GADIPUDI SEETHAMMA Vs. GUDIPUDI ANNAPURNAMMA AND ORS.

JUDGEMENT

(1.) WHILE not disagreeing with the lower court regarding its conclusion on issues 1 and 2 decided in favour of the respondents, we think that this appeal can be disposed of on a much shorter ground. The learned Subordinate Judge framed an additional issue as to whether the plaintiff was entitled to maintain the suit pleading the illegality and invalidity of the awards and decrees in O. S. No. 30 of 1942, O. S. No. 297 of 1942 and O. S. No. 701 of 1943. On that issue, the learned Judge after a consideration of Ss. 31, 32 & 33, Arbitration Act of 1940 concluded that the suit was not maintainable. In the view of the learned Judge, the plaintiff was agitating a question which she ought to have agitated by means of the procedure laid down under the provisions of the Arbitration Act. In fact, she is agitating the existence and validity of the reference to the arbitration and the award passed in pursuance of such arbitration. The lower court relied upon the decision in - 'Rashid Jamshed Sons and Co. v. Moolchand Jothajee', : AIR 1945 Mad 371 which has been confirmed in Letters Patent Appeal by a Bench of this Court in Moolchand Jothajee v. Rashid Jamshed Sons and Co.', : AIR 1946 Mad 346. In delivering the judgment of the Bench the learned Chief Justice observes as follows at page 348:

(2.) BUT Mr. Somasundaram for the appellant contends that what the plaintiff relies upon in support of her claim is that the arbitration and the award thereto were based upon fraud, and therefore it should be deemed as if there was no award at all. In such a case the decisions of this court above referred to would not be relied upon. But we find on a reading of the plaint that the plaintiff's case was that she was induced to agree to the reference to the award of the arbitrator, Venkatarao, on the persuasion of S. Janskiramiah that the proposed arbitrator would uphold the validity of the will dated 7 -3 1942 alleged to have been executed by her deceased husband, G. Janakiramiah. It was on that persuasion that she agreed to the reference to the arbitration. Such being the case, we do not think that she has alleged any fraud in the passing of the award or any act on the part of the arbitrator. Even if she was induced by fraud to agree to the award, we do not think that she has a right of suit separately apart from the provisions of the Arbitration Act. What she ought to have done was when she found that the will in her favour was not upheld and that the hopes and aspirations held out to her had not been fulfilled, to have moved the court by means of an application to set aside the award, if such an application would have lain under the provisions of the Act. That a party to reference to arbitration was induced to agree by means of fraud or by some other party is a matter which could have been and should have been taken in proceedings under the Arbitration Act. We find observations of a nature akin to this in the judgment of a single Judge of the Calcutta High Court in - 'Chatur -bhuj Mohanlal v. Bhicamchand',, 53 Cal W N 410 (E).

(3.) THE appeal is dismissed but in the circumstances without costs.