SUSHOVANPAL Vs. SHARMISTHA PAL @ SHARMISTHA MAZUMDAR & ANR

JUDGEMENT

(1.) Caveat No. 648/2018

(2.) (I) That the suit property was leased by a Perpetual Lease Deed by the DDA in favour of Sh. Shayam Sunder Pal (husband)and the respondent no.2/defendant no.2/Smt. Sudha Pal (wife) is an undisputed fact. This document being the Lease Deed giving joint ownership rights in the property to Sh. Shayam Sunder Pal and Smt. Sudha Pal, is dated 15.6.1992, and this document has not been challenged by the appellant/defendant no. I have gone through the written statement filed by the appellant/defendant no.1 along with the counsel for the appellant/defendant no.1 in order to examine the plea of the appellant/defendant no.1 raised before this Court that though the Lease Deed was in the joint names of the mother and the father, the mother was not the half owner and that the father was the sole owner because the Lease Deed was executed only because of a policy of DDA for giving a displaced person a property jointly with his wife. What was argued by the appellant/defendant no.1 before this Court, (for the first time) dehors any such specific pleadings of the appellant/defendant no.1 in the trial court as regards the date and number of a DDA policy, that though the Lease Deed dated 15.6.1992 was in the joint names of the mother Smt. Sudha Pal and the father Sh. Shayam Sunder Pal, but Smt. Sudha Pal was not the co-owner of the property and that the father Sh. Shayam Sunder Pal was the sole owner of the property inasmuch as the father being a displaced person from East Pakistan, he was to be the sole owner of the suit property which was allotted to the father as a displaced person, however the Lease Deed dated 15.6.1992 was executed by the DDA in favour of Sh. Shayam Sunder Pal and Smt. Sudha Pal because of a policy of DDA. As already stated above, the written statement of appellant/defendant no.1 does not refer to any specific policy by its date and number which required the lease deed to be executed in favour of displaced person only with the wife of the displaced person. The appellant/defendant no.1 therefore cannot for the first time in this appeal raise this plea before this Court, and this is all the more so because no policy of DDA was proved by the appellant/defendant no. 1 during the course of leading of evidence by the appellant/defendant no. 1.

(3.) The next aspect to be considered is that whether the suit property in the hands of Sh. Shayam Sunder Pal was an ancestral property, ie the plea is that once the suit property is an ancestral property, then the suit property would be of the HUF of Sh. Shayam Sunder Pal. It may be noted that parties are governed by the Dayabhaga School of Law, they having their original roots in the State of West Bengal.