MAKUND RAM SUKAL Vs. SALIQ RAM SUKAL

JUDGEMENT

(1.) MAKUND Ram, the appellant, and Tulsi Ram, the father of the respondent, were brothers, and the suit from which this appeal arises was brought by Makund Ram against Tulsi Ram for partition of moveable and immoveable property in their joint possession, full details of which were given in lists annexed to the plaint. Tulsi Ram, in his written statement, admitted that he and Makund Ram were brothers and were entitled to the property in equal shares, but he submitted that the greater part of it had been partitioned, and that Makund Ram, the plaintiff', was only entitled to claim partition as regards such of the property as remained unpartitioned, the particulars of which were given in Schedules F and G to the written statement. He alleged that by an agreement, dated the 14th of May 1874 it was referred to arbitrators appointed by the parties to make partition of all the property; that the arbitrators met and proceeded step by step, at the request and with the consent of the parties, to divide the great bulk of the property, and the plaintiff and defendant each took possession of what cams to his share; and he prayed that the property which had not been partitioned or divided might be partitioned and divided by the Court.

(2.) THE agreement to refer is in these terms: We Makund Ram and Tulsi Ram Sukals are zemindars of mouza Bhonas, tahsil, Harda in the Hoshangabad district. Whereas we, both brothers, are not on good terms with each other, it is evident that it is not proper now to live jointly. Within British dominions each of us two brothers is entitled to half and half share of moveable and immoveable property, whether ancestral or self-acquired or standing in the names of sons nominally; and we wish that the aforesaid property may be divided into two equal shares by arbitration. We therefore on our behalf nominate Narain Bhai Seth resident of Timurni, Sukhdeo Seth Resident of Harda, and Manikchand Seth agent of Bhajju Shah Deochand Seth and residing at Hoshangabad, as arbitrators; and we hereby agree and bind ourselves in writing that none of us two will object to the taking and accepting of a thing allotted to his share by the arbitrators abovenamed having equally divided the property into two shares of the two brothers.

(3.) THE award then proceeds to divide the Harda villages. It states that two lists were prepared by Makund Ram, one of Bhonas circle and the other of Pokharnee, the properties in them being found by the arbitrators to be of equal value. Tulsi Ram agreed to take Bhonas circle and Makund Ram, the award says, accepted Pokharnee of his own free will; that the arbitrators signed the lists, and both the brothers took possession of their shares. The list of the villages in each circle is given in the award. It then states that all the houses situate in Harda were divided on the 29th and 30th June with the unanimous consent of the arbitrators, and a plan drawn in English and Hindi was filed which showed what houses were allotted to Tulsi Ram and what to Makund Ram. One named house was to remain in the possession of Tulsi Ram, he paying Rs. 600 to Makund Ram. The award then states that the houses were divided by two lists being made and lots drawn. It then states that on the 2nd of August the arbitrators assembled to divide the remaining undivided property, and that they divided all the property according to the lists filed by Tulsi Ram in the manner after stated, but with the exception of grain the remainder of the award does not make a partition of the property, and it has been seen that Tulsi Ram in his written statement admitted this. An application to file the award, under the provisions of Section 327 of the Civil Procedure Code, was made by Tulsi Ram on the 21st January 1875 and was refused on the 29th March 1875 on the ground that the award was incomplete and incapable of execution.