Delhi District Court
Smt. Yoden Dolma Tashi Tshering vs Dawa Chhomo Lama on 20 February, 2016
IN THE COURT OF DR. ARCHANA SINHA
ADDITIONAL DISTRICT & SESSIONS JUDGE03 (Central)
TIS HAZARI COURTS, DELHI
Date of institution : 25.04.2008
Judgment reserved on : 19.02.2016
Judgment delivered on : .20.02.2016
Suit No. 141/2015 Unique Case ID No.02401C0636532008
Smt. Yoden Dolma Tashi Tshering
Flat No. 702, 7th Floor, III A, Gita Arcade,
Sheetal Nagar, Mira Road (E), Thane, Mumbai ... Plaintiff
Versus
Dawa Chhomo Lama
Rooms No. 56 & 57, Dewal Building,
2nd Floor, 12th Lane, Kamathipura,
Manaj Rajaji Road, Mumbai ... Defendant
J U D G M E N T
1. This is a suit for declaration, partition, possession and permanent injunction of the property bearing No. 23A/B Old Camp, Tibetan Colony, Majnu Ka Tila, New Delhi54. Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 1
2. Briefly stated, the plaintiff's case, as set out in the plaint, is that the plaintiff was adopted by Smt. Ashi Sonam, from Smt. Kanchi, her natural mother, through deed of adoption, on 17071969 and thereafter, Smt. Ashi Sonam married to Sh. Injula Lama and that he after marrying Smt. Ashi Sonam also adopted the plaintiff and gave his name to the plaintiff in all the records and that defendant was also adopted by her parents in the year 1979 and both plaintiff and defendant grew up as adopted children of Sh. Injula Lama and Smt. Ashi Sonam who died on 20012004 and 29052001 respectively.
3. It is further averrred that Sh. Injula Lama owned property bearing No. 23A/B Old Camp, Tibetan Colony, Majnu Ka Tila, New Delhi54, comprising of 3 rooms, kitchen, bath, lobby, lawn and one hall (hereinafter referred as suit property) and a dispute arose between the plaintiff and the defendant regarding the claim that her father had sold the suit property to the plaintiff and she had filed a civil suit No. 369/1999, Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 2 which was dismissed vide order dated 01062004 and the civil appeal no. 111/04 was also dismissed.
4. Also that there were number of properties taken on lease in Mumbai by her mother Smt. Ashi Sonam and all the properties are into litigations pending in the Mumbai Courts wherein the landlords of such properties have brought the plaintiff and defendant as her heirs, after her death in such suit.
5. Further that Sh. Injula Lama, her father, has filed a civil suit bearing no. 5305/03 in the Bombay City Civil Court seeking a declaration that plaintiff is not his adopted daughter thereby seeking the cancellation of adoption deed dated 17071969, and after his death, the defendant has been impleaded at plaintiff at his place.
6. Further, it is pleaded that the plaintiff and the defendant were adopted daughters of Late Sh. Injula Lama and thus, Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 3 both are entitled to a 50% share in the suit property of Sh. Injula Lama. Hence, the present suit by the plaintiff, thereby she is seeking declaration, partition, possession and permanent injunction qua the suit property.
7. The defendant through her contra pleadings in the written statement has raised preliminary objections regarding suppression of material facts that Sh. Injula Lama has left behind a vaild Will dated 19031997 bequeathing his immovable properties including the suit property in favour of the defendant and that the plaintiff is not legally adopted daughter of late Sh. Injula Lama, thereby pleading that there was no cause of action in the suit and also that the suit is also barred by section 10 of the CPC as a previous litigation with regard to legality of adoption of the plaintiff is pending adjudication in Mumbai Court.
On merits, all the averments raised in the plaint have been denied by the defendant, submitting that the plaintiff is not entitled for any of the reliefs claimed regarding the suit Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 4 property, thereby prayed for dismissal of the suit.
8. Replication/Rejoinder has been filed on behalf of plaintiff in which the averments made in the written statement of the defendant have been denied and those made in the plaint have been reiterated as correct.
9. On the basis of the pleadings, vide order dated 20.10.2009, the following issues were framed:
i). Whether the suit of the plaintiff is liable to be stayed under section 10 CPC? OPD
ii). Whether the plaintiff is within his rights to claim the share in the suit property qua defendant as also the Will dated 19031997 has been revoked by revocation deed dated 25012003? OPP
iii). Relief.
10. For proving the case, the plaintiff has produced herself as witness in the witness box as PW1 by way of two affidavits Ex. PW1/A & PW1/B and exhibited & relied upon the following documents:
Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 5
i) The copy of adoption deed dated 17071969 is Mark A,
ii) The copies of school leaving certificates, domicile certificates, affidavit and GPA are Ex. PW1/2 to PW1/6,
iii) The copies of death certificates of Sh. Injula Lama and Smt. Ashi Sonam Injula Lama are Ex. PW1/7 ( Colly.),
iv) Copy of regd. revocation deed dated 25012003 is Ex. PW1/8,
v) Certified copy of suit No. 5305/2003 is Mark B,
vi) Certified copy of the order dated 06082009 in civil suit No. 5305/2003 is Ex. PW1/10.
11. Thereafter, in support of his defence, the defendant has examined herself as DW1 and produced her evidence by way of an affidavit Ex.DW1/A and exhibited the copy of Will dated 19031997 as Ex. DW1/1.
12. I have given my thoughtful considerations to the rival contentions of Sh. B.K. Mishra, Ld. counsel for the plaintiff and Ms. Gurmeet Bindra, Ld. counsel for defendant, in the light of records.
13. The issuewise findings of this Court are as follows:
Issue No. (i) Whether the suit of the plaintiff is liable to be stayed under section 10 CPC? OPD Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 6 The onus of proving the issue no. (i) is laid on the defendant.
This issue has become infractuous as the suit pending before the court of Mumbai has been disposed of during the pendency of this suit and the copy of such order has been placed on record as Ex. PW1/10 by the plaintiff.
Thus, issue no. (i) needs no observations.
14. Issue No. (ii)
(ii) Whether the plaintiff is within his rights to claim the share in the suit property qua defendant as also the Will dated 19031997 has been revoked by revocation deed dated 25012003? OPP The onus of proving the issue no. (ii) is laid on the plaintiff.
15. The plaintiff's rights to claim the share in the suit property is based on the facts that she was adopted by Smt. Ashi Sonam, from Smt. Kanchi, her natural mother, through deed of adoption dated 17071969 and thereafter as Smt. Ashi Sonam who adopted her as daughter had married to Sh. Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 7 Injula Lama, he also adopted her as he gave his name in all her records and that the plaintiff and the defendant were adopted daughters of Late Sh. Injula Lama and she is entitled to a 50% share in the suit property owned by Sh. Injula Lama as he has died on 20012004 intestate and the Will dated 19031997 had been revoked vide revocation deed dated 25012003.
Also that Sh. Injula Lama, her father during his life time had filed a civil suit bearing no. 5305/03 in the Bombay City Civil Court thereby seeking a declaration of the cancellation of adoption deed dated 17071969, wherein the defendant was impleaded at his place after his death and such suit was dismissed for nonprosecution vide order dated 06.08.2009.
16. To establish the claim in the suit, the plaintiff has tendered her depositions by way of two affidavits one is Ex. PW1/A in which she has produced the same contents as were in the plaint in verbatim and another Ex. PW1/B to state that the suit bearing no. 5305/2003 in Mumbai City Civil Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 8 Court filed by Sh. Injula Lama was dismissed vide order dated 06.08.2009.
17. The plaintiff has exhibited a revocation deed of Will dated 25.01.2008 Ex. PW1/8 submitting that vide such revocation document Sh. Injula Lama has cancelled the Will dated 19.07.1997 executed in favour of defendant and thus Sh. Injula Lama has died intestate.
18. To contest the suit, the defendant has taken two plea that:
(i) the plaintiff is not the legally adopted daughter of Late Sh.
Injula Lama and thus cannot claim any right in the suit property,
(ii) Late Sh. Injula Lama has left behind a valid Will dated 19.03.1997 whereby he has bequeathed his immovable properties including the suit properties in favour of the defendant and revocation deed produced by the plaintiff is forged.
The defendant to prove her plea has tendered her evidence by way of affidavit Ex. DW1/A and produced her depositions exactly same in verbatim in contents to that Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 9 of her WS and exhibited the copy of Will dated 19.03.1997 as Ex. DW1/2.
19. On appreciation of evidence on record, it is observed that the claim of the plaintiff seeking her share in the suit property admittedly owned by Sh. Injula Lama, is based on the deed of adoption dated 17.07.1969 vide which she claims to be the adopted daughter of Ms. Ashi Sonam on the premises that Smt. Ashi Sonam, after her adoption, married to Sh. Injula Lama and he also treated her as his adopted daughter.
20. The contest of such claim is on the plea of the defendant that the plaintiff was not the adopted daughter of Sh. Injula Lama, and that she cannot claim any right in the suit property belonging to Sh. Injula Lama.
21. This is not in dispute rather an admitted fact that Sh. Injula Lama was the owner of the suit property. It is also not Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 10 in dispute that he died on 20.01.2004 and the claim of partition and consequential reliefs is based on the fact that he died intestate on 20.01.2004.
22. Now, the adoption deed dated 17.07.1969 Ex. PW1/1 is taken up for appreciation visavis the claim of the plaintiff on the suit property, owned by Sh. Injula Lama.
On appreciation of such documentary evidence Ex. PW1/1 i.e. the deed of adoption dated 17.07.1969. It is observed that such deed was admittedly executed between Smt. Kanchi, the natural mother of the plaintiff and Smt. Ashi Sonam, the proposed mother described as an adult. Vide the above said adoption deed, Smt. Kanchi, the natural mother of the plaintiff has lost her claim over such child i.e. the plaintiff who was aged about five years at that time and Smt. Ashi Sonam has adopted the plaintiff as her adopted child.
23. The validity of this document for adoption is being Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 11 questioned on the ground that the parties to such deed of adoption were Tibetans and it is admitted by the plaintiff in her crossexamination that Smt. Ashi Sonam was Tibet Buddhist and was bound by the customary rules and practices as directed by the office of Dalai Lama and that no certificate issued by the office of Dalai Lama is produced to show the valid adoption of the plaintiff by Smt. Ashi Sonam.
Also the plaintiff has relied on the document Ex. PW1/9 i.e. a petition filed by Sh. Injula Lama in the Bombay City Civil Court wherein he has challenged such deed of adoption, thereby seeking cancellation of such document and that vide order Ex. PW1/10 of such court, the suit has been dismissed.
24. On careful perusal of the deed of adoption dated 17.07.1969 Ex. PW1/1, It is clear that Smt. Ashi Sonam is mentioned as an adult and not as wife of Sh. Injula Lama.
Moreso, it is the case of the plaintiff that she was adopted by Smt. Ashi Sonam vide such adoption deed and thereafter Smt. Ashi Sonam married to Sh. Injula Lama. Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 12
It is also an admitted fact that Smt. Ashi Sonam is a Tibetan & was bound by Tibetan laws/rules of the Dalai Lama and the parties to the deed of adoption dated 17071969 admittedly are the Tibetan Buddhists and are governed by rules and practices followed by Sh. Dalai Lama.
25. The plaintiff has also admitted that the defendant is also an adopted daughter of Sh. Injula Lama & Smt. Ashi Sonam and was adopted in the year 1979 and that her adoption documents alongwith certificate issued by the office of Dalai Lama is a part of record.
26. The adoption of the plaintiff vide deed dated 17071969 was questioned that according to Tibetan Buddhist Rules, for the valid adoption, there is a requirement of execution of certain documents of adoption along with a certificate to be issued by the office of Dalai Lama.
27. On appreciation of evidence of the parties, it is observed Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 13 that the plaintiff in her affidavit Ex. PW1/A has deposed that deed of adoption Ex. PW1/1 was executed on 17.07.1969 between her natural mother namely Smt. Kanchi & Ms. Ashi Sonam and thereafter Smt. Ashi Sonam married to Sh. Injula Lama. Thus, it is clear that vide such deed, the adoption of the plaintiff was by Smt. Ashi Sonam, that is also prior to her marriage with Sh. Injula Lama and according to the plaintiff, she was validly adopted by Smt. Ashi Sonam under the Tibetan Rules.
Thus, the question as to whether such adoption deed is not relevant for deciding the claim of the plaintiff regarding the property belonging to Sh. Injula Lama as the adoption deed dated 17071969 cannot bind Sh. Injula Lama who got married with Smt. Ashi Sonam after execution of the deed of adoption.
28. In the instant suit, it is not required by the court to adjudicate the validity of adoption of the plaintiff by Smt. Ashi Sonam, hence it is not required to decide as to whether the plaintiff was validly adopted by Smt. Ashi Sonam vide deed of Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 14 adoption dated 17.07.1969 or not. There is no need of making any observations or findings on the aspects that without a certification issued from the office of the Dalai Lama, valid adoption of the plaintiff by Smt. Ashi Sonam could take place or not because in this suit the basic issue is, 'as to whether the plaintiff was adopted by Sh. Injula Lama or not, so as to decide the claim of the partition of the suit property raised by the plaintiff on that basis?'
29. Further, it is worth to note that even the dismissal of the suit filed by Sh. Injula Lama vide Order Ex. PW1/10 of the Civil Court at Bombay does not affect the present suit as that suit was relating to the declaration of the deed of adoption dated 17091969 by Smt. Ashi Sonam and not of Sh. Injula Lama whose property in question is sought to be partitioned by the plaintiff in the present suit.
Thus, on the basis of the deed of adoption dated 17.07.1969, even if it is assumed to be valid for the sake of arguments, then also the plaintiff could not establish that she Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 15 was an adopted daughter of Sh. Injula Lama, to claim her share in his property.
30. Further, the plaintiff has further deposed that Sh. Injula Lama has given his name to her in all records. She has relied on the school leaving certificates, domicile certificates and affidavit Ex. PW1/2 to 6, however such documents were admittedly executed in 1979 in respect of the defendant at the time of her adoption and the certificate was also issued by the office of Dalai Lama.
31. It is a matter of record, that Sh. Injula Lama has never executed any adoption documents with respect to the plaintiff nor any certificate to that effect was ever issued by the office of Dalai Lama.
Thus, it cannot be inferred that Sh. Injula Lama, by the acts of entering his name in the school records or domicile certificates of the plaintiff or by way of affidavit and GPA he could adopt the plaintiff in implied manner. Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 16
If it could have been the intention of Sh. Injula Lama to adopt the plaintiff as his daughter, after marrying Smt. Ashi Sonam, he could have also executed the adoption documents by entering into an agreement/deed with her natural mother/parents and could have applied for certificate to be issued by the office of Dalia Lama but it is not the case of the plaintiff that her natural mother or even adopting mother has ever executed any such documents with Sh. Injula Lama regarding her adoption by him.
32. To the contrary the intentions of Sh. Injula Lama have been manifested through suit plaint Ex. PW1/9 filed in Civil Court at Bombay thereby he sought a formal declaration that the plaintiff is not his adopted daughter and that he never intended to adopt her as her daughter and that his name in her school records was mentioned only for the reasons that she should not be thrown out of the school & she should not remain uneducated for the want of nonfilling of the name of her parents in the records.
Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 17
Thus, through such suit plaint his intentions made explicit that he has never intended to adopt the plaintiff nor treated her as his adopted daughter.
The suit filed at Bombay was dismissed for non prosecution after his death but dismissal does not effect the facts that Sh. Injula Lama had never executed any documents to adopt the plaintiff as his daughter.
33. Further the plaintiff claimed her ownership qua suit property on the basis of the documents Ex. PW1/5 and PW1/6 i.e. the General Power of Attorney and irrevocable General Power of Attorney allegedly executed by Sh. Injula Lama.
It is worth to note that the civil suit bearing no. 369/99 at Delhi filed by the plaintiff for declaration and consequential relief of injunction on the basis of such documents, but the same was dismissed vide order dated 01.06.2004 of Sh. Naveen Arora, Ld. Civil Judge, Delhi and even the Civil appeal bearing no. RCA 111/04 was also dismissed by the Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 18 court of Sh. M.C. Garg, Ld. ADJ vide order dated 20.03.2007. In such judgments it was clearly mentioned that on the basis of such documents Ex. PW1/5 and Ex. PW1/6, or on the affidavit, she is not entitled for any claim/right of ownership over the suit property.
34. Thus, the plaintiff has miserably failed to establish her claim in the suit property of Sh. Injula Lama as she was not able to prove on record that she was an adopted daughter of Sh. Injula Lama .
35. The defendant has also contested the claim of the plaintiff on the plea that Sh. Injula Lama executed a Will dated 19.03.1997 Ex. DW1/2 and the plaintiff has placed a revocation deed dated 25012003 Ex. PW1/8 submitted that the Will was revoked by Sh. Injula Lama vide such revocation deed.
36. This court finds no need to make any observations or to Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 19 record any findings either regarding the Will dated 19.03.1997 Ex. DW1/2 or on revocation deed dated 25.01.2003 Ex. PW1/8 as the question of devolving of the rights over the suit property of Sh. Injula Lama needs to be determined among his children only if it is to be decided whether he died intestate or has executed any testament regarding devolution of his properties but as the plaintiff has failed to establish that she was the adopted daughter of Sh. Injula Lama qua her share such issue is of no effect as to whether the property of Sh. Injula Lama was to be devolved by intestate succession or by testamentary succession as it has no relevance for her as her claim in the property was on the basis of her claim that she was adopted daughter of Sh. Injula Lama.
37. Thus, the plaintiff has failed to establish that she has a claim/right to seek partition in the suit property belonging to Sh. Injula Lama.
Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 20
38. Ld. Counsel of the plaintiff has raised a contention that in the number of litigations pending regarding the properties of Smt. Ashi Sonam, the landlords have impleaded the plaintiff as her legal heirs and thus she become one of the two legal heirs of Sh. Injula Lama.
39. On this aspect, It is noted that the acts of landlords informing the court that the plaintiff was one of the legal heirs of Smt. Ashi Sonam, cannot by itself create a right with the plaintiff that she was an adopted daughter of Sh. Injula Lama.
The substitution of any party at the place of other party in the event of his/her death is always for the purpose of prosecuting the case further, if right to sue survives but it will not decide the substantive/vested rights or the claim of such person that she was an adopted child of the deceased qua such properties of the deceased.
Thus, this contention of Ld. counsel for the plaintiff has no strength to decide the claim of the plaintiff in the present suit for the suit property belonging to Sh. Injula Lama. Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 21
40. Thus, the plaintiff has failed to establish her entitlement of partition in the suit property of Sh. Injula Lama.
41. So far as the other claims relating to possession and injunction are concerned, these are consequential reliefs of the claim of partition of the plaintiff and as the plaintiff has failed to establish her claim of partition, these claims also fail.
This issue no. (ii) is decided in negative and against the defendant and in favour of the plaintiff.
42. Issue No. (iii) Relief.
On the basis of findings on issue Nos.(i) and (ii), the suit of plaintiff is dismissed.
The parties are to bear their own costs.
Decree sheet be drawn accordingly.
File be consigned to record room.
Announced In the open Court (Dr. Archana Sinha) 20 Day of February, 2016. Addl. District Judge (Central03) th Tis Hazari Courts / Delhi 20.02.2016 Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 22 CS No. 141/2015 Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama 20.02.2016 Present: Ld. Proxy counsel for Sh. B. K. Mishra, Ld. counsel for the plaintiff Ld. Proxy counsel for Ms. Gurmeet Bindra, Ld. counsel for the defendant Vide separate detailed judgment of the even date announced in the open court today, the suit of the plaintiff stands dismissed.
No order as to costs.
Decree sheet be drawn accordingly.
File be consigned to the record room.
(Dr. Archana Sinha) ADJ03/Central/Delhi 20.02.2016 Suit No.141/2015 Smt. Yoden Dolma Tashi Tshering Vs. Dawa Chhomo Lama Page No. 23