RAGHUBIR PANDEY Vs. KAULESAR PANDEY

JUDGEMENT

(1.) In this appeal by the plaintiffs the question for determination is whether the award is invalid because one of the arbitrators did not sign it. The facts are these. The plaintiffs instituted a suit for setting aside certain alienations made by a widow in favour of the defendants on the ground that being the next reversioners they were not bound by those alienations even if these are found to be for consideration. After the defendants appeared, the parties, put in a petition on 6th January 1942, in which they prayed to the Court that the matter in dispute may be referred for arbitration to five punchas who were named therein with the condition that the parties shall abide by and accept the unanimous decision of the punchas in respect of the disputed property in this case whatever it may be. Should the said punchas not give unanimous decision then no party shall be bound thereby.

(2.) This is a very unusual condition in a reference to arbitration and as was observed by Mathew J. in United Kingdom Mutual Steamship Assurance Association V/s. Houston & Co (1896) 1 Q. B. 567 it will be rarely possible to get all the arbitrators to agree in their decision, but nevertheless if this is the agreement between the parties it must be carried out before the award is accepted as valid. After the papers were received by Babu Brijbilas Rai, who is called the Surpunch in these proceedings, he issued a notice to the other punchas on 18 March 1942, informing them that they will gather on 20 March at Nagri, in the village Of the parties, where one arbitrator, Babu Basudeo Singh, was also residing. This notice is Ex. 1 and is signed by all the punchas. Apparently a similar notice was issued either orally or in writing to the parties but there is no written record to that effect.

(3.) The case of the defendants is that on the appointed day all the arbitrators assembled at the house of Babu Basudeo Singh at village Nagri and after hearing the parties and their witnesses and examining their documents which they produced the punchas after due deliberation and consideration amongst each other pronounced the decision which is embodied in the award of the same date, but unfortunately one of the punchas, Babu Basudeo Singh, did not put his signature on that award because at the time of the signature he said that he had urgent village work to look after and he went away. The award was filed in Court on 24 March 1942. The plaintiff by a petition filed on 11 April 1942 challenged the legality of the award on the ground that the punchas never called the parties to gather at village Nagri on 20 March 1942 nor did all the punchas unanimously hold any panchaiti at all that the punchas did not take any evidence or proof from the parties and that the award is not binding on this ground as well that Babu Basudeo Singh, one of the punchas, did not agree and refused to sign the award. The learned Subordinate Judge took evidence in support of the allegations Of either party. On the plaintiff's side, the important witness is Babu Basudeo Singh himself who deposed that he was one of the punchas, that he did not attend any of the sittings and that it is not a fact that he refused to sign the award though he was of the same opinion as the other punchas. In cross-examination he admitted that he knew on 19 that the sitting was to be held because he received the notice but he says that there was no sitting at all on that date and that the witness was present all the time in the village. This evidence does not ring true and has not been accepted by the learned Subordinate Judge who had the advantage of hearing and see the witness in the witness-box. The only other witness examined on behalf of the plaintiff was the plaintiff himself who said that no panchaiti was ever held and that they received no notice of the intended panchaiti.