BALAJI NARAYAN GOKHALE Vs. NANA BIN BABAJI GHATGE

JUDGEMENT

(1.) THE principal ground on which the decision in this second appeal turns, and on which the District Judge has rejected the claim of the plaintiff for possession, is that the decree for foreclosure obtained by the plaintiff in March, 1890, in terms of an award is not binding on defendant 3 (Narahari) and defendant 4 (Dayanu) who were minors at the date of the award. It is found that the family to which these two defendants belonged consisted of themselves and their brothers, Ganu and Nans (defendant 1), when the reference to arbitration was made, and that Ganu and Nana were adult members of the family at the time. It is not contended, nor has the Districts Judge found, that in an undivided Hindu family consisting partly of minors, the manager of it has no right to refer any matters in dispute to arbitration even though such reference be for the benefit of the family. In Jagan Nath V/s. Mannu Lal (1894) 16 All. 231 Edge, C.J., held that as a father in a joint Hindu family as manager fully represents the family, and, in the absence of fraud or collusion, his acts are binding on the other members of the family, it is competent for him to refer any dispute with reference to any matter, in which the family is interested, to arbitration. "We are of opinion that the same principle would hold good in the case of a manager of a joint family where such manager is not the father, and fee would have power to bind the family by a reference of its dispute with any outsider regarding any family property to arbitration, provided such reference be tar the benefit of the family. Any minors in the family would be bound by the reference and consequently by the award made upon it. THE District Judge has not in the present case impugned the award on the ground of any want of power in the adult members, who were managers of the defendant's family to refer the dispute with the plaintiff to arbitration. What the District Judge holds is that the award is bad and not binding upon the defendants who were minors at its date, because some of its terms are not beneficial to those defendants. But the award of an arbitrator is the decision of a quasi-judicial tribunal and cannot be questioned as invalid merely on the ground that its terms are not favourable to one of the parties to it. What the District Judge really means, perhaps, is that before passing a decree in its terms the Court in which the award was tiled ought to have considered the question whether it was for the benefit of the minor defendant as required by Section 462 of the Civil Procedure Code. Mr. Kalkar for defendant No. 3 has taken up that position here and relied upon the decision of Parsons and Ranado, JJ., in Makadev Balhrishna Keldar V/s. Krishnabai (1896) P.J. p. 609. That decision was cited in Vithaldas Ganpat V/s. Dattaram Ramchandra (1901) 26 Bom. 298 in which the learned Chief Justice and Chandavarkar, J., held that Section 462 "obviously contemplates the existence of a guardian and a pending litigation"; and has, therefore, no application to an award filed in Court for having a decree passed in its terms. As to the decree passed in this case in terms of the award, it is found by the Courts below that there was neither fraud nor collusion as to it, as there was none as to the reference and the award themselves. Before the decree was passed, a guardian ad litem had been appointed to represent the defendants who were minors, as required by the Coda of Civil Procedure. THE minor defendants were, therefore, properly represented, and the Court accordingly passed the decree. It is not suggested that the decree was not in accordance with the provisions of the Civil P. C. relating to arbitration. If the reference to arbiration was proper in the sense that it was for the benefit of the minors, the Court was bound to pass a decree in terms of the award passed on that reference, if there was none of the objections to the award pointed out in the chapter on arbitration in the Civil Procedure Code. THEre was no duty imposed on the Court at that stage of considering whether the terms of the award were for the benefit of the minors. THE imposition of such a duty on a Court where the reference itself, is not impugned as fraudulent or unauthorized would practically moan either that, where there are minors in a Hindu joint family, its manager has no power in any case to refer any dispute to arbitration, or that, though he can refer, the award would be nugatory if any of its terms are unfavourable to the minors. THEre is no law which lays down that as the principle governing in such cases or which contemplates such a result. As held by the Privy Council in Ghulam Khan V/s. Muhammad Hossan 29 I. A. 29 : 93 Cal. 167 "the principle of finality which finds expression in the Code is quite in accordance with the tendency of modern decisions in this country. THE time has long gone by since the Courts of this country showed any disposition to sit as a Court of Appeal on awards in respect of matters of fact or in respect of matters of law : see Adams v. Great North of Scotland Railway Co. (1891) A.C. 81."

(2.) FOR these reasons we reverse the District Judge's decree and award the claim with costs throughout on the respondents.