Coutts Trotter, J.
1. In this case the suit was brought for partition, the plaintiff being a person who had bought the 2nd defendant's share in some property at a Court-sale in ]905. The 2nd defendant is stated in the plaint in terms to have been insane at the date of those proceedings, and it is found by the learned Judge on the evidence that he was insane at the time of the sale in 1905. It is argued, therefore, on behalf of the defendants that, that being so, the Court-sale in 1905 was a nullity and passed no property to the purchaser. For the purchaser it is argued that it is at the most voidable and can only be set aside in proceedings specially instituted for that purpose and if not set aside by proceedings under Section 311 of the old Code, corresponding to Order XXI, Rule 90, of the new Code, it cannot be set aside by a side wind by way of defence to a separate suit. When the sale took place, the old Code was in force. By Section 463 of that Code it was enacted: The provisions contained in sections 440 to 462' (those are provisions relating to infants whether plaintiffs or defendants) shall, mutatis mutandis, apply in the case of persons of unsound mind, adjudged to be so under Act XXXV of 1858, or under any other law for the time being in force.' So that apparently it was confined in terms to the case of persons of unsound mind adjudged to be so by proceedings in a Court of Law. But the extreme inconvenience of that very soon became manifest and accordingly the Calcutta High Court in Uma Sundari Dasi v. Ramji Haldar 9 C.L.R. 13 proceeded to extend it by drawing analogies from the English Law and Procedure; they proceeded to state that they must regard the principle of guardians ad litem being appointed for an infant as applying also to a lunatic even though not so adjudged. From that time similar decisions have been given in Bombay [See Tukaram Anant Joshi v. Vithal Joshi 13 B.d 656 and the Allahabad High Court and this Court also followed suit in the same direction. That being so, the position is this : that the position of a lunatic under this provision of the Civil Procedure Code must be regarded as being substantially that of a minor, whether he is a lunatic so found by proceedings in a Court of Law or merely one established to be in fact such. By the law of India, it is quite clear that the contracts of persons of unsound mind, like the contracts entered into by minors, are not voidable merely but are void. This, of course, is not a case of contract, it is a case of execution proceedings. But it seems to me that the respondent has an absolutely complete chain of argument. The way he puts it is this. In Khiarajmal v. Daim 32 C.s 296 it was held that where a minor was sued without a guardian ad litem being appointed, the decree and the Court-sale that took place in execution of the decree were absolutely null and void, because in the absence of the proper representative of the minor the Court had no jurisdiction at all. That case distinguished the case of Malkarjun v. Narhari 25 B.d 337 which is relied upon by the other side. The distinction, I think, is very clear and unmistakable, because all that happened in Malkarjun v. Narhari 5 C.W.N. 10 : 2 Bom. L.R. 927 was this; the Court which had to decide the matter broughton somebody as the legal representative of a deceased person, who, it was proposed subsequently to say, was not the legal representative. The Privy Council held that that was one of the preliminary matters which the Court had to decide to give it jurisdiction and it did not deprive itself of the jurisdiction because it happened to make a mistake. On the other hand the case of Khiarajmal v. Daim 1 C.L.J. 584 was not a case of appointing as guardian a person who ought not to have been appointed as guardian. Had such a person been appointed, the fact that the Court made a mistake as to the right person to be appointed would not prevent the usual consequences following. But there was no guardian appointed at all, and, therefore to all intents and purposes the minor was not really a party to the suit and that being so, their Lordships held that the Court had no jurisdiction. It is sought to distinguish that case by saying: 'Oh well here in this case there is no evidence that the man was insane at the time of the decree and we are entitled to assume he was sane, and if the decree is all right, the matter will not be made any the worse by the fact that subsequently when the sale came on he happened to be insane.' That is completely answered by Rashid-un-nissa v. Muhammad Ismail Khan 3 Ind. Cas. 864 : 10 C.L.J. 318: 11 Bom. L.R. 1225. In that case the suit was brought to declare the nullity of a sale in execution. There they agreed that there was a perfectly good judgment against the deceased person during his lifetime but the proper parties were not added before the sale. It seems to me that completes the chain in the case of the respondent. I need only add this, that the view that I am taking as to the effect of the decisions of the Privy Council in Malkarjun v. Narhari 5 C.W.N. 10, Khiarajmal v. Daiin 32 C.d 296 and Rashid-un-nissa v. Muhammad Ismail Khan 3 Ind. Cas. 864: 31 A.d 572 : 6 A.L.J. 822 seems to accord with that taken by the present Chief Justice in Pasumarti Payidanna v. Ganti Lakshminarasamma 29 Ind. Cats. 314in which the learned Chief Justice examines all these cases and comes to a conclusion with which I believe this judgment is in complete accordance. I think, therefore, the appeal fails and must be dismissed with costs.
Seshagiri Aiyar, J.
2. I entirely agree. It is now settled law that the provisions of the old Code of Civil Procedure apply to persons adjudged to be of unsound mind under Act XXXV of 1858 as well as to those who are not so adjudged. See Kadala Reddi v. Narisi 24 M.d 504 and the cases cited therein. Consequently the provisions of Chapter XXXI of Act XIV of 1882 apply to the case of a person who is a lunatic, although he has not been so found on enquiry and although no committee has been appointed for him. An attempt was made to draw a distinction between suits in which a lunatic has been implead-ed and to whom no guardian was appoint-ed, and proceedings in execution where a similar thing has happened. I am unable to see reason for any distinction between these two classes of, cases. Chapter XXXI applies to suits as well as to execution proceedings. So also does Order XXXII of the present Code. Therefore, if a decree passed against a lunatic who has not been properly represented is a nullity, I fail to see how a sale effected againsta lunatic who has not been properly represented can stand in a different position. The decision in Malkarjun v. Narhari 5 C.W.N. 10 was very much relied on by Mr. Shenai. My learned brother has pointed out how that case has been distinguished by the Judicial Committee in subsequent cases. It seems to me that that case was altogether different from the one we have to deal with. In that case the Court came to a conclusion after contest that a particular person was the legal representative of the deceased judgment-debtor. The Judicial Committee pointed out that persons who have been parties to the decision of a Court ought not to be heard to say in subsequent proceedings that all that followed upon that pronouncement by the Court was without jurisdiction, that is to say, that proceedings taken in consequence of this pronouncement by the Court that a particular individual was the legal representative were legal and were within the competency of the Court. But that has no bearing upon a case where a party is put forward as the legal representative who is not really the legal representative, or where the parties do not choose to appoint a proper guardian for a minor or a lunatic. In the case of a minor it is now settled that if no guardian has beenappointed for him, the sale in execution should be regarded as a nullity. The latest case on this point is Pasumarti Payidanna v. Ganti Lahshminarasamma 29 Ind. Cas. 314 : 28 M.L.J. 525 The observations of Subramania Aiyar, J., in Narayana Kothan v. Kalianasundaram Pillai 19 M.d 219 were relied upon by the appellant. The learned Judge seems to have observed that a sale against a lunatic who has not been properly represented by a guardian would only be voidable. The learned Judge's view was to a certain extent in accordance with the view taken in England that a transaction by a lunatic is voidable and not void. But in this country the same principle applies to a lunatic as to an infant under Section 11 of the Indian Contract Act; and as pointed out in Machaima v. Usman Beari 17 M.L.J. 78 and Lakhya Dasya v. Umdkanto 14 C.W.N. 256 transactions by lunatics are absolutely void. Therefore, a lunatic stands in the same position as a minor and applying the analogy of cases in which sales against minors without their being properly represented have been held to be void, I hold that sales against lunatics who have not been properly represented are void, and that there is no necessity for setting aside the sales; it is open to the defendant to plead that as the sale was void no property passed to the plaintiff and that he is not entitled to recover possession. I, therefore, agree that the second appeal should be dismissed with costs.