D. M. PATNAIK, J. ( 1 ) THIS first appeal is against the judgment and decree of the Subordinate Judge, Talcher decreeing the plaintiff's suit for declaration of title and recovery of possession in respect of the disputed properties and further for declaration that defendant no. 3 is not the adopted son of defendant no. 1. ( 2 ) PLAINTIFF's case is, defendant No. 1 ramachandra and she herself are the successors of their father Khageswar. Khageswar had an elder brother and a younger brother named ' Baidhar and Sridhar respectively. Harihar, defendant No. 7 represents the branch of Baidhar. From the genealogy it is found ' that -Sridhar's 'son Adhikari is shown to have been adopted. The sons of Adhikari are defendants 5 and 6. It is claimed that, plaintiff is. deaf and dumb from birth and defendant No. 1 is an idiot having no mental stability. Taking advantage of this physical and mental deficiency, defendants 4, 5 and 7 possessed the suit lands till 1977. Defendant No. 1 through defendant no. 2 filed Title Suit No. 2 of 1976 in the court of Additional Munsif, Talcher to get back possession of the properties from the defendants. It is the further case that defendant No. 2 and others by practising fraud and/or misrepresentation and undue influence managed to comprise the suit with defendant No. 1 who had no power of understanding. The said suit was decreed on 31. 1. 1977 on the basis of the compromise petition dated 27. 1. 1977 and the plaintiff was never a'party to the compromise nor she had authorised any body to Act and sign on her behalf. ( 3 ) ON 12. 9. 1977 the plaintiff filed an application under Section 151 C. P. C. in the said suit to set aside arid compromise decree dated 31. 1. 1977 and to treat the suit as pending from the stage. from where the compromise decree was carried on. Though this was allowed, the plaintiff filed the present for the reliefs stated above. ( 4 ) DEFENDANTS 2, 3 and 7 filed a joint written statement wherein they pleaded that the compromise in Title Suit No. 2 of 76 was hot the result of fraud and/or misrepresentation practised by defendant No. 2 on defendant No. 1. Though this was allowed, the plaintiff filed the present for the reliefs stated above. ( 4 ) DEFENDANTS 2, 3 and 7 filed a joint written statement wherein they pleaded that the compromise in Title Suit No. 2 of 76 was hot the result of fraud and/or misrepresentation practised by defendant No. 2 on defendant No. 1. Since Khageswar died much before 1956, defendant No. 1 alone was entitled to inherit the properties of Khageswar, but not the plaintiff. So far possession of the land by defendants 4 to 7 was concerned, it is pleaded that since defendant No. 1 could, not manage the properties because of his mental incapacity, they were possessed by defendants 4 and 7 on behalf of defendant no. 1 and they were maintaining him from out of the produce of the suit land. It was denied that the defendants 4 to 7 possessed the properties taking advantage of the helplessness of the plaintiff and defendant No. 1. It was pleaded in para 5 of the written statement that before filing of the title suit, defendant No. 1 had adopted. defendant No. 3 by observing all legal formalities. Therefore, he being the son of defendant No. 1, for all practical purposes was entitled to possess the land of defendant No. 1 on the letter's behalf. The defendants, therefore, pray for dismissal of the suit. ( 5 ) THOUGH the lower court framed as many as ten issues, for the purpose of present decision, it is necessary to discuss only two issues, the first regarding the mental deficiency of defendant No. 1, and the second as to his right to claim inheritance to the property of Khageswar since the lower Court held that Khageswar died before 1956 and, therefore/according to the old Hindu Law, defendant No. 1 is debarred from inheriting his property. ( 6 ) MR, N. C. Pati, learned counsel for the appellants, has advanced extensive arguments submitting about the infirmities in the judgment of the lower Court. However, the main thrust of his argument are dealt in the following manner: referring to the judgment of the lower court, the learned counsel submits that on facts and evidence adduced, it cannot be held that defendant No. 1 is an idiot and that too from birth. However, the main thrust of his argument are dealt in the following manner: referring to the judgment of the lower court, the learned counsel submits that on facts and evidence adduced, it cannot be held that defendant No. 1 is an idiot and that too from birth. He has drawn the attention of this court to the evidence of the, defendant's witnesses: I find the same has not been properly discussed by the lower court. ( 7 ) IT is alternatively argued that even assuming for the sake of argument that defendant No. 1 was an idiot/insane it was incumbent on the part of the lower court to conduct an enquiry in that respect particularly when there was a pleading to that effect on the side of the plaintiff, though denied in the written statement, and after conducting such enquiry the trial Court should have taken steps to appoint a guardian to protect the interest of the said defendant No. 1 by defending the suit. In this connection, Mr. Pati relied on the decisions in the case Rama Chandra Arya v. Man Singh and Anr. , Tirtha Pradhan and Ors. v. Balabhadra Pradhan and Anr and Trilachan das Adhikari and Anr. v. Simanchal Rath and ors. to support his contention that any decree against a minor/insane without being represented by a guardian is a nullity. There can be no dispute with regard to the propositions laid down in these judgments. But those decisions cannot be applicable to the present case. Going through the case record i am satisfied that inspite of the substituted service of notice under Order 5, rule 20, CPC defendant No. 1 never appeared in the court and yet the court conducted an enquiry to deal with the matter and held that because of his non-appearance and on the basis of the evidence of the witnesses for the plaintiff, an adverse inference could be drawn against him. Therefore, question of appointment of a guardian did not arise. That apart, these defendants pleaded that defendant "no. 1 was in perfect mental condition. Therefore, in my view nothing prevented them to examine him from their side. ( 8 ) IT is submitted by Mr. Pati that the lower court held that under Article 92 of the hindu Law, defendant No. 1 being an idiot/ insane was not entitled to succeed to the interest of Khageswar, his father. Mr. Therefore, in my view nothing prevented them to examine him from their side. ( 8 ) IT is submitted by Mr. Pati that the lower court held that under Article 92 of the hindu Law, defendant No. 1 being an idiot/ insane was not entitled to succeed to the interest of Khageswar, his father. Mr. Pati has rightly pointed out that the provision is clear which makes no distinction from inheriting the properties of the father by a male or a female. The lower court has committed an error by applying the said provision against defendant No. 1 though plaintiff also could be said as not entitled to-succeed on the same ground of disqualification. For better clarification, I may point out Article 636, Chapter 19 of Mayne's Hindu Law,. 12th Edn. page 836. ( 9 ) HOWEVER, in this connection I may point out that whether the old Hindu Law would be applicable to the parties or the hindu Succession Act, 1956 was also a point for decision on which. no finding has been given by the trial Court I may further say that when the plaintiff pleaded that Khageswar died in the year 1956, though the defendants did not state anything about the specific year of his death and since the right to inherit to the properties depends on the year of death of Khageswar, it was necessary for the lower court to frame an issue in that regard and record evidence. This was all the more necessary because defendant No. 1's right to property and the status of defendant No. 3 as the son of defendant No. 1 and the letter's capacity to. adopt -is intertwingly connected for which one cannot be decided, without the decision on the other. Therefore, the judgment is liable to be set aside. ( 10 ) MR. Pati referring to Ext. C. the deed of adoption of defendant No. 3 by defendant no. 1 of the year 1975, Ext/d the sale-deed of the year 19. 77 and Ext. F the gift deed of the year 1977 in favour of defendant No. 3, son of defendant No. 2, submits that all these documents have been exhibited without objection by defendant No. 1 himself. 1 of the year 1975, Ext/d the sale-deed of the year 19. 77 and Ext. F the gift deed of the year 1977 in favour of defendant No. 3, son of defendant No. 2, submits that all these documents have been exhibited without objection by defendant No. 1 himself. They positively proved that defendant No. 1 was in a perfect state of mind and yet the lower court did not consider this evidence for which the judgment has been rendered erroneous. Be that as it may, since I have already held that there has been no discussion of the evidence of the defendants' witnesses about such mental deficiency of defendant No. 1, the matter has to be again decided and therefore I do not express any opinion whether these documents sufficiently proved perfect mental condition of defendant No. 1. Before deciding afresh, the lower court shall, besides other issues already framed, frame another issue as to whether death of Khageswar was before or after the hindu Succession Act, 1956 and whether both or any one of them had the right to succeed to the properties of Khageswar on proof of their'mental capacity or otherwise. ( 11 ) IN the result, the judgment and decree of the lower court are set aside and the suit is remitted back to the lower court for fresh disposal. The parties are at liberty to adduce further evidence only with regard to the year of death of Khageswar. However, if defendant No. 1 appears he shall be given chance to contest the suit. No cost. Appeal allowed. Matter remanded. .