LILJU MANDAL Vs. CHANDRA DEVI

JUDGEMENT

(1.) These two appeals have been heard together. They arise out of a partition suit filed by the plaintiff-respondent for carving out of her share in the joint family properties. The appeal is by the defendants including Nos. 6 and 7 Ram Chandra Prasad and Bindeshwari Prasad. Miscellaneous Appeal No. 53 of 1960 is directed against the award filed by the arbitrators in the suit in which reference was made by the learned Subordinate Judge and the first Appeal No. 56 of 1960 is directed against a decree on the basis of the award. It is" not necessary to set out the facts of these appeals in detail because the appeals can be disposed of on one simple ground, which alone has been 'pressed before us by learned counsel for the appellants.

(2.) It has been contended that the reference to the arbitrators was made by the Court at the instance of the plaintiff and the defendants other than appellants 6 and 7 who were under the guardianship of Kadamlal Mandal appellant No. 4 their father. It is true that Kadamlal Mandal made the application for reference of the dispute between the parties to arbitration joining with other defendants and signed the petition for himself as also as guardian of his minor sons, defendants 6 and 7. But the learned Subordinate Judge did not pass any order for reference in compliance with the terms of Order 32 Rule 7 of the Code of Civil Procedure, that is to say, he did 'not apply his mind to the facts as to whether the reference to arbitration was for the benefit of the minors concerned. The point urged in support of the appeals and against the validity of the award as also of the decree is that the provisions of Order 32 Rule 7 are mandatory, and non-compliance with those provisions by the court making the reference) whose duty it is to look to the interest of the minors, vitiated the reference itself. If the reference, therefore, was bad in law, the award on the basis of the reference was also vitiated and in consequence non-existent. Further if the award was thus vitiated the decree passed upon the award would also automatically fall to the ground.

(3.) In support of his contention learned Counsel for the appellants has drawn our attention to a number of decisions first of which is in the case of Chhabha Lal v. Kallu Lal, AIR 1946 PC 72. In that case their Lordships of the Judicial Committee laid down that Rule 7 of Order 32 of the Civil Procedure Code is imperative and its terms must be strictly complied with. It is true that the decision makes it clear that where the guardian signs the agreement without qualification, that is without specifying whether he is acting in his own capacity or as, guardian-ad-litem of the minors he must have taken to have signed in all capacities in which his signature is required, in the present case, it is conceded by learned counsel that Kadamlal had not only signed for himself but also stated that he was doing so as guardian of the minors. It has, however, been laid down further in that decision that where there was no formal application by the guardian-ad-litem for the leave of the Court for entering into the agreement for reference to arbitration, nor was any such leave formally given, or expressly recorded in the proceedings, the reference itself would be hit as bad in law. It was held that the policy of the law in regard to Order 32 Rule 7, Code of Civil Procedure, was that the Judge making the reference must realise that he is dealing with the guardian-ad-litem of the minors and that the leave of the Court must be expressly recorded in the proceedings, so that it may become clear that the Judge has satisfied himself that the reference is for the benefit of the minors concerned. It may be stated that Mr. De appearing for the respondent has not challenged the position, except to this extent that the observation of Privy Council that where the award has been given by the arbitrators without the reference having been made in full compliance with Order 32 Rule 7 of the Code of Civil Procedure, the award is not a nullity, as was laid down in that case, but that it is merely an irregularity. In fairness to Mr. Jha for the appellants it must be stated that he has not pressed that part of the observation of their Lordships of the Judicial Committee, which appears to have been slightly modified in the judgment of their Lordships of the Supreme Court in Bishudoeo Narain v. Seogeni Rai, AIR 1951 SC 280 and Kaushalya Devi v. Baijnath Sayal, AIR. 1961 SC 790. According to these two decisions, failure to comply with the formalities of Order 32 Rule 7 of the Code of Civil Procedure does not render the award itself a nullity but only makes Avoidable as against the minors concerned so that the minors should be at liberty to challenge the award in an appropriate proceeding.