Anonymous
in Property Law Contracts Law
Asked October 22, 2017

Disputed ownership of the seller of the property

  • 1 Answer
  • 810 Views

I had purchased a flat from Mr. X, and took possesion in 1993. later i came to know that the flat belongs to deceased Mr. Y , and Mr. X had taken the flat in exchange of some debt from ( Mr. B ) son of Mr. Y Mr. X has an ageement made between him and Mr. B.which he did not mention to me. 8 years later ( Ms C) daughter of Mr. Y, comes in picture claiming the flat, few years later ( Mr. A) older son of Mr. Y claims the flat . untill last year ( March) i have been paying the maintenance charges of the society suddenly society stops taking the charges from me as they have recieved a letter from Mr. A, that he will pay the charges. off lately with the help of the chairman of the society Mr. A was sucessful in getting the share certificates of the flat transfered into his name as he was the nominee as per the society record . Mr. B is not in scene. i am still in possesion of the flat under the above circumstances how do i solve this issue.

Answer 1

In the absence of certain details from your side, it is difficult to ascertain the mode of sale executed between you and Mr. X, and the kind of documents that you might be having to establish your ownership over the property. Hence, first of all, you should check the true ownership of the property from the municipal property registry office since the nominee records as per the housing society does not hold much value in the eyes of law.

In case it is claimed Mr.X was not the owner of the property and hence could not have validly transferred ownership rights to you - You can defend your ownership right to the property on the ground of Section 43 of the Transfer of Property Act, 1882. Section 43 states that, “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 this case, the persons interested in the immovable property (the flat) are Mr.Y, Mr. B and Ms.C, while the ‘ostensible owner’ & transferor is Mr. X and you are the transferee. What this section means is that, if a proepty is transferred by an apparent owner to a third person (you) who purchases it for a value, believing the apparent owner to be the actual owner of the property, the actual owner cannot claim his right to the property now if he has allowed the transferor to hold himself out as the real owner. Here, Mr. Y who was the owner of the property had, through his and his son’s conduct of signing an agreement with Mr.X that they had transferred some rights over the property in exchange of the debt, thereby implying through their conduct to an innocent third party  that Mr. X is the owner. As observed in the case Mulchand Hazarimal v. Hassomal [AIR 1937 Sau 177], “ if the real owner knows that another person is dealing with his property as if it were his own, and acquiesces, his inaction will imply consent.” Thus, as Ms.C and Mr.A had raised no objection to the transfer, they can be said to have, through their ‘inaction’ impliedly acquiesced to the transfer. Hence your claim to the property cannot be disputed.

 

Source:

  • Transfer of Property Act, 1882
  • https://www.lawctopus.com/academike/ostensible-owner-under-tpa/
  • http://www.lexisnexis.com.ezproxy.nujs.ac.in/in/legal/returnTo.do?returnToKey=20_T26723404448
  • http://document.manupatra.com/Other%20Courts/Sindh/Pre1950/1930-1939/SN370003.htm

    In the absence of certain details from your side, it is difficult to ascertain the mode of sale executed between you and Mr. X, and the kind of documents that you might be having to establish your ownership over the property. Hence, first of all, you should check the true ownership of the property from the municipal property registry office since the nominee records as per the housing society does not hold much value in the eyes of law.

    In case it is claimed Mr.X was not the owner of the property and hence could not have validly transferred ownership rights to you - You can defend your ownership right to the property on the ground of Section 43 of the Transfer of Property Act, 1882. Section 43 states that, “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 this case, the persons interested in the immovable property (the flat) are Mr.Y, Mr. B and Ms.C, while the ‘ostensible owner’ & transferor is Mr. X and you are the transferee. What this section means is that, if a proepty is transferred by an apparent owner to a third person (you) who purchases it for a value, believing the apparent owner to be the actual owner of the property, the actual owner cannot claim his right to the property now if he has allowed the transferor to hold himself out as the real owner. Here, Mr. Y who was the owner of the property had, through his and his son’s conduct of signing an agreement with Mr.X that they had transferred some rights over the property in exchange of the debt, thereby implying through their conduct to an innocent third party  that Mr. X is the owner. As observed in the case Mulchand Hazarimal v. Hassomal [AIR 1937 Sau 177], “ if the real owner knows that another person is dealing with his property as if it were his own, and acquiesces, his inaction will imply consent.” Thus, as Ms.C and Mr.A had raised no objection to the transfer, they can be said to have, through their ‘inaction’ impliedly acquiesced to the transfer. Hence your claim to the property cannot be disputed.

     

    Source:

  • Transfer of Property Act, 1882
  • https://www.lawctopus.com/academike/ostensible-owner-under-tpa/
  • http://www.lexisnexis.com.ezproxy.nujs.ac.in/in/legal/returnTo.do?returnToKey=20_T26723404448
  • http://document.manupatra.com/Other%20Courts/Sindh/Pre1950/1930-1939/SN370003.htm
Agree Comment 0 Agrees about 4 years ago

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