JUDGMENT
1. This is an appeal by the defendant Lala Bhondu Mal against whom the plaintiff's suit for a declaration that the preliminary decrees in suits Nos. 74 and 75 of 1927 of the Court of the Subordinate Judge of Meerut, dated 21st April 1928, and the final decrees, dated 14th December 1929, Lala Bhondulal Mal v. Amir Mirza and Ors., are null and void and ineffectual as against the plaintiff, has been decreed by the trial Court. It appears that Lala Bhondu Mal brought two suits, Nos. 74 and 75 of 1927, against several persons on the basis of certain mortgage-deeds. The defendants to those suits-were the heirs of the original mortgagor, and Thomas Skinner, the plaintiff in the present suit, who was impleaded as a subsequent pre-emptor of a portion of the mortgaged property. The suits were decreed; preliminary decrees were passed on 21st April 1928 and final decrees were-passed on 14th December 1929.
2. Thomas Skinner instituted the present, suit on 13th April 1931 with Mr. James-Skinner as his next friend. The allegation was that Thomas -Skinner was of unsound mind and by reason of such unsoundness and mental infirmity was incapable of protecting his interests at the time when the above-mentioned suits were instituted by Lala Bhondu Mal, and as no one was appointed his guardian during the pendency of the suits, the decrees obtained by Lala Bhondu Mai were mere nullities-It has been found by the Court below that Thomas Skinner was a lunatic and of unsound mind when the former suits were instituted, and on that finding the plaintiff's suit has been decreed.
3. In appeal before us it is contended that, the finding of the Court below on the question as to whether the plaintiff was of unsound mind in 1927, when the suits were instituted, is not supported by the evidence on the record. Our attention has been drawn to the fact that Thomas Skinner instituted a suit against one Bhullu on 2nd. September 1927 without a next friend, that another suit was instituted against him Suit No. 100 of 1927 Bank of Upper India v. Thomas Skinner and Ors. without the appointment of any guardian for Thomas Skinner, that another decree was obtained by Thomas Skinner against Nasi Khan and others on the basis of a suit instituted on 25th April 1928 without the appointment of any next friend and that on 16th August 1928 Thomas Skinner executed a sale-deed in favour of Robert Hercules Skinner, presumably as a person of sane mind, because there is nothing either in the indenture of the sale-deed or in the registration endorsement to show that anybody acted on behalf of Thomas Skinner. Over and above this, it is pointed out that in suits Nos. 74 and 75 of 1927 a written statement was filed on behalf of Thomas Skinner bearing the latter s signature and a vakalatnama was also executed by him. Prom these circumstances it is argued that Thomas Skinner was capable of protecting his interests and was not of unsound mind at the time when Lala Bhondu Mal instituted suits Nos. 74 and 75 of 1927. As against this evidence, we have the statement of Lt. Col. Overbeck-Wright and Dr. Mitter who say that Mr. Thomas Skinner was suffering from chronic mania prior to the year 1926, and that this mental condition has been continuing up till the present time. Both of them depose that it was unlikely that Mr. Thomas Skinner had any periods of lucid interval. We also know that in March 1926 Thomas Skinner was admitted in a lunatic asylum on the certificates of two medical practitioners and remained there till 1st December 1926 when he was discharged on sureties being offered by some of his relations, but he had to be admitted again on 24th September 1929, and Thomas Skinner is there even now.
4. It is argued that Thomas Skinner was in a fit condition to manage his affairs from about 1st December 1926 to some time in September 1929 before his reincarceration in the lunatic asylum, but the evidence of the two medical practitioners, Dr. Mitter and Lt. Col. Overbeck-Wright is to the contrary. Their evidence was believed by the Court below, and after a perusal of the same (we might point out that the evidence has not been printed, but we have examined it in the original) we also are satisfied that it is impossible to hold that during the entire pendency of the earlier suits from 25th May 1927 up till 21st April 1928 and then up to 14th December 1929, Thomas Skinner was of a sane mind and capable of conducting his affairs. It may be pointed out that he was admitted into the lunatic asylum for the second time on 24th September 1929, and the final decrees, which are only a continuation of the suits, were passed on 14th December 1929. The stray acts to which our attention has been drawn by learned Counsel for the appellant do not satisfy us that Thomas Skinner had any sufficiently long period of lucid interval. Suits might have been instituted on his behalf on the instructions of his son and relations without any protest by the other side, and the mere fact that no mental infirmity was noticed at the time of the execution of the sale deed of 16th August 1928 will not carry the case of the appellant very far in connexion with the. question under discussion, because after all the defendant has got to prove in the present case that during the pendency of the earlier suit Thomas Skinner was in a position to protect his interests.
5. Mr. Zaidi who appeared for Thomas Skinner in suit No. 75 of 1927 has deposed that the written statement and the vakalatnama in that suit were not signed by the plaintiff in his presence and that the plaintiff's son used to give him instructions. He himself did not meet the plaintiff during the course of the suit, and therefore the mere fact that nobody told him on his behalf that he was insane does not prove that the plaintiff was of a sound mind capable of protecting his interests. Another witness, Eai Sahib Damodar Das, examined on his behalf deposed that the mind of Thomas Skinner used to become unbalanced and the witness could not say on what occasions he was of unsound mind and when he was quite well. The evidence of these two witnesses is not sufficient to counterbalance the evidence produced on behalf of Thomas Skinner in the present, case.
6. It was then argued that Order 32 is the-order of the Code of Civil Procedure which, regulates suits by minors and persons of unsound mind, and Rules 1 to 14 are applicable by reason of Rule 15 to persons who are either adjudged to be of unsound mind or persons who are found by the Court on enquiry to be incapable of protecting their interests by reason of unsoundness of mind or mental infirmity, when suing or being, sued, and that in the present case, as Thomas Skinner was never adjudged to be of unsound mind, the earlier provisions, which say that where the defendant is a person suffering from a disability the Court shall appoint a proper person to be-the guardian for the suit, will not apply. We do not read the rule in the way in which learned Counsel for the appellant wants us to read it. The rule says that all the provisions contained in Rules 1 to 14 shall extend to persons adjudged to be of unsound mind and to persons who, though not so adjudged, are found by the Court on enquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. In the present case the Court on enquiry has found that Thomas Skinner was incapable of protecting his interests when suits Nos. 74 and 75 of 1927 were instituted, and if the Court had made an enquiry when the former suits were instituted it would have found that Thomas Skinner was of unsound mind and incapable of protecting his interests.
7. Lunatics are under the peculiar probation of the Court, and from the mere fact that by reason of the ignorance of the Court no enquiry was made, the decrees passed in the earlier suits cannot be said to be binding on the lunatic. Where, through the ignorance of the Court, the Court assumes jurisdiction over a lunatic the, proceeding is a nullity, and this was the view taken by the Calcutta High Court in Hakimullah v. Nobin Chandra Barau A.I.R. 1915 Cal. 19. If therefore an enquiry had been made, it is obvious that by reason of the application of Rule 3 it would have been the duty of the Court to appoint a proper person to be the guardian for the suit for such lunatic. There is abundant authority for the proposition that in the case of a minor the decree passed against him without the appointment of a guardian is a mere nullity and not binding on him. We might mention the case in Champi v. Tara Chand A.I.R. 1924 All. 892, and by parity of reasoning the decree passed against a lunatic without the appointment of a guardian is equally a nullity. We are therefore of the opinion that the view taken by the Court below is correct. The lunatic so aggrieved is not confined to the solitary remedy by way of review only he can through his next friend institute a suit for a declaration that the former decree passed without the appointment of a guardian is not binding on him.
8. It was then contended that the defendant should not have been made to pay 'the costs of the plaintiff in the Court below. It appears that James Skinner was one of the defendants in the earlier suits instituted by Bhondu Mal, and neither he nor any other relation of Thomas Skinner -who was impleaded as a defendant in the (former suits, brought the fact of Thomas "Skinner's lunacy either to the notice of the Court or to the notice of Lala Bhondu Mal, and it is not shown that Bhondu Mal was apprised of the fact in any other way and omitted deliberately to ask for the appointment of a guardian. The present suit has been instituted with James Skinner as the next friend, and we think that in common fairness he ought to have told the Court on the former occasion that his relation, Thomas Skinner, who was a defendant in the suit, was of an unsound mind. In the circumstances of the case James Skinner, who has acted as the next friend of Thomas Skinner in the present suit, is not entitled to any costs in the trial Court, and we modify the decree of the Court below to this extent that we direct the parties to pay their own costs in the original Court. With this modification the appeal is dismissed, and the respondent will get three-fourths of his costs from the: appellant of this appeal and the appellant will bear his own costs.