JUDGMENT
Iqbal Ahmad, J.
1. This is a defendant’s appeal and arises out of a suit brought by the plaintiff-respondent for recovery of possession of certain zemindari property by cancellation of a deed of gift dated the 15th of July 1920, executed by the plaintiff in favour of the defendant. The plaintiff’s case was that before, at the time and ever since the date of the execution of the deed of gift the plaintiff was of unsound mind, and the defendant taking advantage of the plaintiff’s unsoundness of mind fraudulently got the deed executed in his favour. The suit was brought by the plaintiff through his wife Mt. Pato as next friend of the plaintiff.
2. The defence to the suit was that the plaintiff was not of unsound mind and that the deed of gift was executed by the plaintiff while he was in full possession of his faculties and that the claim was barred by Section 11 of the Civil P.C. The trial Court did not believe the allegation as to the plaintiff’s unsoundness of mind and further held that the suit was barred by the principle of res judicata and dismissed the suit.
3. On appeal by the plaintiff the lower appellate Court has held that the plaintiff was, at the time of the execution of the deed in question, of unsound mind and incapable of understanding its effect, and that the suit is not barred by the principle of res judicata, and on these findings has reversed the decree of the trial Court and has decreed the plaintiff’s suit. Obviously the finding of the lower appellate Court on the question of fact cannot be challenged in second appeal and has not been challenged by the learned Counsel. But the learned Counsel argues that the plaintiff was equitably estopped from maintaining the present suit. This argument is based on the following facts. Prior to the suit giving rise to the present appeal a suit was filed by Mt. Gajraji, daughter of, and by Mahabir daughter’s son of, the present plaintiff-respondent, for cancellation of this very deed of gift against the defendant-appellant on the very ground on which the validity of the deed has been challenged by the plaintiff-respondent in the present suit. In that suit Mt. Pato was the next friend of the two plaintiffs named above. Both the plaintiff respondent and the defendant-appellant of the present appeal were arrayed as co-defendants in that suit. That suit was numbered as Suit No. 874 of 1920. In that suit no guardian ad litem of the present plaintiff-respondent (Bhulai Misir) was appointed. Both the donor and the donee, that is the plaintiff-respondent and the defendant-appellant successfully contested that suit and that suit was dismissed. It is urged by the appellant’s counsel that, because the plea that is now being put forward by the plaintiff-respondent, was not put forward by him in the earlier suit in which he was a co-defendant with the donee, viz., the present defendant-appellant, the plaintiff-respondent is not entitled to assail the validity of the deed of gift on the ground that he was of unsound mind at the time of the execution of that deed and in support of this contention reliance has been placed on the case of Nallappa Reddi v. Vridhachala Reddi [1914] 37 Mad. 270. I am unable to agree with the contention of the learned Counsel for the defendant-appellant. The learned Counsel for the defendant appellant admits that the facts stated above do not invite the application of Section 11, Civil P.C. It is further admitted by him that in order that a decision on a certain issue as between co-defendants may operate as res judicata in a subsequent suit in which those co-defendants are arrayed on opposite sides, it is necessary that there should be a conflict of interest between the two defendants, and a determination of the issue arising because of such conflict of interest should be necessary for awarding proper relief to the plaintiff in the suit, and that on the facts of the present case it is not open to him to argue that there was any such decision as between the co-defendants (donor and donee) of the former suit as to operate as res judicata in the present case. But as stated above he says that the plaintiff is equitably estopped from now alleging that he was of unsound mind at the time of the execution of the deed of gift.
4. It is not said that because of any act, declaration or omission of the plaintiff-respondent, the defendant was prevented from putting forward any plea in the former suit that was open to him or that he was in any other way prejudiced. Indeed, the decision in the former case was in favour of the defendant-appellant. The fact that the decision in the former case was in favour of the defendant-appellant is one of the facts that constitutes a distinguishing feature between the present case and the Madras case noted above. Moreover, the decision in the Madras case turned on the peculiar incidence of the relationship of the parties to a contract of indemnity, and no such relationship did exist between the present plaintiff-respondent and the defendant-appellant. As I have stated above, there is nothing to show that the defendant appellant in any way was led to change his position by the omission of the plaintiff-respondent in the former suit to attack the validity of the gift on the ground of his insanity and as such, in my judgment, the plaintiff was not estopped from maintaining the present suit.
5. It is needless to point out that on the findings arrived at by the lower appellate Court there are no equities in favour of the defendant-appellant.
6. For the reasons given above, in my judgment, the decision of the lower appellate Court is perfectly correct and I dismiss the appeal with costs.
