HEM CHANDRA KUNDU Vs. JNANENDRA CHANDRA KUNDU

JUDGEMENT

(1.) These two appeals are both preferred against the same order of the Subordinate Judge of Burdwan, dated the 20 February 1922, by which he directs that a certain award be filed. The parties to this case are members of a joint family being the descendants of one Hira Lal Kundu, The appellants in Appeal No. 133 of 1922 represent all the members of one branch of the family, being Hem Chandra Kundu the son of Hira Lal's son Trilochan, Srimati Madhabi Sundari Dasi, the mother of Hem Chandra and Srimati Bhupati Sundari Dasi his wife. The other parties to this litigation are Kumud Kamini Dasi, widow of Hira Lal's son Gour Mohan Kundu, and the descendants of Gour Mohan. The appellant in appeal No. 210 is Atulashi Dasi widow of Rampada Kundu son of Gour Mohan. In 1915 Bibhuti Bhusan Kundu grandson of Gour Mohan instituted a suit for partition of the family property. That suit was decreed on compromise on the 21 December 1916. The solehnama which was filed on behalf of all the parties was made part of the decree, and in that decree Radha Kishore Ta was appointed arbitrator. He pronounced the award on the 20 December 1919 and Jnanendra Chandra Kundu the youngest son of Gour Mohan applied to the Court for an order directing that the award be filed. This application has been contested by all the members of the family except Jnanendra's mother.

(2.) Before us objection has been taken to the award on several grounds which we will deal with in order. The first ground taken is that the reference was one in a pending suit and that, therefore, the award cannot be filed in accordance with the procedure laid down in the Second Schedule of the C.P.C. from para. 20 onwards which relate to arbitration without the intervention of a Court This point depends on the effect of the decree which was passed in the original title suit of 1915. In form that decree appears to be a final decree which terminated the litigation and not a preliminary decree which required further direction by the Court before effect could be given to it. The decree after setting out the claim goes on to state that this suit coming up on the 22 December, 1916 for final disposal it is ordered and decreed that this suit be decreed in the terms of the solehnama and the solehnama provides that certain preliminary matters relating to certain deeds of release have been settled in a certain way between the parties and that the remaining properties which were the subject of the suit shall be treated as joint properties and shall be divided by the arbitrator according to the shares of the parties taking into consideration the conveniences and inconveniences It further provides that the arbitrator shall examine the accounts of various business and other matters and settle those accounts between the parties. There is further a provision regarding other matters which are not of importance with reference to this appeal. The important clause with reference to the present argument is Clause 9 of the solehnama which, is in the following terms: "If Radha Kishore Ta fails or becomes unable to make the divisions and partition of all these properties that are settled as ijmali and to adjust and settle the account relating to such of the karbars as to which accounts have to be taken, in such a case, any of the parties shall hare power to enforce such divisions and partition and the taking of such accounts by executing this decree and upon such adjustment and settlement of accounts each party shall get a decree for the amounts that may be found due to him or her thereby". That is the only clause in the decree which provides for any further action by the Court. But action can only be taken under this clause in the event of the arbitrator failing to perform his duty. If there has been compliance by the arbitrator with the conditions of the solehnama as regards dividing the properties and settling accounts nothing remains to be done by the Court. In the present case it is not necessary to decide what action can be taken under this clause in the event of such failure on the part of the arbitrator. If he has failed to make a binding award which can be filed, this suit would be dismissed. If the award is held to be a proper award this Clause 9 will not come into operation. In our opinion Clause 9 is in favour of the respondents case that the parties intended that no further steps should be taken in Court and that the arbitration should be an arbitration without the intervention of the Court and that this is the effect of the decree in which the solehnama, is embodied.

(3.) The next point urged is that if there was a valid submission to arbitration it was revoked for good cause. On this point we are in agreement that the findings of the lower Court that the revocation either by Hem Chandra Kundu or by Hrishikesh, the brother and, am mukteer of Atulashi Dasi, has not been proved. It is not necessary to deal with this point at great length because it is dependent on the question as to whether there has been misconduct by the arbitrator The connection is two-fold. Whether there was actual revocation or not is a question of fact on which there is contradictory evidence and we shall have to deal with the credibility of the evidence in dealing with the question of misconduct. Further even if there were revocation it would not be effective unless it was for just cause, and unless we hold that there has been misconduct on the part of the arbitrator we could not give effect to the contention of the appellant that there was revocation of the arbitrator's authority.