MARUTI ABA BONGANE Vs. AKARAM PANDU MORE

JUDGEMENT

(1.) This appeal arises out of a suit for possession of survey No. 758/1 of Uran measuring 10 acres and 8 gunthas and a house in that village which belonged to defendant No. l's father-in- law Masu. Masu died in 1907 leaving behind him his widow Bhagu and his son-in-law defendant No. 1 whose wife Mamata had already died in 1903. On Masu's death his property devolved upon his adopted son Appa. Appa died shortly afterwards and the property went to his mother Bhagu. Bhagu made a gift of 9 acres and 1 guntha out of survey No. 758/1 and the house in favour of her son-in-law defendant No. 1 in 1909. But she disclaimed that gift by a notice served on defendant No. 1 in .1916. She died on May 3, 1939, and disputes arose regarding the heirship to her land and house. Defendant No. 1 claimed them under the deed of gift executed by her. The plaintiff Aba, who is the son of Masu's cousin Kushaba, claimed the property as the nearest reversionary heir. Defendants Nos. 2, 3 and 4 are Aba's nephews and therefore one degree more remote. Still they also put forward their claim to a share in the property along with the plaintiff. All these claimants, therefore, referred their disputes to the arbitration of the Village Police Patil Anna Dada by a deed of reference dated. July 19, 1939. The arbitrator gave his award on the very next day and held that the plaintiff was the nearest reversionary heir, that defendants Nos. 2, 3 and 4 were not such heirs, and that Bhagu had made a gift of the property in favour of her son-in-law in accordance with the wishes of her husband Masu, but in order that there might not be any litigation and needless expenditure, he divided the property among all the four. The deed of gift passed by Bhagu in favour of her son-in-law included only 9 acres and 1 guntha out of survey No. 758/1, so that it left 1 acre and 7 gunthas untouched. The plaintiff as the nearest reversionary heir became, therefore, entitled to that area. But the arbitrator awarded him two acres. He also awarded 13 gunthas to each of defendants Nos. 2, 3 and 4 and the remaining property consisting of 7 acres and 9 gunthas out of survey No. 758/1 and the family house were awarded to defendant No. 1. The plaintiff who was not satisfied with the award immediately filed this suit on August 23, 1939, alleging that the award was illegal on the face of it, that his signature on the deed of reference was obtained by fraud, that the award was not binding on him as it was vitiated by fraud, partiality, misconduct and illegal conduct of the arbitrator and that the arbitrator had deliberately ignored his obvious title with the deliberate purpose of favouring the other parties. He, therefore, sought to recover possession of the entire property of Masu as the nearest reversionary heir after the death of his widow Bhagu. The defendants contended that there was a proper reference of the dispute between the parties to the arbitration of the Police Patil, that no fraud was committed on the plaintiff, that the arbitrator gave a proper hearing and decided the dispute, that his decision was impartial, that his award was valid and binding on the plaintiff and that the plaintiff's suit was not maintainable. The trial Court held that the plaintiff's thumb-mark was not taken on the deed of reference fraudulently and that the reference was proper. But it held that in view of the findings recorded by the arbitrator his award was illegal on the face of it and was therefore not binding on the plaintiff. The plaintiff was given a decree for possession of both the land and the house together with mesne profits from the date of suit. In appeal, the learned District Judge held that the arbitrator did not go beyond his powers in dividing the property between the parties before him in the way he thought best in their interest and that there was no error or illegality on the face of the award. He, therefore, held that the award was binding on the plaintiff and his suit for possession was not maintainable. The appeal was, therefore, allowed and the plaintiff's suit was dismissed.

(2.) In this Court it is urged on behalf of the plaintiff that the arbitrator's award was obviously opposed to the findings recorded by him and was, therefore, illegal on the face of it. The deed of reference sets out in detail the matters in dispute between the parties. It says that the plaintiff claimed that as he was the nearest relative of Masu and his adopted son Appa, he was entitled to all the property as the nearest reversionary heir on the death of Bhagu who had inherited it from her adopted son. Defendants Nos. 2, 3 and 4 claimed that the plaintiff was not the sole reversionary heir but they also were reversionary heirs along with him. Thus the first question which the arbitrator had to decide was who was the reversionary heir or heirs on Bhagu's death. Defendant No. 1 claimed that although Bhagu had only a widow's interest in the property inherited from her adopted son, yet she made a gift in his favour as ordered by her husband, and as the gift was intended to carry out the wishes of her deceased husband, it was valid and binding on the reversionary heirs. This question also had to be decided by the arbitrator before making a final award regarding the property. After setting out these matters in dispute the deed of reference proceeded to say:- These are the matters in dispute between the parties. You should give your decision after hearing what the parties have to say. Your decision will be acceptable to us and we will regard that decision as final.

(3.) Thus the deed of reference required the arbitrator to give his decisions on the specific points in dispute between the parties and then pass an order regarding the possession of the property of deceased Bhagu. On these points in dispute the arbitrator did record definite findings and by reason of the reference the parties are bound by those findings, which must be regarded as final. Those findings are that the plaintiff alone is the reversionary heir, that defendants Nos. 2, 3 and 4 have no interest in the property and that Bhagu passed the deed of gift in favour of defendant No. 1 in accordance with the direction of her husband. The arbitrator does not say whether Bhagu's gift, though made in accordance with her husband's wishes is valid and binding on the reversionary heir. If it be valid and binding on the plaintiff, then the entire property which was gifted should have been given to defendant No. 1 and the plaintiff should have been given only the property not comprised in the deed of gift, namely, 1 acre and 7 gunthas out of survey No. 758/1, but no part of the property could have been given to defendants Nos. 2, 3 and 4. Yet after recording his findings, the arbitrator set them at naught and proceeded to divide the property according to his sweet will with the sole object of pacifying the parties before him lest otherwise they might start a fresh litigation and incur needless expenditure. That was not the reference made to him. He was authorised by the deed of reference to decide the points in dispute and pass orders regarding the property in accordance with his findings. But to record findings in favour of one party and then order delivery of property to some other party is illegal on the face of the award itself and must be regarded as an apparent error in law. In such a case to use the words of Viscount Sumner in Saleh Mahomed V/s. Nathoomal, where the arbitrator makes a mistake of law visible on the face of his award, he is guilty of "judicial misconduct", and such an award must be set aside.