JNANENDRA NATH MUKHERJEE Vs. JITENDRA NATH MUKHERJEE

JUDGEMENT

(1.) One Kailas Chandra Mukherji died in November, 1910, leaving a Will, dated the 28th August, 1908. He left two sons Jnanendra and Debendra by his first wife and four sons Jogendra, Jatindra, Jitendra and Jonendra by his second wife. He also left a daughter Ashalata by his second wife, who was unmarried at the time of his death. Jnanendra, Debendra and Jogendra had attained majority at the date of the Will, and Kailas Chandra Mukherji appointed all the said three sons as executors. Jogendra, however, died during the lifetime of his father and a few months before the death of the latter. No Probate was taken of the Will but on the 17 January, 1921, there was an agreement between the first party consisting of Jnanendra and Debendra and the second party consisting of Jatindra, Jitendra and Jonendra by which the disputes between them were referred to the arbitration of three gentlemen, Babu. Nanda Lal Pal, Babu Hari Charan Chatterji and Babu Kanti Chandra Ghose. The arbitrators made their award on the 25 November, 1921. On the 1 February, 1922, Jnanendra and Debendra applied to the Court against Jatindra, Jitendra and Jonendra that the award might be filed. This gave rise to the suit which was tried by the Subordinate Judge, Second Court, Hooghly. The Subordinate Judge made an order refusing to file the award and dismissed the suit. Hence this appeal.

(2.) It was stated in the agreement that a dispute had arisen between, the two parties for the partition of the moveable and immoveable properties left by their father and in respect of the construction of the "Will and also with regard to the accounts connected with the estate left by him. It was stipulated that" Both the parties shall be bound by the award that may be given by the said arbitrators on making a partition or any other settlement in respect of the self- acquired moveable and immoveable properties of our father, by relying on the evidence and documents that may be put forward. None of the parties shall be competent to raise any objection or plea thereto. The parties shall all be bound by the decisions arrived at by the arbitrators, with respect to the respective assets or liabilities of the parties after examining and looking through the accounts of the income and expenditure of the estate left by our father since his death." The Will was put forward as one of the documents in the case, but the arbitrators thought, to quote their own words, that it was "unworthy of evidence." The arbitrators nevertheless referred to the will but only for the purpose of ascertaining the testator's intention and not with the object of giving effect to the same, and, on the other hand, the arrangement contemplated by the testator was freely departed from in the award. As regards partition the allotments were made in contravention of the terms of the Will in order to suit the desire of the parties or their mutual convenience. The unmarried daughter Ashalata who was not a party to the agreement or the suit had been given certain ornaments by the Will, but the arbitrators held that Kailas had no authority to dispose of them and they awarded the same to the plaintiffs. There were other variations made though they ere of minor importance. The award also gave credit in favour of the plaintiffs in respect of a sum of Rs. 4,500 on the ground of maintenance charges incurred by them on account of the defendants.

(3.) The Subordinate Judge has dismissed the suit upon three main grounds, and these grounds have been challenged before us.