MOTI LAL GHOSH Vs. GIRISH CHANDRA GHOSH

JUDGEMENT

(1.) In this appeal, we are invited by the plaintiff, in an action for partition of joint family properties, to set aside the final decree on the ground that the proceedings of the Commissioners, who were appointed by the preliminary decree to effect a partition, were irregular, and ought not to have been made the foundation of the judgment of the Court. We are also invited, if this fundamental objection fails, to modify the final decree on four subsidiary grounds, namely, first, that the valuation of the tank included in plot No. 35 has been determined upon an erroneous principle, secondly, that each of the plots Nos. 35 and 37 should not have been divided between the plaintiff and the third party defendant, but one plot might have been given to each of these contesting parties; thirdly, that the partition of the dwelling house is not complete inasmuch , as certain walls common to two adjacent rooms have been left joint; and fourthly, that plot No. 60 has not been properly valued. It has finally been suggested that the order for costs is ambiguous and that clear directions ought to be given in this respect.

(2.) In so far as the substantial question of law raised in the appeal is concerned which goes to the root of the matter, we are of opinion that the appellant cannot possibly succeed. Our attention has been invited to the statement in the judgment of the Subordinate Judge that it was conceded before him that one of the two Commissioners was not present at the time of the measurement of some of the plots, and on this basis it has been argued that the proceedings before the Commissioners were vitiated in their entirety. An attempt has also been made, for the first time in this Court, to show that on other occasions also, the Commissioners did not act jointly. For instance, it has been argued that their proceedings and diary show that evidence was on certain dates recorded by one of the Commissioners alone. We are unable, however, to hold that there is any force in this last contention. The presumption is that the Commissioners acted jointly and regularly, and if their proceedings are sought to be invalidated on the ground that in any particular matter they did not act jointly, the allegation ought to be specifically made and established. [Browe V/s. Kingsley 1 Johnson 334; Yates V/s. Russell 17 Johnson 461].

(3.) The proper course for the appellant was to have the Commissioners examined so that the Court might ascertain beyond, the possibility of dispute the manner in which the evidence was taken and the proceedings were generally conducted. We must, therefore, deal with the case on the assumption that the only irregularity which has been proved is that one of the Commissioners was absent when some of the plots were measured by his colleague. The learned Vakil for the appellant has contended that this is sufficient by itself to vitiate the entire proceedings; and in support of this view, he has relied upon the cases of Little V/s. Newton 9 Dowling 437, and In re Plews and Middleton 6 Ad. & E1. (N.S.) 845. These cases affirm the doctrine that where more arbitrators than one are chosen, even though a majority may decide, each must act personally in the performance of the duties of his office as if he were the sole arbitrator; in other words that all of them must be present throughout every meeting during the proceedings until the award is made because the parties are entitled to the benefit of the judgment and influence of each one, and, a neglect or refusal on the part of any one to act renders the award, made by the others, invalid. The respondent has not controverted this position which is, indeed, supported by cases of the highest authority. [In re-Beck and Jackson (1857) 1 C.B.N.S. 695, Morgan V/s. Bolt (1863) 7 L.T.N.S. 671 : 11 W.R. 265, Goodman v. Sayers 2 Jac. M. & W. 249 : 22 R.R. 112, Stalworth V/s. Inns (1844) 13 M. & W. 466 : 2 D. & L. 428 : 14 L.J. Ex. 81 : 9 Jur. 285, In re Lord and Lord (1855) 103 R.R. 535 : 5 E. & B. 404, Dalling V/s. Matchett Wilbs 215, White V/s. Sharp (1844) 12 M. &W. 712 : 1 D. 4 L.1039 : X Car. & K. 348 : 13 L.J. Ex. 215 : 8 Jur. 344 and Peterson V/s. Ayre (1855) 15 C.B. 724 : 23 L.J. C.P. 129 : 2 C.L.R. 722 : 2 W.R. 373]. But it has been argued on behalf of the respondent that there is a clear distinction between acts which partake of a judicial nature and acts of a ministerial character, and that in so far as acts of the latter description are concerned it is open to one of the arbitrators or Commissioners, appointed to effect a partition to delegate his functions to his colleague and in fact to a stranger. In support of this position reliance has been placed upon the cases of Stalworth V/s. Inns (1844) 13 M. & W. 466 : 2 D. & L. 428 : 14 L.J. Ex. 81 : 9 Jur. 285, Battye V/s. Gresley 8 East 319, and Buta V/s. The Municipal Committee of Lahore 29 C. 854 : 7 C.W.N. 82 : 4 Bom. L.R. 673 : 87 P.R. 1902 (P. C.). In our opinion the argument advanced on behalf of the respondents is well-founded and must prevail. In the cases last mentioned, their Lordships of Judicial Committee observed that there is no doubt that an arbitrator may delegate to a third person the performance of acts of a ministerial character, and it follows that if it is competent to him to do so, there is no reason why a Commissioner appointed to effect a partition should not delegate to his colleague the performance of a ministerial act of similar nature. To put the matter in another way, as Pollock, C.B. observed in Stalworth V/s. Inns (1844) 13 M. & W. 466 : 2 D. & L. 428 : 14 L.J. Ex. 81 : 9 Jur. 285, when a joint judicial act is to be done, it ought to be done by the parties jointly; but this principle has no application when the act is of a ministerial character. In the case before us the accuracy of the measurements, taken by one of the Commissioners and accepted as correct by his colleague, has not been challenged. We are unable to hold under these circumstances that the proceedings before the Commissioners were vitiated in their entirety by reason of the failure of one of the Commissioners to be present when measurements were taken in respect of some of the plots. The learned Vakil for the respondent has further contended that the irregularity, if any, in the proceedings of the Commissioners, has been waived and in support of this proposition he has referred to the case of Nadiar Chand Shah Bomik V/s. Gobind Chandra Shah Bomik 2 C.L.J. 61. The records make it manifest that the parties were represented before the Commissioners throughout the proceedings. If on any occasion one of the Commissioners was absent, it was open to them to take exception to the proceedings held by the other. They evidently took their chance and when the proceedings terminated against the plaintiff, he turned round and argued that the proceedings were invalid. It is evidently too late now for him to urge an objection of this character. The ground, therefore, upon which the validity of the proceedings in their entirety is challenged must be overruled.