( 1 ) THE question before the Court is whether a guardian ad litem should be appointed for Respondent no. 4, namely, Shri Brahm Prakash Goel, who has filed IA no. 9693/1999 invoking the provision of Order XXXII Rules 3 and 15. It has been prayed that the Wife of Shri Brahm prakash, namely, Mrs. Meena Goel be appointed as his guardian ad litem. The first thing to be noticed is that this application has been proffered after a passage of over one decade since the filing of Probate Petition no. 10/1987. It may also be recorded that Shri Brahm prakash had earlier filed IA No. 10110/1998 praying that he be permitted to withdraw his No-Objection to the grant of Probate.

( 2 ) A person may not be adjudged as of unsound mind yet the Court may nevertheless consider it appropriate to appoint a guardian ad litem under Order XXXII Rule 15. However, the Court is not bound to make a rigorous or formal inquiry as contemplated by the Lunacy Act, and is competent to pass an order as soon as it is satisfied as to the party s mental competence. There is a vast difference between mental unsoundness and incapacity by reason of mental infirmity, the latter being of a lesser degree. The Collins/cobuild English Dictionary defines "infirm" as weak or ill and usually old. The Concise oxford Dictionary states that "infirm" refers to a person who is not physically strong, especially through age. In black s Law Dictionary "infirm" has been defined as - weak, feeble, lacking moral character or weak of health. Incapacity has been defined in the same treatise as want of legal ability of act. A person suffering from a low intellectual quotient (IQ) may not be viewable as of unsound mind, but there can be no gainsaying that he would be incapable of protecting his interests in a litigation. The Mental Health Act, 1987, in Section 2 (l) defines mentally ill person as one who is in need of treatment by reason of any mental disorder other than retardation, thereby drawing a distinction between these states of health. Respondent No. 4 would not be of unsound mind but there is no manner of doubt that he is incapable of protecting his interests in the litigation by reason of his infirmity and infliction of an abnormally low IQ. The parents of the parties recognized his mental impairment as is amply evident from the fact that a Trust was allegedly established by their mother. The Petitioner must have been aware of the advisability of having a guardian appointed for him. The Petitioner certainly gained from the situation in that he had dominion and control over the properties bequeathed to Respondent no. 4. The Petitioner failed to take the precaution of filing an application under Order XXXII Rule 15. In kasturi Bai and others vs. Anguri Chaudhary, AIR 2003 SC 1773 the Hon ble Supreme Court has opined as follows:- 10. Order 32, Rule 15, C. P. C. reads thus:

"15. Rules 1 to 14 (except Rule 2-A) to apply to persons of unsound mind.-- Rules 1 to 14 except Rule 2-A 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 inquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued. "11. On a bare perusal of the said provision, it is evident that the Court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but is found by Court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. The respondent did not contend that appellant No. 1 herein is of unsound mind. As noticed herein before, the respondent herself had filed an application before the trial Court for holding an inquiry to the effect that she suffers from mental infirmity. 12. The learned t