(1.) I have had the advantage of reading the judgment to be delivered by my learned brother and, as I agree with it, I propose to deal with one aspect of defendants case.
(2.) Stated at its strongest, their case was that their dispute with plaintiff and 23rd defendant involved adjudication on two distinct matters, firstly their right and plaintiffs to recover the property in 23rd defendant s possession from him, secondly, their rights as against plaintiffs to a particular share in it if it in fact was recoverable. On the first point for the reasons given by my learned brother, there could be no valid submission to arbitration without 2nd defendant s concurrence and although the record does not indicate what method of decision, if any, was really in the parties minds the wording of paragraph 2, Ex. I, is in fact inconsistent with any intention on their part to submit this part of the case. But, it is argued, the absence of any valid submission on this point does not affect the validity of the submission on the other above referred to, in which 23rd defendant had and could have no interest, since, if he was to surrender the property, the shares in which it was afterwards to be divided would not be his concern. It is possible that there is nothing in Section 1, Schedule II of the Code of Civil Procedure irreconcilable with this statement of the defendants case and that the interest of the parties contemplated therein is in the question referred, not in the case as a whole. But it is an-necessary at present to decide whether that is so, because the assumption in defendants argument, as stated above that 23rd defendant had no interest in the result of the submission to arbitration is incorrect in two respects. For, firstly, the submission included the question of the validity of an adoption, on which plaintiff s rights to sue at all depended; and secondly, 23rd defendant, if he purchased in good faith, may be entitled to have his items assigned, to his alien or in order that his transfer might, so far as possible, remain effective. In these circumstances the submission cannot be accepted as valid; and 1 therefore concur in the decree proposed by my learned brother. Seshagiri Aiyar, J.
(3.) Plaintiffs and defendants 1 to 10 claim to be the nearest heirs of the deceased owner of the plaint properties. The suit was brought for a division of the properties and for setting aside certain alienations in favour of the other defendants. There was a dispute among the heirs as to whether adoptions set up by the defendants 1 to 7 were true and valid. After the settlement of the issues on the 25th September 1916, plaintiffs and defendants 1 to 11 agreed that the matter in dispute should be referred to the decision of three arbitrators, Paragraph 3 of the agreement says: " They have further agreed that the rest of the defendants except the 23rd defendant who was declared exparte be exonerated from the suit with the respective properties in their possession as per schedule attached thereto." That is to say, their heirs agreed that the alienations in favour of defendants other than the 23rd, should not be contested. Apparently, as the 23rd defendant was exparte, they did not exonerate his property from the suit. It was suggested by Mr. Narayanamurthy that in fact the claim against the 2nd defendant was withdrawn. There is nothing on record to justify such an assumption. On the other hand the express language of the agreement to refer shows that the alienation in favour of the 23rd defendant was not accepted as binding. Subsequent to the agreement on the 17th of April 1917, the plaintiffs and the defendants 1 to 7 settled the shares to which they were entitled and asked the arbitrators to determine after examining the parties themselves the following issues: " 1st part of the 2nd issue, 8th issue, 9th issue, 10th issue, 11th issue, 12th issue and 15th issue." The arbitrators by a majority decreed the claim in a particular manner. There was a minority decision also. The court accepted the award of the majority and passed a decree in accordance therewith. Against that decree the present petition has been presented.