SANTA SILA DEVI Vs. DHIRENDRA NATH SEN

JUDGEMENT

(1.) THIS is an appeal by special leave against the judgment of the Court of Calcutta affirming the decision of a Single Judge of that Court refusing to set aside the award of an arbitrator dated 27/05/1955.

(2.) ONE Hemendra Nath Sen, father of the second appellant, died intestate in 1929 leaving his widow Premtarangini Debi and 8 sons. Respondents 1, 2, 3, 4, 6 and 7 are the brothers of the 2nd appellant. The 5th respondent is the widow of a deceased brother who died in 1933 while the 8th respondent is the wife of the 2nd respondent. The 1st appellant is the wife of the 2nd appellant. The parties were governed by the Dayabhaga School of Hindu Law. Hemendra Nath lest considerable properties and on his death disputes arose between his several heirs but by an agreement dated 31/01/1933 these were settled. By then one of the sons the husband of the 5th respondent had died leaving a widow (the 5th Respondent) and these viz., the widow, the 7 sons and the widowed daughter-in-law entered into this agreement by which the properties left by the deceased were partitioned among them. Broadly stated the agreement specified the shares of the 9 parties thereto as equal i.e. one ninth each, with however the two widows being allotted their respective shares for their life as for their maintenance. There was also a provision that in regard to a glass factory the 2nd appellant was to have a 5 annas share. the rest of the members dividing the balance of the 11 annas (presumably be cause the 1st appellant's money went in for the initial capital for starting the concern) till certain specified contingencies occurred. Fresh disputes, however arose between the parties and by a formal agreement dated 11/05/1953 they set out those disputes between themselves and agreed to refer the same to the sole arbitration of Dr. Radha Binode Pal - an eminent lawyer and jurist of Calcutta. As the terms of reference have some relevance to the points urged before us in the appeal it would be convenient to set them out. It read:

(3.) BEFORE the High Court a very large number of objections were taken to the validity or legality of the award and they have been elaborately considered and dealt with by the Judge of first instance and by the appellate Bench. Most of these, however, were not repeated before us and Mr. Pathak - learned Counsel for the appellants intimated that he would press only three of the grounds: (1) That all the disputes which had been referred to the arbitrator had not been disposed of by the award, and that for this reason the award was incomplete and had to be set aside. He submitted that there was this incompleteness in respect of three matters (a) the award had given no direction regarding the rendition of accounts and profits with reference to a lease of the Glass Works Ltd. which the award had declared was invalid and not binding on the Company in which all the shares were owned by the parties (b) the parties had specifically required the arbitrator in their agreement of reference that he should give directions as regards the future management of the Glass Co., but the award had failed to comply with this request (c) there was an allegation made in the reference, and as regards which evidence was led before the arbitrator, as to misappropriation of moneys by the 6th respondent. The arbitrator had not specified in this award as to whether this allegation of misappropriation had been made out or not, nor had he given any direction in regard to the matter. These rate to the head of objections touching the incompleteness of the award. (2) The second ground urged was this: This award had directed' that a piece of land situated at Ketugram in the district of Burdhwan be allotted to the 7th respondent in trust for sale for meeting the costs and charges of filing the award and other Court proceedings in reference thereto and to distribute the balance remaining after meeting the said costs and charges, equally between himself and 6 others named. Learned Counsel urged that it was beyond the power of the arbitrator to have created this trust of the property in dispute. (3) The values of the several items of property were specified in the award and the division effected was on the basis of this valuation. Learned Counsel urged that the arbitrator failed in his duty in not valuing the properties himself but had adopted the values suggested by one or other of the parties.