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Defendant no.2 by playing a fraud on the plaintiff has got executed sale deed and gift deed pertaining to schedule 1(D) property. It is alleged that by taking signatures of the plaintiff on blank papers, the mutation khata was changed pertaining to schedule 1(C) property and defendant no.2 do not get any title. That on 20.08.2001, plaintiff has suffered paralysis stroke and was bed ridden for a period of 5 to 6 months and he was not having knowledge about the fact and nature of transaction and taking advantage, defendant nos.2 and 3 in collusion with Sub-Registrar got registered fraudulent sale deed pertaining to schedule 1(A) property in favour of defendant no.2 and schedule 1(B) property in favour of defendant no.3 on 03.09.2011. That the plaintiff had no necessity to sell the suit properties and there is no consideration passed. It is asserted that the suit properties are in joint possession of the plaintiff and defendant no.1 and defendant nos.2 and 3 does not acquire any right, title or interest and after the death of plaintiff- Malakappa, his adoptive son has acquired the right along with defendant no.1 Hence, the suit is filed seeking declaration and injunction relief as stated.

4. The defendants appeared and filed their written statements denying the plaint averments. It is denied that plaintiff no.1(a) is the adoptive son of the original plaintiff- Malakappa and further denied regarding adoption ceremony. It is also asserted that the original plaintiff is not having any issue and hence, defendants have succeeded to the properties by way of gift and sale deed and they have invested a huge amount to purchase the suit properties under the registered sale deed. It is alleged that the plaintiff-Malakappa was suffering from Paralysis stroke. The adoption deed was not executed by the deceased and it is a fabricated document. Hence, defendants have disputed the claim of plaintiff.

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accepted the claim of the plaintiff and inadvertently applied the presumption under Section 16 of Hindu Adoption and Maintenance Act though admittedly gift deed was registered after institution of the suit and decreeing the suit which has led to miscarriage of justice. Hence, he would seek for allowing the appeal.

10. Per contra, the learned counsel for respondent would contend that the execution of the adoption deed is proved by examining attesting witnesses and Sub- Registrar and there was no necessity to gift away the property as well as execution of the sale deed. He would also contend that in 2001, Malakappa was suffering from paralysis and hence, question of the executing the sale deed does not arise at all and fraud and misrepresentation are proved and hence, he would contend that the First Appellate Court has rightly appreciated the oral and documentary evidence and decreed the suit. Hence, he would seek for rejection of the appeal.

17. PW1 has placed reliance on adoption deed which is marked at Ex.P10. On perusal of Ex.P10, it is evident that the adoption came to be registered on 12.07.2002 and the recitals of the adoption disclose that Malakappa has brought up PW1 all along from child hood. Interestingly, Malakappa in his original plaint, nowhere

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asserted this aspect at all. Even plaint is completely silent regarding adoption. If at all adoption has taken place in 1995, in the plaint filed in 2002 Malakappa ought to have referred this aspect, but, that was also not done. Apart from that, PW2 is said to have given PW1 in adoption and admittedly, PW2 is the father of PW1. There is no evidence to show that they are having other son and this aspect is neither pleaded nor deposed by any of the witnesses. Interestingly, adoption deed was registered on 12.07.2002 and the suit itself is filed by Malakappa on 24.06.2002. The deed was registered subsequent to filing the suit and all along it is alleged that Malakappa was suffering from paralysis. If that was the case, how Malakappa executed the registered adoption deed by visiting the Sub-Registrar office is not at all forthcoming. According to the plaintiff himself, he was bed ridden six months prior to his death.