RAM KUMAR SINGH Vs. JAGAN MOHAN SINGH

JUDGEMENT

(1.) In the suit out of which this appeal has arisen, the plaintiff sought a declaration of his title to a house situate in Allahabad. It appears that the house in question was built by the father of the plaintiff. He died in 1892 leaving the plaintiff his heir, at that time a minor. The defendant is married to the plaintiff's sister and he lived in the house with the plaintiff. He also, it appears, was the general attorney of the plaintiff's guardian up to the year 1902, when the plaintiff came of age. A dispute arose between the parties and a suit for accounts was instituted by the plaintiff against the defendant and on the 28 of November 1902, an agreement was entered into between the parties for the settlement by arbitration of their disputes including a dispute as to the title to the house in question. Three arbitrators were appointed but the proceedings proved abortive by reason, it is said, of the conduct of the plaintiff, He served a notice upon the arbitrators calling upon them to desist from passing an award. In November 1907, the defendant instituted a suit against the plaintiff under Section 9 of the Specific Relief Act and obtained a decree awarding to him joint possession of the house in dispute. The present suit was then instituted, namely, on the 31 of March 1908.

(2.) The defendant pleaded that he was entitled to the house under an oral gift from his father-in-law. This gift is said to have been made in the year 1890. He also set up a plea that he was entitled to the property by adverse possession.

(3.) The Court below overruled both these pleas but dismissed the suit of the plaintiff on the ground that it was obnoxious to the provisions of the last clause of Section 21 of the Specific Relief. Act. This section prescribes that certain contracts enumerated in the section cannot be specifically enforced and concludes with this provision: "That save as provided by the Civil P. C., no contract to refer present or future differences to arbitration shall be specifically enforced but if any person, who has made such a contract and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit". It appears that at the time of the settlement of issues the pleader for the plaintiff intimated to the Court that the plaintiff had issued a notice to the arbitrators asking "them not to pass an award. As a matter of fact the arbitrators did not pass any award and it is contended that the notice, to which I have referred, was, within the meaning of Section 21 of the Specific Relief Act, a refusal on the part of the plaintiff to perform the agreement to refer the disputes to arbitration.