SHANTILAL MEWARAM Vs. MUNSHILAL KEWALRAM

JUDGEMENT

(1.) This is an appeal against a decision of Mr. Justice Rangnekar. The plaintiffs are suing defendants Nos. 1 and 2, who are father and son, for a sum of Rs. 26,844-13-0 and interest, the money being due in respect of transactions in cotton and silver carried out by the plaintiffs as agents for defendant No. 1 between the months of January a September, 1928. At the trial the plaintiffs obtained a decree against defendant No. 1 for the amount claimed. Defendant No. 1 had set up a defence that the transactions in suit were void, but the learned Judge decided against those contentions, and there is no appeal from that part of the judgment. Defendant No. 2 succeded in the suit, which was dismissed as against him, and the question we have to determine is whether that decision is right or wrong.

(2.) The original case of the plaintiffs was that defendants Nos. 1 and 2 owned a joint family business in respect of which these debts were incurred, but that contention was given up in the Court below, and the plaintiffs based their case entirely on the pious obligation of defendant No. 2 to pay his father's debts. Defendant No. 2 took two points: the first was that the debts were avyavaharika, that is to say, immoral in the sense that they were of such a character that the son was not liable to pay them under the pious obligation, and, secondly that before the said debts were incurred he had separated from his father. The learned Judge decided the first point in favour of the plaintiffs, and it is not necessary for us to consider that point. On the second point, the learned Judge decided in favour of defendant No. 2, that is to say, he decided that the defendants had severed before these debts were incurred, and it is upon that part of the decision that this appeal has been argued, though the point as to the character of the debts was not given up.

(3.) The facts are not in dispute and can be stated shortly. Defendant No. 1 is the son of one Shaligram from whom he inherited property of considerable value in the year 1925, and by the beginning of the year 1928 defendant No. 1 had wasted a considerable part of the family property and had mortgaged part of the family property for a sum of Rs. 25,000. Nandrani, the wife of defendant No. 1 and the mother of defendant No. 2, was complaining of her husband's conduct in wasting the family property, and in January 1928 she and the mother of defendant No. 1 consulted a family friend named Lala Kunwersen, who has been examined as a witness on behalf of defendant No. 2 in the ease. He is an elderly gentleman, a Government pensioner, who had no interest in the matters in dispute, and he was consulted as a friend of the family. According to his evidence he was willing to interfere in the matter if all the parties desired him to do so, and accordingly on January 31, 1928, the parties signed a reference to him, which is Exhibit No. 1. The reference was signed by defendant No. 1 and by Nandrani, purporting to act as guardian of her minor son defendant No. 2. The reference provided that defendant No. 1 and Nandrani as guardian of defend ant No. 2 are the parties. Then it recites :- Whereas a dispute has arisen between ourselves with regard to the moveable, immoveable properties and the mortgage affairs left by Babu Shaligram Saheb, we the parties of our own will and accord and without being forced or induced by any one appoint Lala Kunwersen Saheb, son of Lala Dowlatram Saheb, a pensioner, a Khatri by caste residing at Ghandi Gully, as our sole arbitrator and authorise him to decide the said dispute. Whatever decision the arbitrator gives according to his own opinion in our matter, either on law points or on facts, the same shall be considered as final and absolute decision given by the arbitrator and shall be agreed to and approved of by the parties. Kunweraen took the matter into his consideration and on February 19 he made an award, which is Exhibit 2, The short effect of that award is that the family property is to be in the ownership of defendant No. 2, during his minority the mother is to act as guardian ; then there is a provision that the parties are to mesa together, and defendant No. 1 is to receive a sum of Rs. 150 a month from the income of the property ; then there are provisions as to management and then certain sums are allowed for maintenance to two ladies who were members of the family. That award was registered by Kunwersen on March 10, 1928, and on September 10, 1928, a suit was filed to make the award an order of Court, and in that suit on September 25 a decree was made in terms of the award, defendant No. 1 consenting to that decree.