CHHABBA LAL Vs. KALLU LAL

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Allahabad dated 8 September 1939, which set aside a decree of the Subordinate Judge of Cawnpore dated 3 November 1933, passed in a partition suit and sent the case back to the Subordinate Judge with directions to re-admit it under its original number and to decide it in accordance with law. The question for decision is whether a reference to arbitration made in this suit, and an award made thereon, were valid as the Subordinate Judge held, or invalid as the High Court of Allahabad held in appeal. The question arises in the following circumstances.

(2.) The plaintiff brought this suit for division of the property of a Hindu family governed by the Mitakshara. The plaintiff was the son of one Mukta Prasad, and the first three adult defendants, Kallu Lal, Sohan Lal and Sewak Lal were the sons of the only brother of Mukta Prasad, whilst defendants 4 and 5 Ram Lal and Jainarain, were the minor sons of Kallu Lal. The plaintiff alleged that the family had separated in status, but that the property had not been divided, and he claimed partition of the property and that a half share be allotted to him. In their written statement, the adult defendants alleged that the family was still joint, but the claim for partition was not disputed. In the suit, Sohan Lal was appointed guardian-ad-litem of the minor defendants, and as such he adopted the written statement of the adult defendants. On 1 September 1933, an application was made to the Subordinate Judge by Kallu Lal, Sewak Lal and the plaintiff stating that the parties had appointed Shri Swami Ramanandji who was the Guru of the parties, a referee for the decision of all the facts in dispute in the suit and also for the decision in respect of the costs of the suit and they asked that the Swami might be appointed a referee under S. 20, Evidence Act. On 2 September, 1933, Sohan Lal appeared before the learned Subordinate Judge and verified this application and the learned Judge made the following note: "This application was verified to-day by Sohan Lal, defendant, on being identified by Babu Munna Lal, Vakil, after hearing and understanding the same."

(3.) On 4 October 1933, the learned Judge made an order that according to the application of the parties, Shri Swami Ramanandji was appointed a referee under S. 20, Evidence Act, for deciding this case and directed him, after deciding the case, to present himself in Court or send in writing, his statement in respect thereof. On 7 October 1933, the referee made his report dividing the family property into two parts allotting one part to the plaintiff and the other to the defendants. Objections to the report on behalf of the minors were lodged on 17 October 1933, the two principal objections being first that the guardian of the minors did not purport to act as a guardian entering into the agreement for reference and that as no previous sanction of the Court had been obtained the agreement was not binding on the minors, and secondly that the alleged agreement in terms only constituted Swami Ramanandji a referee under S. 20, Evidence Act, and that as such he could only make statements and had no authority to make a division of the property. Objections were also filed on behalf of the adult defendants alleging fraud against the Swami but it is not necessary to consider these objections. On 3 November 1933, the learned Subordinate Judge, having held that the reference to arbitration and the award were valid, passed a decree in the terms of the award. From this decree an appeal was brought to the High Court of Allahabad which on 8 September 1939, allowed the appeal, set aside the decree of the lower Court and sent the case back to the lower Court to readmit under its original jurisdiction and to decide in accordance with law. From this decree the present appeal is brought. Neither the learned Subordinate Judge nor the High Court dealt with the objection that the reference was not justified by S. 20, Evidence Act. That section is in these terms: "Statements made by persons to whom a party to a suit has expressly referred for information in reference to a matter in dispute are admissions."