( 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. ( 4 ) SRI S. L. Benadikar, learned Counsel appearing for the appellant, contended that the learned Civil Judge committed an error of law in not raising a presumption under S. 16 of the Act. Hence, this second appeal by the second defendant. ( 4 ) SRI S. L. Benadikar, learned Counsel appearing for the appellant, contended that the learned Civil Judge committed an error of law in not raising a presumption under S. 16 of the Act. Sec. 16 of the Act reads as follows : * * * * * * * the Court below has held that the presumption under S. 16 of the Act does not arise in respect of the adoption deed Ext. 42, in asmuch, as the said deed has not been signed by Gundu the parson giving defendant 2 in adoption to Krishna. The document is executed by Krishna. The argument of Sri Benadikar is that the registered document Ext. 42 does bear the signature of Gundu and that therefore all the conditions prescribed by S. 16 of the Act are satisfied. As already mentioned, the document is not executed by Gundu. It is executed only by Krishna, the person taking the second defendant in adoption. A perusal of the document Ext. 42, however, reveals that the document was presented, after its execution, for registration by Gundu as the guardian of the minor Mahadev-defendant 2. In order to raise the presumption under S. 16 of the Act that the adoption has been made in compliance with the provisions of the Act, which presumption is a rebutial one, the following conditions have to be satisfied, namely; - (1) that the document produced before the Court purports to record the adoption made; (2) that the said document is signed by the person taking the child as well as by the person giving the child in adoption; and (3) that the document is duly registered under any law for the time being in force. It is not disputed by both the sides that the first and the third conditions are satisfied. The only controversy is regarding the second condition which requires the document to be signed by the person giving ad well as the person taking the child in adoption. It is also not disputed that the document is duly signed by the person taking Mahactev in adoption. The question for consideration is as to whether the signature affixed by Gundu as a person presenting the deed for registration can be regarded as signature of the person giving the boy in adoption contemplated by s. 16 of the Act. It is also not disputed that the document is duly signed by the person taking Mahactev in adoption. The question for consideration is as to whether the signature affixed by Gundu as a person presenting the deed for registration can be regarded as signature of the person giving the boy in adoption contemplated by s. 16 of the Act. The answer to this question defends upon the sequence of time in which the three conditions have to take place. The first condition is that the adoption should have taken place before the same is recorded in the deed of adoption. After the record of the adoption is made in the document, the- same iand lequired to be signed by the person giving, as well as by the person taking the child in adoption. It is after the document is so signed by the giver and by the person taking the boy in adoption, that the document has to be presented lor registration. It is therefore, clear that the signature of the person giving and the signature of the person taking the child in adoption must have been affixed before the deed is presented for registration. Hence, the signature of the person presenting the document for registration cannot be regarded as satisfying the requirement of S. 16 of the Act. I haves, thuefore, to affirm the finding recorded by the Court below that as Ex. 42 has not been signed by the person giving Mahadev in adoption, the presumption under S 16 of the Act does not arise. ( 5 ) IT was next contended by Sri Benadikar that the Court of first instance framed an issut only with regard to the validity and legality of the adoption of defendant 2 by defendant 1 and that therefore the Courts below wewrnct justified in going into the question of factum of adoption of defendant 2 and recording a finding against the defendants in that behalf. He submitted that the premises for the issue framed by the Court of first instance is that there is no dispute in regard to the factum of adoption and that the controversy was only in regard to the validity of the adoption, depending upon the question as to whether prior consent of the plaintiff was taken by Krishna. He submitted that the premises for the issue framed by the Court of first instance is that there is no dispute in regard to the factum of adoption and that the controversy was only in regard to the validity of the adoption, depending upon the question as to whether prior consent of the plaintiff was taken by Krishna. Jt was also contended that the finding on the question of factum of adoption has necessary bearing on the question of consent by the plaintiff If the factum of adoption is proved, it would undoubtedly go a long way to support the case of the defendants that she was a consenting party tc the adoption naving regard to her conduct. Sri benadrkar. in my opinion is right when he maintains that the issue framed by the Court of frist instance is not right The plaintiff has, no doubt, sought for a declaration that the adoption of the second defendant by defendant 1 is not legal and valid. But, the averments in the plaint make it clear that the plaintiff has not conceded or admitted the factum of adoption. She has, in express terms, stated that the giving and taking did not take place and that therefore there was no factum of adoption as such. Having regard to the averments in the plaint and the prayer, one has to understand the relief claimed by the plaintiff as seeking a declaration that defendant 2 is not the adopted son of defendantl. This prayer would include not only the investigation of the factum of adoption but also the question of validity of the adoption. Sri B. V. Deshpande, learned Counsel appearing for the respondent, is right in maintaining that that is how both sides understood their respective cases and led evidence in the Court of first instance. If the wrong framing of the issue has not caused prejudice to the parties, it will not be proper to set aside the decree only on the ground that appropriate issues have not been framed by the Court of first instance. The second defendant has led oral evidence to prove his case that the adoption ceremony did take place. Such evidence would not have been led by the second defendant if he was misled by the issues framed by the Court of first instance. The second defendant has led oral evidence to prove his case that the adoption ceremony did take place. Such evidence would not have been led by the second defendant if he was misled by the issues framed by the Court of first instance. As I am satisfied that the second defendant did lead evidence on the assumption that he has to prove giving and taking in the event off the Court corning to the conclusion that the presumption under s. 16 is not available to him, the failure to frame an appropriate issue does not call for interference with the judgments and decrees passed by the Courts below. ( 6 ) IT was next urged by Sri Benadikar that even if the second defendant is not entitled to the benefit of the presumption under S. 16 of the act, the recitals in Ext. 42 executed by Krishna wherein there are averments regarding giving and taking should have been taken into consideration by the Court below while recording a finding on the question of faotum of adoption. This contention of Sri Benadikar is well founded and must be sustained. The Court below has not at all taken into consideration the recitals in Ext. 42. The recutals in Ext. 42 are in Marathi. It is stated therein that with the consent of Gundu and his wife, Mahadev was taken in adoption by. Krishna in accordance with the custom of the community. The recitals in Ext. 42 therefore prima facie support the case of the second defendant. The recitals in the document have to be taken into consideration along with the oral evidence produced by the second defendant to prove the factum of adoption. The only witnesses who have been examined to prove the factum of adoption are DWs. 1 to 3. * * * * * * if these circumstances are taken into consideration, the only inference possible is that the deed of adoption was got executed from Krishna without any adoption having taken place and without the consent of the plaintiff. Hence, I affirm the finding of the Court below that the factum of adoption has not been proved. As the factum of adoption itself has not been proved, the question of consent of the plaintiff, either express or implied, does not arise for consideration in this case. Hence, I affirm the finding of the Court below that the factum of adoption has not been proved. As the factum of adoption itself has not been proved, the question of consent of the plaintiff, either express or implied, does not arise for consideration in this case. ( 7 ) FOR the reason stated above, this appeal fails and is dismissed. No Costs. --- *** --- .