JUGGOBUNDHU SAHA Vs. CHAND MOHAN SAHA

JUDGEMENT

(1.) This Rule was granted on the application of the second defendant in a suit for partition to set aside the decree made therein by the Court below on the basis of an arbitration award. The petitioner impugns the decree on two grounds, first, that the Subordinate Judge acted with material irregularity in the exercise of his jurisdiction when he declined to examine the arbitrator at the request of the second defendant, who alleged that the arbitrator had been guilty of judicial misconduct; and secondly, that the decree made by the Subordinate Judge in conformity with the award is, in part, made without jurisdiction, because it affects immoveable property which is not the subject-matter of the litigation.

(2.) As regards the first ground, it appears that when the award had been submitted, objection thereto was taken by the petitioner on the allegation that the arbitrator had delegated his authority to a stranger and that the award was in essence not the act of the arbitrator, but of that person. This was a serious charge of judicial misconduct, and, if established, would invalidate the award for it cannot be disputed that an arbitrator has no authority to delegate his functions, except possibly the performance of what are called ministerial acts" : Lingood v. Eade (1742) 2 Atk. 501 at p. 504 : 26 E.R. 702, Emery v. Wase (1801) 5 Ves. 846 at p. 848 : 31 E.R. 889 : 5 R.R. 181 : on appeal 8 Ves. 505 : 7 R.R. 109 : 32 E.R. 451; Little v. Newton (1841) 9 D.P.C. 437 : 2 Scott. (N.R.) 159 : 2 Man. & G. 351 : 10 L.J.C.P. 88 : 5 Jur. 246 : 133 E.R. 627 : 58 R.R. 436; Tandy, In re (1841) 9 D.P.C. 1044 : 5 Jur. 726, Whitmore v. Smith (1861) 7 H. &. N. 509 : 31 L.J. Ex. 107 : 8 Jur. (N.S.) 514 : 5 L.T. 618 : 10 W.R. 253 : 126 R.R. 551, Eads v. Williams (1854) 4 De G.M. & G. 674 : 24 L.J. Ch. 531 : 1 Jur. (N.S.) 193 : 43 E.R. 671 : W.R. 98 : 102 R.R. 326. The Subordinate Judge states in his judgment that the arbitrator was authorised to take assistance in technical matters; that, indeed, was permissible to him, in so far as such assistance was necessary for the discharge of his duties: Caledonian By. Co. v. Lockhart (1860) 3 Macqueen H.L. 808 : 6 Jur. (N.S.) 1311 : 3 L.T. 65 : 8 W.R. 373 : 119 R.R. 1101, Hmery v. Wase (1801) 5 Ves. 846 at p. 848 : 31 E.R. 889 : 5 R.R. 181 : on appeal 8 Ves. 505 : 7 R.R. 109 : 32 E.R. 451, Hopcraft v. Hickman (1824) 2 S. & S. & S. 130 : 3 L.J. Ch. 43 : 57 E.R. 295; Anderson v. Wallace (1835) 3 Cl. & F. 26 : 6 E.R. 1347. But this would not entitle him to delegate his powers practically to another person. The decision must ultimately be his own judgment in the matter, although in the process of formation of that conclusion he may take the assistance of experts: Nanjappa v. Nanja Rao 16 Ind. Cas. 478 : 23 M.L.J. 290 : 12 M.L.T. 133 : (1912) M.W.N. 1091. When a charge of judicial misconduct of this description was made against the arbitrator, it was incumbent upon the Court to examine him to ascertain whether the allegation was well founded or not. This is obviously good sense; but if authority is needed for this elementary proposition, reference may be made to the decision of the Judicial Committee in Amir Begam v. Budruddin Husain 23 Ind. Cas. 625 : 18 C.W.N. 755 : 19 C.L.J. 494 : 36 A. 225 : I.O. L.J. 249 : 12 A.L.J. 537 : 17 O.C. 120 : 16 Bom. L.R. 413 : (1914) M.W.N. 172 : 16 M.L.T. 35 : 27 M.L.J. 181 : 1 L.W. 1015. There is consequently no escape from the position that the Subordinate Judge has acted with material irregularity in the exercise of his jurisdiction, inasmuch as he as overruled the objection of judicial misconduct on the part of the arbitrator, without enquiry and without reception of evidence material for the determination of the issue.

(3.) As regards the second ground, it is not disputed that the arbitrator did, by his award, impose restrictions upon the use of immoveable property which did not form the subject- matter of the litigation and of the reference. The decree of the Subordinate Judge, in so far as it confirms that award in this respect, is consequently made without jurisdiction. It is an elementary rule that the submission furnishes the source and prescribes the limits of the arbitrator s authority and the award both in substance and in form must conform to the submission. Consequently, as the arbitrators are inflexibly limited to a decision of the particular matters referred, if the award extends to matters not within the scope of the submission, it is void as regards the portion in excess of the submission: Hill v. Thorn (1680) 2 Modern 309 : 86 E.R. 1090; Hide v. Petit (1670) 1 Ch. Cas. 185 : 2 Freeman 133 : 22 E.R. 754; Price v. Popkin (1839) 10 A. & E. 139 : 2 P. & D. 304 : 8 L.J. Q.B. 198 : 3 Jur. 433 : 113 E.R. 53 : 50 R.R. 362; Pascoe v. Pascoe (1839) 10 A. & E. 139 : 2 P. & D. 304 : 8 L.J.Q.B. 198 : 3 Jur. 433 : 133 E.R. 53 : 50 R.R. 362; Baillie v. Edinburgh Oil Gas Light Co. (1835) 3 Cl. & F. 639 : 6 E.R. 1577; Buccleuch v. Metropolitan Board of Works (1870) 5 Ex. 221 : 41 L.J. Ex. 137 : 27 L.T. 1 : 5 H.L. 418; Moshahel v. Konomutty 15 W.R. 172; Narsingh Narain Singh v. Ajodhya Prosad Singh 13 Imd. Cas. 118 : 15 C.L.J. 110 : 16 C.W.N. 256; Mohammad Mumtaz Ali Khan v. Sakhawat Ali Khan 28 I.A. 190 : 23 A. 394 : 5 C.W.N. 881 At the same time upon the materials placed before us, it seems that the award might have been amended so as to meet the objection taken on this ground; for as laid down by the Judicial Committee in Amir Begam v. Badruddin Husain 23 Ind. Cas. 625 : 18 C.W.N. 755 : 19 C.L.J. 494 : 36 A. 225 : I.O. L.J. 249 : 12 A.L.J. 537 : 17 O.C. 120 : 16 Bom. L.R. 413 : (1914) M.W.N. 172 : 16 M.L.T. 35 : 27 M.L.J. 181 : 1 L.W. 1015. where the different parts of an award are severable and not dependent on each other, the illegal portion may be cancelled and effect given to the remainder. See also Buta V. Municipal Committee 29 I.A. 168 : 29 C. 854 : 7 C.W.N. 82 : 4 Bom. L.R. 673; Buccleuch v. Metropolitan Board (1870) 5 Ex. 221 : 41 L.J. Ex. 137 : 27 L.T. 1 : 5 H.L. 418. The Subordinate Judge will deal with this matter, when the case goes back to him.