Judgment :- Ananda, J. In this appeal the parties would be referred to by their rankings before trial Court. 2. The I-defendant in O.S.2980/84 has filed this appeal against the decree granting 1/3 rd share to plaintiff in the suit schedule properly. The inter set relationship of parties as averred in plaint which has not been disputed by defendants is as follows: It is not in dispute the suit schedule property was held and left by Muniyamma @ Ammanamma-1st wife of late K. Venkatappa. It is also not in dispute that Muniyamma @ Ammanamma died on 11.3.1956. The plaintiff and I-defendant are the sons of Venkatamma-2nd are the wife of late K. Venkatappa. II-defendant is the daughter of Venkatappa through his 2nd wife Venkatamma. It appears Muniyamma @ Ammanamma had no issues. It is not in dispute that Muniyamma died before the enactment of Hindu Succession Act, 1956. Therefore, devolution of suit property held and left by deceased Muniyamma is governed by the provisions of Section 12 of Mysore Hindu Law Women's Rights Act, 1933. In the normal course, in terms of Sec.12 of Act 1933 plaintiff and defendants 1 and 2 would be entitled to equal shares in the suit schedule property. 3. The plaintiff filed suit for partition and separate possession of 1/3rd share in the suit schedule properties. The I defendant resisted the suit inter alia contending that he was taken in adoption by deceased Muniyamma @ Ammanamma. Thereafter he was living as an adopted son of Muniyamma @ Ammanamma and he has been dealing with suit schedule property as an adopted son of Muniyamma. Neither plaintiff nor II defendant is entitled to any share. It is also contended by I defendant that suit for partition without seeking relief of declaration of title is not maintainable. The I defendant has contended suit is barred by time. The I defendant has contended in a suit filed against one Krishnabai due to mistake of Counsel for 1st defendant plaintiff herein had been arrayed as co-plaintiff in the said suit. In fact Muniyamma and I-defendant had sold a property held by Muniyamma to save the suit schedule property which had been encumbered. In the circumstances, plaintiff is not entitled to any share in suit schedule property. 4. The II-defendant in her written statement has admitted plaintiff averments. In fact Muniyamma and I-defendant had sold a property held by Muniyamma to save the suit schedule property which had been encumbered. In the circumstances, plaintiff is not entitled to any share in suit schedule property. 4. The II-defendant in her written statement has admitted plaintiff averments. The II defendant has contended that she is entitled to 1/3rd share in the suit schedule property. 5. On the basis of above pleadings the learned trial Judge framed following issues and additional issues: 1. Whether the plaintiff and the first defendant inherited the suit property after the death of Smt.Muniyamma alias Ammannamma in October 1956? 2. Whether the plaintiff is entitled to the partition of the suit property by metes and bounds and to have half his share in the same place in his separate possession? 3. Whether the plaintiff is entitled to mesne profits as claimed? 4. Whether the first defendant is the adopted son of late Smt.Muniyamma @Ammannamma and has thus become the exclusive owner of the suit property? 5. Whether the suit is barred by time as contended by the first defendant? 6. Whether the suit is barred by time as contended by the first defendant? 7. To what decree or order? Additional issue: "Whether the second defendant proves that she is also entitled to 1/3rd share after the death of Muniyamma as alleged?" 6. Plaintiff was examined as P.W.1 and 3 other witnesses were examined as PWs.2 to 4. The documents filed by plaintiff were marked as Exhibits P.1 to P.46. 7. On behalf of defendants, I-defendant was examined as D.W.1 and one T.S. Rama Shastry was examined as D.W.2 and II-defendant was examined as DW.3. The documents filed by I defendant were marked as Exhibits D1 to D2. 8. The learned Trial Judge by the reasoning of impugned judgment answered Issue Nos.1, 2 and additional issue in favour of plaintiff Issue No.2 is partly answered in favour of plaintiff. Issue Nos.3 to 5 are answered against defendants. The learned trial Judge has held I-defendant has failed to prove that he is the adopted son of late Muniyamma @ Ammanamma and he is in exclusive possession of suit schedule property. The learned Trial Judge has held that plaintiff is entitled to 1/3rd share in the suit schedule property. 9. I have heard Sri. R.G. Suresh, learned Counsel for I-defendant and Sri. The learned Trial Judge has held that plaintiff is entitled to 1/3rd share in the suit schedule property. 9. I have heard Sri. R.G. Suresh, learned Counsel for I-defendant and Sri. R.B. Sadashivappa, learned Counsel for plaintiff I have been taken through pleadings evidence and the impugned judgment. 10. The learned Counsel for I defendant has made following submissions: I-defendant has placed satisfactory evidence in proof of his adoption. The subsequent conduct of I-defendant in dealing with suit schedule property as its exclusive owner is consistent with his plea of adoption. The learned Counsel relying on the judgment of this court reported in 1965(1) MLJ 129 and judgment of the Supreme Court reported in AIR 1970 S.C. 1287 has submitted that in case of ancient adoption it is hardly difficult to adduce direct evidence in proof of giving and taking of adoptive son and other ceremonies of adoption. The Court has to take notice that passage of time gradually wipes out such evidence. The Court has to look into evidence as to whether adopted boy was treated by long time as adopted son at a time when there was no controversy between parties. The learned Counsel would submit that documents which had come into existence during the life time of late Muniyamma @ Ammannamma would establish, since his childhood, I-defendant was associated and living with late Muniyamma @ Ammannamma and she had inclination to adopt I-defendant. The learned Counsel has referred to contents of registered Will dated 29.7.1939 wherein Muniyamma had been appointed as testamentary guardian of I defendant. 11. The learned Counsel for I defendant relying on the judgment of Supreme Court reported in ILR 2000 KAR 4043 has submitted that in the absence of an express prohibition in writing by the husband where he has left more widows than one or the senior most of them shall be presumed to have his authority to make an adoption. The learned Counsel for I defendant referring to plaint and judgment passed in O.S.1851/1968 has submitted that even if I-defendant has made admission that plaintiff was a co-owner of suit schedule property, I defendant is not precluded from establishing such an admission was erroneous. In support of his contention the learned Counsel for I defendant has relied on the judgment of Supreme Court reported in AIR 1977 S.C. 1724 . 12. In support of his contention the learned Counsel for I defendant has relied on the judgment of Supreme Court reported in AIR 1977 S.C. 1724 . 12. The learned Counsel for I-defendant relying on the judgment of the Supreme Court reported in AIR 1967 S.C. 341 has submitted that since, certified copies of plaint and depositions of O.S.1851/68 were not confronted to I defendant by taking recourse to Section 145 of the Evidence Act and therefore plaint averments of plaint and depositions in O.S.1851/68 do not amount to admissions and such admissions do not bind the I-defendant. The learned Counsel for I-defendant referring to the judgment passed in O.S.1851/68 has contended that the suit in OS.No.1851/1968 was field for the relief of permanent injunction in respect of easmentary rights against adjoining owner of the suit schedule property. Therefore, question of ownership of property was incidental and any finding recorded on an incidental issue is not conclusive on the rights of the parties. The learned Counsel would submit that plaintiff cannot rely upon judgment in O.S.No.1851/1968 to contend that the rights of parties in respect of suit schedule property have been finally adjudicated upon in O.S.No.1851/1968. 13. The learned Counsel for I-defendant would submit as back as in the year 1973 plaintiff had caused a legal notice demanding his share in the suit schedule property to which defendant had caused a reply notice asserting that he is the adopted son of late Muniyamma @ Ammannamma. Even then plaintiff did not take any steps to challenge the adoption pleaded by I-defendant till the year 1983 when the instant suit was filed. The learned Counsel referring to Article 57 of the Limitation Act would submit in order to seek declaration adoption is invalid a suit has to be filed within 3 years from the date on which adoption was made known to the plaintiff. The learned Counsel would submit learned Trial judge has not appreciated evidence in proper perspective. The learned Trial Judge has referred to provisions of Hindu Adoption and Maintenance Act, 1956, the adoption in the instant case had taken place before enactment of Hindu Adoption and Maintenance Act, 1956. The learned Counsel would submit the impugned judgment cannot be sustained. 14. The learned Counsel for plaintiff has made following submissions: (i) The written statement is bereft of details regarding factum of adoption, time and place of adoption. The learned Counsel would submit the impugned judgment cannot be sustained. 14. The learned Counsel for plaintiff has made following submissions: (i) The written statement is bereft of details regarding factum of adoption, time and place of adoption. In the written statement apart from making vague assertions regarding adoption it is not stated when and where the adoption took place. (ii) The evidence of DW.2 suffers from discrepancies both regarding factum and validity of adoption. (iii) DW.2 has not deposed that I-defendant was given in adoption by his natural mother Venkatamma to late Muniyamma @ Ammannamma. In the absence of any proof regarding giving and taking of adoptive son the entire case put forward by I-defendant regarding adoption falls of ground. (iv) The learned Counsel would submit that the evidence DW. 1 and DW.2 in proof adoption is entirely inconsistent. DW.1 apart from stating that he was taken in adoption by late Muniyamma @ Ammannamma has not stated that he was given in adoption by his natural mother. DW.2 has stated adoption took place in the year 1948. In the absence of specific evidence in proof adoption, the plea of adoption cannot be accepted. (v) The learned Counsel relying on a judgment of the Supreme Court reported in AIR 1987 S.C. 962 would submit that in view of suspicious circumstances surrounding adoption I-defendant who has put forward plea of adoption should have pleaded adoption giving material particulars and should have placed satisfactory evidence in proof of adoption. (vi) The learned Counsel would submit that proof of essential ceremony i.e. giving and taking of adoptive boy cannot be dispensed with. Even otherwise, I-defendant having examined D W 2 in proof of adoption cannot be permitted to contend that discrepancies found in the evidence of DW2 should be ignored on the ground with the passage of time DW2 cannot be expected to give evidence in proof of essential ceremonies. (vii) The learned Counsel referring to contents of plaint and judgment passed in O.S.1851/1968 would submit in O.S.1851/1968 I defendant has specifically pleaded that plaintiff and I-defendant are co- owners of suit schedule property in O.S.1851/68 which is subject matter of present litigation. The learned Judge had framed an additional issue in O.S.1851/68 regarding ownership of suit schedule property and answered the additional issue by holding that plaintiff and I-defendant in the instant case are the co-owners of suit schedule property. The learned Judge had framed an additional issue in O.S.1851/68 regarding ownership of suit schedule property and answered the additional issue by holding that plaintiff and I-defendant in the instant case are the co-owners of suit schedule property. Since the issue has been finally adjudicated I-defendant cannot be permitted to contend that he is not bound by the finding recorded in O.S.1851/1968. (viii) The learned Counsel drawing my attention to copy of order made in HRC.389/64 has contended that I defendant had pleaded that plaintiff and I defendant were residing together in the year 1964 and the suit schedule premises in HRC.389/64 (suit schedule property) was required to provide additional accommodation to plaintiff herein. Therefore I-defendant cannot be permitted to contend that he was exclusively enjoying the suit schedule property. The learned Counsel for plaintiff referring to contents of Ex.D3 registered sale deed dated 2.7.1952 executed by deceased Muniyamma and I-defendant would submit in this document deceased Muniyamma and I-defendant had described I defendant as the son of Venkatamma and deceased Muniyamma @ Ammannamma has been described as the Senior Aunt of I defendant. Thus the status of parties recited in the Ex.D.3 would belie the case of I- defendant that he was taken in adoption by deceased Muniyamma @ Ammannamma. (x) The learned Counsel for plaintiff relying on a judgment of the Supreme Court reported AIR 1961 S.C. 1378 has contended evidence in proof of formal ceremony of giving and taking is essential to validate the adoption. The subsequent conduct of I-defendant is not consistent with the factum of adoption. The court cannot dispense with strict proof regarding adoption, i.e. transfer of 1-defendant from one family to another family. (xi) The learned Counsel for plaintiff on relying a judgment of Supreme Court reported in 2004 SAR (Civil) 27 would submit there was prohibition for late Muniyamma @ Ammannamma to adopt I defendant who was none other than natural son of her husband. In these circumstances the learned Counsel for plaintiff would submit that theory of adoption put forward by I-defendant can not accepted to defeat the rights of plaintiff in the suit schedule property. The learned Trial Judge has rightly decreed the suit. Therefore, impugned judgment does not call for interference. 16. In these circumstances the learned Counsel for plaintiff would submit that theory of adoption put forward by I-defendant can not accepted to defeat the rights of plaintiff in the suit schedule property. The learned Trial Judge has rightly decreed the suit. Therefore, impugned judgment does not call for interference. 16. Having regard to pleadings, evidence, findings recorded by the learned trial judge and submissions made at the bar, I formulate following points for consideration: Whether I-defendant has proved that he was taken in adoption by late Muniyamma @ Ammannamma? Whether adoption is valid in law? 17. Before adverting to appreciation of evidence adduced in proof of adoption, it is necessary to consider the validity of adoption pleaded by I-defendant. It is not in dispute that according to I-defendant adoption took place before enactment of Hindu Adoption and Maintenance Act, 1955. I defendant has deposed that his adoption took place in the year 1954. As per evidence of DW.2, adoption took place in the year 1948. It is not in dispute that plaintiff and I defendant are the natural sons of deceased Venkatappa. Deceased Muniyamma @ Ammannamma was the 1st wife of deceased Venkatappa and step-mother of plaintiff and I-defendant. Therefore, it is necessary to consider whether deceased Muniyamma @ Ammannamma being the widow of Venkatappa had authority to adopt the natural son of Venkatappa which in effect had transformed the natural son of Venkatappa as the adopted son of Venkatappa. It is needless to state adoption is to the man. The purpose of adoption is to perform his spiritual ceremonies and also to perpetuate his lineage. In the case of Kashi Nath Vs Jagannath 2004 SAR (Civil) 27, the Supreme Court has held a widow cannot adopt in the absence of express authority by her husband. It is also held: the adoption is to the male and it is obvious that an unmarried woman cannot adopt, for the purpose of adoption is to ensure spiritual benefit for a man after his death and to his ancestors by offering of oblations and rice and libations of water to them periodically. Woman having no spiritual needs to be satisfied, was not allowed to adopt for herself. But in either case it is a condition precedent for a valid adoption that he should be without any male issue at the time of adoption. 18. Woman having no spiritual needs to be satisfied, was not allowed to adopt for herself. But in either case it is a condition precedent for a valid adoption that he should be without any male issue at the time of adoption. 18. In the case of Brijendra Singh Vs State Of M.P. 2008 AIR SCW 652 the Supreme Court referring to earlier judgment in the case of V.T.S. Chandrasekhara Mudaliar Vs Kulandaivelu Mudaliar AIR 1963 SC 185 has held: "Substitution of a son for spiritual reasons is the essence of adoption, and consequent devolution of property is mere accessory to it; the validity of an adoption has to be judged by spiritual rather than temporal considerations and devolution of property is only of secondary importance." The Supreme Court referring to the judgment of Privy Council in the case of Amarendra Man Singh Bhramarbar Vs Sanatan Singh AIR 1933 Privy Council 155 , has held: "The Privy Councils decision in Amarendra Man Singhs case (supra) has reiterated the well-established doctrine as to the religious efficacy of sonship as the foundation of adoption. The emphasis has been on the absence of a male issue. An adoption may either be made by a man himself or by his widow on his behalf with his authority conveyed therefore. The adoption is to the male and it is obvious that an unmarried woman cannot adopt, for the purpose of adoption is to ensure spiritual benefit for a man after his death and to his ancestors by offering of oblations of rice and libations of water to them periodically. A woman having no spiritual needs to be satisfied, was not allowed to adopt for herself. But in either case it is a condition precedent for a valid adoption that he should be without any male issue living at the time of adoption." The Supreme Court in the aforesaid judgment at para 18 has "18. A married woman cannot adopt at all during the subsistence of the marriage except when the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife. This is clear from Section 7 of the Act. Proviso there of makes it clear that a male Hindu cannot adopt except with the consent of the wife, unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. It is relevant to note that in the case of a male Hindu the consent of the wife is necessary unless the other contingency exists. Though Section 8 is almost identical, the consent of the husband is not provided for. The proviso to Section 7 imposes a restriction on the right of male Hindu to take in adoption. In this respect the Act radically departs from the old law where no such bar was laid down to the exercise of the right of a male Hindu to adopt oneself, unless he dispossess the requisite capacity. As per the proviso to Section 7 the wife's consent must be obtained prior to adoption and cannot be subsequent to the act of adoption. The proviso lays down consent as a condition precedent to an adoption which is mandatory and adoption without wife's consent would be void. Both proviso to Sections 7 and 8 refer to certain circumstances which have effect on the capacity to make an adoption." In the case on hand we are concerned with the adoption which is alleged to have been taken within the family of deceased Venkatappa. Admittedly, deceased Venkatappa had left behind two sons plaintiff and I-defendant through his 2nd wife. It is not the case of I-defendant that his father Venkatappa had conferred any authority on the I-defendant to transform him as an adopted son. The I-defendant and plaintiff being natural sons of deceased Venkatappa were competent to perform spiritual ceremonies and continue lineage of deceased Venkatappa. I defendant cannot be permitted to contend that deceased Muniyamma @ Ammannamma had taken the natural son of deceased Venkatappa in adoption to transform the natural son deceased Venkatappa as his adopted son. 19. The I-defendant and plaintiff being natural sons of deceased Venkatappa were competent to perform spiritual ceremonies and continue lineage of deceased Venkatappa. I defendant cannot be permitted to contend that deceased Muniyamma @ Ammannamma had taken the natural son of deceased Venkatappa in adoption to transform the natural son deceased Venkatappa as his adopted son. 19. The learned Counsel for I-defendant relying to a judgment of the Supreme Court in the case of Vijayalakshmamma And Another Vs B.T. Shankar ILR 2002 KAR 4043, has contended that express authority need not be conferred by husband to a widow to make an adoption. At paragraph 12 of the judgment it is held: "12. The question as to how the adoption could or ought to be made when a Hindu male dies leaving behind more than one widow came to be considered by this Court in Eramma Vs. Muddappa with particular reference to the Mysore Hindu Law Women's Rights Act, 1933, stipulating that in the absence of an express prohibition in writing by the husband, his widow, or where he has left more widows than one, the senior most of them shall be presumed to have his authority to make an adoption, and this position was also found to be in conformity with law in Bombay State. In Tahsil Naidu Vs Kulla Naidu. This Court held that the requirement of consent from a sapinda for adoption by a widow was considered to be necessitated only when the widow has not obtained the consent of her husband in his lifetime. While dealing with the necessity or otherwise to obtain the consent of the female sapinda in addition to the male sapinda of the deceased husband, this Court observed that if the consent of the husband or sapinda was held to be necessary for the reason that a woman is incapable of exercising independent judgment in the matter of deciding whether she should adopt a son to her deceased husband, she can hardly be a competent adviser to another widow on the same matter and, therefore, it was held that the absence of consent of a female sapinda would not invalidate the adoption in a given case." The question as to how adoption ought to be made when a Hindu male dies leaving behind more than one widow was considered in the above decision with particular reference to Mysore Hindu Law Women's Rights Act. The Supreme Court with reference to the above Act has held, in the absence of an express prohibition in writing by the husband, his widow, or where he has left more widows than one, the senior most of these shall be presumed to have his authority to make adoption. In the case on hand, Venkatappa died leaving behind his two widows and two sons. Therefore, there was no need for either of his widows to make an adoption. As already stated, adoption is to a man. The adoption by a widow to herself when her husband had left behind his natural sons is invalid. 20. It is also clear from the evidence on record that I-plaintiff was born on the date of alleged adoption. Deceased Venkatappa had left behind two natural sons through his 2nd wife. Therefore deceased Venkatamma could not have taken I-defendant in adoption in defiance to the status of I defendant and plaintiff as natural sons of deceased Venkatappa. 21. Now adverting to the proof of adoption, it is necessary to state in the written statement, I-defendant should have atleast mentioned the year of adoption, if not the date and other particulars. In the written statement apart from stating that I-defendant was taken in adoption by deceased Muniyamma @ Ammannamma, I-defendant has not pleaded any other particulars. 22. The evidence of I defendant in proof of adoption is as vague as his pleadings. The I-defendant apart from deposing that he was adopted by Muniyamma @ Ammannamma has not deposed anything more. D.W.2 who is alleged to have performed adoption ceremony has deposed that he knew I defendant for the last 45 years. D.W.2 was examined on 5.2.2002. If this version is accepted acquaintance of DW2 with I defendant relates back to the year 1962. DW2 has deposed that adoption took place about 45 years prior to 5.2.2002 which is not the case of I defendant. That apart D.W.2 has not deposed about presence of Venkatamma- natural mother of I-defendant on the date of alleged adoption. DW.2 has not deposed that I-defendant was given in adoption by his natural mother to Muniyamma @ Ammanamma. During cross-examination, DW2 has denied suggestion that Venkatamma was not present when I defendant was given in adoption. DW2 has deposed at the time of adoption, 5 to 6 persons were present at the time of adoption and he does not remember their names. During cross-examination, DW2 has denied suggestion that Venkatamma was not present when I defendant was given in adoption. DW2 has deposed at the time of adoption, 5 to 6 persons were present at the time of adoption and he does not remember their names. The evidence of DW2 is explicitly clear that he was not aware of the fact in a ceremony of adoption, adoptive boy should be given by his natural mother to hands of adoptive mother. Therefore, evidence of DW1 and DW2 is hardly sufficient to prove the adoption pleaded by I defendant. 23. The learned Counsel for I-defendant referring to a judgment of Supreme Court reported in AIR 1970 S.C. 1286 has contended that in case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. On careful analysis of evidence of DW.2, we find during cross-examination DW2 has deposed that adoption took place on a Friday between 9 to 10.30 a.m. and he has also stated adoption took place in the house of I-defendant. When the evidence of PW2 is so meticulous about time and name of week day it is hardly possible to accept the submission that there was no need for witness to speak about essential ingredients of adoption, i.e. natural mother Venkatamma giving her son in adoption to adoptive mother Muniyamma @ Ammannamma. 24. In the decision in the case of M. Gurudas Vs Rasaranjan 2006 (8) SCC 367 the Supreme Court has held at para-26 as under: "To prove valid adoption, it would be necessary to bring on record that there has been an actual giving and taking ceremony. Performance of "datta homam" was imperative, subject to just exceptions." At para 27 of the said judgment the Supreme Court has referred to Mulla's Principles of Hindu Law, 17th Edn. P.710, wherein it is stated: "488. Performance of "datta homam" was imperative, subject to just exceptions." At para 27 of the said judgment the Supreme Court has referred to Mulla's Principles of Hindu Law, 17th Edn. P.710, wherein it is stated: "488. Ceremonies relating to adoption – (1) The ceremonies relating to an adoption are- (a) the physical act of giving and receiving, with intent to transfer the boy from one family into another; (b) the datta homam, that is, oblations of clarified butter to fire; and (c) other minor ceremonies, such as putresti jag (sacrifice for male issue) (2) The physical act of giving and receiving is essential to the validity of an adoption. As to datta homam it is not settled whether its performance is essential to the validity of an adoption in every case. As to the other ceremonies, their performance is not necessary to the validity of an adoption. (2) No religious ceremonies, not even datta homam, are necessary in the case of shudras. Nor are religious ceremonies necessary amongst Jains or in the Punjab." Thus essential ingredient of an adoption is physical act of giving and receiving of boy from one family to another. In the case on hand there is no evidence to show that there was physical act of giving of I-defendant by his natural mother to the hands of adoptive mother. Above all it is hardly possible to gather intention to transfer I-defendant from one family to another family. Though I-defendant, Venkatamma and Muniyamma @ Ammannamma were living in different portions of the same house it cannot be conceived they formed two different families. In this view of the matter also no credibility can be attached to evidence given of DW1 and DW2. 25. Adverting to the subsequent conduct it is relevant to state I-defendant and plaintiff had filed O.S. 1851/68 against one Krishnabai for declaration of easmentary rights in respect of suit schedule property wherein it is clearly averred that plaintiff and I-defendant are co-owners of suit schedule property. In fact in O.S.1851/68 the learned trial Judge had framed an additional issue as to whether plaintiff and I-defendant are the co-owners of suit schedule property and answered additional issue in the affirmative. The learned Counsel for I-defendant would submit during the course of evidence I-defendant had deviated from the pleadings. Therefore, it can be presumed that I-defendant had disowned his pleadings. The learned Counsel for I-defendant would submit during the course of evidence I-defendant had deviated from the pleadings. Therefore, it can be presumed that I-defendant had disowned his pleadings. When an issue was framed and decided, parties cannot be allowed to contend that finding recorded on such issue is not binding on them. 26. In HRC.389/1964 I-defendant has clearly stated that plaintiff was living with him and suit schedule property was required to provide additional accommodation to his brother-plaintiff Now I-defendant cannot be heard to say that averments made therein were for some other purpose or some other reasons. The I defendant cannot be permitted to disown his admissions made in previous proceedings. It is also seen from the contents of registered sale deed Ex.D.2 dated 29.7.1939 both Muniyamma @Ammannamma and Venkatamma and I-defendant had sold certain properties wherein I-defendant has been described as the son of Venkatamma and Muniyamma has been described as the senior aunt of I-defendant. It is needless to state that this document had come into existence within two years from the date of alleged adoption. If there was an adoption as alleged the I-defendant would not have described himself as the son of Venkatamma and Muniyamma @ Akkamma as his senior aunt. Thus from the subsequent conduct also we find that I-defendant was never treated and recognized by Muniyamma @ Akkamma as her adopted son. In fact I-defendant has dealt with the suit property as a joint family property of I-defendant and plaintiff. 27. The recitals in Ex.D.3 which had come into existence within two years from the date of adoption would clearly belie that I-defendant was adopted son of Muniyamma. The pleadings in O.S. 1851/68 and the findings recorded therein would clearly establish that plaintiff and I-defendant were dealing with the suit schedule property as co-owners. In fact the finding recorded in O.S. 1851/68 would conclude the dispute raised by the parties regarding ownership of suit schedule property. There is categorical finding that the plaintiff and the I-defendant are the co-owners of suit schedule property. In view of this, I defendant cannot be permitted to contend that he is not bound by the findings recorded in O.S.1851/68 and he can not contend that the said issue had been unnecessarily framed. There is categorical finding that the plaintiff and the I-defendant are the co-owners of suit schedule property. In view of this, I defendant cannot be permitted to contend that he is not bound by the findings recorded in O.S.1851/68 and he can not contend that the said issue had been unnecessarily framed. Thus from documentary evidence we find that subsequent conduct of the parties and the way in which I-defendant and plaintiff had dealt with the suit schedule property would belie the plea of adoption put forth by I defendant. 28. In view of the foregoing discussion, I hold that adoption set up by I-defendant is invalid in law. The evidence on record is hardly sufficient to prove that I-defendant was taken in adoption by deceased Muniyamma @ Ammannamma. The subsequent conduct and the manner in which I-defendant had dealt with suit schedule property would belie that I-defendant was adopted by late Muniyamma @ Ammannamma. 29. The Trial court has appreciated evidence in proper perspective and arrived at right conclusions. Therefore, I do not find any ground to interfere with the impugned judgment. For the reasons stated above, I pass the following: ORDER The appeal is dismissed. However, having regard to relationship between parties they are directed to bear their costs.