( 1 ) THIS is a plaintiffs appeal from the decree of the Additional Civil Judge of Banda dismissing his suit for the specific performance of an agreement for the sale of three houses and four shops situate in the City of Banda. The parties are residents of that city. The plaintiff Bholanath was a minor both at the time of the execution of the alleged agreement of sale and the filing of the suit. The defendant Balbhadra Prasad is admittedly the owner of the property in dispute. The plaintiff alleged in his plaint that on the 4th of March 1948 the defendant promised to his father and guardian that he would execute a sale deed of the property in one month and simultaneously executed a written agreement incorporating his promise. The plaintiff complained that the defendant afterwards went back on his promise and his father had to serve a registered notice on the first of April 1948 requiring him to execute the sale deed in terms of the agreement, but the defendant did not do so. Finally another registered notice was served on the defendant on 5th january 1951 which was also of no avail; thereupon the plaintiff filed the present suit. He asked for a decree for specific performance and: in the alternative for the refund of a sum of Rs. 500/alleged to have been paid by the plaintiffs father to the defendant as earnest money.

( 2 ) THE suit was resisted by the defendant who filed a written statement under the guardianship of his wife. It was alleged that the defendant had been a person of very weak intellect since childhood and had been of unsound mind long before 1948. It was denied that the defendant executed any deed as alleged by the plaintiff or received any amount as earnest money ft was further con tended that the written agreement was obtained by the plaintiff by fraud and therefore invalid. The defendant also alleged that it was without consideration.

( 3 ) BOTH parties led evidence. The plaintiffs father deposed that the agreement was executed in his presence and he paid Rs 500/- as earnest money to the defendant. He was subjected to a long cross-examination during which he admitted that he was the defendants uncle-in-law. He further conceded that though there was an entry recording the payment of Rs. 500/- in his account book, he had not produced it in Court and explained this omission as due to the advice of his counsel. His other two witnesses for proving the agreement are Kamta Prasad and Patan Lal.

( 4 ) THE Civil Surgeon of Banda Dr. Radha Mohan D. W. 2 deposed that he examined the defendant on 22nd July 1951 and found that his behaviour was abnormal and he formed an opinion that he was mentally defective. This opinion, he explained, was based on the fact that the defendants answers to his questions were not intelligent. He also deposed that when he went to examine Balbhadra Prasad he was sleeping on his Chabutra but on being woken up he tried to run away. The defendants wife Smt. Mannu D. W. 4 deposed that she had been married to him for fourteen years and that his behaviour was not that of a normal person. She related several instances and a large number of facts in support of her opinion of her husbands abnormal mental condition. Other witnesses on behalf of the defendant deposed that the property which the defendant is alleged to have agreed to sell for Rs. 11,000/- was worth double that amount. The learned Judge came to the conclusion that the defendant was not of sound mind when he executed the agreement and also disbelieved the plaintiffs story that he had paid any sum as earnest money. Accordingly he dismissed the suit and the plaintiff has come to this Court in appeal.

( 5 ) WE have read the entire evidence and also heard the counsel for the parties. Learned counsel for the appellant argued that the finding of the trial Court that the defendant was of unsound mind at the time of the agreement is erroneous and that he had misunderstood the meaning if the phrases "sound mind", "unsound mind" in Sectio