MAHADEV Vs. BAINABAI

JUDGEMENT

(1.) This second appeal is by the second defendant against the decree passed by the I Addl. Civil Judge, Belgaum, in R.A. No.141 of 1968, affirming the decree passed by the Addl. Munsiff at Chikodi in OS.100 of 1966.

(2.) The respondent-plaintiff instituted the suit for declaration that the adoption of defendant 2 by defendant 1 being against the condition of a valid adoption, should be declared that the same is invalid. The plaintiff's husband Krishna was the brother of Gundu. Gundu's'son is Mahadev, defendant 2. Krishna was impleadid as defendant 1 in the suit. Defendant was exparte in the Court of first instance and died some time later. Krishna had executed a deed of adoption dt. 16-8-1963 as per Ext.42, which was registered on the 17th Aug. 1965 on the said document being presented for registration by the natural father of defendant 2 Gundu. It is the execution of the said adoption deed that gave cause of action to the plaintiff to institute the suit. The case of the plaintiff is that no adoption ceremony as such took place on the 16th Aug. 1965, there being no giving and taking. Her further case 19 that her consent for adoption of the second defendant by her husband was not taken. The suit was resisted by the second defendant, who took the stand that the giving and taking did take place and that he has been validly adopted by Krishna. He also pleaded that the plaintiff herself joined in the adoption ceremony and that the adoption did take place with her consent. The second defendant also relied upon the presumption arising under S.16 of the Hindu 'Adoption and Maintenance Act, 1956 (hereafter referred to as the Act).

(3.) The Court of first instance decreed the suit of the plaintiff, which decree has been affirmed on appeal by the learned Civil Judge. Hence, this second appeal by the second defendant.