MEHAR CHAND Vs. MAGAN

JUDGEMENT

(1.) THIS is an appeal against an order of Mr. Ram Lal, Subordinate Judge, 1st Class, Hoshiarpur, dated the 2nd of May 1950, setting aside the award made by Kanshi Ram, the arbitrator.

(2.) BY an agreement dated the 13th of September 1948, Exhibit P. 1, Kanshi Ram, a very close relative, was appointed an arbitrator by Mehr Chand, the father, Dina Nath and Magan Nath sons of Mehr Chand and Sham Devi, widow of a pre-deceased son, Jagan Nath, to arbitrate on the disputes which had arisen between the parties in regard to urban property in the District of Hoshiarpur which was the joint family property of the parties. It was there provided that Kanshi Ram had been appointed the arbitrator and he was given the power to decide in any manner that he liked in regard to the sakni or urban property of the joint Hindu family of the parties. The parties also undertook that the decision so given will be binding on them and that from the date of the agreement the joint Hindu family will be considered to have been disrupted. On the 8th of December 1948 an award was given by Kanshi Ram which was registered on the 9th of December 1948. It appears that no notice in writing was given to the parties of the making of the award. On the 26th of May 1949, Magan Nath applied for the filing of the award. The trend of the application shows that he was not satisfied with the award. On the 21st of June 1949, the award was filed in Court and on the 12th of July 1949, Magan Nath filed several objections to the validity of the award, the objections being that the arbitrator had omitted to decide the question of alienations made by the father, Mehr Chand, that the arbitrator had not afforded opportunities to the parties to adduce evidence and he had made enquiries behind their back, that the arbitrator was under the influence of Mehr Chand and his son Dina Nath and had not partitioned the whole of the property in dispute, that the partition was unequal and that the arbitrator had not the power to give a direction that the property allotted to Sham Devi would, in the event of her death, go to Mehr Chand. The respondents filed their written statement denying the allegations contained in the objection petition. The learned Judge held in favour of the applicant objector on all the points.

(3.) COMING now to the question of misconduct, there is no doubt that Kanshi Ram did not give any notice to the parties to produce any evidence that they wished to and that he was making enquiries from respondents Nos. 2 and 3 in the absence of Magan Nath. This is quite clear from his own evidence. Magan Nath has also stated that he did want to produce evidence but he was not given an opportunity to do so. Counsel submits that as no application was made to him by Magan Nath that he wanted to produce evidence, it was not necessary for the arbitrator to give any opportunity. With this submission I am unable to agree. It is the duty of the arbitrator to call upon the parties to produce such evidence as they think necessary and in this case this was not done. On the other hand, enquiries were being made by the arbitrator in the absence of the parties. I am also unable to believe the statement of Kanshi Ram that he had made any enquiries from Magan Nath as to the value of the properties. He has no record of proceedings and his evidence on the whole is very unsatisfactory and the estimate which has been made of his statement by the trial Judge seems to be absolutely justified. It is also clear from his statement that he was consulting Lala Ganria Mal in the absence of the parties. In justification of what the arbitrator did, counsel has referred to me Exhibit P. 1, the arbitration agreement, in which it is stated that the arbitrator will have the power to make any decision he likes in regard to the joint Hindu family of the parties. This does not give him an overriding power of making enquiries in the absence of the parties, to receive evidence from one party in the absence of another or to consult others in regard to what award he should make. As a matter of fact it has been held by Indian Courts that even where there is an express agreement that no objection would be taken to an award on any ground whatsoever the parties are not deprived of the right of raising objections as to the validity of the award on the ground of misconduct or otherwise. See 'Gopi Nath v. Manohar Lal', F. A. O. 132 Of 1941 and 'Ram Jawaya Mat. v. Devi Ditta Mal', 117 Pun Re 1916 and 'Ranga v. Sithaya', 6 Mad 368. The law has been stated by Sir N. N. Sircar in his Law of Arbitration in British India in the following words: