BIJENDRA NATH SRIVASTAVA DEAD Vs. MAYANK SRIVASTAVA

JUDGEMENT

(1.) The question for consideration in his appeal is whether the award made by the arbitrator dividing the movable as well as immovable properties of joint family amongst the six branches of the family is liable to be set aside. The award was accepted by the Civil Court (Vth Additional District & Sessions Judge, Lucknow) and a direction was given for making the rule of the court and for drawing a decree in terms of the award. The High Court, in appeal has set aside the award on the view that the award suffers from mistakes apparent on its face and that arbitrator had committed judicial misconduct in recording the proceedings before him.

(2.) Late Shri Bisheshwar Nath Srivastava, ex -Chief Judge of the Ouch Chief Court, who died on 18 -7 -1938, had six sons, namely, Bhagwati Nath, Bhupendra Nath, Bishwa Nath, Brij Nath, Bijendra Nath and BirendraNath. Smt. B. N. Srivastava did on 22 -9 -1957. Bhagwati Nath died on 8 -2 -1942 and Bishwa Nath died on 27 -10 -1946. After the death of Shri Bisheshwar Nath Srivastava, his eldest son, Bhagwati Nath was looking after the joint family properties as the karta of the joint Hindu family and after his death, Bhupendra Nath, the second son of Shri Bisheshwar Nath Srivastava, was doing so. On 3 -1 -1966, an agreement was entered into between the six branches of the family headed by the six sons of Shri Bisheshwar Nath Srivastava whereby Shri Tribeni Prasad, a retired District Judge, who was the son -in -law of Shri Bisheshwar Nath Srivastava, was appointed as the sole arbitrator to divide the movable as well as immovable properties of late Shri Bisheshwar Nath Srivastava and Smt B. N. Srivastava into six shares according to his best judgment and allot one such share to each of the six parties. By this agreement it was also agreed that money that was needed from time to time by any of the parties to the said agreement and was advanced to him or to by Bhupendra Nath out of the joint family money was out of his or her share in the joint family property and will be deducted from his or her share at the time of partition. It was also stated in the said agreement that all the parties to the agreement have taken certain amounts out of their shares in the joint family property from Bhupendra Nath or otherwise and that these amounts will be deducted from the shares of the parties to the said agreement at the time of partition. Party No. 1 to the said agreement was Bhupendra Nath who signed it for himself and his sons Paresh Kumar (minor), Prabhakar Kumar (minor), Prabhat Kumar and Pankaj Kumar; Party No. 2 were Smt. Savitri Devi wife of Bhagwati Nath (deceased) and Dr. Bireshwar Nath son of Bhagwati Nath (deceased) who signed for himself and his minor son Amitabh; Party No. 3 were Smt. Chandrawati Devi wife of Bishwa Nath (deceased) and Bhuwaneshwar Nath son of Bishwa Nath (deceased); Party No. 4 was Brij Nath who signed for himself and his minor son Ravi; Party No. 5 was Bijendra Nath who signed for himself and his minor son Brijeshwar Nath; and Party No. 6 was Birendra Nath who signed for himself and his minor son, Mayank Srivastava (respondent 1 herein).

(3.) Before the arbitrator a paper bearing No. 104/37 -Kha was filed on 21 -7 -1966, giving the list of 17 immovable properties as well as the annual rent, municipal assessment and valuation of the same. The said paper contains the signatures of the heads of all the six branches. The arbitrator heard all the parties and afforded them opportunity to produce evidence and made an award whereunder he divided the immovable as well as movable properties in six shares for each of six parties to the arbitration. By the said award the joint family properties were divided as follows: