RUP SINGH Vs. BHABHUTI SINGH

JUDGEMENT

(1.) In this case the plaintiff Rup Singh is suing his sole surviving brother, Bhabhuti Singh, and the three minor sons of a deceased brother, Ratan Singh, for separate possession by partition in respect of a one-third share of certain properties, movable and immovable, specified at the foot of the plaint. He also asks for the cancellation of a certain award, dated the 28th of February, 1912, made by two arbitrators, Bijai Singh and Mihin Lal, under circumstances to be noted presently. The plaint recites that the joint family consisting of the plaintiff, his brothers and his nephews " was divided and made separate in food " about the year 1909 or 1910 A. 1). From this time the plaintiff and another nephew, a major, by name Hukam Singh, son of a deceased brother named Sarup Singh, each continued to utilize the family property to the extent of their respective one- fourth shares. Hukam Singh has now secured separate possession of his share after a complete partition by metes and bounds, and the plaintiff, being now the owner of an undivided one-third share in the property formerly belonging to the joint family, left in the hands of himself and First Appeal No. 215 of 1910, from a decree of Piari Lal Katara, Subordinate Judge of Mainpuri, dated the 15th of June, 1916. the defendants, seeks a partition of his own share in the same manner.

(2.) He is conscious, however, that there is one obstacle 19 his way. He admits that on the 3rd of February, 1912, he had signed, along with his brothers Bhabhuti Singh and Ratan Singh, a reference to arbitration, by which the arbitrators already named were empowered to settle all disputes between them and to make arrangements for the management of the property. The arbitrators delivered an award on the 28th February, 1912, and got it registered on the day following; but the plaintiff says that the terms of the said award had only come to his knowledge within the u last few months," He admits that by the terms of this award he purports to be compelled to " remain under the control of and look to the defendants for support," which is an indirect way of admitting that the award purports to leave the management of the family property with Bhabhuti Singh and Ratan Singh and to bind the plaintiff not to seek separate possession of his share by partition. He attacks the award upon three distinct grounds: (i) Because the plaintiff s signature on the agreement of reference had been obtained by undue influence, at a time when the plaintiff was being prosecuted on a criminal charge brought against him by, or at the instigation of, Bhabhuti Singh and Ratan Singh. (ii) Because the arbitrators had been guilty of misconduct and had returned an unjust award by collusion with the aforesaid brothers of the plaintiff. (iii) Because the terms of the award are in themselves illegal, beyond the powers of the arbitrators and not binding on the plaintiff.

(3.) The plaintiff, therefore, seeks, as his first relief, a declaration that the said award is " null and void," this relief being apparently sought as a preliminary to the claim to separate possession by partition which follows.