MAHADEO PRASAD Vs. SRJUG PRASAD

JUDGEMENT

(1.) The only question that arises for determination in this application is whether the plaintiffs-petitioners are entitled in law to resile from the agreement, dated the 30th of June, 1949, by which the plaintiffs bound themselves to abide by the statement on special oath made by the defendants.

(2.) The plaintiffs had filed a suit for partition of the joint family properties in the year 1948. Soon after, the dispute between the parties was referred to the sole arbitration of one Babu Mohan Lal Gupta. Thereafter there was an agreement on the 16th of December 1948, in writing between the parties regarding the division of the immoveable properties. Another agreement was entered into between the paaties on the 30th of June 1949, in regard to the division and the manner of division of the moveables. The plaintiffs effered to abide by the statement on special oath of the defendant's Mathura Prasad and Sarjoo Prasad as to whether or not the money belonging to the joint family had been invested in the shop in dispute. This offer of the plaintiffs was accepted by the defendants. The relevant agreement is embodied in Clause 4. The arbitrator Babu Mohan Lal Gupta incorporated this agreement also in his award without dividing the prooarties or determining the extent of the same. After certain objections filed by the parties, the award was remitted to the arbitrator for effecting complete partition. The said arbitrator, however, returned the writ without doing anything further, and on the 13th of December 1949, the Court recorded an order, an extract from which is as follows:

(3.) The learned Counsel has urged the following points in support of this application: (i) that the arbitrator cannot decide on special oath; (ii) that the party offering himself to be bound by the special oath of the other side can resile from that offer any moment before the other side has actually taken the special oath; and (iii) that the finding about the shop as to whether the money invested in the shop belonged to the family or not should not have been given by the Court below upon the plaintiffs' application desiring to resile from their agreement.