PONNAYYA MOOPANAR Vs. SUPPAMMAL AND ORS.

JUDGEMENT

(1.) THE appellant sued for a declaration of his title to the properties in schedule A to the plaint on the cancellation of the settlement deed dated 15th September, 1939, executed by him in favour of defendants 1 to 4 and alleged to have been so executed by reason of fraud, misrepresentation, undue influence and coercion. The trial Court on the facts found that there were no materials to justify a conclusion that there was any fraud, undue influence, misrepresentation or coercion invalidating the settlement deed. It also found that the award made by the arbitrator, P.W. 9, on a reference by both parties regarding the dispute arising out of the settlement deed was invalid, not by reason of any misconduct of the arbitrator but because of the invalidity of the reference which, according to the learned Judge is not a complete reference, but only an agreement to make a reference at some future date. The plaintiff appeals.

(2.) THE plaintiff was at the time of the suit aged about 50. His first wife died in 1935 and in 1936 he married a second wife. By the first wife he had three daughters and one son. The eldest daughter is the mother of the fourth defendant and the wife of one Chockalingam who figures prominently in the case. The second daughter is the first defendant who is the mother of the second defendant. The first defendant married a brother of this Chockalingam. The third daughter is the third defendant who herself married Chockalingam after her eldest sister's death. The son died on the 29th April, 1939 and it is his death which, it is alleged, upset the mind. of the plaintiff to such an extent as to make him amenable to improper influence.

(3.) THE arbitrator, P.W. 9, is apparently a man of great wealth and considerable standing and he appears to have been somewhat leisurely in taking the enquiry. According to his evidence, which the learned trial Judge believes, he was eventually pressed by the plaintiff and his son -in -law Chockalingam to take up the arbitration at once and as a consequence of this pressure he fixed 18th October, as the date of the enquiry and in order that everything should be on record, he also issued registered notice vide Ex. P -7, dated 13th October, 1940, requiring the parties to attend with their witnesses and to file written statements of their contentions. It is common, ground that these notices were received. On the 17th October, Chockalingam despatched a notice to the arbitrator by registered post. This recites the fact of the reference to arbitration and states that the date of the hearing being fixed for 18th October and notice having been given, the sender went to Tinnevelly and made enquiries " in order to prepare the statement and get it ready " and then he was told that it was improper to refer a matter to arbitration on behalf of minors and that this might lead to litigation after the minors attained majority. Therefore he was giving notice that, inasmuch as the muchilika is beyond the authority of the writer he is not willing to have the hearing completed. This notice, being sent by registered post, took two days in transit. It appears to have been delivered on the 19th October, in the village, but the addressee being absent it was taken back and eventually delivered to him on the 22nd. Meanwhile the arbitrator, P.W. 9, took up the enquiry on the morning of the 18th October. He was then informed by the husband of the first defendant, D.W. 2, That Chockalingam would arrive at 5 P.M. with witnesses and ask for time and accordingly an adjournment was given until that time. At 5p.m. nobody was there on behalf of the defendants. The arbitrator therefore proceeded to examine a number of witnesses produced by the plaintiff and late at night, on the conclusion of the enquiry, he announced his decision that in the circumstances the settlement deed should be set aside. This decision was embodied in a fairly elaborate written order which was completed the following day and signed by the arbitrator.