I require valuable inputs from experts on the case being brought forward by legal heir on a property in question which was sold by their mother 40 years back to their maternal grand mother.
Mother of plaintiff (P) had sold the property to her maternal grand mother through a registered sale deed 40 years back. The sale deed records 50% of payment as received and balance payable in installments. The possession continues since sale deed executed has been with defendent (D) and his family who is the son of maternal grandmother of Plaintiff.
P is now contesting this sale on two grounds - claiming the property as Benami stating their father bought same in name of mother and she had no funds to buy it originally and later mother had no authority to sell. It is part of their HUF hence elgible for partition as per their shareholding. The second ground being prepared is that the balance payment as stated in sales deed was never received. P is demanding injuction against further sale of property or to create third party right,, cancellation of sale deed and demanding possession back.
D claims that the property was very much elgible to be sold by the mother of P as she was individual tax assessee and sought permission from the tax authority in form of certificate issued as approval also mentioned in registered sale deed prior to sale. They had done check on this prior to sale and then only setlled the payment infront of registrar. It is important to note that husband was alive at time of sale by mother of P and remained to be so after 6 years of sale never challenging it then also. The sale was executed and balance part payment were made in full although no receipt as such was taken from party as it was always in good faith since the funds were given to mother of P by her maternal grand mother in a relationship of trust.
The entire background as given to understand from reviewing the case prepared by P is to harass D after such elapse of time as P claims the property was never sold as her mother had no right to sell and gave the place only to her maternal grand mother to temporary reside with her family till she was alive. First notice was received by D on such grounds 3.5 years ago which was suitably replied to and future notices as well were sent contradictory to each other first claiming for partition as right of daughter then rejecting the sale. Each notice was replied to and stated that absolute ownership is with family of D and necessary Caveat was filed on record.
Common sense prevails in such a case that Act of Limitation applies although if we presume honorable judge allows the case to be contested then what are implications on D and his defence in case -
A) Claim being raised that it was benami by P? Since sale is 40 years old how can now one take cover of Benami title?
B) Registered sale deed exists between Ps mother and maternal grand mother against which more than 50% of payment was received and balance paid later on. Mutation as well was carried out. Although it is difficult to find record of payment of balance considering it is 40 years old?
C) Possession with D since property was bought and the entire family of D resides there since long.?