RAMSEWAK SINGH Vs. RAMAPRASAD SINGH

JUDGEMENT

(1.) This appeal is directed against the order of the learned Additional Subordinate Judge of Gaya in a proceeding for filing an award, and making it a decree of the Court. The plaintiff, who is the appellant in this Court, filed the plaint on the allegations that he and the sole defendant (as the suit was constituted on the original plaint) were at one time members of a joint Hindu family; that there were differences between the brothers on the question of liquidation, of debts and other matters relating to the joint family properties, which necessitated reference of their disputes to the) arbitration of three persons, Babu Nand Kumar Singh, Bahu Ram Pukar Singh and Babu Jirjodban Prasad Singh, the first two of whom happened to be relatives of either both the parties or one of them; that in pursuance of the decision of the parties to have their differences settled by the aforesaid persons they entered into a registered agreement called the panchnama (Ex 1 on 6-5-1940--the appellant was the second party and the defendant was the first party in that deed, which was executed in favour of the three persona aforesaid; that the parties had separated in estate before the execution of the deed aforesaid though there had been no division of their properties by metes and beunds; that the plaintiff, soon after the separation, had been functioning as the karta of his branch of the family, and similarly the defendant as the karta of his branch of the family; that the arbitrators aforesaid, after considering. the case of the parties, and the documents and evidence adduced before them, gave their award and divided the common properties into two parts for the two branches of the family; that these debts, which remained outstanding against the family, after the application of Rs. 20,000 raised by execution of the sale deed dated 18-9- 1940, in respect of village Ratanpura, were divided between the two branches of the family by the arbitrators; that as the arbitrators put off the registration of the award given by them in spite of the repeated demands of the plaintiff, he had to apply for compulsory registration of the award, and the proceeding was pending before the Sub-Registrar of Aurangabad. As the defendant was not prepared to abide by the award of the arbitrators, the plaintiff had to file the application in order that the award might be made a decree of the Court. The suit was filed on 27-10-1941, though the award was signed by two of the arbitrators namely. Ram Pukar Singh and Jirjodhan Singh on 29-3-1911, and by the remaining arbitrator Nand Kumar Singh on 4-4-1941.

(2.) Defendant 1 filed a written statement contending that it was not a fact that he was for some time separate from the plaintiff; that he was never the karta of his branch of the family; that the parties still continued to be members of the joint Mitakshara Hindu family; that he executed the Panchnama (Ex. 1) in the hope that the arbitrators would effect a fair and equitable partition of the joint family estates; that the arbitrators acted most perfunctorily, and without any proper material; that Babu Rama Pukar Singh, who is related to the plaintiff, brought the other two punchas into his collusion, and made the most inequitable partition as a result of which the defendant's portion, of the properties would yield an income much less than his half share in the family property; that the arbitrators did not divide all the properties which were joint between the parties. He also contended that he had adult sons who were necessary parties to the suit. It appears that the two sons of the sole defendant were added as defendants 2 and 3 on their own application, and not at the instance of the plaintiff. They filed a separate written statement on 17-3-1943, supporting their father's case that there was no separation between the plaintiff's and the defendant's branches of the family. They also alleged that defendant 1 had grown old not being less than 70 years of age, and therefore unable to look after the zamindari affairs, and that he was a man of very obliging disposition; that the defendants, who were adults being aged 37 and 30 respectively, were looking after the kashtkari and zamindari business along with the plaintiff and his sons who also are adult; that the plaintiff never informed, these defendants about the proposal of having the properties divided by the arbitrators, and that as a matter of fact the plaintiff dishonestly prevailed upon defendant 1 to have the former's relations and creatures as punches; that them defendants had no knowledge about the proposed arbitration, and that they would not have consented to the appointment of these punches who were actually selected as arbitrators; that defendant 1 had no authority in law to agree to the appointment of certain arbitrators to divide the ancestral properties without their consent; that on that account the division of the properties made by the arbitrators was not binding on them; that the punches aforesaid never took the trouble of ascertaining all the family properties moveable and immovable, and that, they never held any sittings and on that account also their award was vitisted; that the punches have not divided certain moveables which they had been called upon to do that no allotment paper had ever been furnished to defendant 1; that the award was one-sided, and the allotment made by them was so inequitable and unjust that the income of the properties allotted to the plaintiff is much in excess of that of the properties allotted to the defendant, and finally, that the arbitrators were guilty of misconduct inasmuch as their proceedings were wholly irregular, and they were negligent in the discharges of their duties. They also averred that defendant 1 had not executed the reference to arbitration (the panchnama) as karta of his branch of the family. It may be noted at this stage that in none of the two written statements filed one by defendant 1 and the other by defendants 2 and 3 was it stated specifically that the plaintiff was the karta of the family, nor has it been denied specifically that before the separation between the two branches of the family as alleged by the plain, tiff defendant 1 was the karta of the family being the eldest member.

(3.) Hence the two principal questions to be determined in this appeal are: (1) was the reference to arbitration invalid on account of the fact that the sons of defendant 1 did not join in the agreement appointing the arbitrators and (2) whether the award is bad either on account of the misconduct of the arbitrators or because it is illegal on the face of it.