Banerji and Aikman, JJ.
1. The suit out of which this appeal has arisen was brought on behalf of one Nabbu Khan, who is alleged to be a lunatic, by his aunt, Musammat Chhoti, as his next friend. Nabbu Khan has not been adjudged to be a lunatic under Act No. XXXV of 1858, but the Lower Appellate Court has found it to be an admitted fact that he is a lunatic. That Court has, however, held, on the authority of certain rulings to which it has referred, that Section 440 and the following sections of the Code of Civil Procedure are, with reference to the provisions of Section 463, inapplicable to the case of a lunatic not adjudged to be so, and that therefore the aunt is not competent to sue on his behalf as his next friend. On this ground and on another ground, to which we shall refer hereafter, the learned Judge has dismissed the suit.
2. It is contended, in this second appeal which has been preferred on behalf of Nabbu Khan, that the fact that he was not adjudged a lunatic does not render the suit brought by him through a guardian an invalid suit. In our opinion this contention must prevail.
3. By Section 463 of the Code of Civil Procedure the provisions of Sections 440 to 462 are made applicable to the case of persons of unsound mind adjudged to be so. But that section does not, in our opinion, forbid the institution of a suit by a next friend on behalf of a person of unsound mind, who is in fact a lunatic, but has not been adjudged to be so, or the appointment of a guardian ad litem for the purpose of defending a suit brought against such a person. It is true, as held in Uma Sundari Dasi v. Ramji Haldar I.L.R. 7 Cal. 242, that, so long as a person has not been adjudged to be of unsound mind, he cannot be deemed to have lost his civil rights and to be consequently incompetent to sue in his own name. But from this it does not follow that a person who is really of unsound mind, but has not been declared to be so, cannot sue through a next friend or defend a suit through a guardian ad litem. If we were to hold that a person of unsound mind is not entitled to sue by a next friend or defend by a guardian ad litem until he has been adjudged to be a lunatic, serious failure of justice might result. For example, if a trespasser were doing irremediable damage to the property of a lunatic, the interests of the latter could not promptly be protected and the trespass could not be restrained by suit till an adjudication had been obtained that he was of unsound mind. Similarly if a lunatic causes serious injury to another, the latte will not be in a position to sue the lunatic without getting him declared to be so. And if he be allowed to sue the lunatic without; getting a guardian appointed for the suit, the lunatic will be seriously prejudiced, as the fact of his being of unsound mind will prevent him from defending the action. As observed by Bowen, L.J., in Porter v. Porter L.R. 37 Ch. D., 420, at pp. 429 and 430:--'When there is a person of unsound mind, who, although not found to be of unsound mind by inquisition, nevertheless stands in need of the protection or the intervention of the Court as regards his property, real or personal, or as regards any portion of his property, then, supposing he would, if sane, be entitled to the intervention of the Court, a third person, a stranger, may come forward and do that which is clearly for the benefit of the person of weak mind. It is obvious that in the absence of the principal person who is concerned his property ought to be left, as far as possible, and so far as his interest does not render the opposite thing necessary to be done, in the condition in which it was--quieta non movere. But still, if it is for his protection and for his obvious benefit, then the Court ought to interfere to give him, while his senses are sleeping, the same sort of protection to which he would be entitled if his senses were awake and he could act for himself.' These observations state in more forcible terms than we can employ, the reasons which ought to induce a Court to permit; a person of unsound mind, although not adjudged to be so, to sue or defend through his next friend or his guardian ad litem, as the case may be. In our opinion the provisions of the Code of Civil Procedure are not in this respect exhaustive, and we hold that if a person be admitted or found to be of unsound mind, although he has not been adjudged to be so under Act No. XXXV of 1858, or any other law for the time being in force, he should, if a plaintiff, be allowed to sue through his next friend, and the Court should appoint a guardian ad litem where he is the defendant. This was the view of Sargent, C.J, and Birdwood, J., in Venkatramana Rambhat v. Timappa Devappa I.L.R. 16 Bom., 132, and apparently of Jardine and Candy, JJ., in Tukaram Anant Joshi v. Vithal Joshi I.L.R. 13 Bom. 656. In the former case it was held that 'although Section 443 * of the Code of Civil Procedure (XIV of 1882), read with Section 463, does not oblige a Court to appoint a guardian ad litem for a defendant of unsound mind except in the case where he has been adjudged to be of unsound mind under Act XXXV of 1858, still upon general principles and in conformity with the practice of the Court of Chancery, the Court should assign a guardian ad litem for the defendant if it finds on inquiry that he is of unsound mind so as to be unfit to defend the suit.' In the lafcfcer case the learned Judges seem to have been of opinion that, irrespective of the provisions of Chapter XXXI of the Code of Civil Procedure the next friend of a person of unsound mind not so adjudicated could maintain a suit, if, having regard to the nature of the suit and the principles of equiby as applied in the practice of tribunals,' such an action could be brought by a next friend. In the particular case before the learned Judges they referred to the rule stated in Daniell's Chancery Practice, 6th Edn., Vol. I, p. 116, on the authority of Halfhide v. Robinson L.R. 9 Ch. 373, namely, that 'if the object of the action is to deal with the real estate of a person of unsound mind (as an action for partition or for sale in lieu thereof) the action cannot be brought by a next friend,' and held that the suit, which was one for a partition of ancestral property, could not be maintained by the next friend of the lunatic. It has, however, been decided in the later case of Porter v. Porter L.R. 37 Ch. D. 420, to which we have referred above, that an action which is primd facie for the benefit of a person of unsound mind (e.g., a partition action) may be brought by the next friend (Pope's Law and Practice of Lunacy, 2nd Edn., p. 325). So that the rule on the subject in England is no longer the rule stated in Daniell's Chancery Practice.
4. In Jonnagadla Subbaya v. Thatiparthi Senadala Buthaya I.L.R. 6 Mad., 380, all that was decided was that a guardian ad litem for a defendant who has not been declared to be a lunatic under Act No. XXXV of 1858 cannot be appointed under Chapter XXXI of the Code of Civil Procedure. We are, however, of opinion, for the reasons sbated above, that upon general principles, and irrespective of the provisions of that chapter, a person of unsound mind, although not adjudged to be so, may sue by a next friend, and that a guardian for the suit for such a lunatic may be appointed by the Court.
5. In the case before us the claim is to recover possession of property alleged to belong to the lunatic Nabbu Khan which has been sold by his brothers. Such a suit is for the benefit of the lunatic, and could, in our opinion, be brought by his next friend. The Court below has erred in dismissing it on the ground that it could not be so brought. The Lower Appellate Court has also held the suit to be untenable on the ground that the sale was a bona fide one for adequate consideration, and that the plaintiff did not offer to pay a proportionate part of the purchase money. In our opinion this was not a valid ground for dismissing the suit. The learned Judge ought to have found whether the lunatic had benefited by the sale. If he had not, the mere fact of the purchaser paying full value would not give him any title to the share of the lunatic, which the brothers of the lunatic had no right to sell, nor would that entitle the purchaser to a proportionate share of the purchase money. Moreover, if it be found that the plaintiff, lunatic, benefited by the sale, that would not entail a dismissal of the suit, but the decree for possession should be made conditional upon his making restitution to the purchaser.
6. We allow the appeal, and, setting aside the decree of the Lower Appellate Court, remand the case to that Court under Section 562 of the Code of Civil Procedure, with directions to readmit it under its original number in the register and to try it on the merits. Costs here and hitherto will abide the event.
*[Section 443:--Where the defendant to a suit is a minor, the Court, on being satisfied of
the fact of his minority, shall appoint a proper person to be
Guardian ad litem to be guardian for the suit for such minor, to put in the defence for
appointed by Court. such minor, and generally to act on his behalf in the conduct
of the case.
A guardian for the suit is not a guardian of person or property within the meaning of the Indian Majority Act, 1875, Section 3. ]