A husband entered his land in the revenue records in his wife's name and went on a pilgrimage. Before his departure, he had allowed her to mortgage the land..........Can he do so?

Question: A husband entered his land in the revenue records in his wife's name and went on a pilgrimage. Before his departure, he had allowed her to mortgage the land. After his departure, she sold the land, and the buyer paid off the mortgage. On his return, the husband wished to recover the land or redeem the mortgage. Can he do so? [Punj JS 2006]

Find the answer to the mains question of Property Law only on Legal Bites. [A husband entered his land in the revenue records in his wife's name and went on a pilgrimage. Before his departure, he had allowed her to mortgage the land. After his departure, she sold the land, and the buyer paid off the mortgage. On his return, the husband wished to recover the land or redeem the mortgage. Can he do so?]

Answer

In the instant case of the husband who registered his land in his wife's name and then allowed her to mortgage and subsequently sell the land to a third party while he was on a pilgrimage, the husband's ability to reclaim the land or redeem the mortgage is closely linked to Section 41 of the Transfer of Property Act, 1882 which deals with the concept of an "ostensible owner."

The transfer of property to an ostensible owner is dealt with under Section 41 of the Transfer of Property Act, 1882. It states that a transferee, who, for consideration, acquires property from a person who is not the actual owner but who has the apparent authority to transfer the property, will be protected if certain conditions are met. The section provides protection to the bona fide purchaser who relies on the apparent title of the transferor.

In the present case at hand, the husband registered the land in his wife's name, which created the appearance of her being the owner. This registration may lead to the wife being considered as the "ostensible owner" under Section 41. Further, the wife, acting as the ostensible owner, mortgaged and sold the land during the husband's absence.

The only condition that is left to be fulfilled is whether the buyer acted in good faith or not. If the buyer who purchased the property from the wife acted in good faith and made reasonable efforts to verify the ownership, relying on the apparent authority of the wife, they may be considered a "transferee in good faith" under Section 41.

In light of Section 41 of the TPA, if the buyer acted in good faith, believing the wife to be the rightful owner of the land due to her registration in the revenue records and the husband's apparent authorization, the buyer would be protected. The husband, upon his return, may not have the right to reclaim the property or redeem the mortgage.