CHIDAMBARAM CHETTIAR ALIAS SOMASUNDARAM CHETTIAR Vs. AYYAPPA CHETTIAR

JUDGEMENT

(1.) This is an appeal by the defendant against the order of the Subordinate Judge of Devakottah directing the filing of an award on a matter referred to arbitration without the intervention of the Court under Rule 20 of second Schedule of the Civil Procedure Code. The plaintiff and the defendant are brothers and belong to the Nattukottai Chetti community. In 1903 their father divided from his other brothers, receiving certain sums of money and some immoveable and movable property. In 1917 the father died. Up to the time of his death he was managing the business, which consisted in money-lending, and the property together with the younger son, the defendant. After his death it was managed by the defendant. In 1922 the brothers attempted to make a division by means of an arbitration which is said to have awarded to the plaintiff Rs. 12,000, but this fell through. On the 31 December, 1928, the brothers executed the muchilika Ex. I to three arbitrators, requesting them to make a division of the family property, particularised as cash, headquarters account, Virudupatti shop account, Moulmin shop account, jewels, house, immovable and movable properties, "after looking into the accounts and taking the statements of parties". The arbitrators award is dated the 3rd April, 1929. After summarising the family history it deals with the three branches for which separate accounts purport to have been kept, Moulmein, Virudupatti and the headquarters or the Vurkadai at Kandanur. The finding in each case is that the accounts of his management produced by the defendant are not correct and that no fair conclusions can be derived from them. Except therefore for certain limited purposes the arbitrators felt themselves compelled to proceed upon a footing independent of the accounts. Briefly they have ascertained what funds the family possessed in 1903 and they have then made an estimate of what it may be supposed to have possessed at the time of the arbitration, after allowing for drawings, losses and other charges. We will revert later in more detail to the method adopted in making this calculation. The result was that they found the family had started in 1903 with about half a lakh of rupees and that the assets might be estimated at 11/2 lakhs in 1929. The share awarded to the plaintiff was therefore Rs. 75,000 the defendant being declared sole possessor of all outstandings. This related only to the business assets and not to the immoveable property or jewels of which no actual division was made, the arbitrators merely declaring each party entitled to a half share.

(2.) At the trial the defendant attacked the award on a variety of grounds. Some of these have now been given up, as for instance, that the reference was procured by undue influence and that the award was passed after notice of revocation was given by the defendant. Before us the grounds of attack may be summarised as follows: (1)the arbitrators exceeded their powers (a) by ignoring the accounts and by adopting an unauthorised and inappropriate method of computation, (b) by making use of their personal knowledge (and information). (2) they made a mistake regarding a certain calculation of interest which vitiates the award; (3) they exhibited partiality for the plaintiff and prejudice against the defendant; and (4) they omitted to make a complete division of the assets.

(3.) The last of these criticisms would relate to paragraph (a) of Rule 14 of Schedule II, Civil Procedure Code; the remainder it is said amount to misconduct on the part of the arbitrators.