SIDDALIN GAIAH (SINCE DEAD, BY HIS L.RS SMT. VARADAMMA W/O LATE SIDDALINGAIAH, H.S. LINGARAJU S/O LATE SIDDALINGAIAH AND SMT. SHANTHAMMA D/O LATE SIDDALINGAIAH) Vs. H.K. KARIAPPA S/O KARIGOWDA

JUDGEMENT

(1.) THIS second appeal is by the defendant before the trial court and he is aggrieved by the suit of the respondent/plaintiff for cancellation of the adoption deed dated 23,8.48 and for declaration of plaintiff's title to the suit properties, being decreed and the Lower appellate court confirming the same by dismissing the appeal preferred by the defendant. Thus, concurrent findings of the courts below are called in question.

(2.) THE plaintiffs case was that her husband Boregowda and Ningaiah @. Vadakantaiah were the sons of one Boregowda and both the sons mentioned above died long back and the plaintiff being the wife of 1st son Boregowda also lost her children and thereafter the plaintiff began to reside with her younger brother Karigowda and it is the case of the plaintiff Chikkamma, that she has been in possession of the suit schedule properties following an order passed by the Deputy Commissioner for Inam Abolition and later the plaintiff gave half share in all the properties held by her in favour of defendant's father and thereafter both the plaintiff and the defendant's father enjoyed the respective properties and following the death of the defendant's father, the defendant continued to enjoy his father's share and as the plaintiff had become issueless alter having lost her two children, she joined her younger brother Karigowda and lived with him. It is her case that the defendant i.e. the appellant herein filed a suit in O.S. No. 63/88 seeking permanent injunction against the plaintiffs younger brother Karigowda and his son Kariyappa in respect of the suit schedule property and it was in the said suit, that the defendant came up with the claim of he being the adopted son of the plaintiff Chikkamma and after coming to know of this fact, the plaintiff filed the present suit for the aforesaid relief and it is her case that no adoption had taken place as contended by the defendant in the earlier suit and the defendant and his parents played fraud on the plaintiff and appeared to have got a document registered as adoption deed. The plaintiff had no qualification to take the defendant in adoption and likewise the defendant also had no qualification for being adopted.

(3.) THE appellant's case before the trial court was that while the relationship between the parties as stated by the plaintiff being not disputed, yet it is the specific case of the defendant that following the death of Chikkamma's husband, the defendant was adopted by 2 the said Chikkamma in the year 1948 and the adoption deed dated 23.8.1948 which is a registered document stands as testimony to this fact. It is his further case that the mother -in -law of the plaintiff had gifted items 5 and 7 of the suit property in favour of the defendant under the gift deed dated 1.6.4.1948 prior to the adoption of the defendant by the plaintiff and following the defendant becoming the adoptive child of the plaintiff the defendant succeeded to the rest of the properties of the plaintiff and therefore the suit filed by the plaintiff is only at the instance of the sons of Kariyappa and as such, the suit of the plaintiff be dismissed. Another contention taken in the written statement was as per paragraph 17 which read as "The suit is hopelessly barred by law of dis -intention".