THETAMILNADUDR.
AMBEDKARLAWUNIVERSITY
SCHOOLOFEXCELLENCEINLAW
StateUniversityEstablishedbyActNo.43of1997NAACAccredited
“NEMO DAT QUOD NON HABET”
Project submitted to the SOEL, TNDALU
forthe partial fulfillment of the Internal Process of the
Semester Examination
PROPERTY LAW
By
VEERASUSHMITHA. T
([Link]. HA22134)
III Year [Link].B (Hons).,
Under the guidance and supervision of
[Link].B (Hons).,LL.M.,(JRF)
Assistant Professor – Guest Faculty,
Date of Submission: 27/03/2025
Signature of the Student Signature of the
Faculty
March 2025
Table of Contents
Introduction:...................................................................................................................................................3
Nemo Dat Quid Non Habet:.........................................................................................................................3
Exception under Transfer of Property Act....................................................................................................3
I. Election..............................................................................................................................................4
Essential of Doctrine of election............................................................................................................4
Suspension of election...........................................................................................................................4
Exception of Doctrine of election..........................................................................................................4
II. Transfer by Ostensible owner............................................................................................................4
Who is an ostensible owner?..................................................................................................................4
Who is not an ostensible owner?...........................................................................................................4
Conditions of ostensible ownership.......................................................................................................4
Ram Coomar vs. Macqueen, 1872.........................................................................................................4
III. Doctrine of Feeding the Grant by Estoppel..................................................................................4
Essential conditions...............................................................................................................................4
Comparision of section 35, 41 and 43 of T.P Act, 1882................................................................................4
Relavant case laws.........................................................................................................................................4
Conclusion.....................................................................................................................................................4
Reference.......................................................................................................................................................4
Bebiliography.............................................................................................................................................4
Webliography.............................................................................................................................................4
A Critical Analysis OfNemoDat Quod
Non Habet
Introduction:
Latin maxims are extremely important in this sphere of law. Eminent philosophers devised these
maxims to observe and refine their theories. One of the key maxims is "Nemo Dat Quod Non
Habet." These Latin maxims enable it to be easier to understand the following subjects such as
property law, goods and services, and contract law,1 as well as the ownership and possession of
property. This article analyses this maxim with an exception under the 1882 Transfer of Property
Act with several significant precedent decisions.
NemoDat Quid Non Habet:
If a person want to make a transfer, the transferor should have the title to that property or
authority to transfer it. The general rule is that no one can transfer a better title than what he has.
Thus is expressed in the maxim, “Nemodat quid non habet” that means no one gives what he
does no possess. If a person did not have any right of ownership in such property then he cannot
have a right to transfer that property to another person this concept founded under this maxim.
The sales of goods act, 1930 and The India contract act, 1872 are associate with this rule.
Exception under Transfer of Property Act
In this maxim have some exceptions there are principle of estoppel , election and the ostensible
ownership these are comes under the Transfer of Property Act, 1882
I. Election:
“Election is the choosing between to rights by a person who derives one of them under an
instrument in which a clear intention appears that he should not enjoy both.”
The doctrine of election provides that the election is an obligation, to choose between two
inconsistent or alternative rights in a case where there is a clear intention of the grantor that the
1
grantee should not enjoy both. Where a person professes to transfer property which he has no
right to transfer, and as part of the same transaction confers any benefit on the owner of the
property, such owner must elect either to confirm such transfer or to dissent from it; and in the
latter case he shall relinquish the benefit so conferred and the benefit so relinquished shall revert
to the transferor. The doctrine of election is an exception to the general rule ‘nemodat quod non
habet’ that is ‘no one can convey a better title than what he himself has’. The very foundation of
this doctrine is that the person taking benefit under an instrument must also bear the burden.
This doctrine of election stated in the following words are maintained by the parties:-
If he will accept a benefit under a dded or will or other instrument after he full fill the following
condition
Adopt the whole content of the document without fails
Conform to all it is in the provisions, and
Renounce all rights of him that are inconsistent with it.
Illustration:
i. The farm of Sultanpur is the property of C and worth ₹ 800. A by an instrument of gift
professes to transfer it to B, giving by the same instrument ₹ 1,000 to C. C elects to
retain the farm. He forfeits the gift of ₹ 1,000.
In the same case, A dies before the election. His representative must out of the ₹ 1,000
pay ₹ 800 to B
ii. A transfers to B an estate to which C is entitled, and as part of the same transaction gives
C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed
the transfer of the estate to B.
Essential of Doctrine of election:
Before apply this Doctrine of Election we full fill the following five essential conditions
The transferor should dispose the property which he has no right to transfer.
The transferor should confer a benefit of the property’s owner to transfer the property of
which he professes to dispose of.
The two things viz., the transfer and conferring of the benefit must form parts of the same
transaction.
The election should give an independent proprietary right in the property dealt with to his
detriment by the transferor. The benefit of the transaction directly conferred to the owner
of the property
The benefit must be conferred to the owner of the property in the same capacity in which
he is the owner of the propert.
Suspension of election:
Clause 9 of the section 35 of Transfer of property act gives some effects that suspend the
implementation of election there are:-
a. Minor person’s cannot make a election it’s known as a Disability of the election
b. The doctrine of election cannot be applied in order to cure an illegality or to enable the
transferor ot evade any rule of law.
Illustration:
A confers a benefit on B and professes to transfer B’s property in such a way as to violate
the rules against perpetuity, B cannot be compelled to make an election.
c. The doctrine of election is not applicable when it is not impossible to apply the election
(case). In the case of Cavendish v. Dacre, a testator gave benefit to A, and by the same Will
gave to B chattels which were vested trustees to be enjoyed with a mansion house of which A
as tenant for life under a settlement. A was not put to his election, for it was impossible for
him to assign the chattles to B.
Exception of Doctrine of election:
a) Indirect benefit
b) Different capacity
c) Additional or extra benefit
d) When not aware of his duty to elect
e) Impossibility of election
II. Transfer by Ostensible owner:
Ostensible owner is an apparent owner of the property. Section 41 of the Transfer of Property
Act, 1882 deals with the transfer of property to someone who appears to be the owner. It states
that when a person acts with the permission, whether expressed or implied, of someone who
appears to be the owner of a particular immovable property, that person is considered the
‘ostensible owner’ of that property.
An ostensible owner is one who on inquiry by a prospective purchaser, which a prudent and
careful man would make in circumstances of the case, appears to have all the characteristics of a
real owner and the real owner himself does not dispel the impression. In one case, a husband
purchased property in the name of his wife and held out as the true owner. She was the
benamidar and mortgaged the property as the ostensible owner and no one could dispute the title
of the mortgage
Who can become an ostensible owner?
a) Who is the apparent owner of the property
b) Who may be the possessor of the property
c) Who has all the indica of ownership without himself being the real owner
d) Who will not have a valid title but is able to transfer a good title
e) Who is not the real owner of the property, but he is allowed by the real owner, to hold
himself out to the world as the owner
f) Who is though not the real owner of the immovable property, but makes belief the
outside world as the real owner
g) Who is a person who obtains title in the property for which payment is made by another
and therefore known as the holder of property in benami.
Who is not an ostensible owner?
Who having a restricted rights they cannot be called as the ostensible owner of the property. The
following persons have not beposses the ostensible owners of the property.
a) A trustee in a trust
b) Karta in a joint family
c) A guardian of a minor
d) A licensee in possession of property
e) A menial servant in occupation of a property
f) A manager or trustee of an idol
g) A donor who has not reserved to himself any power of revocation of the deed of gift
h) Door in possession
i) Mahant of the math
j) A professed agent or manager
k) A mortgagor
Conditions of ostensible ownership
These following conditions are to be satisfied under section 41 of the TP Act to make the transfer
by the ostensible owner to be valid
a) The Transferor must be an ostensible owner of property
b) There must be consent express or implied from the real owner
c) He must transfer that property
d) The transfer must be for consideration
e) The transferee has acted in good faith and with reasonable care
Benami Transfer sec. 41:
Benami means a person not in the name of the real person. The purchaser used somebody name
for buying the property for such reasons the land did not in his own name. The sale deed in is the
name of the benamidar and the money was paid by the real owner of theproperty.
A benamidar is an ostebsible owner of the property and if a person purchase from the benamidar,
the real owner cannot recover the property unless he show the prof that the constructive notice of
the real title. Under the section 41 of the TP Act clearly states “Where, with the consent, express
or implied, of the persons interested in immoveable property, a person is the ostensible owner of
such property and transfers the same for consideration, the transfer shall not be violable 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.
Ram Coomar vs. Macqueen, 1872
III. Doctrine of Feeding the Grant by Estoppel:
Essential conditions
Comparision of section 35, 41 and 43 of T.P Act, 1882:
Features Doctrine of Election Ostensible Doctrine of feeding the
sec. 35 ownership sec. 41 Grant by Estoppel
sec.43
Who is the A person transferring A person who A person wrongly
Transferor? property that is not appears to be the claiming ownership of
theirs real owner with a property
the true owner’s
consent
Who is bound? The real owner must The real owner is The transferor is
choose to accept or bound if the bound once they
reject the transfer transferee acts in acquire ownership
good faith
Good Faith Required? Not necessarily, as Yes, transferee Yes, transferee must act
the real owner must must act in good in good faith
choose faith & make
inquiries
Ownership Status of Has no right to Appears to be the Has no right but later
Transferor? transfer owner but is not acquires ownership
What Happens to If the real owner Transferee gets Transferee can claim
Transferee? elects to keep their valid title if due ownership if the
property, the care is taken transferor later gets
transferee gets the property
nothing
Who is Estopped? The real owner is The real owner is The transferor is
forced to choose estopped from estopped from denying
denying transfer transfer once they
acquire the property
Application of Maxim Nemodat quod non The transferee was
habet this maxim was protected by this
protect the original maxim. If he buy
owner of the property the property under
the good faith
Pertinent examples:
Cooper v. Cooper, 1874
Sha Mukundlal v. Bu Srikrishna Singh, 1867
Muhammad Afzal v. GulamKasim, 1903
JayadayalPoddar v. BibiHazra, 1974
Syed Abdul Khaddar v. Rani Reddy, 1979
Conclusion
Reference
Bebiliography:
Webliography:
[Link]
[Link]
[Link]