JOHARA BIBI Vs. MOHAMMAD SADAK THAMBI MARAKAYAR

JUDGEMENT

(1.) THESE two appeals are against the orders of the learned Subordinate Judge of Ramnad at Mathurai setting aside an award passed by the arbitrators in O.S. No. 16 of 1946. O.S. No. 16 of 1946 was filed by the plaintiffs for partition and separate possession of their share in the properties belonging to the estate of one deceased Mukkani Muhammad Abdulla Marakayar. First plaintiff is the widow and plaintiffs 2 and 3 are the sons of one of the deceased sons of Muhammad Abdulla Marakayar. Plaintiffs 2 and 3 are minors and are represented by their mother, the first plaintiff. The first defendant is the widow of the propositus, the second defendant is the daughter and the third defendant is the surviving son of the said deceased Muhammad Abdulla Marakayar. The rest of the defendants, defendants 4 to 10 are the heirs of another deceased son of the said Muhammad Abdulla Marakayar. The three schedules attached to the plaint set out the immovables, movables and the outstandings respectively belonging to the deceased. The second defendant who is the daughter of the deceased claimed one item of the properties mentioned in schedule I to the plaint as her exclusive stridhana property. The third defendant claimed items 1, 4 and 5 of schedule 1 as his separate properties. Defendants 3 and 5 claimed several items of the first schedule as the separate properties of the third defendant and the son of the fifth defendant. There was also dispute between the parties in regard to the outstandings mentioned in the third schedule to the plaint. The plaint also set out the shares that each party was entitled to, but it must be stated that the shares so set out were not quite correct and not in accordance with the Muslim law governing the parties. On the pleadings, several issues were framed in the suit. The suit was posted for trial and after several adjournments, the parties wanted to settle their disputes outside the Court. Five persons were appointed as . Panchayatdars by the parties and in February 1947 all the parties executed a muchilika in favour of the said Panchayatdars, which is marked as Ex. D-l in the suit, dated 17th February 1947. Representations were made to the Court that the parties desired to have the matter settled through arbitration and when the matter stood adjourned to the 29th March 1947, the parties put in an application I.A. No. 145 praying to the Court that the matter might be referred to the five Panchayatdars in whose favour the parties had already executed a muchilika. Thereupon, the learned Subordinate Judge referred the matter to the said five arbitrators and directed that the award should be returnable on the 5th April 1947. After some extensions of time for the return of the award, the suit was posted to the 26th June 1947 and on that day the award was filed by the arbitrators but it was signed only by four of them out of the five.

(2.) DEFENDANTS 2 and 3 who were not satisfied with tke award filed I.A. Nos. 209 of 1947 and 210 of 1947 respectively seeking to set aside the award on several grounds. All these grounds were gone into by the learned Subordinate Judge who has discussed them at great length in his order dated 27th October 1947 and finally set aside the award upholding the contentions of defendants 2 and

(3.) IN this connection, Mr. Gopalaswamy Aiyangar also invites our attention to the terms of the muchilika, Ex. D-l, wherein it has been expressly provided by the signatories that the parties to the muchilika would be bound by any decision the arbitrators may give either unanimously or by a majority in regard to their properties irrespective of the excess or the deficiency in regard to the allotment and also that the parties would be bound by any decision the arbitrators may give even without reference to the parties. Relying on this Mr. Gopalaswami Ayyangar argues that even if it were contended that the decision of the arbitrators was not unanimous, still under the terms of the muchilika the majority decision has to prevail and the parties must be deemed to be bound by it. There is considerable, force in this contention, for even if we interpret the act of one of the arbitrators to amount to a refusal to abide by the decision of the rest of the arbitrators under the terms of the muchilika executed by the parties, the parties must be held to be bound by the decision of four of the arbitrators out of the five. It will therefore be not open to the respondents to question the award on the ground that it is not the unanimous decision of the five arbitrators, because the muchilika itself contemplates that if there is no unanimity, among the arbitrators, the majority decision should prevail. So on this ground also there is no foundation for the lower Court to reject the award for the reason that it is not signed by all the five arbitrators appointed by the parties.