Judgment :- For the sake of convenience, I am adopting the rank of the parties as in the appeal. The appellant was the first defendant in the suit out of which the appeal has The first respondent was the plaintiff and respondents 2 and 3 were defendants 2. 2. The suit relates to three Schedules of properties. A Schedule comprises of two Schedule relates to certain houses and C. Schedule to certain lands. The first respondent prayed for a declaration of his title over the A Schedule properties and for delivery possession of item No.1 thereof and for injunction restraining the appellant from interfering with his possession and enjoyment of item No.2 thereof. The prayer with reference Schedule was for a division of the same into nine equal shares and for allotment shares to the first respondent. With reference to the C Schedule, the prayer was for and separate allotment of l/4th share. There was also a prayer for mesne profits reference to A Schedule and C Schedule properties. The first respondent, the appellant the third respondent are brothers. The first respondent; was described as an insane and the suit was instituted by his wife as next friend. The case of the first respondent that the A Schedule properties were acquired by his father from out of the income exclusive properties belonging to the first respondent and he was managing the same guardian. According to. the first respondent, though the properties were purchased name of the father, they belonged exclusively to the first respondent and the father right to bequeath the same in favour of the appellant under his will dated 15.12.1983. reference to B Schedule properties, the first respondent claimed that he was entitled own right to l/3rd share as a member of the joint family and to another l/9th share death of the father, as according to him, the will dated 15.12.1983 should be completely ignored. With reference to C Schedule properties which were the exclusive properties father, the first respondent claimed that it devolved on all the four children on the father and thus, he was entitled to l/4th share. 3. With reference to C Schedule properties which were the exclusive properties father, the first respondent claimed that it devolved on all the four children on the father and thus, he was entitled to l/4th share. 3. While the suit was opposed by the appellant and the third respondent, the respondent made an endorsement on the plaint submitting to a decree as prayed appellant contended that the first respondent was not insane and he was capable of after his own affairs and the suit should be dismissed as not maintainable on that ground was also the contention of the appellant that the will dated 15.12.1983 executed father was genuine and valid and under the said will, the entire A Schedule properties been bequeathed to him. With reference to B Schedule properties, it was the specific that the father ’ s 1/3rd share passed on to him under the will while the first respondent the third respondent were entitled to 1/3rd share each. With reference to C Schedule, contended by him that he got the entirety of it under the will and the first respondent share therein. 4. The third respondent filed a separate written statement. He also raised the contention that the plaintiff was not insane and that the suit was not maintainable. With reference the will of the father he admitted the genuineness and the validity of the same and make any claim to either of the items in the A Schedule. With reference to B properties, he reiterated the contention put forward by the appellant that himself, respondent and the appellant were each entitled to 1/3rd share. He prayed for a decree reference to his share in the B Schedule properties. However, he did not pay any court for effecting a division and allotting 1/3rd share to him. With reference to C Schedule, not make any claim at all. 5. The trial court held that the first respondent was an insane person incapable of care of his own affairs. It was held that the purchase of A Schedule properties was income derived from the properties of the first respondent and they were intended the benefit of the first respondent. While the will was held to be genuine, it was held was inoperative with reference to A Schedule properties. It was held that the purchase of A Schedule properties was income derived from the properties of the first respondent and they were intended the benefit of the first respondent. While the will was held to be genuine, it was held was inoperative with reference to A Schedule properties. Consequently, a decree granted in favour of the first respondent as prayed for with reference to Schedule properties and for 1/3rd share in the B Schedule properties. A decree for mesne profits granted with reference to item No.1 of A Schedule. In other respects, the suit dismissed. 6. The appeal has been preferred with reference to Schedule A properties only. There appeal with respect to Schedules B and C. 7. The third respondent filed a memo of cross-objections after a delay of 300 days; but delay has been condoned by this court. In the memorandum of Cross-objections, grounds were directed only against the finding of the court below that the plaintiff was insane person. 8. The appellant and the first respondent have entered into a compromise. C.M.P.No.6849 1990 is to grant leave to the wife and next friend of the first respondent to enter into compromise. C.M.P.No.6848 of 1990 is for recording the compromise. The third respondent has filed C.M.P.No.7492 of 1990 for permission to raise additional grounds in memorandum of cross-objections and C.M.P;No.7493 of 1990 for transposing him as appellant and the appellant as a respondent. The third respondent opposes the recording the compromise between the appellant and the first respondent. 9. The effect of the compromise between the appellant and the first respondent would be confirm the decree of the trial court in so far as it relates to A Schedule properties and first respondent giving up his decree for mesne profits granted by the trial court. With reference to B Schedule properties, the appellant has agreed to take 2/3rd share in house in one village viz., Kambalapatti village and the first respondent has agreed to take 2/3rd share in the house in Anga-lakurichi village. The compromise leaves intact the 1/3rd share belonging to the third respondent in B Schedule properties. In other words, while appellant abandons his claim to A Schedule properties, the first respondent as quid pro abandons his claimed for mesne profits. 10. The compromise leaves intact the 1/3rd share belonging to the third respondent in B Schedule properties. In other words, while appellant abandons his claim to A Schedule properties, the first respondent as quid pro abandons his claimed for mesne profits. 10. The contention of the third respondent is that the compromise is totally invalid as he not a party thereto and in a partition action, if some of the parties enter into a compromise, it is not only invalid against the persons who have not joined it, but also void and the should not record such a compromise. Learned counsel for the third respondent cited judgment of Venkatasubba Rao, J. in C.Thiruvengada Mudaliar v. C.Thangavelu Mudaliar, A.I.R. 1928 Mad. 594. The following passage is referred to by learned counsel: “ Finally Mr.Anandalwan says that in law a compromise of a partition suit is ineffectual unless every party to the action joins in it. He has cited Nityamoni Dasi v. Gokul Chandra, (1911)13 C.L.J. 16: 9 I.C. 210, Gobind Chandra v. Bhagubat Sardar, (1915)27 I.C. 242 Taraprasanna Sarkar v. Kalika Mohan Sarkar, A.I.R. 1924 Cal. 80, but these cases do even touch the point. It is undoubtedly true that in some cases there may not be a valid lawful compromise unless all the parties join in effecting it; but each case must depend its own facts. I shall illustrate my position by taking two or three examples. Suppose and C, are members of a joint family. If the compromise is entered into between A and under which A gets a half, but as C is not a party to the compromise A gets against him a third, it would be impossible to recognize such a compromise. Again suppose B gives up A under the compromise some specific valuable items of property. It would be open to C, being a party to the compromise, to urge that he would not agree to those items being taken by A In such a case it would be futile to ask the court to enforce the partial compromise. Again, I may vary the illustration by supposing that B admits some items to be joint family properties and not on that footing enters into a compromise with A.C, who is not a party the compromise, contends that those items are his self-acquisitions. Surely no Court would such a case recognize and enforce the compromise. Again, I may vary the illustration by supposing that B admits some items to be joint family properties and not on that footing enters into a compromise with A.C, who is not a party the compromise, contends that those items are his self-acquisitions. Surely no Court would such a case recognize and enforce the compromise. The facts of this case are entirely different. The plaintiff, on receiving Rs.8,000, goes out of the family altogether and property then belongs to the remaining members, though I need not decide now in shares they hold it inter se. This contention is, therefore, overruled and I find that a and lawful compromise was entered into between the plaintiff on the one hand defendants 1 to 3 on the other.” Learned counsel submits that this case would fall under the illustrations given by the learned Judge in the above passage. I do not agree. The facts of this case are entirely different none of the illustrations given by the learned Judge will apply to this case. The proposition law stated by the learned Judge is clearly against the third respondent. In this case the respondent never claimed any interest in A Schedule properties. The third respondent expressly admitted the genuineness and validity of the father’s will. Under the said will, Schedule properties are bequeathed to the appellant. The contest with reference to A Schedule properties was only between appellant and the first respondent. The compromise between the appellant and the respondent with reference to A Schedule properties does not in any manner affect interests of the third respondent as he claimed a share only in B Schedule properties. 11. It is contended by learned counsel that the first respondent came to court with the that he was entitled to 4/9th share in B Schedule proper-ties and that the third respondent was entitled to another 4/9th share and the second respondent to 1/9th. Learned submitted that the compromise proceeds as if the appellant, the first respondent and third respondent were each entitled to 1/3rd share and the third respondent ’ s claim to share will certainly be affected by the said compromise. There is no substance contention. In fact, the contention overlooks the specific admission in the written statement of the third respondent that he was entitled to 1/3rd share while the appellant and the respondent were each entitled to 1/3rd share. There is no substance contention. In fact, the contention overlooks the specific admission in the written statement of the third respondent that he was entitled to 1/3rd share while the appellant and the respondent were each entitled to 1/3rd share. Having taken a definite stand in the statement, it is not open to the third respondent to put forward a new claim in this particularly when there is no appeal by the appellant with reference to schedules B Learned counsel referred to the Judgment of Patna High Court in Mathura Singh and v. Deodhari Singh and others, A.I.R. 1972 Patna 17. It was held in that case that in a partition of joint parties cannot be maintained, and if the compromise is not binding one of the co-sharers, it would not be binding on those who gave their consent proposition has been stated too widely. It should be understood in the context of the that case. That decision will not apply to this case. I agree with the dictum of Venkatasubba Rao, J. in Thiruvengada Mudaliar’s case,A.I.R. 1929 Mad.594. 12. The next contention urged by learned counsel is that there should have been an under O.32 of the Code of Civil Procedure as to whether the first defendant is insane According to him, the court below did not hold any such enquiry. In this connection is placed upon the judgment of a Division Bench of this Court in Rangaswami Reddi Gopalswami Reddiar, (1978)2 M.L.J. 564 . In that case a person who had effected alienations was stated to be insane on the dates of alienations and a suit was filed for aside those alienation was stated to be insane on the dates of alienations and a suit was for setting aside those alienations. The trial court held that the plaintiff therein was proved to be of unsound mind on the dates of the various documents or on the date In the appeal before the Bench, the two questions which were framed whether the appellant was a person of unsound mind on the date of suit so that the suit could be instituted name represented by his father as next friend and whether the appellant was of mind on the various dates when the alienations were effected. Holding that there evidence to that effect, the Bench pointed out that there was also no enquiry by the court on the question of sanity. Reliance was placed upon the order of the trial permitting the father of the appellant to institute the suit as a guardian of the plaintiff footing that he was of unsound mind. The Bench held that the said order would not way satisfy the requirements of O.32, Rule 15 of the Code of Civil Procedure. The that case are entirely different from the facts of this case. In this case, on the evidence record, the trial court has come to the conclusion that the first respondent has been to be of unsound mind. It is only on that finding, the trial court proceeded to hold father purchased the properties in Schedule A from out of the income from the properties of the first respondent. It is only for the purpose of finding out whether purchase made by the father in his name was during the period when he was a guardian the first respondent and whether he was in possession of the income from the owned by the first respondent. The question of sanity of the first respondent is relevant with reference to Schedule A properties. With reference to Schedule B property, absolutely irrelevant, as admittedly the properties in Schedule B are joint family properties which the appellant, the first respondent and the third respondent had 1/3rd share third respondent herein not having claimed any share in the A Schedule properties raise the question that the first respondent was of sound mind and the suit at the instance his wife as guardian was not maintainable. Moreover, when there is a finding by court on the evidence, the contesting party viz., the appellant, who is the only person interested in the A Schedule properties has given up his claim that the respondent was of sound mind. It is certainly open to him to withdraw his contest time. It is not necessary for this Court to go into the question whether the first respondent was of sound mind or not in view of the withdrawal of the appeal by the appellant and consequent confirmation of the finding. 13. It is certainly open to him to withdraw his contest time. It is not necessary for this Court to go into the question whether the first respondent was of sound mind or not in view of the withdrawal of the appeal by the appellant and consequent confirmation of the finding. 13. It is next contended by learned counsel for the third respondent that there may conflict between the compromise decree and a decree which may be ultimately passed merits after hearing the third respondent. According to him, while this court takes the that the first respondent is of unsound mind by accepting the compromise, it will possible for this court to take a different view when the third respondent argues his objections. That, according to him, deprives him of an opportunity to contest the finding the trial court. There is no substance in this argument. If this Court accepts the compromise between the appellant and the first respondent, it does not mean that this Court comes any conclusion of its own on the evidence on record. It merely records that the appellant withdraws his contest and accepts the position of the first respondent as a person unsound mind. That will not stand in the way of the third respondent arguing on merits his cross-objections that the first respondent was of sound mind. But, as pointed out already, that question will not arise as the third respondent did not claim any share in Schedule properties and the appeal relates only to A Schedule properties. 14. The next contention of learned counsel is that under O.33, Rule 3(b) of the Code Procedure, no agreement or compromise in a representative suit shall be entered without the leave of the court expressly recorded in the proceedings. The first respondent has filed C.M.P.No.6849 of 1990 for granting leave to the next friend to enter compromise. All the parties in the appeal have had an opportunity to put forward respective contentions on the application. Hence, there is no substance in this objection. 15. It is next argued that the decree of the trial court in so far as item No.2 of A Schedule concerned would relate only to the superstructure and the site beneath the superstructure not included in the same. Hence, there is no substance in this objection. 15. It is next argued that the decree of the trial court in so far as item No.2 of A Schedule concerned would relate only to the superstructure and the site beneath the superstructure not included in the same. According to the third respondent, he has got a right as a member of the joint family in the site as it belongs to the joint family. There is no merit contention as the third respondent did not claim any interest in any of the items of Schedule properties. It is not open to him to raise such a contention for the first time appeal. 16. It is next argued that the trial court granted a decree for a 1/3rd share in favour plaintiff in B Schedule properties and remained silent with regard to the other 2/3rd share. was submitted that the court below did not decide as to who was entitled to the other share. In those circumstances, according to learned counsel, it is not open to the appellant and the first respondent to enter into an agreement with regard to specific items Schedule properties. This is only an argument in despair. It is very clear from the pleadings as well as the discussion of the question in the judgment of the court below that Schedule properties the appellant, the "first respondent and the third respondent are entitled to 1/3rd share. In fact, in paragraph 17 of the written statement of the respondent he has expressly admitted that the first respondent was entitled to 1/3rd while the appellant and himself were entitled to 1/3rd share each. A similar plea was by the appellant in this appeal also. At no time the third respondent raised any question to whether anybody else would be entitled to any share in the B Schedule properties that footing, the trial court had granted 1/3rd share in favour of the first respondent appellant and the third respondent did not pay any court-fee for their respective shares, decree was passed by the trial court declaring their shares in the suit property. 17. Lastly, learned counsel for the third respondent caught hold of a weakest straw contended that the second respondent would be entitled to 1/9th share in the B Schedule properties. 17. Lastly, learned counsel for the third respondent caught hold of a weakest straw contended that the second respondent would be entitled to 1/9th share in the B Schedule properties. The second respondent having accepted the claim of the first respondent submitted to a decree, it is not open for the third respondent to raise a contention behalf. Moreover she has not challenged the decree of the trial court. 18. Thus, all the objections raised by learned counsel for the third respondent are rejected. C.M.P.Nos.6848 and 6849 of 1990 are ordered. There will be a decree in terms compromise in the appeal as between the appellant and the 1st respondent. 19. With reference to C.M.P.Nos.7492 and 7493 of 1990, there is no justification permitting the third respondent to raise additional grounds or to transpose himself appellant in the appeal. The grounds sought to be raised as additional grounds pertain Schedule properties in which the third respondent did not claim any share. Hence, open to him to raise those contentions in this appeal for the first time. The third has deliberately not chosen to challenge the decree granted by the trial court with to B Schedule properties. The appeal does not also relate to B and C Schedule properties. those circumstances, the third respondent cannot seek to transpose himself as an and raise contentions which are not available to him in view of his express pleading written statement in the trial court. 20. Consequently, C.M.P.Nos.7492 and 7493 of 1991 are dismissed. The third shall pay the costs for the first respondent in these C.M.Ps. counsel’s fee Rs.500. Appeal ordered.C.M.P.No.6848 and 6849 of 1990 ordered. C.M.Ps.7492 and 7493 of 1990 dismissed.