(1) This is a plaintiff™s appeal in a suit for declaration that the sale deed registered on 18th of Maghar, 2004 by defendant No. 1. Uttam Nath in favour of the contesting defendants is null and void as the executant being congenitally insane was a person of unsound mind. The plaintiffs case was that Uttam Nath was the full brother of the appellant but as he was congenitally insane, he was excluded from inheritance and the entire property was inherited by the appellant who was in possession of the same. By a sale deed registered on 18th Maghar, 2004 Uttam Nath sold the entire property consisting of 23 Kanals and 10 Marlas in village Khaniyar in favour of the contesting defendants. The plaintiff further avers that inspite of the sale deed, the plaintiff was in possession of the entire lands in dispute and that certain persons taking advantage of the insanity of his brother got various sale deeds and transfers executed by him.

(2) The suit was contested on the ground that the defendant Uttam Nath was not a person of unsound mind but was a fully same person capable of looking after his interest and had been managing his properties as a prudent owner and that the sale deed was for consideration and further that the possession of the properties in dispute was delivered to the vendee on the execution of the sale deed. The trial Court negatived the plea of insanity taken by the plaintiff and accordingly dismissed the suit. On appeal to the District Judge Srinagar, he affirmed the finding of the trial court on the plea of insanity but gave a declaration that the sale deed would be void to the extent of one half share in 23 kanals and 10 marlas which legally belonged to the plaintiff. Hence this second appeal. I might mention here that before the court below the passing of consideration was not challenged by the plaintiff although this was disputed in his plaint. Furthermore, reading the plaint as it stands, the plea of insanity taken by the plaintiff is not that the defendant Uttam Nath was insane at the time of the execution of the sale deed only but that he was insane by birth and was thus disqualified from inheriting the ancestral properties of his father which were inherited by the plaintiff alone who was the sole heir to them after excluding Uttam Nath.

(3) The present litigation has had a chequered career. I understand that several other suits have also been filed with respect to other properties where the plaintiff has taken the self same plea of insanity of defendant Uttam Nath. The plaintiff also averred in his plaint that the court in this case could not go into the question of insanity which having been decided by a court of competent jurisdiction in a previous suit, operated as res-judicata. Both the courts below have, however, negatived this contention of the plaintiff.

(4) Mr. Sunder Lal appearing for the appellant submitted two points before me. In the first place, he has argued that the evidence produced by the plaintiff in this case and the finding recorded by the courts below on the plea of insanity was incorrect and assuming that the evidence did not prove this plea, the question of insanity having been decided by an earlier judgment in a previous civil suit operates as res-judicata. In the second place, it was contended that since the plaintiff was in actual physical possession of the entire properties, the vendor of the contesting defendants had no right to sell any share of a joint property without obtaining partition of the same. I would first take up the contention regarding the plea of insanity.

(5) On the question of resjudicata my attention was drawn to a judgment of the District Judge Srinagar in civil suit No. 5 of 1999, dated 22nd Har, 2000 where it was held that the defendant Uttam Nath had been proved to be mentally infirm and incapable of protecting his interests in the suit. Mr. Lal on the basis of this judgment has strencusly contended that the finding of the District Judge aforementioned operates as res

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