DIBOPRAKASH GANGULY Vs. SUPROKOSH GANGULY

JUDGEMENT

(1.) This is an application by the plaintiff asking the Court to set aside an award of two arbitrators made under the Schedule 2, Civil P.C. The facts are extremely simple. The two defendants are the brothers of the plaintiff, and the property with which I am concerned is 127, Lower Circular Road, which was bequeathed to the three brothers by their father in equal shares. In April of this year the plaintiff instituted this partition suit asking for the reliefs which are generally claimed in proceedings of that nature, that is, he asked for a declaration that he is entitled to a one-third share of his father's estate : for possession; for administration, if necessary; for partition by metes and bounds and allotment of his share. A consent order was made on 11 June 1937, whereby the matters in dispute were referred to the arbitration of two members of the Bar. The actual terms of settlement constituted a schedule to the Court's order, and I need only concern myself with paras. 1 to 3 of those terms. In para. 1 it was declared that the plaintiff and defendants were each entitled to a one-third share in the estate of their father as well as in premises 127, Lower Circular Road. In para. 2 all remaining matters in dispute between the parties including the question of accounts between the parties were referred to the arbitrators named in the Schedule. Para. 3 is as follows: The arbitrators will in any event take accounts of premises 127, Lower Circular Road, Calcutta, will decide the mode of partition of the same and will partition the same with the assistance of Mr. C. K. Sircar (if necessary) on the basis that each party is entitled to a one-third share therein.

(2.) Mr. Sircar is a Consulting Engineer and Valuer, whose name is well known to every body connected with the Court as his assistance is frequently obtained in matters of this sort. The arbitrators made their award on 26 August 1937. After reciting the consent order they set out the substantive portion of the award, and the third paragraph of it is in the following terms: Premises 127, Lower Circular Road, be partitioned by sale, namely, the said premises be sold and the sale proceeds after deduction of the costs of sale and of the costs payable in a partition suit after the preliminary decree, be divided into three equal parts between the plaintiff and defendant 1 and defendant 2.

(3.) The award is attacked on two grounds: the first is that the arbitrators were guilty of technical misconduct within the meaning of Para. 15 (a) of Schedule 2, because after the final sitting they consulted Mr. C. K. Sircar as to the desirability of selling the property instead of partitioning it by metes and bounds, without informing the parties either of their intention to take Mr. Sircar's opinion, or of the substance of that opinion when Mr. Sircar had given it. The other ground of attack is that the award goes beyond the scope of the reference because the terms of the order of reference limited the powers of the arbitrators as far as 127, Lower Circular Road is concerned to partitioning it physically, and did not confer upon them the power to direct a sale and divide the proceeds of the sale in accordance with the shares of the parties. The learned Standing Counsel for the defendants concedes that if the award is beyond the scope of the order of reference, it is "otherwise invalid" within the meaning of Para. 15 (a).