S.S.SANDHAWALIA, J.

1. Whether a party to the suit has the right to put the soundness of mind of the opposite party (not already adjudged to be of unsound mind) in issue and claim an enquiry therefor under O.35 R.15 of the Civil P.C. is the somewhat ticklish question arising in this civil revision, which has necessitated this reference to the Division Bench.

2. The facts are not in serious dispute. The plaintiff opposite party had instituted the title suit for partition of her one-fourth share in the suit properties, wherein she later brought an application for an injunction. It would appear that a detailed show cause was filed on behalf of the defendant petitioner against the said application and in paras 33, 34 and 35 thereof a stand was sought to be taken that the plaintiff had lost her mental powers and was unable of protecting her legal interests and, therefore, the suit should have been brought by her next friend. Later a cryptic application purporting to be under O.32 R.15 of the Civil P.C. was brought on behalf of the defendant petitioner claiming that unless an enquiry is made with regard to the mental capacity of the plaintiff the suit could not proceed any further.

3. The matter came up before the learned Subordinate Judge below on the 16th April, 1982 when the sole plaintiff Shrimati Radha Pyari Devi was present. The court apparently questioned her to test her mental capacity and found her to be of wholly sound mind and in no way incapable, by reason of any mental infirmity, of protecting her legal interest. Consequently he rejected the application and proceeded to try the injunction matter. Aggrieved by the said order, the present civil revision petition has been preferred, which originally came up before my learned Brother B. P. Jha sitting singly. Noticing the significance of the issue involved, the matter was referred to the Division Bench.

4. Mr. Ghose appearing for the petitioner first claimed that there was an inherent right in a party to the suit to question the soundness of mind of the other party. It was the stance that unless it is so done, the party will be at the risk of losing the fruits of litigation if later on it was discovered that one of the parties was of unsound mind. Consequently the stand was that the issue of the soundness of a partys mind, if raised, must be tried as a preliminary issue before proceeding further. In any case the contention was that there must be a regular enquiry under O.32 R.15 which would envisage the right of the parties to the suit to lead evidence and the examination of expert witnesses etc. According to the learned counsel, the application preferred by the petitioner could not be summarily disposed of by the trial court on the question of the mental capacity of the plaintiff opposite party. Reliance was placed on Rami Reddi V/s. Papi Reddi AIR 1963 Andh Pra 160, Ramgobind Singh V/s. Sital Singh AIR 1926 Pat 489, and Papi Reddi V/s. Rami Reddi AIR 1969 Andh Pra 362.

5. The true import of R.15 can be best arrived at after noticing the broad scheme of Order 32. This deals compositely with suits by or against minors and persons of unsound mind. The preceding Rr.1 to 14 are by and large couched in language pertaining primarily to the case of minors. However, R.15 makes the preceding Rr.1 to 14 barring R.2A apply to persons of unsound mind mutatis mutandis. It must be borne in mind that Rr.1 to 14 do not necessarily become applicable in their full strictitude to the cases of persons of unsound mind because of the express language employed in R.15 to the effect that they would apply in so far as may be. Since the issue herein must primarily turn on the language of R.15, the same may be first read :

"15. Rules 1 to 14 (except R.2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason o