Report No. 57
4.7. Section 41, Transfer of Property Act.-
We may also refer to provision relevant to Benami transfers in the Transfer of Property Act.1 The law of estoppel is enacted in section 115 of the Indian Evidence Act, and the leading case on that section falls equally under this provision of the Transfer of Property Act. In that case,2 the owner transferred property to his wife as benamidar. After his death, she mortgaged the property, her son assisting in the transaction and receiving the mortgage money. The son was held to be estopped from disputing the mortgage. If the provision in the Transfer of Property Act3 had been applied, the case would have been similarly decided on the ground that by the consent of the son, the mother was the ostensible owner.
1. Section 41, Transfer of Property Act.
2. Surat Chunder v. Gopal Chunder, 1863 ILR 20 Cal 296: 19 IA 203 (PC).
3. Section 41, Transfer of Property Act.
4.8. Fraudulent transfers of property are dealt with by another provision in the Transfer of Property Act,1-namely, section 53.
1. Section 53, Transfer of Property Act.
4.9. With reference to section 53, Transfer of Property Act (fraudulent transfers), it may be noted that before that Act, there was in force,1 in Presidency towns,2 an English statute3 covering all types of property and all types of transfers.4 This English statute, was in harmony with the common law. The Transfer of Property Act, repealed this English Statute.5 The present section 53 of the Act) does not cover benami or sham transfers. But such transfers can be declared void independently of the section.
1. 13 Eliz. C. 5.
2. See ILR 25 Born 202 (208).
3. Cf. Twynes' case, (1601) 3 Co Rep 80 and Mulla's commentary on section 53, Transfer of Property Act.
4. See, now, section 172, Law of Property Act, 1925 (Eng.).
5. See Mulla's commentary on section 53, Transfer of Property Act.