SECTION 41 TPA (OSTENSIBLE OWNER)

Section 41

Section 41 of the law deals with the scenario where someone, with the permission (either stated or implied) of those involved in a property, appears to be the owner of that property and sells it to another party for some value. In such a situation, the sale won't be invalidated just because the person who sold it wasn't actually authorized to do so. However, for this safeguard to apply, the buyer must have taken reasonable steps to confirm the seller's authority and must have acted in good faith during the transaction.

This section is closely linked to Section 115 of the Indian Evidence Act, which discusses the principle of estoppel. It protects the buyer only if they've genuinely acted in good faith and made efforts to ensure that the seller had the right to make the sale. If a buyer deliberately ignores verifying this information, they won't be protected. The level of care required varies depending on the circumstances of each case.

An "ostensible owner" isn't the true owner but is someone who can legally represent themselves as the owner to outsiders for certain dealings. They gain this status when the real owner knowingly allows or neglects the situation, making the apparent owner the representative. For instance, if someone temporarily entrusts their property to a family member for use, that family member becomes the ostensible owner. If they then sell the property during this time, the original owner cannot reclaim it upon their return.

In the legal case Raj Ballar Dass V. Haripada Das, the Supreme Court established criteria for identifying a transaction as "benami":

• The responsibility of proving a transaction is benami lies with the party alleging it to be so.

When using or referencing legal content, it's essential to properly attribute the original source. If this content isn't yours, make sure to cite the appropriate references and give credit to the original author or publication.

Several key aspects determine the nature of a property transaction:

1.     Source of Purchase Money: If it's proven that the money used for the purchase came from someone other than the person in whose name the property is registered, it's generally presumed that the property is intended for the benefit of the individual who provided the funds, unless there's contrary evidence.

2.     Intent of the Contributor: The real character of the transaction is defined by the intentions of the person who contributed the purchase funds. Understanding this intention necessitates an evaluation of various factors: the circumstances surrounding the transaction, the relationship between the involved parties, the motives guiding their actions in executing the transaction, and their subsequent behavior.

The conditions stipulated by the section include:

• The transferor being the ostensible owner with the express or implied consent of the genuine owner.
• The transfer being conducted in exchange for something of value.
• The transferee acting in good faith, having taken reasonable measures to confirm the transferor's authority to make the transfer.

In the legal case of Jaya Dayal Podder Vs. Bibi Hazara, the Supreme Court emphasized specific considerations when determining if someone qualifies as an ostensible owner:

(a) Source of Funds: Who provided the financial resources for the purchase?

(b) Possession: Who has possession of the property?

(c) Motivation: What drove the decision to purchase the property in someone else's name?

(d) Relationship: What is the relationship between the actual owner and the ostensible owner?

These factors play a pivotal role in discerning whether an individual can be regarded as an ostensible owner in a property transaction.

Additional considerations in determining whether someone is an ostensible owner in a property transaction include:

(e) Conduct Regarding the Property: The behavior of the involved parties in managing or taking care of the property.

(f) Custody of Title Deeds: Who holds the official documents or title deeds related to the property.

Furthermore, in the case of Raj Ballar Dass V. Haripada Das, the Supreme Court outlined essential principles for establishing whether a transfer qualifies as a benami transaction:

a. Burden of Proof: The responsibility of demonstrating that a transfer is a benami transaction lies with the party making the assertion.

b. Source of Purchase Funds: If it's established that the money used to purchase the property came from someone other than the individual in whose name the property is held, it's presumed that the transaction is primarily for the benefit of the person providing the funds, unless contrary evidence exists.

c. Intent of the Contributor: The genuine nature of the transaction is determined by the intentions of the individual who contributed the purchase funds.

d. Evaluation of Intent: Understanding the intentions requires an analysis of surrounding circumstances, the relationship between the parties involved, the motives guiding their actions in executing the transaction, and their subsequent conduct.

These principles provide a framework for discerning whether a transaction should be classified as benami and underscore the critical role of intent and the origin of purchase funds in such determinations.

 

Bibliography

BOOKS:

● Tripathi G.P., The Transfer of Property Act, Central Law Publications, 29 th edition 2017

● Sinha R.K., The Tranfer of Property Act, Central Law Agency, 20 th edition 2019

WEBSITES:

● https://www.lawctopus.com/academike/ostensible-owner-under-tpa/

● http://www.goforthelaw.com/articles/fromlawstu/article28.htm#_ftn9

● http://www.indiankanoon.lawofevidence.estoppel.com

JOHN RAWLS THEORY IN INDIAN CONTEXT

 INTRODUCTION 

John Rawls was one of the best American political scientists. He was born in 1921 and passed away in 2002. His most renowned work was A Theory of Justice which was first published in 1970 and later it was revised and again published in 1990. In his revised edition, Rawls insisted that some important point and views have been revised, which is essential for our society. which subsequently was agreed by quite a few political scientists. they claim that it is one of the most prominent work in the English speaking world post world war II. Rawls advocated the cause of liberalism and challenged the inherent thought of equality and attainment of justice. In his another important work Political Liberalism, which was published in 1993, he constituted his thought system which is modern liberalism. Even the social democrats and opponents of liberalism could not keep themselves away from its influence. According to him equality, inequality and other related ideas are to be judged in the background of social justice and social progress. 

The concept of Veil of Ignorance Rawls theory of justice is parallel to Kant theory of justice in two ways. Firstly, Rawls, like Kant is also a critique of Utilitarianism. And secondly, like Kant, Rawls also follows the principle of a hypothetical social contract to achieve justice. Rawls, to explain his idea of a hypothetical social contract introduces a device called the “Veil of Ignorance.”

Rawls says that imagine a situation where people have gathered to decide collective principles of justice to govern themselves. There would be different ideas and suggestions. The idea and suggestion would be affected by the kind of people in the discussion. There would be people who are rich, poor, strong, weak etc. All of them would have different interests which would reflect in their ideas. This discussion would give rise to a situation where a compromising idea of justice would be chosen and which would not necessarily serve the purpose. Therefore, Rawls says instead of this, imagine we gather together in an “original position” of equality, where everybody is equal. This equality is assured through the veil of ignorance. The basic idea of the veil of ignorance is that people are behind a kind of veil and without knowing certain particular facts about each other. So, the decision maker will be unaware about the position he will occupy And by this, nobody would have superior bargaining power in the collective idea of justice. Hence, Rawls idea of justice is “a hypothetical social contract, made behind the veil of ignorance in the original position of equality.” The Principles of Justice Rawls does not give a clear account of what principle of justice should be chosen, but he did talk about the principles which shouldn’t be chosen. Rawls argues that we would not choose the principle of utilitarianism. He says, that we must support individual rights and should not seek the majority to tyrannize the minority. We should have a system of equal rights and hence would choose a principle of equal basic liberty. What principle would be chosen to govern social and economic inequality? Rawls says, to answer this, we need to first agree for equal distribution of wealth and income. This, Rawls says, can be done by agreeing to the qualified principle of equality. Rawls called this principle as the “difference principle”. Difference principle is based on the idea of distribution. It says that only those inequalities would be considered which are for the benefit of the least well-off. Therefore, all inequalities would not be rejected. If inequality works for the benefit of those who are at the bottom of society then, it should be accepted.

In order to understand Rawls idea of justice, we need to have a pretext of the idea of another famous political thinker, Emanuel Kant. Kant says that just laws arise out of the contract. These contracts are not the usual and actual contracts which people make when they come together. These contracts are exceptional in nature. The question is why are they different. Kant says that when different people gather together to make constitutional conventions, then all of them have different interests and demands. Also, people have different bargaining power so, the one with good bargaining power would have heavier say in the contract. Therefore, the actual social contracts do not necessarily be just laws. These contracts will only highlight differences and would be special to them who have more knowledge of law and politics. So, this concludes that though Kant is a contractarian he doesn’t trace the origin of any social contract that gives rise to just laws. Which means that Kant’s exceptional contract is a hypothetical contract since it never happened. And therefore, an obvious question arises, “What is the force of a hypothetical contract?” The answer to this question lies in the theory of John Rawls. How john rawls principle of justice applied in indian society —- According to Rawls under original position and ignorance of the veil people will choose two principles of justice . 

THE FIRST PRINCIPLE OF JUSTICE— Rawl state that inequality in society are just if they attach to the position open to all and benefit to all (10).This can be understood by dividing this definition into two parts——- 1.The equal opportunity 2.Difference Principle According to rawls if there is inequality in society then it can be justified when if there given two things are there in the society.ie if every citizen is given equal opportunity. furthermore, the equality is utilizing for benefit for all. 

THE FIRST  PRINCIPLE OF JUSTICE IN INDIAN CONTEXT 

1. The equal opportunity. Let us understand this principle with the Indian context by example. For instance, A and B are a citizen of India. Where A is a cardiologist and B is a rickshaw driver. These two citizens represent two opposite section of our society. A’s Per Annum is 20 lakh rupees whereas B’s Per Annum is 80,000 rupees. There is a 19.2 lakh rupees Gap between these two per annum. Which symbolizes inequality in our society. How this gap can be justified? This gap can be justified When A and B both got equal opportunity to become a cardiologist. There are three factors which we need to remember when we are talking about inequality in our society. These are:- ● Any law ● Birth status ● Talent and efforts When A become cardiologist because of his hard-working nature and whereas B was lazy to study hard hence he ends up being a rikshaw diver. But here both had to get the equal opportunity to become cardiologist then only is said to be justified. However, in India two problems are often faced by society when it comes to inequality, that is social law and birth status. In incurred this problem there are many provision in the Indian constitution. Few examples are Article 17 reads- “Abolition of Untouchability Untouchability is abolished and its practice in any form is forbidden The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law”1 Which will help is removing any social practices which is been coming Article 21A reads -“ The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”2 These are the provision which is inserted in our constitution which will deal with inequality and it will justify any such inequality. 2. Difference principle According to the second part of Rawls principle of justice says that inequality can be justified when because such inequality in society, benefits all. Let us take the same cardiologist example. Here the per annum income gap between A and B is 19.2 lakh rupees. So when the Indian government will take the tax or impose a tax on A. and these revenues are used by the Indian government to make policies for the welfare of society. Also, these revenues are used for the indigent population of the society. Article 15 says, “the State shall not discriminate against any citizen on grounds only of race, religion, caste, sex, and place of birth”. Here, any discrimination made only on the grounds mentioned would be held unconstitutional. Article 16 talks about equal opportunity to all citizens in matters related to employment in the public sector and prohibits discrimination on the grounds of religion, race, caste, sex, descent, birthplace, residence, or any of them. It also talks about the reservation in services for certain backward classes. This perfectly establishes Rawls' concept as he talks about elevating the people who belong to the lowest level in society so that their needs are fulfilled first.

LIBERTY PRINCIPLE OF JUSTICE: This principle says that everyone shall get equal political liberty, so my liberty shall be the same as any other citizen. The second principle of justice in the Indian context If we look at this principle in the Indian context, then India follows a similar kind of liberty principle. Article 14 provides “Equality before the law, The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”3. In other words, no person can be denied equal treatment on given criteria. which is what Rawls trying to say in his principle of justice, where people shall get equal opportunity, immaterial what background they belong from. Article 21 provides “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”4This again is one of the most widespread as well as interpreted provisions of the constitutional law. This article has persistently been altered when it comes to the right to life and liberty.

BIBLIOGRAPHY 

1. "Hullabaloo in the Quota Orchard" Affirmative Action: The Contentious Case of India, FLAX, last visited (Oct. 17, 2021, 12:41 PM), http://flax.nzdl.org/greenstone3/flax;jsessionid=3BA49DAAED13B5C7DD194644B6 3A7FAE?a=d&c=BAWESS&d=D483&dt=simple&p.a=b&p.s=ClassifierBrowse. 

2. Adv. Shreelakshmi Sayajirao Raje Bhonsle, Justice For All: John Rawls’ Theory Of Justice And Its Relevance In Indian Judicial System, 9(3) Journal of Research in Humanities and Social Science 64, 64-68, (2021). 

3. Ira Chadha-Sridhar et al Sachi Shah, Caste and Justice in the Rawlsian Theoretical Framework: Dilemma as on the ‘Creamy Layer’ and Reservations in Promotions, 10(2) NUJS L. Rev. 171, 171-176 (Apr.-Jun. 2017).

 4. Janhavi Rajkumar, System of Distributive Justice in India with Reference to Theories of Justice, JSLSR, (Jun. 12, 2020), https://jslsr.weebly.com/uploads/1/2/4/5/124513060/article_jslsr_2.pdf. 

5. Kaushik Deka, Everything You Wanted to Know About the CAA and NRC, INDIA TODAY, (Dec. 23, 2019, 03:04 PM), https://www.indiatoday.in/india-todayinsight/story/everything-you-wanted-to-know-about-the-caa-and-nrc-1630771-2019- 12-23. 6. Priya O., Moulding a Just Society: Re-examining Rawlsian approach in Indian Context, 8(2) IRJET 675, 675-677, (Feb. 2021).