BAIDYANATH CHATTERJEE Vs. PANCHANANI DASI

JUDGEMENT

(1.) This is an appeal by the first defendant in a suit for recovery of possession of land on establishment of title by purchase. The case for the plaintiff is that the property belonged to 4 second defendant who conveyed it to her on the 29 September, 1916 pursuant to an agreement made eight days earlier. The case for the first defendant is that the claim is unfounded inasmuch as he had become entitled to the property by virtue of an award made on the 24 September, 1916 in an arbitration proceeding between himself and his brother the second defendant. The Court of first instance held that the plaintiff had acquired no valid title by her purchase from the second defendant and dismissed the suit as against the first defendant. The Court however made a decree for Rs. 175 against the second defendant who it was found had obtained that sum from the plaintiff as consideration for the conveyance. Upon appeal, the Subordinate Judge has held that the title to the property was vested in the first two defendants, and thus the plaintiff had consequently acquired a good title to one-half share of the property. On this basis a decree has been made in favour of the plaintiffs for one-half share of the property and also for mesne profits.

(2.) On the present appeal, the first defendant has contended that the conveyance executed by the second defendant in favour of the plaintiff could not transfer a good title to the property inasmuch as the vondor had no title thereto. We are of opinion that this contention is well- founded. It appears that on the 9 September 1916 the first two defendants made a reference to arbitration in respect of this property. On the 24 September, 1916 the arbitrator made his award whereby this property was declared to be the property of the first defendant alone. On the 29 September, 1916, that is after the award had been made, the second defendant conveyed the property to the plaintiff on the basis of the alleged agreement made eight days earlier. The first defendant thereafter applied to the Court to make a decree in accordance with the award. That proceeding was instituted only against the second defendant who was a party to the arbitration proceedings. The consequence was that a decree was made on the 16 December, 1916. On these facts, it has been urged that as this decree was made long after the conveyance, the title of the plaintiff was not affected thereby. In our opinion this view is manifestly erroneous.

(3.) The effect of the award of the arbitrator was to vest the title to the property in the first defendant. From that date, the second defendant could not set up a claim to that property. The consequence was that on the date when the second defendant purported to transfer his interest in the property to the plaintiff he had no interest to convey. The effect of an award was considered by the Judicial Committee in the case of Muhammad Newazkhan V/s. Alam Khan (1891) 18 Cal. 414. In that case A. and B. had referred certain matter in difference between them to X. X made his award in favour of A. A made an application under Section 525 of the Code of 1882 to file the award, and it was dismissed. B then brought a suit to recover the property which had formed the subject-matter of arbitration. A set up the award in answer to the claim. The Judicial Committee held that the award was valid and was binding upon Bf and that although the application under Section 525 was refused, that merely left the award to have its ordinary legal validity. It could not be successfully contended that an award was not valid because the party, in whose favour it was, had never applied to have it filed in Court. The refusal to file an award or of an application made to do so would not have the effect that the award could never be relied upon in any suit relating to the subject-matter dealt with by it.