LAKSHMINARAYANA TANTRI Vs. RAMACHANDRA TANTRI

JUDGEMENT

(1.) This appeal arises in a suit to file an award and is preferred by the 2nd defendant who is a minor represented by his mother, the other parties being the 1st defendant his father, and the plaintiff the brother of the 1st defendant and uncle of the 2nd defendant. All these three persons were members of an undivided Hindu family, and the arbitration was sought for the purpose of partitioning the properties between the plaintiff on the one hand and the first and second defendants on the other. The very next day after the submission, the 1st defendant who was acting as the guardian of the 2nd defendant gave notice to the arbitrator revoking the submission, thereafter he did not appear at all in the proceedings and the arbitrator proceeded to make the partition no one being there to watch the proceedings on behalf of the 2nd defendant and to protect his interests. It has been held that the revocation by the 1st defendant was not justified and the question for decision, therefore, is whether the failure of the 1st defendant as guardian to conduct the case of the 2nd defendant before the arbitrator which in my opinion amounted to gross neglect of his duty is sufficient to vitiate the award. I am clearly of opinion that the contention of the learned vakil for the appellant that an award is ipso facto invalid if it cannot be shown to be beneficial or advantageous to the minor is not sustainable. I am not clear that the learned judge in the decision in In the matter of Romon Kissen Sett v. Hurrololl Sett (1892) I.L.R. 19 Cal. 334 has laid down any such proposition. At any rate, I agree with the view of the law as propounded in Ramji Ram v. Salig Ram (1911) 11 C.L.J. 188 on this point. Nor am I able to accept the contention of the appellant that the 1st defendant s interest in the arbitration proceedings was adverse to that of the minor and the submission was bad on that ground. No doubt, one of the questions which the arbitrator had to deal with was whether certain debts incurred by the 1st defendant were binding but that question was not raised between the 2nd defendant and the 1st defendant but only between the plaintiff on the one side and the 1st and 2nd defendants on the other and the decision of the arbitrator has in no way concluded that matter between the 1st defendant and the 2nd defendant.

(2.) On the main question there can be little doubt that it would be open to the minor by a suit instituted either through a guardian or when he attains majority to impeach the award if he can prove that his guardian has been grossly negligent or has acted fraudulently in conducting the proceedings before the arbitrator. There can be no doubt that a decree may be impeached where there has been negligence on the part of the next friend in the conduct of the plaintiff s case, and it is stated by Vice-Chancellor Malins In re Hoghton (1874) L.R. 18 Equity, p. 573 at p. 576. " The question which I have to decide is, whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience.... The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and who will protect her interests." See also Lalla Sheo Churn Lal v. Ramnandan Dobey (1894) I.L.R. 22 Cal. 8. It is unfortunate that there is no provision in the Civil Procedure Code which makes it incumbent on the arbitrator, where a reference has been made out of court, to see that the case of the minor is in the hands of a proper guardian, similar to that laid down by Order 32 Rule 11 with respect to the Court. I think the proposition laid down by Vice-Chancellor Malins is equally applicable to proceedings before an arbitrator. This has hardly been disputed before us. The argument which is used to uphold the award is that the court can refuse to file an award only on the grounds mentioned in the second Schedule of the Code Rules 15, 14 etc, and that, though a separate suit may lie, the same objections to an award which would justify a suit are not available to the minor when the award is filed and sought to be made a decree of court under the special procedure provided by the second schedule. If this argument were accepted it would follow that where an award which affects a minor is invalid because of the fraud or neglect of the guardian in the conduct of the arbitration proceedings the court is bound to pass a decree in the terms of the award although the next day it would be set aside by a suit on the very same allegations. Unless one is compelled by clear words of the statute one would not countenance such an interpretation of the law.

(3.) Rule 15 says, "No award shall be set aside except on one of the following grounds :- be it noted that this does not seem to be confined merely to objections to filing an award but is wide enough to cover suits to set aside an award including those mentioned in Clause (c) which runs as follows, "the award having been made after the issue of an order by the court superseding the arbitration and proceeding with the suit or after the expiration of the period allowed by the court, or being otherwise invalid." The phrase "or being otherwise invalid" was for the first time introduced into the new code and it seems to me that it is wide enough to cover such a case as this. If an award is invalid under the law governing minors I see no difficulty why such invalidity is not included in these words. It was suggested that "invalid," means "void" and an award which an infant could get set aside would only be voidable, but I do not think that there is any substance in this distinction. If a party does not choose to get rid of an award even in cases falling under Clause (c) it would be binding on him and there seems to be no sense in the distinction between void and voidable awards so far as Rule 15 is concerned. In fact, that rule itself states the circumstances under which an award becomes "void" in cases dealt with in Rule 14 suggesting that awards which can be set aside under Rule 15 are not to be treated as void awards.