Judgment M.S. RATNAPARKHI, J.:---A decree passed by Second Joint Civil Judge, Senior Division, Pune in Original Special Civil Suit No. 284 of 1971 declaring that the defendant Tippanna Ramchandra Jannu is not entitled to execute the decree passed in Special Civil Suit No. 108 of 1958 and First Appeal No. 471 of 1969 as nullity and further directing that the plaintiff is entitled to retain the possession of the suit house and the defendant cannot seek the execution of the sale deed and possession in pursuance of Special Darkhast No. 80 of 1968. 2. The facts giving rise to this litigation may be briefly stated as follows : 3. The present plaintiff Somnath is son of Dnyanoba who died on or about 1-9-1942. Sundrabai is the wife of this Dnyanoba and the mother of the plaintiff. Dnyanoba had a brother named Vithoba who died on or about 26th March, 1957. Vithoba and Dnyanoba were the sons of one Balashet Mahapure, a resident of Pune, who died on or about 5-12-1936. The plaintiff had one more brother Dattatraya who died unmarried sometimes in 1954 with the result that the plaintiff is the sole surviver in this family. Sundarabai (the mother of the plaintiff) is the daughter of one Bhagwant Takate, who dies in or about 1965. He was a resident of Pimpalgoan, Ujayani in Ahmednagar District. Bhagwant had a son Vinayak and the daughter Sundarbai. Vinayak has two sons and three daughters out of which Hirabai is one. This Hirabai is married to the present plaintiff Somnath in or about 1966. Thus, Hirabai was related to the plaintiff even before the marriage with the later in as much as the was the plaintiff's mother's brother's daughter. 4. Balashet Mahapure had considerable house property situated at Pune. He executed a Will and bequeathed some of his properties to the sons of Dnyanoba. There was a litigation between the plaintiff and his brother Dattatraya on one hand and Vithoba on the other in or about 1942 after the death of Balashet. In that litigation, the plaintiff Somnath as well as his brother Dattatraya were minors and they were represented by their maternal grand-father Bhagwant Takate. A compromise decree came to be passed in that suit according to which, Dattatraya and Somnath got house bearing Nos. 1339, 1311, 1501 (in Ravivar Peth) and No. 9 in Ganj Peth, Pune. In that litigation, the plaintiff Somnath as well as his brother Dattatraya were minors and they were represented by their maternal grand-father Bhagwant Takate. A compromise decree came to be passed in that suit according to which, Dattatraya and Somnath got house bearing Nos. 1339, 1311, 1501 (in Ravivar Peth) and No. 9 in Ganj Peth, Pune. These two brothers thus became owners of these houses in pursuance of the decree and they were in possession of these houses. 4-A. Two house bearing Nos. 843 and 844 in Ganj Peth came to be inherited by Vithoba from his mother. Vithoba continued to own and enjoy this property till his death which occurred sometime in March 1957. By that time, Dattatraya was already dead and the plaintiff was the only surviver in the family. After the death of Vithoba, these two houses, Nos. 843 and 844 devolved on the plaintiff. Thus, after March 1967, the plaintiff became the exclusive owner of houses bearing Nos. 1339, 1311 and 1501 (all situated in Ravivar Peth) and houses bearing Nos. 9,843 and 844 (all situated in Ganj Peth). 5. Even before the death of Vithoba, house bearing No. 1311 came to be sold to one Mr. Bidwa by the sale deed dated 11-5-1956 for Rs. 3,500/-. The plaintiff Somnath and his mother Sundrabai shows as vendors and Bidwa was shown as vendee. House No. 9 in Ganj Peth came to be sold on 30th July, 1956 to one Mr. Kasture for Rs. 15,000/- Somnath and his mother Sundrabai were shown as the vendors. House No. 1339 in Ravivar Peth came to be sold to Mr. Bidwa for Rs. 12,000/-. Somnath and Sundrabai were shown as vendors. House No. 150 came to be sold to Mr. Bidwa on 15-1-1958 for Rs. 5,000/-, and Somnath and his mother Sundarabai were shown as vendors. Thus, four houses came to be sold in between March 1956 and January 1958 for Rs. 29,000/-. House No. 844 in Ganj Peth came to be sold to Mr. Kalamkar on 6-9-1968 for Rs. 15,000/-. House No. 843 was agreed to be sold to Tippanna Ramchandra Jannu (the defendant in the suit) for Rs. 13,000/-. This contract was entered into on 15th July 1957. 29,000/-. House No. 844 in Ganj Peth came to be sold to Mr. Kalamkar on 6-9-1968 for Rs. 15,000/-. House No. 843 was agreed to be sold to Tippanna Ramchandra Jannu (the defendant in the suit) for Rs. 13,000/-. This contract was entered into on 15th July 1957. As the vendors did not fulfil the contract, Tippanna instituted Special Civil Suit No. 108 of 1958 for specific performance of contract and possession of the property against the plaintiff Somnath and his mother Sundrabai. The trial Court dismissed this suit. Appeal was taken for that decree of dismissal to this Court. It was First Appeal No. 479 of 1961. This Court decided that appeal on 25th July, 1968, allowed the appeal and directed the defendant to specifically perform that contract on the plaintiff depositing Rs. 11,500/- within a specific time. 6. After decision of the First Appeal referred to above, Tippanna filed Regular Special Darkhast No. 90 of 1968 for execution of the decree of specific performance of the contract and possession. While this Darkhast was pending, Hirabai (the wife of the plaintiff Somnath), the two minor sons and mother Sundrabai instituted Special Civil Suit No. 327 of 1970 claiming the relief that the decree passed in First Appeal No. 479 of 1961 was not binding on them and further claiming partition and separate possession of their own share. This suit came to be dismissed by the trial Court on 31-8-1971. After the dismissal of the abovementioned suit, the plaintiff Somnath, through his wife Hirabai as next friend instituted the present suit. The main contentions raised by the plaintiff in the suit are that the whole property including House No. 843 is his ancestral property. It was further alleged that the plaintiff is an illiterate and has no understanding whatsoever. He was getting fits regularly every week or fortnight and thus was completely disabled man mentally so as to render his physical flexibility and fitness nugatory. It was also alleged that because of this disability, he was not in a position to understand day-to-day affairs. He was not a man of sound mind who could enter into any contract including the contract of sale in favour of Tippanna. It was also alleged that because of this disability, he was not in a position to understand day-to-day affairs. He was not a man of sound mind who could enter into any contract including the contract of sale in favour of Tippanna. It was alleged that long back on 26th November, 1957, his grand-father Bhagwant had instituted a petition under section 63 of the Indian Lunacy Act, 1912 for declaring Somnath as a lunatic and for appointment of a guardian for his person as well as his property. Ultimately, Bhagwant did not pursue this application and it came to be dismissed for want of prosecution. The fact, however, remains that Somnath was a person on unsound mind and thus disabled to enter into any contract. The contract of sale which was the subject matter of Special Civil Suit No. 108 of 1958 itself was a nullity and hence the decree was a nullity. On these counts, the plaintiff claimed relief that defendant Tippanna was not entitled to execute the decree in Special Civil Suit No. 108 of 1958 as it was null and void. It was also claimed that Tippanna could not claim the execution of a sale deed and possession of the house property as the decree itself was void ab initio. Permanent injunction was claimed against Tippanna, restraining him from getting the sale deed executed and taking possession of the suit house either through process of Court or otherwise. It was contended that the decree passed in Special Civil Suit No. 108 of 1958 and First Appeal No. 479 of 1961 is a nullity as it was passed against a person of unsound mind without appointment of his person ad-litom. 7. The defendant resisted the claim of the plaintiff. According to him, the claim as led before the Court was not maintainable and there was no cause of action to the suit. It was also his contention that the suit was barred under the principles of res judicata. It was also barred by the principles of estoppel. It was vaguely contended that necessary parties were not joined and hence the suit was not maintainable. The suit was according to him, bad for non-joinder of necessary parties. It was also alleged that all the properties which were disposed of were not the subject matter in the suit and, therefore, the suit was not maintainable. It was vaguely contended that necessary parties were not joined and hence the suit was not maintainable. The suit was according to him, bad for non-joinder of necessary parties. It was also alleged that all the properties which were disposed of were not the subject matter in the suit and, therefore, the suit was not maintainable. He denied that the plaintiff was a person of unsound mind. According to him, the plaintiff was never a lunatic and he is not lunatic even now. According to him, the plaintiff is his own individual capacity and without the assistance from others fought so many litigations. He is a shrowed person and a Court bird and, therefore, the suit is not maintainable. 8. The learned Judge of the trial Court framed necessary issues and directed the parties to trial. On merits, the learned Judge held that Somnath is a person suffering from mental infirmity and is a person incapable of protecting his own interest right from the year 1945-46 and that condition of his continues even now. The learned Judge further held that the decree in First Appeal No. 479 of 1961 is a nullity and unenforceable as Special Civil Suit No. 108 of 1958 as well as the first appeal proceeded against a person of unsound mind without the appointment of guardian ad litom. Regarding the plea of estoppel and res-judicata, the trial Court found that they were not proved. Regarding the points whether the plaint was properly presented and whether the suit was bad for misjoinder and non-misjoinder of parties, the trial Court found that these points were not proved. On the findings of issues Nos. 1 and 2, the learned Judge held that the plaintiff is entitled to a declaration that the defendant is not entitled to see specific performance of the contract and possession of the suit property. According to the trial Court, the plaintiff was entitled to permanent injunction restraining the defendant from putting into execution his decree in question. On these findings, the plaintiff's suit came to be decreed. It is this decree which is the subject matter of challenge in the present appeal. 9. Mr. Dalvi, the learned advocate for the appellant strongly urged before me that the trial Court was in gross error in recording the finding that the plaintiff was of unsound mind. On these findings, the plaintiff's suit came to be decreed. It is this decree which is the subject matter of challenge in the present appeal. 9. Mr. Dalvi, the learned advocate for the appellant strongly urged before me that the trial Court was in gross error in recording the finding that the plaintiff was of unsound mind. According to him, the Court was precluded from going into the merits of this question on the principles of res judicata as well as estoppel. In spite of these two legal bar, it was contended, that the trial Court was not competent to go into the evidence regarding the unsoundness of the mind of the plaintiff. I would go into the question of res judicata and estoppel a bit subsequently. The position which has remained uncontroverted in the suit is that the present plaintiff was joined as a defendant in Regular Civil Suit No. 108 of 1958 individually and without appointment of any guardian ad litom. This position being admitted, it is clear that if on facts the plaintiff was a person of unsound mind, then, the Court would have no other option but to set aside the decree. Because, it is now well recognised that the proceedings against a person of unsound mind, without a next of friend or guardian ad-litom is ab initio bad. I would, therefore, proceed to consider whether disability when the transaction (challenged in Special Civil Suit No. 108 of 1958) was entered into. 10. Unimpeachable evidence has been brought on record to show that the plaintiff was born on 17-7-1936. We have on record Exhibit 119 which is a School Leaving Certificate issued by the Head Master, Sarvajanik Prathamik Shala, Pimpalgaon in Ahmednagar District. This certificate shows that the plaintiff was born on 17-7-1936. That, he was admitted to the school on 7-6-1943 in First Standard and that he left the school on 22-6-1945 without clearing the First Standard. He was again admitted to the school at Ahmednagar and the School Leaving Certificate can be found at Exhibit 120. It is shown therein the plaintiff was admitted to the school on 8-7-1947 and he left the school on 12-2-1949 without clearing the First Standard examination. These two documents throw a considerable light on the mental capacity of the plaintiff. We shall go into his question in detail a bit subsequently. It is shown therein the plaintiff was admitted to the school on 8-7-1947 and he left the school on 12-2-1949 without clearing the First Standard examination. These two documents throw a considerable light on the mental capacity of the plaintiff. We shall go into his question in detail a bit subsequently. For the present, it is enough to say that the plaintiff was born sometime on 17-7-1936. The plaintiff father dies on or about 1-9-1942. Sundrabai was the only protector and caretaker of the plaintiff and his brother Dattatraya. Her father Bhangwant was living at Pimpalgaon, Ujayani in Ahmednagar District and he was having about 2 to 4 acres of land at that place which was the main source of livelihood. There is evidence on record to show that soon after the death of Dnyanoba, Sundrabai along with her two children Dattatraya and Somnath shifted to Pimplagaon, Ujayani and stayed there. It is at this place that the plaintiff was admitted to the school in 1943 as is evident from Exhibit 119. Then, this lady and her sons shifted to Nagar, where the plaintiff was admitted to the First Standard in school. Exhibits 119 and 120 show that thought the plaintiff was in the school, admitted to the First Standard, he could not clear the First Standard examination. This is one circumstance which will have to be borne in mind while discussing the evidence on record. 11. The fact that the plaintiff along with his mother shifted to Pimpalgaon, Ujayani assumes relevance from another point of view, Hirabai (the wife of the plaintiff) was also residing at Pimpalgaon, Ujayani since her birth and she had all the opportunity to observe the plaintiff (including his physical and mental state), since the time the plaintiff was hardly 4 or 5 years old. Hirabai was a person who had the opportunity to see the plaintiff not only since the time of marriage but long before that when he was staying there. For appreciating the evidence of Hirabai, this circumstances will have to be borne in mind. 12. As far as the capacity of mind of the plaintiff is concerned, the plaintiff wants to rely on the observations made by the Court when the trial Court asked the plaintiff to enter into the witness box and observed the personality of the plaintiff. The Court did not administer oath to the plaintiff. 12. As far as the capacity of mind of the plaintiff is concerned, the plaintiff wants to rely on the observations made by the Court when the trial Court asked the plaintiff to enter into the witness box and observed the personality of the plaintiff. The Court did not administer oath to the plaintiff. According to the observations of the Court, the plaintiff had to be brought into the witness box. He appeared frail and rather weak. The plaintiff was asked his name and he told his name as Somnath. When the plaintiff was asked to tell as to what was time, he replied that he did not understand the watch. When the plaintiff was asked whether he had taken any meals the plaintiff replied that he had not. When the plaintiff was asked as to where he was standing, the plaintiff replied that he was not able to tell where he was standing. The next question asked to him was as to who brought him to the Court and his answer was that his wife brought him to the Court. Next question which followed was what was the purpose for which he was brought to Court and the answer was "I do not know". From these questions and answers, the Court formed on opinion that the plaintiff was not in a position to understand things. These are the observations of the trial Court when it had the opportunity to observe the plaintiff. The Court indulged in this questioning with a view to satisfy itself whether the plaintiff was in a position to depose before the Court and this questioning is permissible under section 118 of the Evidence Act. What value the observations of the Court command is a matter which I shall deal with subsequently. 13. This now brings me to the evidence of Hirabai. As already pointed out, she is the wife of the plaintiff. Though their marriage was celebrated in 1966, she had an opportunity to see the plaintiff right since 1943 or so when the plaintiff was hardly 5 or 6 years old. The plaintiff was not a stranger to that family. But he was her close relative in as much as he was the son of her maternal aunt. Her evidence will, therefore, naturally command some respect and credibility because of her acquittance and relationship. The plaintiff was not a stranger to that family. But he was her close relative in as much as he was the son of her maternal aunt. Her evidence will, therefore, naturally command some respect and credibility because of her acquittance and relationship. In paragraph 2 of her deposition, she states that when the plaintiff along with his mother came at Pimpalgaon he used to get recurring fits practically once in a week. When the plaintiff get these fits, there used to be bleeding from his nose and he used to become unconscious. She further states that these fits are continuing even now. There was no doctor or Vaidya at Pimpalgaon. Somnath was, therefore, under the treatment of a doctor from Nagar. Sundrabai and Vinayak used to take Somnath to Nagar for medical treatment and check-up. Even at Pimpalgaon, Somnath used to get domestic treatment from one Paraji Mule. This is in short her evidence regarding the physical and mental State of Somnath. In paragraph 12 of her cross-examination, she repeats that her husband gets fits once in a week or fortnight. He does not get any prior indication. According to her, bleeding from the nose is a regular occurrence during the fits. Suggestion was put to her in paragraph 15 of her deposition that Somnath is neither a lunatic nor lnsane but that suggestion was denied. This is all her cross examination. In short, her testimony about the physical condition of Somnath that he was getting fits at regular intervals, every week or fortnight, and during these fits, he used to become unconscious has not been much controverted. 14. Another witness examined by the plaintiff on this point is Paraji Mule (P.E. 2). This gentleman is a resident of Pimpalgaon. He deposes that when Sundrabai came to Pimpalgaon along with her children, Somnath was about 8 to 10 years old. According to him, Somnath had a sickly health and he was getting fits. According to him, Somnath used to lie down during the course of the fits. Saliva used to pass through his mouth. The influence of fits used to remain over him for about a couple of hours and thereafter he used to be in acute depression for a considerable period. The witness further states that what he found him at the age of 5 years, he is still continuing with it even till today. Saliva used to pass through his mouth. The influence of fits used to remain over him for about a couple of hours and thereafter he used to be in acute depression for a considerable period. The witness further states that what he found him at the age of 5 years, he is still continuing with it even till today. In his cross-examination, he states that Somnath gets fits weekly and fortnightly. He used to be called whenever Somnath used to get fits. He advised that Somnath should be taken to Ahmednagar. He appears to be a very close neighbour of the family. He repeats in his cross-examination that the influence of the fits used to continue for 2 to 2 1 to 1½ hours. On regaining consciousness, he would not even walk or even talk to anybody. He could talk with the people only 3 hours after regaining consciousness. This is his assessment of the physical condition of Somnath. 15. Thus, the evidence of Hirabai (P.W. 1) and Paraji Mule (P.W. 2) shows that since Somnath came to Pimpalgaon Ujayani, he used to get fits at regular intervals and this continued even today. 16. Two medical practitioners have been examined, they two who had an occasion to examine Somnath from time to time. Dr. Shrinivas, Deshmukh (P.W. 3) is a medical practitioner at Ahmednagar since 1937 and he deposes that Somnath was his patient for about 10 years from 1940 but thereafter he did not come to him until 1979 or so. The witness further states that in 1940, when Somnath was first brought to him, he was hardly 4 to 5 years of age, he was getting fits. Somnath was brought to his dispensary at least once is a month. According to Dr. Deshmukh, Somnath had the attacks of fits once or twice even in his dispensary. According to Dr. Deshmukh because of these fits, the Development of his brain was improper. We have it from Dr. Deshmukh that there was no development of his brain after 1940. When he examined Somnath in 1970, he found that the development of the brain was the same as it was in 1940. According to Dr. Deshmukh, Somnath never gained the power of understanding. According to him, Somnath is a patient of mal-development or ill-development of brain. Deshmukh that there was no development of his brain after 1940. When he examined Somnath in 1970, he found that the development of the brain was the same as it was in 1940. According to Dr. Deshmukh, Somnath never gained the power of understanding. According to him, Somnath is a patient of mal-development or ill-development of brain. He did not bring his case-papers to the Court and his evidence was commented by Dr. Dalvi only on this count. It is true that this witness get the history of Somnath from Bhagwant. But we have it in his evidence that he himself witnessed Somnath getting fits once or twice in the dispensary itself. He deposes in cross-examination that when Somnath was brought to him, he questioned Somnath but he was not in a position to understand. He has also taken measurements of the head of somnath. It is true that he is not able to give these measurements before the Court. But he is certain that there was a mal development of his brain. He prescribed some ayurvedic medicines. He also states that during the period 1940 to 1950, Somnath had no talks with him. He merely used to make gestures. His talks were irrelevant. Then the witness states about the physical condition of Somnath after 1970-71. He had not brought the case papers to the Court. He states that in 1970-71, Somnath was brought to him by his wife Hirabai. He questioned Somnath and his wife. During the intervening period, Somnath was under the treatment of Dr. Valimbe. He also states that he advised Somnath's relations to get him examined by the brain specialist like Dr. Cinde from Bombay. He volunteered to accompany the patient to Bombay, but his advise was not heeded to. In the last paragraph of his cross-examination, he states that when Somnath got fits whilst in his hospital, he suddenly became unconscious on the floor. He had raised a cry before falling on the floor. The duration of the fits during this occasion was about half-an hour. After regaining his consciousness, he was kept in the hospital for about 15 of 20 minutes and then he was allowed to go. These fits, according to him were technically called epilepsy. 17. Another witness examined by the plaintiff is Dr. Valimbe (P.W. 4) at Exhibit 155. He is practising at Ahmednagar since 1950. After regaining his consciousness, he was kept in the hospital for about 15 of 20 minutes and then he was allowed to go. These fits, according to him were technically called epilepsy. 17. Another witness examined by the plaintiff is Dr. Valimbe (P.W. 4) at Exhibit 155. He is practising at Ahmednagar since 1950. He deposes that Somnath was his patient since 1950 till 1965-70. According to him, Somnath had a weakness of brain. He was a mentally retarded person. There was no development of brain since his childhood. According to him, Somnath was having epileptic fits occasionally. Somnath used to come to his hospital once or twice a month while he was under his treatment. He specifically states that in between 1950 and 1970, he noticed no development in the brain of Somnath. In 1950, when Somnath went to him, he found that Somnath's face was blunt and there was no expression, and any power of understanding. He also states that Somnath's power of understanding was that of a child 4 to 5 years of age. The same condition continued in 1970. In his cross-examination, he states that he advised his relations to take Somnath to a psychiatrist either at Pune or at Bombay but they did not heed to his advice. In his cross-examination, he states that Somnath is physically well developed but mentally he is not at all developed. 18. Another witness examined by the plaintiff is the Ramling (P.W. 5), who had purchased House No. 844 in 1956. In paragraph 2 of his deposition, he states that he had no talk with Somnath regarding this purchase. The reason given by him is that Somnath had no power of understanding. Here is a vendee who is purchasing the property of a person who had no power of understanding. The witness states that because Somnath had no power of understanding, he finalised the contract with his mother and maternal grand-father. He asked the mother of Somnath as to who this Somnath is and accordingly Somnath was brought before him. But Somnath could not have any talks with the witness. The witness further stated that he found the price quoted by Sundrabai somewhat low and, therefore, purchased the house. This gentlemen is a person who had knowledge about the mental capacity of Somnath. But Somnath could not have any talks with the witness. The witness further stated that he found the price quoted by Sundrabai somewhat low and, therefore, purchased the house. This gentlemen is a person who had knowledge about the mental capacity of Somnath. He has openly takes a risk of purchasing the property of a person of unsound mind and, therefore, his evidence will have to be accepted 19. There are these 5 persons who speek about the physical condition of Somnath. Somnath's wife had an opportunity to see Somnath right since the childhood. Another witness Paraji (P.W. 2) had also the opportunity to see the physical condition of Somnath. Dr. Valimbe and Dr. Deshmukh were the persons who had opportunity to see the physical condition of Somnath right since 1940 to 1970. It is true that they have not brought the case papers. Mr. Dalvi strenuously urged before me that without the case papers, it is not possible to accept the evidence of these witnesses. We cannot forget one thing that Somnath was a repeater as far as Dr. Valimbe is concerned. Therefore, the memory of Dr. Valimbe would not fail him particularly in respect of the physical condition of a patient when he had examined before 1950 and which condition prevailed throughout when the patient again went to him in 1970. Had the plaintiff remained content with the evidence of Mr. Deshmukh and Dr. Valimbe alone, there would have been some doubt regarding the credibility of the testimony. But as far as the physical condition is concerned, there is corroboration from Hirabai (P.W. 1) and Paraji (P.W. 2). 20. We have considered till now about the physical condition itself. There is also evidence to throw considerable light regarding his mental condition and regarding his capacity to understood things. To repeat once again, we have two school leaving certificates (Exhibits 119 and 120), Exhibit 119 shows that he was admitted to Sarvajanik Prathmik Shala, Pimpalgaon and he was there for two academic sessions. He was admitted in the First Standard and he could not clear the First Standard when he left that school. This clearly shows that for two years continuously, he could not clear the first standard examination. Then, we have Exhibit 120 before us which shows that he was admitted to school in 1947 and he left the school in February 1949. This clearly shows that for two years continuously, he could not clear the first standard examination. Then, we have Exhibit 120 before us which shows that he was admitted to school in 1947 and he left the school in February 1949. It means that he was in this school for two academic sessions. He was admitted in the first standard and could not clear the first standard examination in two years. This is what the documents speak. We have got the oral evidence of Hirabai to the effect that her husband could not clear the First standard examination for 5 or 6 years continuously. When the documents speak like this, Mr. Dalvi, the learned advocate invited my attention to one of the endorsements in column No. 7 of the School Leaving Certificate which shows that his progress was 'good' Exhibit 120 shows that his progress was "fair". Relying on these endorsements, Mr. Dalvi strenuously urged before me that the school authority found the progress of Somnath either good or fair and according to Mr. Dalvi it indicates that he was not a boy below par. It is difficult to accept this argument on the background of these two documents. It will be beneficial at this stage to refer to that part of the evidence of Hirabai, she also attended the same school at Pimpalgaon, Ujayani. She deposes that in the primary school, the examinations were barely formal and everybody was declared successful at the end of the academic year. In spite of this practice, Somnath did not clear the First Standard examination. She deposes in paragraph 10 of her cross-examination that she attended the vernacular school up to 5th standard and that she passed her 4th Standard Examination about 7 or 8 years prior to her marriage. In view of this evidence it is difficult to accept the arguments of Mr. Dalvi that Somnath was not below par intellectual. 21. The plaintiff has examined Dr. Roshan Master (Exhibit 76). He is an expert. He is M.D., F.C.P.S., F.R.C.P. London. He is a member of the World Psychiastric Association. He is a Diploma-holder of psychological medicines and a follow of American Psychiatric Association. He is a professor of psychinary at B.J. Medical College, Pune. He was also attached to Session Hospital. He is the author of a book called 'Text Book in Psychiatry'. He is M.D., F.C.P.S., F.R.C.P. London. He is a member of the World Psychiastric Association. He is a Diploma-holder of psychological medicines and a follow of American Psychiatric Association. He is a professor of psychinary at B.J. Medical College, Pune. He was also attached to Session Hospital. He is the author of a book called 'Text Book in Psychiatry'. He is also a mental health consultant to Directorate of Social welfare, State of Maharashtra. He is practising in psychiatry since 1956. He appears to be an expert in the field and has tremendous experience. His testimony has to be appreciated. According to him, Somnath was brought for examination to his clinic on 11-12-1971. He had different tests conducted for determining the intellectual development of the brain of Somnath. With the conclusion of these tests and examinations, Dr. Master gave an opinion that the brain development of Somnath was that of a boy of approximately 6 years of age or more exactly a boy of 5 years and 10 months of age. According to him, he is uneducatably mentally subnormal. This is because of the mal-development of his brain. His physical age was 35 years when he was examined. In his cross examination, he states that he was brought to his clinic by his wife. He questioned him orally and found that he was not answering properly. Therefore, he advised to bring him subsequently for observation and different tests. The first test was conducted on 16-11-1971, second on 20th and the third on 23rd of November, 1971 and a final tests on 25th November 1971. He was an outdoor patient. The opinion given by Mr. Master can be found at Exhibit 77. It will be profitable to reproduce the opinion. The doctor says : "According to these tests, his mental age worked out to be five years and two months, and his intelligence quotient to 36.45. The development of his intellectual capacity, therefore, should be considered to be that of a child of six years and he should be considered to be an uneducable mental subnormal personally due to mal-development of the brain." I have also referred to the cross-examination of this witness and I will refer to the same again a bit subsequently when I came to discuss the evidence in detail. 22. Thus, the unrebutted evidence positively shows that since his childhood, Somnath had a mal-development of brain. 22. Thus, the unrebutted evidence positively shows that since his childhood, Somnath had a mal-development of brain. He used to remain for hours together as the consequences of the fits. He could not even pass the first standard examination in spite of 4 years in school. Doctors have certified that he had an undeveloped brain. His intelligence quotient was 35.45 and his mental age was that of a boy of 5 to 6 years of age. Thus, evidence throws a considerable light on the mental capacity of Somnath and particularly his capacity to understand the worldly things. Considering the evidence of the doctors as it stands, it may not be case of lunacy in the real sense of the term. It is not a case where a person is normal but gets attacks of insanity. It is a case where the development of brain has completely stopped at a particular stage without having an inch progress in the matter. This is evident from the testimony of the doctors when they say that the mental capacity of Somnath is that of a boy of 5 to 6 years which means that his intellectual capacity is equivalent to the capacity of a boy of 5 to 6 years of age and not beyond that. His intellectual capacity stopped there and did not progress with the increase in age subsequently. Physically, he might have developed, but mentally, he remained stagnant. 23. The defendant, on the other hand, tried to lead some circumstantial evidence. Mr. Dalvi, the learned advocate for the appellant has invited my attention to some circumstances. Somnath was born in 1937 and he attained majority in July 1955. According to Mr. Dalvi, after attaining the majority. Somnath started dealing with his own property. We have on record the dealings entered into by Somnath. To start with, the first sale deed was executed on 11-5-1956 in favour of Bidwa for Rs. 3500/-. It is evidenced by Exhibit 128. Within 2 months, i.e. sale deed dated 30th July 1956 was executed for Rs. 15,000/- in favour of one Kasture vide Exhibit 129. Another sale deed in respect of House No. 1335 was executed in favour of Bidwa on 13-1-1958, for Rs. 12,000/- vide Exhibits 131 and 122. 3500/-. It is evidenced by Exhibit 128. Within 2 months, i.e. sale deed dated 30th July 1956 was executed for Rs. 15,000/- in favour of one Kasture vide Exhibit 129. Another sale deed in respect of House No. 1335 was executed in favour of Bidwa on 13-1-1958, for Rs. 12,000/- vide Exhibits 131 and 122. Similarly, a sale deed in respect of House No. 1335 was executed in favour of Bidwa on 13-1-1958, 3 houses from Ravivar Peth and one house from Ganj Peth came to be sold for Rs. 31,000/-. What was urged before me by Mr. Dalvi was that Sundrabai and Somnath were the vendors in all those sale deeds. I was also taken through Exhibits 128, 122, 130 and 131. Mr. Dalvi strongly urged that here is a person who in dealing with his property along with his mother, making some representations and omitting to make other representations which were material and thus obtaining a financial benefit of Rs. 31,000/- or so. This conduct of the plaintiff Somnath, according to Mr. Dalvi, cannot be lost sight of and this conduct, according to him, is a pointer to the fact that he was conversant with the worldly affairs. Another point urged by Mr. Dalvi before me was that even till today neither the plaintiff Somnath nor his next friend Hirabai ever challenged these sale deeds. In order to appreciate the arguments of Mr. Dalvi, some circumstances will have to be scrutinised. As already pointed out, Somnath was not only a minor but he was a person of unsound mind as is evident from the testimony of the doctors. However, he attained majority in July 1955. Within a year of attaining majority, two properties came to be sold for Rs. 19,000/- or so. Within six months thereafter, the remaining property came to be sold for Rs. 16,500/-. It will also be necessary at this stage to bear in mind that Somnath as well as his mother Sundrabai were the venders. Under those sale deeds. As far as Exhibits 128 and 129 are concerned, Bhagwant (the maternal grand-father of Somnath and father of Sundrabai) happened to be the identifying witness. As far as the remaining sale deeds are concerned, Somnath and his mother Sundrabai were the venders and vinayak (brother of Sundrabai and the maternal uncle of Somnath) was the identifying witness. As far as Exhibits 128 and 129 are concerned, Bhagwant (the maternal grand-father of Somnath and father of Sundrabai) happened to be the identifying witness. As far as the remaining sale deeds are concerned, Somnath and his mother Sundrabai were the venders and vinayak (brother of Sundrabai and the maternal uncle of Somnath) was the identifying witness. We have on record the evidence to show that the financial position of Sunderabai and her children initially was quite good in as much as they had four house properties at Pune and all of them were yielding rent. After the death of Dnyanoba, Sundrabai left for Pimpalgaon, Ujayani along with her father and started residing there under the protective umbrella of her father Bhagwant. It was natural because she had lost her husband only in 1942 and there was none to look after the family except her. It will be worthwhile at this stage to look into the financial side of Bhagwant and his son Vinayak. If evidence of Hirabai is to be accepted (and it has to be accepted because it is not rebutted) her grand-father had about 2 to 4 acres of land which was the only source of livelihood of a family which consisted about 10 to 12 members. There is another circumstance to show that Bhagwant was in a financially precarious condition so much, so that he had to apply before the Insolvency Court on 11-9-1956 (vide Exhibit 125). He stated in specific terms in that application on that he was indebted to not less than 5 persons and it was not possible for him to pay the debts. He, therefore, wanted himself to be adjudicated as an insolvent. 24. We have now to examine the evidence on this background, Sundrabai was a woman of means in as much as the family had six houses at pune. On the other hand, her father and brother had no means. When the financial stringency developed in such a way that her father had to apply before the Insolvency Court for adjudication. On this background, Sundrabai and her son Somnath (who had just attained majority) have disposed of about four valuable properties within a span of a year and some months and collected Rs. 31,000/- and odd. Mr. When the financial stringency developed in such a way that her father had to apply before the Insolvency Court for adjudication. On this background, Sundrabai and her son Somnath (who had just attained majority) have disposed of about four valuable properties within a span of a year and some months and collected Rs. 31,000/- and odd. Mr. Dalvi urged before me that Sundrabai wanted to leave Pune for good and settle at Pimpalgaon and purchased some landed property for the family and that is why this property was sold. But if it were the intention, there should be no objection to it. That property came to be sold for Rs. 31,000/- and only 17 and odd acres of land came to be purchased and that too not in the name of Somnath but in the name of Sundrabai exclusively. Admittedly, the property which came to be sold was as exclusive property of Somnath and Sundrabai had no concern with that property. However, on selling that property what was purchases was 17 and some odd acres of land worth Rs. 9000/- and that was exclusively in the name of Sundrabai. Over and above, for the loss of the property worth Rs. 31,000/-, the accrution was to the tune of Rs. 9,000/- only. The remaining amount remained unaccounted for and as urged by the learned Advocate for the respondent, it was squandered. 25. Mr. Dalvi, strongly urged before me that the case that Somnath was of unsound mind and lunatic is coming for the first time when this litigation commenced. What Mr. Dalvi pointed to me was that there were a lot of litigations even prior to this and reference was specifically made to litigations i.e.. Special Civil Suit No. 108 of 1958 instituted by Tippanna against Sundrabai and Somnath for specific performance of contract, and the second suit was Civil Suit No. 327 of 1970 filed by Sundrabai, Hirabai and her two children against Somnath and Tippanna. Mr. Dalvi urged before me that is none of these suits, Somnath has raised a defence that he is of an unsound mind. It is an admitted position that Somnath was added as party-defendant in litigations without appointment of any guardian ad-litem. In spite of this, Mr. Mr. Dalvi urged before me that is none of these suits, Somnath has raised a defence that he is of an unsound mind. It is an admitted position that Somnath was added as party-defendant in litigations without appointment of any guardian ad-litem. In spite of this, Mr. Dalvi urged before me that it was essential either for Somnath or for his mother to raise a defence that Somnath was incapacitated from being a consenting party because of unsoundness of mind. It may be pointed out at this stage that Somnath, if at all he was really of unsound mind, could not be expected to raise any defence. Legally, he was incompetent because of the unsoundness of mind. Thus, his failure to raise a defence would not be a bar. The other side of the problem was neither Sundrabai nor Hirabai raised this defence bout the insanity of Somnath in either of those two litigations. The question that poses for decision at this stage is whether the omission on the part of other persons would preclude Somnath from taking this plea at this stage. If the evidence is good enough to lead to the conclusion that Somnath was of unsound mind, then, an omission on his part to raise that defence in the previous two litigations carries us nowhere else. It cannot be an obstruction because he was a person incompetent to conduct the litigations. It will not be out of way at this stage to refer to Dr. Master. At the fag end of the cross-examination, a specific question has been put to the doctor. This question was : "Shri Somnath has fought out several litigations right upto Supreme Court. What have you to say about it?" This question was asked in the context of the previous statement given by the doctor when the doctor specifically stated that "I can say that persons like Somnath cannot successfully fight out a litigation in the Court". To this question, the reply given by Dr. Master was : "The person presented to me with an I/Q 36.45 and mental development of a boy of approximately 6 years, would not be able to litigate". This question and answer throw a considerable light on the whole controversy. Somnath was made a party to the suit. There was no guardian ad-litem appointed for him to take his care. He conducted his litigation himself. This question and answer throw a considerable light on the whole controversy. Somnath was made a party to the suit. There was no guardian ad-litem appointed for him to take his care. He conducted his litigation himself. There was none to advise him and according to the opinion of the doctor, he was incompetent to conduct the litigation. What we find is that Somnath conducted the litigation while he was incapable of conducting it. He continued the litigation because there was none to protect him. This fact does not prove that he conducted the litigation rationally or intelligibly. He did conduct the litigation and that litigation was decided in a particular Court. 26. To repeat it once again, Mr. Dalvi urged before me that the defence that Somnath was insane or of unsound mind is being, raised for the first time in 1970. In fact, Somnath had no opportunity to raise this point because there was no guardian appointed ad-litem. If his mother and wife did not raise that point, the fault cannot be attributed to Somnath. 27. There is some material on record to show that the plaint regarding Somnath's insanity or unsoundness of mind was raised even in the past. It is well established that House No. 9 Ganj Peth was sold to Kasture on 30th July 1956 for Rs. 15000/-. When the negotiations for selling this house were going on, Vithoba, the uncle of Somnath was alive. He was the oldest male in the family. It also appears that he was interested in the welfare of Somnath. Vithoba through his Advocate Ruikar served a notice on Mr. R.P. Joglekar, Advocate, Budhwar Peth, Pune, on 27-7-1956. Mr. Joglekar was the advocate appointed by Mr. Mahapure the vendee under Exhibit 129. Before the sale could be finalised, Vithal Mahapure brought it to the notice of Mr. Kasture that Somnath is mad and has no knowledge and common sense and that he was unable to legally enter into any transaction whatsoever. Thus, the fact that Somnath was of unsound mind was published for the first time on 28th July 1976. This point was not taken for the first time in 1970 as Mr. Dalvi contends. True, this communication was not addressed to Mr. Thus, the fact that Somnath was of unsound mind was published for the first time on 28th July 1976. This point was not taken for the first time in 1970 as Mr. Dalvi contends. True, this communication was not addressed to Mr. Dalvi's client in 1956 but the fact remains that unsoundness of mind of Somnath was brought to the notice of the vendee long back in 1956 before Exhibit 129 could be finalised. Unfortunately, this Exhibit could not reach the vendee in time and the document came to be executed on 30th July 1956. However, the consequences which followed Exhibit 129 are material in as much as on learning in about the insanity or unsoundness of mind of Somnath, the vendee insisted upon Sundrabai and her father Bhagwant to indemnify him if at all anything went wrong and that is why the indemnity bond came to be executed by Bhagwant and Sundrabai in favour of Kasture on 9-6-1956, vide Exhibit No. 130. There is thus an explanation as to why this indemnity bond was executed. To repeat it once again, the fact that Somnath was of unsound mind was not kept secret and it is not so what Mr. Dalvi contends that this fact was agitated for the first time in 1970. 28. The fact that Somnath was of unsound mind or a lunatic was sought to be adjudicated by Bhagwant by filing a petition before the District Court at Pune in 1957. Exhibit 143 is a copy of the petition which was instituted by Bhagwant (the maternal grandfather of Somnath and the father of Sundrabai). Specific averments have been made in this petition that Somnath has lost control over his body and mind and he is having lunatic intervals off an on. Details have been given in paragraph 4. This application has been filed by Bhagwant alleging that Somnath was a lunatic and his mother was squandering the property of Somnath. He, therefore, wanted a guardian to be appointed for Somnath's person and property. It is interesting to note at this stage that Mr. Walhekar who has been examined as D.W. 1 in the present case wanted to intervene in this application alleging that Somnath was in fact a lunatic and apprehended that Bhagwant may got the application dismissed, he should be allowed to proceed with that application. Copy of this application can be found at Exhibit 44. Walhekar who has been examined as D.W. 1 in the present case wanted to intervene in this application alleging that Somnath was in fact a lunatic and apprehended that Bhagwant may got the application dismissed, he should be allowed to proceed with that application. Copy of this application can be found at Exhibit 44. This very Mr. Walhekar has now entered into the witness box on behalf of the defendant and he is stating on oath that Somnath was not a lunatic. We shall consider and comment upon the oral testimony of Mr. Walhekar at the appropriate stage. For the present, it is enough to point out that as far back as in 1957, the maternal grandfather of Somnath came before the Court with the allegation that Somnath was insane and that allegation was supported by Mr. Walhekar. It is not thus correct to say that the plea of insanity or unsoundness of mind is coming for the first time in 1970. This plea was raised long before in 1956 and 1957, when the transactions are alleged to have been settled. 29. A chronology of events would crystalise the whole scene. Somnath attained majority in July 1955. Thereafter, his mother in consolation with her father thought of dispossing of the property at Pune and setting at Pimpalgaon, Ujayani. The plaintiff had just attained majority. The evidence does show that in spite of attaining majority, a legal disability continued to be carried out with him in as much as he had no mental capacity to understand things. It is during the course of his mental attitude or mental state, that these transactions came to be effected. Physically, he is one of the venders but we have the evidence on record to show that it is Sundrabai who participated in and settled in the whole transaction. May be, her father also might have participated. But it cannot be reasonably said that Somnath was a conscious participant in the dialogue, because the evidence shows otherwise. It shows that he was incapaciated from participating in settling this transaction. On the other hand, stray cross examination of the witnesses shows that Somnath also participated in the dialogues but that would not carry us any further in view of the positive evidence. 30. Thus, the argument of Mr. It shows that he was incapaciated from participating in settling this transaction. On the other hand, stray cross examination of the witnesses shows that Somnath also participated in the dialogues but that would not carry us any further in view of the positive evidence. 30. Thus, the argument of Mr. Dalvi that Somnath had a mental capacity and that capacity is evidenced by these different transactions cannot be accepted, particularly on the background of a positive evidence that has already come on record and which has already been commented. 31. Reference was then made to Special Civil Suit No. 108 of 1958 which was instituted by Tippanna against Somnath and his mother for specific performance of contract. To repeat it once again, in 1957 a contract was finalised and in pursuance of the contract, a 'Karanama' was executed by Somnath and his mother Sundrabai in favour of Tippanna. As the contract was not fulfilled, a suit came to be instituted. The prayers were for specific performance. Interestingly enough, Somnath was added as a party-defendant but without any next friend. Sundrabai was added as a co-defendant. What was urged before me by Mr. Dalvi was that Somnath was represented by a competent Counsel and Somnath undertook his defence with the aid of a competent Counsel in the trial Court and also in the High Court. Thus, according to Mr. Dalvi, the circumstance shows that Somnath was not a person of unsound mind but he was a person of sound mind. I have already referred to this circumstance in the preceding paragraph and I have observed that Somnath did not get the aid of guardian ad-litem. He was left in the field alone and as the evidence shows, he was a man of unsound mind and he has been forced to go into the litigation without any assistance. Thus, this circumstance need not detain us for long. 32. It will be proper at this stage to consider Civil Application No. 1335 of 1985 which has been filed during the pendency of this appeal. The main prayer in that application was to the effect that the appellants should be allowed to produce some additional evidence on record during the pendency of the appeal. Mr. 32. It will be proper at this stage to consider Civil Application No. 1335 of 1985 which has been filed during the pendency of this appeal. The main prayer in that application was to the effect that the appellants should be allowed to produce some additional evidence on record during the pendency of the appeal. Mr. Dalvi, the learned advocate for the appellant conceded before me that this application does not fall within sub-clause (a) or (b) of Rule 27(1) of Order XLI of the Code of Civil Procedure. He, however, urged before me that these documents are material for enabling the Court to pronounce the judgment and hence this document should be allowed. These documents consisted of a certified copy of reply by Sundrabai and a certified copy of roznama in Special Civil Suit No. 108 of 1958, and a certified copy of a vakalatnama in favour of Dr. S.E. Vaidya, advocate in the same litigation. Another document was a copy of the written statement filed by Somnath. Even there was a copy of notice dated 1-1-1958 by Shri Vaidya to Shri Nazare, Advocates. Then, there was a notice dated 2-1-1958 given by Shri Nazare, copies of depositions of Sundrabai and Vinayak in Special Civil Suit No. 108 of 1958 were also sought to be filed. The copy of roznama in Special Civil Suit No. 327 of 1970, a copy of plaint in that very suit and a copy of written statement in that very suit were also sought to be filed. In addition, copy of deposition of Somnath recorded in Special Civil Suit No. 108 of 1958 was also sought to be filed. On considering all these documents. I do not feel that these documents were necessary in the adjudication of this appeal. Because we are not concerned with what happened in that matter, Mr. Dalvi, however, urged before me that the copy of the deposition of Somnath recorded by the Court in Special Civil Suit No. 108 of 1958 would be necessary not to show what he stated before that Court but to show that he could understand things and could give replies. He insisted only on this copy of deposition which is at Exhibit 152. As far as the deposition of a living witness in a previous litigation is concerned, the law is very clear, it cannot be admissible under section 33 of the evidence Act. He insisted only on this copy of deposition which is at Exhibit 152. As far as the deposition of a living witness in a previous litigation is concerned, the law is very clear, it cannot be admissible under section 33 of the evidence Act. Because the witness is living. Over and above, the witness is a party to the present litigation. So, what the witness stated in that deposition regarding the subject matter of controversy, cannot be read as evidence in this case and from the point of view that deposition would be irrelevant. However, I allow that document to be taken on record only, for a limited purpose for which Mr. Dalvi wants it on record i.e. for seeing whether the plaintiff was in a position to understand the questions and whether he gave answers after understanding the gravity of the questions put to him. As I am admitting it on record, it shall be exhibited in the course of this judgment. 33. Mr. Dalali urged before me that Somnath was examined in Special Civil Suit No. 108 of 1958 as a witness and his examination was not concluded on one day. He went into the witness box on three days i.e. 22-12-1960, 4-1-1961 and 11-1-1961. What Mr. Dalvi wants to urge before me is that here is a person who was in the witness box for three days and he is withstanding the cross-examination with all the abilities. There is absolutely no evidence as to what actually transpired on the respective days when Somnath was in the witness box. The deposition runs into 11 odd pages. What we find from record is that a part of his examination-in-chief was recorded on 22-12-1960 and it runs into 4 pages. On 4-1-1961, the examination in chief was concluded and cross-examination commenced and this whole exercise ran into 3 pages. The cross-examination was concluded on 11-1-1961 and it ran into 3 pages. This was all in manuscript. If the argument of Mr. Dalvi is to be considered, the examination and cross-examination of 10 or 11 pages took three days. This tells adversely either against the Court who could record 11 pages evidence in 3 days or on the witness who could take a lot of time to understand things before giving replies. Looking to the volume of evidence recorded in the case, the first possibility has to be eliminated. This tells adversely either against the Court who could record 11 pages evidence in 3 days or on the witness who could take a lot of time to understand things before giving replies. Looking to the volume of evidence recorded in the case, the first possibility has to be eliminated. The only possibility that survives and that too rationally is that the witness took unduly long time to understand the question and give replies. This circumstance, if at all considered, appears to be more consistent with the plaintiffs case than that of the defendant's case. What we find is that Mr. Vaidya was representing the plaintiff Somnath throughout in the luncy case and in the suit for specific performance of contract. As a matter of fact, Mr. Vaidya could have been the best witness to throw light on the mental capacity of the plaintiff. But he has not been examined, Mr. Dalvi urged before me that it was for the plaintiff to examine him as he was his own witness. If the plaintiff did not examine him, the defendant could equally examine him because he was a witness of truty and in any case, the endeavour of the party should be to bring truth before the Court. 34. Thus, the evidence in rebuttal which has been adduced before Court and which Mr. Dalvi wanted to me to consider has been discussed by me. In short, the plaintiff participating in the said transactions, his participating in the litigations is being used as trump card by the defendant. And those circumstance are sought to be used for establishing the fact that the plaintiff is a person of sound mind and understanding his own rights. However, the circumstance if scrutinised, do not appear to be sufficient enough to lead to the conclusion which Mr. Dalvi wants. A cursory look at the deposition will give the idea. He is not able to take the name of the school where he was studying. He is not able to say when he left the school. He insisted that his mother and maternal uncle looked after the property. He is not in a position to say when the houses were sold. He is not even able to tell the full name of Bidwe who is related to him. All the examination and cross-examination show the level of his intelligence. 35. Mr. He insisted that his mother and maternal uncle looked after the property. He is not in a position to say when the houses were sold. He is not even able to tell the full name of Bidwe who is related to him. All the examination and cross-examination show the level of his intelligence. 35. Mr. Dalvi then urged before me that it was necessary for Sundrabai to point out to the Court in Special Civil Suit No. 108 of 1958 that the defendant (her son) was insane or of unsound mind Sundrabai filed her written statement before the Court in 1958 or 59. She had already executed four sale deeds prior to that. Out of the consideration of Rs. 31,000/- Rs. 9,000/- only were spent for purchasing the landed property whereas the remaining amount was squandarad. As she was a party to those transactions, it was not in her interest to disclose the fact of insanity because she would have been obliged to refund the consideration to the different vendees. From this point of view, it can be reasonably stated that her interest were in conflict against the interests of Somnath as far as those four transactions were concerned. It was, therefore, natural for Sundrabai to conceal from the Court the real facts Mr. Dalal also urged before me that Hirabai also did not raise any objections to those different transactions as also to different litigations. Hirabai is a house wife staying at village Pimalgaon whereas those transactions were affected only at pune. The suits were also instituted at Pune. There is a doubt whether she had knowledge about these transactions which have taken place. She could not, therefore, legitimately raise any objections particularly when there is no evidence to show that she had knowledge of these transactions. It is true that Hirabai along with her sons and Sundrabai did institute a suit against Tippanna and the present plaintiff in 1970. In that litigation, she had raised this question about the insanity of the present plaintiff. But that litigation went against her and that decision was not challenged. 36. What Mr. Dalvi strenuously urged before me was that the decisions in the two litigation operate as res judicata against the present plaintiff. It was also urged that they operate as estoppel against the present plaintiff. But that litigation went against her and that decision was not challenged. 36. What Mr. Dalvi strenuously urged before me was that the decisions in the two litigation operate as res judicata against the present plaintiff. It was also urged that they operate as estoppel against the present plaintiff. I shall first consider the ground of res-judicata and then I shall come to the point of estoppel. 37. As far as res judicata is concerned, reference has been extensively made to the litigation which was instituted by Tippanna against the present plaintiff and his mother Sundrabai (Special Civil Suit No. 108 of 1958). To repeat it once again, the plaintiff was added as party defendant No. 1 without any guardian. Sundrabai was added as defendant No. 2. It is said that they filed their defence before the Court. What Mr. Dalvi urged before me was that it was open for either of them or both of them to raise the defence that Somnath was a person of unsound mind, and that could have been enquired into the decided by the Court had this plea been raised. It was urged before me that by not raising this question, there is no good case of constructive res judicata. My attention was invited to explanation 4 of section 11 of the Code of Civil Procedure. It is needless to state at this stage that res judicata requires trial of a suit on issue which has been directly and substantially decided in the previous litigation. Explanation 4 reads : "Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." Somnath was defendant in that suit and what we are required to consider at this stage is whether insanity could be a ground of defence in that suit. If we look to the mechanism of Order VIII of the Civil Procedure Code, the matter will become clear. If we look to the mechanism of Order VIII of the Civil Procedure Code, the matter will become clear. Rule 2 of Order VIII reads as follows : "The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take to opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality". The language of Rule 2 gives us some idea about the defence. The defence contemplated under Rule 2 is the defence to the suit. Technically, from that point of view, insanity of a party is a point which goes to the jurisdiction of the Court. A custody look at Order XXXII Rule 1 of the Code of Civil Procedure enacts that a suit on behalf of minor cannot be entertained by the Court unless he is represented by a next friend. Similarly, a suit against a minor cannot be entertained unless he is represented by guardian ad-litem. Those provisions are applicable also in case of a person of unsound mind. Thus, when the insane plaintiff comes before the Court without a next friend, or when an insane person is brought before the Court without a guardian ad-litem, it involves a point of jurisdiction whether the Court should proceed with the suit or not. From the limited point of view, it cannot be called as defence. There is a substantive drawback in the plaint itself where the Court is put on guard and it has to decide whether it can proceed with the suit or not. Technically, according to him, this drawback cannot be considered as a point directly and substantially in issue in the present case. But apart from the technical interpretation of this section, the point remains that a person of insane mind has been added as a defendant without any guardian ad-litem being appointed. The legal consequence of such situation is quite obvious. It means that the suit has proceeded without a compliance of requirements of Order XXXII and the whole trial itself becomes vitiated on the ground. The legal consequence of such situation is quite obvious. It means that the suit has proceeded without a compliance of requirements of Order XXXII and the whole trial itself becomes vitiated on the ground. From this point of view, it cannot be said that the decision in that suit can operate as res judicata. 38. It was then argued that even it Special Civil Suit No. 327 of 1970, the plaintiffs had come before the Court with a plea that Somnath was a simpleton and he has no power of understanding to deal in the transactions. The whole transaction according to the plaintiffs, was vitiated and hence they brought a suit for partition and possession of their 4/5 the share. Somnath was added as a defendant without any guardian ad litem. The issue was framed whether defendant No. 2 (Somnath) is of unsound mind or incompetent to understand transactions. This issue was answered in the negative and that decision has become final as the plaintiffs have not challenged that judgment and decree before the appropriate Court. This, according to Mr. Dalvi, definitely operates as res judicata in as much as the issue about the unsoundness of mind of Somnath has been directly and substantially in issue in the previous litigation and it has been decide on merits. The litigation was in between the parties who are present before this Court in as much as Somnath also was a party and Tippanna was also a party. This argument has some inherent infirmities of its own. To repeat it once again, there was no guardian ad litem appointed to safeguard the interest of Somnath. True, Somnath was represented by an Advocate. But that Advocate has not come before the Court to state the state affairs relating to Somnath. That evidence is, therefore, not available to this Court. If Somnath is really a person suffering from insanity or unsoundness of mind, then, that proceeding also stands vitiated and, therefore, a finding in a vitiated trial cannot operate as res judicata. Thus, there is no force in the argument that the present suit is barred by res judicata. 39. This now brings me to the point of estoppel as contended by the learned Advocate for the appellant. Thus, there is no force in the argument that the present suit is barred by res judicata. 39. This now brings me to the point of estoppel as contended by the learned Advocate for the appellant. It was urged that Somnath participated in the transactions and he did not bring it to the notice of any of the vendees that he was suffering from any disability including unsoundness of mind. It is one this omission to point out the truth that the vendees were led to go into these transaction and, therefore, this conduct on the part of Somnath creates an estoppel against him. This was in short the argument. Section 115 of the Evidence Act reads as follows : "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself such person or his representatives, to deny the truth of that thing." What section 115 of the Evidence Act initially requires is a declaration. What it further requires is that other party should believe this declaration as true and then act on such declaration upon such belief. We have now to see whether there have been any declarations either by Sundrabai or of Somnath. Vague evidence that has been brought before the Court is that Somnath was present at the time of all transactions. That fact is denied. There is no positive evidence to show whether Somnath actually participated in any discussions prededing there transactions. In view of such circumstances, it cannot be legitimately said that Somnath did makes any such representation that he is of sound mind. When there is no such declaration or representation, the whole edifice of estoppel must fail. Moreover, Somnath being a person of unsound mind, a positive representation regarding his capacity constitute estoppel. The Full Bench of this Court in (Gadigappa Bhimappa Kati v. Palangowda Bhimangowda)1, A.I.R. 1931 Bombay 561 held that where an infant represents fraudulently or otherwise that he is of age and thereby induces another to enter into a contract with them in an action founded on the contract the infant is not estopped setting up infancy. The Full Bench of this Court in (Gadigappa Bhimappa Kati v. Palangowda Bhimangowda)1, A.I.R. 1931 Bombay 561 held that where an infant represents fraudulently or otherwise that he is of age and thereby induces another to enter into a contract with them in an action founded on the contract the infant is not estopped setting up infancy. This Court further laid down : "Looking at the matter as one of principle apart from authority, it is in my judgment clear that no person can, by the application of the law of estopped, or by any rule or procedure, acquire or have assigned to him a statute or legal capacity which the substantive law denies to him, and in my opinion, it makes no difference whether the misrepresentation on which the estoppel is sought to be founded is made fraudulently or innocently." Thus, there is no force in the argument that the plaintiff should be estopped from urging that he is a man of unsound mind. 40. Taking a resume of what has been discussed so far, the plaintiff Somnath right since his childhood has been a patient getting recurring fits at regular intervals. The doctors who treated him right since his childhood have found that the intellectual faculties of Somnath did not develop. The fact that he could not even clear the First Standard examination in spite of wasting four years in the school is a pointer to show the level of his intelligence. When he was examined in 1971 by Dr. Master, Somnath was physically about 35 years old. But his intellectual level was equivalent to the intellectual level of a child of 5 or 6 years. It means that inspite of the passage of time, though Somnath developed physically, his intellectual development stopped. Now, we have before us Somnath whose intellect is equivalent to the intellect of a child of 5 or 6 years. Can we, in these circumstances, say that he is a person of sound mind ? If his intellect is equivalent to the intellect of a child in between 5 and 6 years then, he must necessarily be called as a person of unsound mind. Because we do not consider a child of 5 or 6 years as a person of sound mind so as to understand as far as day-to-day transactions or dealings are concerned. Somnath did not stand far above this gradation. Because we do not consider a child of 5 or 6 years as a person of sound mind so as to understand as far as day-to-day transactions or dealings are concerned. Somnath did not stand far above this gradation. The testimony of his wife coupled with the testimony of the doctors leaves no doubt in the mind that Somnath had not developed intellectually. 41. Mr. Dalvi urged before me that it is not enough for the plaintiff to prove that he was of unsound mind today but it was equally necessary for the plaintiff to prove that he was of unsound mind on the date of the transaction. This argument proceeds on the assumption that it is a case of insanity. It is in fact not a case of insanity. Because even a same person may get the attacks of insanity. But apart from this fact, he continues to be the same person. In that case, it is necessary to prove that at a particular stage, a person was sane or insane. The case which this Court is confronted with is not such . Here is a person who was devoid of any intellectual development right since 1945 to 1970. His intellect remained at that level which a child of 6 years achieves. There was not an inch of development. The graph of intellectual development in the case of this unfortunate person is static throughout. There are no curves. From that point of view, it was not incumbent on the plaintiff to prove that at a particular point of time, he was of unsound mind. Right since the age of 5 or 6 years. When he reached the stage of intellect of a boy of 5 or 6 years of age, he continued to be in that stage throughout. He did not ascend even an inch thereafter. In these circumstances, the arguments of Mr. Dalvi cannot be accepted. I may not repeat the evidence led in rebuttal. Oral evidence is worthless. On the other hand, Walhekar who has been examined on behalf of the defendant supports the plaintiff in as much as at one stage of time, he went before the Court with the allegation that the plaintiff was of unsound mind and he cannot now date to go back without a plausible explanation. There is no such explanation coming forth. 42. There is no such explanation coming forth. 42. It was urged that the plaintiff has not examined himself and he has kept Sundrabai also outside the witness box. I have already commented as far as Sundrabai is concerned. Her interests are in conflict with the interests of the plaintiff in as much as she has squandered the property exclusively belonging to the plaintiff and she has spent the whole amount. From her selfish point of view, she is not expected to support the plaintiff. As far as the plaintiff is concerned, there is more than sufficient evidence to lead the Court to the conclusion that he was of unsound mind, and, therefore, his non-examination does not take the case of the defendant any more. 43. Thus, there is good evidence on record to show that the plaintiff was of unsound mind. He continued to be of unsound mind even at the time when the transaction in suit was entered into. In fact, his intellectual level did not show a rising trend any time after he passed the age of 6 years. To repeat it one again, the graph remained static throughout and there was no show the ascend. The question that now poses for decision is : What is the effect of the litigation which the plaintiff was forced to defend without any guardian ad litem ? Rule 13 of Order XXXII of the Code of Civil Procedure lays down that whatever requirements are there in case of a minor, are applicable to the person of unsound mind. The requirement of next friend for the plaintiff and the guardian ad-litem for the defendant are equally applicable to the person of unsound mind. The plaintiff being a person of unsound mind, he could not be sued without a guardian ad-litem. And if at all he was forced to defend without the aid of guardian ad-litem, then, there can be no doubt that the trial is vitiated. Not only the trial is vitiated but all the consequential proceedings following that trial stand vitiated. There need not be any special remedy taken because these proceedings are ab-initio void. In (Ram Chandra Arya v. Man Singh and another)2, A.I.R. 1968 Supreme Court 954, a decree came to be obtained against a minor ex-parte. That was a decree for arrears of rent. There need not be any special remedy taken because these proceedings are ab-initio void. In (Ram Chandra Arya v. Man Singh and another)2, A.I.R. 1968 Supreme Court 954, a decree came to be obtained against a minor ex-parte. That was a decree for arrears of rent. In execution of the decree for arrears of rent, the property came to be sold and it was purchased by auction purchaser. The judgment debtor in that suit died. The legal representative of the judgment debtor filed a suit for possession alleging that the judgment debtor was a person of unsound mind when the suit was instituted. The Supreme Court held : "It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of Rule 15 of Order 32 of the Code of Civil Procedure so that the decree obtained against Ram Lal was a decree which has to be treated as without jurisdiction and void. In those circumstances, the sale held in execution of that decree must also be held to be void." The same ratio applies to the present case also because Somnath was sued without any person being appointed as guardian ad litem and it is now well established that Somnath was a person of unsound mind. 44. In those circumstances, the trial Court was quite justified in coming to the conclusion that the decree obtained in First Appeal No. 479 of 1961 is vitiated and void ab-initio. The decree passed by the trial Court is, therefore quite correct and there is no interference called for by this Court. The appeal is dismissed with costs. Appeal dismissed. -----