DURGA PROSAD CHAMRIA Vs. ANARDEYI SETHANI

JUDGEMENT

(1.) These two appeals arise respectively out of the order made by Edgley J., on March 1941 dismissing the appellant's application for setting aside the award made by Sir Manmatha Natb Mukherjee as the sole arbitrator appointed in Suit No. 1840 of 1930 and the judgment and decree pronounced by the same learned Judge on 10 March 1941 upon that award. The suit, the award and these two appeals concern the affairs of a family named Chamria whose genealogical table is the following:

(2.) During many years prior to 1916 Hardatrai and his nephew Ramprotap carried on a large and profitable business in partnership as banias, merchants and landholders. Before his death in 1911 Amolokchand had a two annas share in some part3 of that business. After deducting Amolokchand's share, the balance, considered as 16 annas, were divided between Hardatrai and Ramprotap in proportion of 11 annas and 5 annas respectively. By a deed of partnership (hereinafter called "the partnership deed") made between Hardatrai and Ramprotap on 1st October 1916 it was agreed that they should carry on the said business in partnership for 20 years under the name and style of Hardatrai Chamria & Co., their shares being 11 annas for Hardatrai and 5 annas for Ramprotap. Clauses 9 and 10 of the partnership deed were in the following terms: 9. In case any partner shall die before the expiration of the partnership his share in the capital of the partnership shall be retained in the said business during the residue of the term of the partnership and the said business shall be carried on during the residue of the said term as from the death of the deceased partner as nearly as may be according to the provisions of these presents but so that the representatives of the deceased partner shall succeed to his share in the firm and be substituted for him as junior partners only and the representatives of the deceased partner shall not have any power to interfere in or have any control over the conduct and management of the said business except under the direction of the surviving partner nor shall they have any right whatever during the residue of the said term of partnership to draw out the share of the deceased partner in the capital of the said partnership nor shall they institute any proceedings whatsoever for the withdrawal of such capital or any portion thereof or for the appointment of any Receiver of the said partnership asset and all proper instruments for carrying the provisions of this clause into effect shall be executed between him and the representatives of the deceased partner. 10. Either of the partners may during his lifetime or by will introduce any son or sons who shall have attained the age of 14 years as a partner or partners into the said firm during the residue of the said term for any part of the whole of his share In the partnership it being intended that the share of profits of such son or sons shall be wholly divided from the share of his father and may transfer to such son or sons all or such part as the partners introducing him may think fit of the capital of such partner in the said business.

(3.) This partnership deed was registered under the Registration Act. About this time trouble was brewing in the family and disputes had arisen as regards the rights of Hardatrai's adopted son Durga vis a vis the two natural sons of Hardatrai, namely, Radha and Moti both of whom had been born after the adoption of Durga. Apparently, to settle these disputes and to prevent litigation, two documents came to be executed on 16 November 1916. Neither of these documents was, however, registered under the Registration Act. By document called "memorandum of the terms of arrangement by way of family settlement between the members of the family of Rai Hardatrai Chamria Bahadur of Howrah" (hereinafter referred to as "the family deed") it was provided inter alia, as follows: 1. The members of the family of the said Rai Hurdutroy Chamria Bahadur are at present (1) his wife Mt. Anardeyi Sethani (2) his adopted son Durga Prosad and (3) and (4) his two minor sons by his said wife, viz., Radha Kissen and Motilal (the last named is proposed to be given in his adoption to the widow of Amluekehand). 2. That all property of the said Hurdotroy Chamaria Bahadur are in fact his self- acquired property and the members of his family agree to deal with it as such. 3. The said Hurdotroy Chamaria Bahadur is solely entitled to the remaining share in the firm of Hurdutroy Chamaria carried on upto 30 September 1916 after deducting Ramprotap Amuluckohand's share as entered in the books of the firm and the assets and investment thereof and a like share in the firm of Hurdutroy Chamaria & Co., carried on since 1 October 1916 and the assets and investments thereof. The said business of Hurdutroy Chamaria & Co., will be carried on upto 31- 12-1916.