SABITRI DEBI Vs. GAITRI DEBI

JUDGEMENT

(1.) IN this case defendant No. 1 has obtained a rule from the High Court against the order of the Additional Subordinate Judge of Bhagalpur, dated the 23rd September, 1958, rejecting an objection made by defendant No. 1 to the award of the arbitrators dated the 16th December, 1953, in Title Suit No. 55/41 of 1950/51 praying that the award may be amended under Section 15 of the Arbitration Act.

(2.) THE suit was brought by the plaintiff for partition of 8 annas share of the properties belonging to Musammat Radha Kuer, the mother of the plaintiff and defendant No. 1. Defendant No. 1 appeared in Court and filed a written statement challenging the allegation of the plaintiff. In the course of the suit there was an agreement for reference of the dispute to three arbitrator. Paragraph 2 of the agreement states as follows:-

(3.) THE question then arises whether the decision of the arbitrators on the question of the amount of Rs. 28,000/- spent over additions to the Lal Kothi house is inseparable from the other terms of the award given by the arbitrators or whether this portion of the award, namely, paragraph 5 of the award, is separable from the rest of the award. It was submitted by learned Counsel ' for the opposite party that paragraph 5 of the award is separable from the rest of the award. On behalf of the petitioner also this position was conceded. Of course the legal position is that if it is difficult to disentangle the valid portion of the award from an invalid portion then the award has to be set aside in toto, but if it is possible to separate the valid portion of the award from the invalid portion of it, then there is no reason why the Court should not act under the provision of Section 15 (a) of the Arbitration Act and order that the invalid portion should be cancelled from the award. THE view of law that we have expressed on this point is borne out by a decision of a Division Bench of the Madras High Court consisting of Rajamannar, C. J. and Venkataram Aiyar, J. in Chidambaram Chettiar v. Subramanian Chettiar, AIR 1953 Mad 492 at p. 497. As we have already said, it was conceded by learned Counsel for both the parties in this case that the invalid portion of the award is separable from the rest of the award. We are, therefore, of opinion that the invalid portion of the award, namely, paragraph 5 of the award, be deleted under the provision of Section 15(a) of the Arbitration Act, and the rest of the award should be upheld as valid and intra vires.