SARAFUDDIN NUR AHMAD MAZUMDAR Vs. JIBANNESSA KHATOON

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and arises out of a suit for declaration of title, confirmation of possession, in the alternative for a conveyance of the properties described in schedules ga and gha of the plaint on the basis of the provisions of para. 48 of an award which was followed by a decree. His suit has been dismissed by both the Courts below. Hence the present appeal.

(2.) The relevant facts are these. The plaintiff and the defendants were co-sharers. In 1919, a suit for partition was instituted in which the plaintiff and the defendants as also their other co- sharers were parties. This suit was numbered as Title Suit No. 6 of 1919. The subject-matter of the suit was referred to arbitration and the arbitrators filed the award in Court on December, 22, 1920. The award was accepted by the Court and a decree was passed on it. By the award, the arbitrators allotted different portions of the joint property to the different co- sharers. The plaintiff was given in his Saham certain lands representing 2-3rds share of a taluq and all the lands of 8,hoivla. The land of schedule ga of the plaint is a holding originally held by Safaraddi which fell within the 2-3rds of the taluq included in the plaintiff's allotment. The land of schedule gha is also a holding held by Safaraddi and fell within the howla which was allotted to the plaintiff at the partition. In Clause 48 of the award, the arbitrators make a provision that none of the co-sharers, thereby meaning the parties to the suit, would be able to purchase or acquire any interest in any subordinate tenancy falling within the allotment of any other co-sharer and if he acquired such an interest he would be bound to covey the same without receiving any price what so ever to the other co-sharer within whose allotment the lands of the tenancy are situate. This clause further provides that the co-sharer so purchasing would amicably make the conveyance and if he refuses to do so amicably, the other co-sharer would be entitled to enforce the rights given by this clause end obtain a conveyance. In the last portion of this clause, the arbitrators state that they felt a doubt whether they could include a provision of this nature by the terms of the reference to them. They then say that the parties themselves before them agreed to the aforesaid terms and they accordingly embodied the same in the award. Paragraph 48 of the award really embodies the contract between the parties in this respect. In contravention of these terms defendant No. 1 purchased in the benami of defendant No. 2 the two holdings described in schedules ga and gha of the plaint on March 20,1922. On July 22, 1924, the plaintiff purchased from defendant No. 2 in the benami of the Haran Chandra Chakravarty the properties described in schedules ga and gha. After this purchase, defendant No.1 brought a Title Suit No. 189 of 1927, against the heirs of Saferaddi, defendant No. 2, and Haran Chandra Chakravarty, the plaintiff's benamdar. In that suit, he prayed for a declaration that he himself was the beneficial owner and not the defendant No. 2 and that Haran Chandra Chakravarty did not I acquire any title. He also prayed for possession. This suit was decreed on July, 4, 1927, the question as to the effect of Clause 48 of the award being left open as betweentheparties. The plaintiffs case is that after this decree he required the defendant on July, 14, 1929, to execute a conveyance in his favour in respect of the two properties but there was a refusal. On July 24, 1929, he instituted a suit out of which this appeal arises. The Court of first instance dismissed the plaintiff's suit mainly on the ground that there was no consideration which would support the provisions of Clause 48 of the award. The lower Appellate. Court has affirmed the decree made by the learned Munsif but on different grounds. It has started that inasmuch as Clause 48 provided for a transfer of title from defendant No. 1 to the plaintiff without any payment being made for the transfer to the plaintiff by the defendant No. 1, the provision contained in Clause 48 is against public policy and cannot been forced. It has further held that Clause 48 offends against the rule of perpetuities. On these two grounds the said Court dismissed the plaintiff's suit deciding in his favour other questions raised by the defendant, namely, the question of the validity of the award, the question of ns judicata and the question of limitation.

(3.) Before me, the learned Advocate who appears on behalf of the respondents supports the decree made by the learned Subordinate Judge not only on the grounds mentioned by him but also on two grounds, namely, Clause 48 ought to have been held to be inoperative, as being beyond the reference to the arbitrators and secondly, the suit is barred by limitation.