V S RAMANUJA CHARIAR Vs. VEENAAVANNAMANAVATAPATHRA SAYEE THATHACHARIAR

JUDGEMENT

(1.) The appellant was the plaintiff in a suit under paragraph 20 of Schedule II, Civil Procedure Code, to enforce an award in a matter referred to arbitration without the intervention of the Court. The plaintiff is the younger brother of the defendant and it was his case that the division of their joint family properties was by consent of parties referred to the arbitration of their brother-in-law, P.W. 4, who passed an award on 21 November, 1934, which award the defendant had wrongfully refused to accept. The defendant raised many contentions, most of which have been held to be unfounded in fact. He denied the truth of the reference to arbitration, setting up another reference of a completely different character, denied the existence of a joint family at the time when the reference was made and made various allegations suggesting partiality on the part of the arbitrator. The trial Court has found that the muchilika Ex. A, which contains the reference to arbitration is true, that the other muchilika Ex. LIV put forward by the defendant is false and that the plaintiff's version of the facts is substantially the truth. It is not now contended that these findings are incorrect. The learned Subordinate Judge has, however, dismissed the suit on the ground of various legal defects in the proceedings of the arbitrator.

(2.) The reference to arbitration is contained in Ex. A, dated 3 September, 1933, the material portion of which runs as follows: Since certain disputes arose in the matter of effecting a division, into two parts, of the nanja, punja, house and other immovable properties belonging to our family and the money-lending items due to the family through individual No. 1, out of us, and the debts payable, it was found impossible to make a division. In these circumstances, we requested you to act as mediator in regard to the aforesaid division and as to how we should act regarding the same and agreeing that both of us would act according to the decision passed by you and that we would execute documents as per the award that you may pass in that behalf, we have executed this muchilika in your favour. Therefore both of us shall act according to the decision that you would make in the matter and conduct ourselves accordingly. It will be noticed that this reference contemplates the passing of an award by the arbitrator and the execution of documents by the parties in accordance with the terms of that award. Apart from these provisions the reference does not indicate in any way how the arbitrator shall proceed. On 20 April, 1934, the parties met the arbitrator at Srivilliputtur and a decision was reached, apparently by consent, as to the way in which the immovable properties in the neighbourhood of Srivilliputtur should be divided. Nothing appears to have been drawn up in writing on this date and it is clear that the money-lending capital still remained to be divided. On 1 May, 19,34, the plaintiff took a lease from his sister Janaki of the lands settled on her under a deed of 1924, Ex. E. This action of the plaintiff provoked the defendant and on the 2nd May, under Ex. LV he executed a deed in which he purported to cancel the settlement Ex. E. On the next day, 3 May 1934, a registered notice Ex. XXIX was issued by the arbitrator to the parties reciting the reference to arbitration, the inspection of the Srivilliputtur properties and the decision of the 20 April regarding the immovable properties and the admitted debts. He forwarded a draft partition agreement which makes a division of the bulk of the immovable properties and the debts due by the two brothers. In the same notice the brothers are required to appear before the arbitrator on 5 June, 1934, to produce evidence of debts alleged to have been incurred individually for family purposes and of the amounts due to the family in respect of money-lending dealings. On 7 May, 1934, the defendant sent a notice, Ex. J, to the arbitrator in which he denied having executed any such reference as is mentioned in Ex. XXIX, denied having consented to the division of the immovables and referred to certain Koilpatti lands and other properties as having been got under a will and asserted that the family had been divided ever since 1904. The effect of Ex. J is a denial by the defendant of the whole basis of the arbitration and an assertion that there were no joint family properties capable of division. The Koilpatti lands referred to are certain dry lands of small value which appear to have been omitted from the draft partition deed attached to Ex. XXIX by oversight. After the exchange of further notices between the parties, the arbitrator on 15 June, 1934, sent a further notice Ex. K-l to the defendant stating that the defendant had not appeared on the date fixed for hearing, but the plaintiff had given a statement of his case and had filed documents and that the matter was reposted to 25 June for the examination of the defendant and that in case of , default a decision would be made ex parte. On the following day a further notice Ex. K-2 was sent intimating that the Koilpatti lands had been divided into two halves, the northern half being allotted to the plaintiff and that the decision with reference to the money-lending transactions was adjourned to 10 July. There is no suggestion that the division of the Koilpatti lands was unfair and the defence claim to these lands as acquired under a will having been found to be untrue, it is evident that the arbitrator, probably reminded of these lands by the defendant's notice, Ex. J, was merely adding to his previous division of the family properties what had been omitted by oversight.

(3.) On the 11 July, 1934, the arbitrator sent a further notice Ex. K-3 to the defendant. It refers to the muchilika of 3 September, 1933, and states that all the properties and debts having been divided "as regards the money-lending items due to the family in your name, it has been decided that you should make good Rs. 4,000 to the said V. S. Ramanujachariar (plaintiff) on the liability of your share of family properties and that an award has been passed on this date containing other particulars." The English word "award" is used in this notice. There is 110 suggestion that any written award was in fact passed at this time. But the arbitrator appears to have orally announced his decision regarding the money-lending assets. With reference to these assets the evidence is that all the documents were in the possession of the defendant who was refusing to co-operate with the arbitrator. The plaintiff was able to produce only certain accounts said to have been signed by the defendant showing the financial position of the family in 1909 and 1910 and an abstract of the money-lending documents as they stood in 1913. On the basis of these materials the arbitrator appears to have made & rough calculation of the amount of the money-lending capital which must be presumed to be comprised in the documents suppressed by the defendant and as he was unable to deal with the actual documents he awarded to the plaintiff a half share of the estimated value of these assets.