordinary
prudence have taken.15 The scope of reasonable care for the purpose of transfer of immovable
property is wide enough. The person purchasing the property or the transferee is required to
check that whether the transferor has a title over the property or not.16 There is no fixed
criteria to determine the standard of enquiry as it totally depends upon the facts and
circumstances of the case.

Like in Nageshar Prasad v. Raja Pateshri,17 there was mistake related to the name of the
owner in the records. The person whose name was mentioned under the records sold the
property to a 3rd party who did not made any proper inquiry regarding the title of the
transferor, later on the real owner objected to the transfer. The Court held the transferee has
not taken any reasonable care in inspecting the title of the transferor and thus, he will not get
any protection under Section 41 of the TPA, 1882. In Punendu Nath v. Hanut Mull,18 it was
ruled that “the advice of solicitor will not be enough to prove that the third party has taken
reasonable care in determining the title of the property.” The third party is required every
one of the accessible documents which can give some more data with respect to the title of
the property.

However, reasonable care alone is not enough to get the protection under S.41 of the TPA.
There is also a requirement of good faith as well. Where an individual bought a property after
due scrutiny and sincerely accepting that the seller was the real owner, he will be ensured
against the real owner. However, where the buyer after enquiry tracked down that the seller
was just an apparent owner not the real one, and surprisingly then even then also he bought
the property for him, he would not be taken to act honestly. The rule is “he who seeks equity
must do equity” which means that the protection under this provision of TPA will be
available to only that person who is not at fault in his part of the transaction.

15
Kanhu Lal v Palu Sahu, [1920] 5 Pat LJ 521; Khwaja Afzal v Md Saheb, (1936) Nag 177
16
Chutabalakundu v. Sailen Bihari Paul, [1988] A.I.R. NOC 68 (Cal).
17
(1915) 265 , (20 Cal WN).
18
[1940] A.I.R. 565 (Cal).
In Mazhar Hasan v Mukhtar Hasan,19 it was held that “in order to avail the protection of this
section, the purchaser must inspect the records of at least 12 years in the Registration
Office.”

In Pratap Chand v Saiyida Bibi20, a tahslidar was not allowed to acquire the land within its
tehsil because of departmental rules, so he purchased the land in the names of his minor sons
and entered their names in the revenue records. The sons sold and mortgaged some parts of
the land to third parties who acted in good faith and relied on revenue records. However, the
transferees were not allowed the protection under this Section because they took no
reasonable care and totally relied on the revenue records.

In Bailey v. Barbes21, it was observed that “a purchaser of property is under no obligation to

In Sree Brahadambal Agency v Ramaswamy 22, the disputed property and all the partied
belonging to that transaction were located in a same village, still the transferee was not aware
about the earlier transaction of sale of the same property. It was held that the transferee had
not taken reasonable care and thus, he will not be protected under S.41 of TPA.

However, there is also some sort of safeguard for the actual owner. In Mathura v. Ambika, 23
the real owner sold the property to the 3rd party and got it registered prior to the transfer by
the ostensible owner. The transfer by the real owner was held valid as he had the greater title
over the property in comparison to the ostensible owner and thus, the right of the person who
purchased the same property from the ostensible owner would not get protection under this
Section.

Thus, while purchasing the immovable property, the buyer has to take reasonable care in
confirming that the seller has title over the property and he can transfer the same. Only then
he will get some sort of protection under the TPA, 1882.

19
AIR 1938 All 64
20
ILR (1901) 23 All 442
21
(1894) 1 Ch 25.
22
AIR 2002 Mad 352
23
(1914) 993 (All) LJ.