Madhya Pradesh High Court
Smt. Sudha Bhargav vs Wahid Khan on 13 March, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:8758
1 SA-1546-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 13th OF MARCH, 2026
SECOND APPEAL No. 1546 of 2024
SMT. SUDHA BHARGAV
Versus
WAHID KHAN AND OTHERS
Appearance:
Shri Naval Kumar Gupta Senior Advocate with Shri Saket Sharma and
Shri Yashasvi Pratap Singh Rathore- Advocate for the appellant.
Shri C.P. Singh - Government Advocate for the State.
Shri Rinkesh Goyal- Advocate for the respondent No.15.
Shri G.S. Sharma proxy counsel on behalf of Shri D.S. Raghuwanshi -
Advocate for respondents No.1 to 10.
WITH
SECOND APPEAL No. 1162 of 2024
GHANSHYAM
Versus
WAHID KHAN AND OTHERS
Appearance:
Shri Rinkesh Goyal - Advocate for the appellant.
Shri C.P. Singh - Government Advocate for the State.
Shri G.S. Sharma proxy counsel on behalf of Shri D.S.
Raghuwanshi - Advocate for respondents No.1 to 10.
ORDER
Signature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 17-03-2026
16:58:15
NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 2 SA-1546-2024 By this common judgment, S.A.No.1546/2024 and S.A.No.1162/2024 shall be decided.
2. Since both the appeals arise out of same suit, therefore, factual matrix as well as questions of law are common in both the appeals.
3. These second appeals under Section 100 of C.P.C. have been filed against judgment and decree dated 09/02/2024 passed by Principal District Judge, Ashoknagar, District Ashoknagar in Regular Civil Appeal No.70/2023 thereby reversing the judgment and decree dated 14/02/2017 passed by Third Civil Judge, Class-II, District Ashoknagar in Civil Suit No.06-A/2016.
4. The facts necessary for disposal of present appeal, in short, are that the original plaintiffs, Wahid Khan and Hasmuddin filed a suit against legal representatives of Gulzar Khan namely, Kallu Khan, Feroz Khan, Raju Khan and Begum Bano. Later on, Smt. Sudha Bhargava, who is appellant in S.A.No.1546/2024, and Shri Ghanshyam Rathore, who is appellant in S.A.No.1162/2024 were impleaded. It was the case of plaintiffs that their father - Rustam Khan was the Pakka Krishak and later on, he became Bhoomiswami, and he was in possession of Survey No.6, area 1.568 hectares situated in village Futera, Tehsil Ishagarh, District Ashoknagar. It was pleaded that Rustam Khan had died about 70 years back, and after the death of Rustam Khan, the mother of the plaintiffs namely, Jinnat Bai, and plaintiffs became co-owner and were in joint possession of the property in dispute. Plaintiffs are simple and rustic villagers and, therefore, they were under an impression that after the death of Rustam Khan their names also must have been mutated in the revenue records. The mother of plaintiffs, namely Jinnat Bai died in the year 1979. After the death of their father Gulzar Khan, the revenue authorities should have mutated the names of all the co-sharers, but they had wrongly mutated the name of their Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 3 SA-1546-2024 mother Jinnat Bai alone. After the death of Jinnat Bai, plaintiffs filed an application for mutation of their names and application was allowed. An appeal was filed by Gulzar Khan, who is the father of defendants No.1 to 4, and SDO allowed that appeal and remanded the matter back to the Court of Tahsildar Ishagarh. Tahsildar, Ishagarh did not conduct an enquiry and directed for mutation of name of Gulzar Khan only on the ground that the name of Gulzar Khan has been mutated by Chakbandi Officer. It was pleaded that Chakbandi Officer is not a revenue Court, and he had no authority to mutate the name of Gulzar Khan. Thus, it was pleaded that the order of mutation passed by Chakbandi Officer was null and void, as it was passed behind the back of plaintiffs. It was claimed that Jinnat Bai had never executed any Will in favour of Gulzar Khan. So-called claim by Gulzar Khan was on the basis of concocted, forged, and created Will. The Will is ineffective and illegal because when the heirs of Rustam Khan were alive, then there was no occasion for Jinnat Bai to execute a Will in favour of some stranger. It was claimed that in the month of January, 2011, defendants No.1 to 4 had tried to dispossess plaintiffs, and accordingly, the title of plaintiffs had come under a cloud, and thus, suit was initially filed for declaration that plaintiffs are the owners and in possession of Survey No.6 area 1.568 hectare, situated in village Futera, Tehsil Ishagarh, District Ashoknagar, and it was also prayed that the so-called Will perportedly executed in favour of Gulzar Khan be declared as null and void. Thereafter, plaint was amended, and it was claimed that Gulzar Khan had executed a sale-deed in respect of 0.672 hectare of land in favour of defendant No.5/appellant in S.A.No.1546/2024, and legal representatives of Gulzar Khan executed another sale-deed in favour of defendant No.6/appellant in S.A.No.1162/2024. It was Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 4 SA-1546-2024 claimed that both the sale-deeds are null and void. Even the claim made by defendants that a partition had taken place amongst themselves is illegal, and thus, the prayer clause was also amended, and it was prayed that sale deeds executed in favour of defendants No.5 and 6 be declared as null and void.
5. Defendants No.1 to 4 filed their written statement and denied the plaint averments. It was claimed that Gulzar Khan has already alienated 0.672 hectares of land falling part of Survey No.6 Min 2 to defendant No.5 and her name has also been mutated in the revenue record. The name of Gulzar Khan was recorded in the revenue records. He was the owner and in possession of the property in dispute. Because of exclamation in the prices of land, the false civil suit has been filed. The other legal representatives of Gulzar Khan, namely Rehmat Bai, Bismilla Bee, Alisha Bee and Mehrunisha are alive, but they have not been made a party, and thus suit is also bad on account of non-impleadment of necessary parties. It was claimed that the name of Gulzar Khan was properly mutated in the revenue records by order dated 13/07/1983. The plaintiffs had remained silent for 26-27 years, and plaintiffs had never challenged the mutation entries and thus, suit filed by plaintiffs is barred by time. The story of extending a threat to plaintiffs in the month of January, 2011 by defendants No.1 to 4 was also claimed to be false.
6. Defendant No.5/appellant in S.A.No.1546/2024 also took the same defence, and she stated that she is a bona fide purchaser, having purchased the property after verifying it from the revenue records. Jinnat Bai had right to execute Will in favour of Gulzar Khan and Will executed by Jinnat Bai was genuine, and it was acted upon by revenue authorities and, therefore, by virtue of sale-deed, the appellant/defendant No.5 is the owner and in possession of the property in dispute. It was further claimed that the suit filed by plaintiffs is barred Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 5 SA-1546-2024 by time.
7. Defendant No.6 also filed his separate written statement and took the same defence.
8. The trial Court, after framing issues and recording evidence, dismissed the suit.
9. Being aggrieved by judgment and decree passed by trial Court, respondents/plaintiffs preferred an appeal.
10. During the pendency of appeal, Hasmuddin expired, and accordingly, his legal representatives were brought on record. Appellate Court by impugned judgment and decree has set aside the judgment and decree passed by trial Court and has decreed the suit filed by appellants.
11. Challenging the judgment and decree passed by Appellate Court, it is submitted by counsel for appellants that suit was filed after 28 years of mutation in favour of Gulzar Khan and, therefore, the suit is barred by time. Appellant in S.A.No.1546/2024 has purchased the property after considering the revenue entries and, therefore, appellant in S.A.1546/2024 is a bona fide purchaser and thus, her title and possession over the land, which was purchased by her, may be protected. It is further submitted that in the light of Section 41 of the Transfer of Property Act, it can be presumed that appellant in S.A.No.1546/2024 has purchased the property from Gulzar Khan who can be treated as ostensible owner. It is further submitted that the suit is bad on account of non-joinder of necessary party.
12. Shri Rinkesh Goyal, counsel for appellant in S.A. No.1162/2024 also raised the similar grounds.
13. Per contra, the appeals are vehemently opposed by counsel for respondents.
Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 6 SA-1546-2024
14. Considered the submissions made by counsel for the parties.
(1) Whether, the suit filed by the plaintiffs was barred by time or not?
15. It is the case of appellants that Jinnat Bai had executed a Will in the year 1965 in favour of Gulzar Khan and on the basis of said Will, the name of Gulzar Khan was mutated in the revenue records in the year 1983, whereas the suit was filed in the year 2011, i.e., after about 25 years of mutation of name of Gulzar Khan and, therefore, the suit is barred by time.
16. The first question for consideration is as to whether the mutation entry is a document of title or not and whether the mutation of name of Gulzar Khan in the revenue records can be said to be null and void order.
17. It is well established principle of law that the ground that order is null and void can be raised in collateral proceedings also.
18. The Supreme Court in the case of Jitendra Sharma Vs. State of M.P. reported in 2021 SCC OnLine SC 802 has held that the mutation proceedings are not the documents of title or they are meant for fiscal purposes. Thus, it is clear that merely because the name of Gulzar Khan was mutated in revenue records on the basis of Will that would not ipso facto mean that Gulzar Khan had become the owner and the plaintiffs accepted the title of Gulzar Khan by not challenging the order passed by the revenue authorities. It appears that during Chakbandi proceedings, Panch Committee of the village was of the opinion that Gulzar Khan is in possession of the property of Jinnat Bai and, Jinnat Bai has executed a Will and also recommended for mutation of name of Gulzar Khan. Without conducting any enquiry and without giving any opportunity of hearing to the legal heirs of Jinnat Bai, it appears that Chakbandi Officer directed for mutation of name of Gulzar Khan on the basis of so called Will.
Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 7 SA-1546-2024
19. It is not out of place to mention here that Will executed by Jinnat Bai has not been placed on record. The said document has not seen the light of the day. Whether endorsement made by Panch Committee was correct or not has also not been proved by the appellants. Furthermore, there are specific provisions for Will under Mahomedan Law.
20. As per Clause 115 of Mahomedan Law, authored by Sir Dinshaw Fardunji Mulla, subject to the limitations as mentioned in subsequent clauses, every Mahomedan of sound mind and not a minor may dispose of his property by Will, and as per Clause 117, a bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. A bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. Neither inaction nor silence can be the basis of implied consent.
21. Clause 118 puts a limit of testamentary power and it provides that a Mahomedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take place effect, unless the heirs consent thereto after the death of the testator.
22. Therefore, unless and until the aforesaid conditions are proved, Will purpotedly executed by a Mahomedan will not come into existence and cannot be relied upon. The order passed by Chakbandi Officer has been placed as Ex.P-1. Neither the Panch Committee had considered all the Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 8 SA-1546-2024 aforesaid aspects nor Chakbandi Officer.
23. Whether, Chakbandi Officer had any authority to mutate the name of Gulzar Khan on the basis of a Will is also a question, which goes to the root of the case.
24. However, one thing is clear that when the plaintiffs filed their application for mutation of their name after the death of Jinnat Bai, then such an application was allowed, and Gulzar Khan preferred an appeal against the order dated 21/02/1981 passed by Naib Tehsildar, Ashoknagar. The said appeal was registered as Case No. 20/A-6/80-81 and SDO, Ashoknagar, District Guna (as it was in District Guna), by order dated 30/09/1981 set aside the order passed by Naib Tahsildar, Ashoknagar and remanded the matter back to the Naib Tahsildar to decide the question of mutation afresh. Thereafter, Tahsildar, Ashoknagar by order dated 13/07/1983 passed in Case No.16/A-06/81-82 allowed the claim of Gulzar Khan for mutation of his name in the revenue records only on the basis that Chakbandi Officer has already directed for mutation of the name of Gulzar Khan. No independent enquiry was conducted by Naib Tahsildar. Even from the order dated 13/07/1983 (Ex.D-5), it appears that Will was never produced before the Court of Naib Tahsildar.25.
25. The Full Bench of this Court in the case of Anand Chaudhary vs. State of M.P. and Others , decided on 14.02.2025 in W.P.No.3499/2022 (Jabalpur) has held as under :-
75. In view of the aforesaid discussion, we answer the question referred to us in the negative and hold that Tehsildar cannot reject the application for mutation at threshold on the ground that it is Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 9 SA-1546-2024 based upon will. However, in view of detailed discussion made by us above, it would be appropriate to summarize our conclusions serially as under:-
1) The Tehsildar while dealing with cases of mutation under sections 109 and 110 MPLRC between private parties, does not perform judicial or quasi-judicial functions, but only performs administrative functions and therefore, he is not authorized to take any evidence for the purpose of deciding applications for mutation.
2) The Tehsildar can entertain application for mutation on the basis of will. However, it would be obligatory upon him to enquire about the legal heirs of the deceased and notice them in view of provisions of section 110(4) MPLRC.
3) Sections 109 and 110 have to be read alongwith Section 111 M.P.L.R.C. and a bare reading of Section 111 of M.P.L.R.C. leads to conclusion that where-ever rights of private parties are involved, then it will only be for the Civil Court to adjudicate the disputed cases. The jurisdiction of the Revenue Officers in the matters of mutation in Revenue records, is merely administrative.
4) A dispute as to validity of will, competence of testator to execute will or existence of two rival wills of testator, or a dispute as to validity of any other non- testamentary registered title document as enumerated in Form-1 of Mutation Rules of 2018 would create a dispute relating to any right which is recorded in the record of rights and arising during either mutation or correction of entry would be such a dispute.
5) In case any dispute as mentioned in para (4) above is raised between private parties, then the Tehsildar would not have any competence to decide the dispute and it would be for the parties to approach the civil court to Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 10 SA-1546-2024 get the dispute adjudicated, in terms of detailed discussion contained in para-74 above. Such matters will either be disposed or kept pending and reported to the Collector in terms of Section 110(7) MPLRC by the Tehsildar, in the manner discussed in detail in this order.
6) The decision in disputed cases as contemplated under Section 110 (4) M.P.L.R.C. does not give any authority to the Tehsildar to decide such dispute and assume powers of Civil Court by going into the authenticity of will or of any non-testamentary registered title document and that outer time limit has to be read only to determine whether a dispute exists in the matter and granting opportunity to parties to approach the Civil Court. If such approach to Civil Court is not made or despite approach no injunction is granted by Civil Court, then mutation will be carried out on basis of succession by ignoring disputed testamentary document and in case of non-testamentary registered title documents, by giving effect to such document. Once a dispute in the matter of competence of testator, validity of the will (whether registered or not) or into a non- testamentary registered title document or dispute as to title is raised before Civil Court and injunction is granted, then the only course open for the Tehsildar would be not to proceed further and to report the matter to the Collector under Section 110(7) of MPLRC.
7) In case no dispute is raised by any legal heirs of the testator or by any other person in the matter of competence of testator to execute the will and authenticity of the will, then it would be open for the Tehsilder to carry out the mutation in such undisputed cases. However, even in those cases subsequent Civil Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 11 SA-1546-2024 Suit will not be barred.
8) In case where issue of Government having interest in the land crops up in course of mutation, then the Tehsildar may decide that question in terms of section 111 readwith Section 257 (a) MPLRC by exercising jurisdiction which is wider than administrative one and may take evidence, but in those cases also, no enquiry as to validity of will or of any registered title document can take place before the Tehsildar.
26. Furthermore, the Supreme Court in the case of Tara Chandra Vs. Bhawar Lal and Another decided on 19/12/2025 in Civil Appeal No.15077/2025, has also held that in case of a serious dispute, the revenue court has no jurisdiction to decide the validity of a Will, and it has to be decided by Civil Court. The Supreme Court in Tara Chandra (supra) has also taken note of judgment passed by Full Bench of this Court in the case of Anand Chaudhary (supra) . Thus, it is clear that where there is a serious dispute with regard to the genuineness of a Will, then it cannot be adjudicated by revenue court, but it has to be decided by Civil Court.
27. Thus, it is clear that where Will is undisputed, then the revenue authorities can mutate the name of the beneficiary, but when it is disputed, then the revenue authorities lose all their authority to mutate the names of beneficiary on the basis of Will and the beneficiary has to obtain a declaration from the Civil Court.
28. Undisputedly, in the present case, plaintiffs did not challenge order dated 13/07/1983 passed by Tahsildar, Ashoknagar (Ex.D-5). Now, the only question for consideration is as to whether, it can be presumed that plaintiffs Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 12 SA-1546-2024 by maintaining silence and by not challenging the order of mutation passed by Tahsildar, have admitted the Will executed by their mother Jinnat Bai or not.
29. As already pointed out, the order of mutation is not a document of title. Furthermore, in Mahomedan Law, as already pointed out, certain limitations are there for a valid Will. The testator cannot bequeath a property in excess of 1/3rd of his or her share and the written consent of the other co- sharers is required. It is clear from Clause 117 of Mahomedan Law, authored by Sir Dinshaw Fardunji Mulla, that neither inaction nor silence can be the basis of implied consent. Therefore, even if plaintiffs did not assail the order of mutation passed by Tahsildar Ex.D-5, then in the light of Clause 117 of Mahomedan Law, it cannot be said that they have accepted that Jinnat Bai had executed a Will in favour of Gulzar Khan. Admittedly, Gulzar Khan is stranger to Jinnat Bai. The plaintiffs are the legal representatives of Jinnat Bai. Why Jinnat Bai would execute a Will in favour of a stranger, specifically when she is having two children, is also a suspicious circumstance.
30. At the cost of repetition, it is once again clarified that since Will has not been placed on record and, therefore, appellants have also failed to prove that Will was ever executed by Jinnat Bai in favour of Gulzar Khan.
31. Under these circumstances, once the plaintiffs would not lose their title merely because the name of somebody else has been mutated in the revenue record, then it cannot be said that the suit had ever become barred by time. The Appellate Court has also held that vendor of appellants were never Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 13 SA-1546-2024 in possession of land in dispute. Thus, even otherwise there is no question of adverse possession.
32. Therefore, the first contention made by the counsel for appellant that the suit was barred by time is misconceived and is hereby rejected. It is also held that Appellate Court had also rightly rejected the defence of appellant that the suit filed by the plaintiffs is barred by time.
2. Whether the suit suffers from non-joinder of necessary party?
33. It is the case of defendants No.1 to 4 that Gulzar Khan was also survived by four daughters and those four daughters were not made parties to the suit, therefore, the suit suffered from non-joinder of necessary party.
34. This Court has already held that defendants have failed to prove that Jinnat Bai had ever executed any Will in favour of Gulzar Khan. Gulzar Khan is also stranger to the family of Jinnat Bai. Therefore, the normal rule of inheritance under the Mahomedan Law would also not apply to Gulzar Khan. In absence of Will, Gulzar Khan would not get anything, and Will has not been proved and in fact, Will did not see the light of the day except that it was mentioned in the order passed by Chakbandi Officer, who also did not care to verify as to whether Will was in accordance with the provisions of Mahomedan Law or not. Even in the order Ex.P-1, it is not mentioned that Chakbandi Officer had ever perused the Will also. No notice was given by Chakbandi Officer to the legal representatives of Jinnat Bai. Furthermore, Rustam Khan was the Bhoomiswami of the property in dispute and after his death, his widow would inherit only 1/4 share in the property (in case of four widows, 1/16 share) and remaining part would go to the sons and daughters Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 14 SA-1546-2024 of deceased as per the Mahomedan Law. Thus, after the death of Rustam Khan, the name of Jinnat Bai alone should not have been mutated in revenue records by ignoring the names of sons of Rustam Khan.
35. Be that whatever it may be.
36. Since Gulzar Khan was not related to Jinnat Bai in any manner, therefore, he would not have inherited even a single inch of land in question, therefore, even if the daughters of Gulzar Khan were not made parties to the suit, it cannot be said that the suit was bad because of non-impleadment of necessary parties. Furthermore, if this argument is accepted, then it will also prove to be a boomerang for the defendants themselves.
37. The defendants had got their names mutated in the revenue records after the death of Gulzar Khan, but they deliberately did not disclose that Gulzar Khan had four more daughters. Therefore, it is clear that even according to defendants No.1 to 4, they had also played fraud on their siblings by not getting their names mutated in the revenue records.
38. Be that whatever it may be.
39. At the cost of repetition, it is held that since Gulzar Khan did not get any right or share in the property in dispute, therefore, four daughters of Gulzar Khan, who were left out, cannot be said to be a necessary party, and thus the suit was not barred on account of non-joinder of necessary party.
(3) Whether, the appellants in both the appeals, are the bona fide purchasers or not?
40. It is submitted by counsel for both appellants that they had purchased the property after verifying from the revenue records. Counsel for Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 15 SA-1546-2024 the parties are right in making such submission. However, the only question for consideration is that what relief can be granted to appellants who were defendants in the civil suit in question. The vendors of the appellants were also co-defendants. In case if this Court directs the defendants No.1 to 4 to refund the consideration amount to both the appellants, it would amount to a counterclaim by one defendant against the co-defendant and Defendants No.5 and 6/appellants in Second Appeal No.1546/2024 and Second Appeal No.1162/2024 did not file any counterclaim, but they stick to their stand that Gulzar Khan was the owner and they have rightly purchased the property either from Gulzar Khan or from the legal representatives of Gulzar Khan. Furthermore, counterclaim by one defendant against co-defendant is not maintainable. Therefore, in this suit, it is held that appellants might have purchased the property in dispute after verifying from revenue records, but since Gulzar Khan had no right in the property, therefore, the vendor or his legal representatives cannot transfer a title better than what they themselves were having in the property in dispute. Since Gulzar Khan or his legal representatives have no right or share in the property, therefore, it is held that sale-deeds executed in favour of Smt.Sudha Bhargava, who is appellant in Second Appeal No.1546/2024, and in favour of Ghanshyam Rathore, who is appellant in Second Appeal No.1162/2024 would also not transfer any right or title in the property. However, it is held that since appellants were bona fide purchasers, therefore, they will have every right to file a suit against their vendors for recovery of consideration amount as well as for damages.
(4) Whether, Gulzar Khan can be treated as ostensible owner or not?
Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 16 SA-1546-2024
41. By referring to Section 41 of the Transfer of Property Act, it is submitted by counsel for appellants that even otherwise, Gulzar Khan can be treated as ostensible owner and, therefore, the sale-deeds executed by Gulzar Khan or by his legal representatives in favour of Smt. Sudha Bhargava who is appellant in Second Appeal No.1546/2024, and in favour of Ghanshyam Rathore, who is appellant in Second Appeal No.1162/2024 can be upheld.
42. Section 41 of the Transfer of Property Act reads as under:-
"41. Transfer by ostensible owner.- 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."
43. Once the appellants claim that Gulzar Khan should be treated as an ostensible owner, then it is clear that appellants have also admitted that Gulzar Khan was not the owner.
44. Now, the only question for consideration is as to whether plaintiffs by impliedly or expressly had accepted Gulzar Khan as owner or not?
45. As already pointed out that plaintiffs did not challenge the order of mutation, Ex.D-5. However, in view of Clause 117 of Mahomedan Law, it is also clear that inaction or silence on the part of co-sharers will not amount to their consent to the Will.
46. Under these circumstances, it cannot be said that plaintiffs either Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15 NEUTRAL CITATION NO. 2026:MPHC-GWL:8758 17 SA-1546-2024 impliedly or expressly had recognized Gulzar Khan as ostensible owner.
47. At the cost of repetition, it is once again clarified that the order of mutation can never be treated as a document of title. Gulzar Khan was never the owner. Defendants have also failed to produce the Will and have also failed to prove the same. As Gulzar Khan was not the owner, and was never impliedly or expressly recognized by the plaintiffs, then the sale-deeds executed in favour of appellants in both the cases cannot be said to have been executed by an ostensible owner.
48. Under these circumstances, this Court is of considered opinion that Appellate Court did not commit any illegality in setting aside the judgment and decree passed by the trial Court and has rightly decreed the suit filed by plaintiffs.
49. No other argument is advanced by counsel for parties.
50. As no substantial question of law arises in the present case, accordingly, the judgment and decree dated 09/02/2024 passed by Principal District Judge, Ashoknagar, District Ashoknagar is hereby affirmed.
51. The appeal fails and is hereby dismissed. No order as to costs.
(G. S. AHLUWALIA) JUDGE PjS/-
Signature Not Verified Signed by: PRINCEE BARAIYA Signing time: 17-03-2026 16:58:15