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(1) The provisions of Section 41 of the Property Act are attracted only when with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration. It is, therefore, obvious that before this provision can be attracted, there has to be a real owner and an ostensible owner who transfers the property with express or implied consent of the former. In the case before the Division Bench and the other cases noticed above, the allottee upon whom the rights had been conferred was the real owner and there was no question of anybody being the ostensible owner.

The land in dispute being evacuee property had vested in the Central Government. Hence, the Central Government which were interested in that property, gave its express consent when that property was given to the Muslim owners in lieu of their land which had been erroneously treated as evacuee property and then allotted as such to some displaced persons. Thus, the Muslim owners, the predecessors-in-interest of respondents Nos. 1 to 6, who were the ostensible owners of that land with an express consent of the Central Government which were interested in the land, sold the same in that capacity to the petitioner-respondents Nos.1 to 5, and one Chanan Singh, the predecessor-in-interest of Smt. Devi, petitioner-respondent No.6, for consideration of Rs.30,000/- by means of the registered sale-deed, dated 21st June, 1965. That being so, the transfer of the land in question made in favour of respondents Nos.1 to 6 could not be got declared voidable by the Rehabilitation Authorities on the ground that the transferors were not empowered to make it because it appears that the transferees, after taking reasonable care to ascertain from the revenue record that the transferors being the ostensible owners had the power to make the transfer, had acted in good faith while purchasing the land for consideration as stated above. In view of this matter, respondents Nos.1 to 6, could not be ousted from the land in dispute even if the Rehabilitation Authorities had sought the remedy in the Court of law, because the provisions of section 41 of the Transfer of Property Act, would have been attracted and created a hurdle in the way of the Rehabilitation Department if it had sought relief of getting the land in dispute retrieved from the transferees in the Court of law."

Even if the benefit of 3rd and 4th ingredient is granted to the purchaser in the present appeal, the question is whether the 1st and 2nd ingredient is satisfied by the appellant. The first and foremost ingredient is that the transferor is ostensible owner. The allotment in favour of transferor has been set aside. The cancellation of allotment can be on account of fraud or for any other reason. The transferor loses title from the date of allotment and not from the date of order. The transferor by virtue of the original alltoment can be said to be permissible user of the land before the allotment was cancelled but such transferor cannot be said to be ostensible owner as the ownership itself has been set side either as a result of fraud or for some other irregularity. The transfer in favour of the transferor was invalid and void from the date of transfer though factum of fraud or irregularity came to the notice of the real owner (Central Government) subsequently. Therefore, it cannot be said that the transferor of the appellant was the ostensible owner.

The word "ostensible" according to dictionary means apparently true, but not necessarily so, therefore, ostensible owner would include even the transferee from the State Government or the Union Government, as in certain situations, the Union or the State Government can be held to be real owner and the allottee ostensible owner being recorded as such in the revenue record, though he is actually not the owner, by legal fiction, as cancellation is to relate back to date of allotment.