BABU GOVIND DAS Vs. MTINDRAWATI

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council from an order passed by a Division Bench of this Court dismissing a civil application in revision. It is conceded that the case does not fall within the purview of clauses (a) and (b) of Section 109 and Section 110, Civil P.C., but it is maintained that in view of the provisions of Clause (c) of Section 109 the case should be certified to be a fit one for appeal to His Majesty in Council. The facts giving rise to the present application may be briefly stated as follows: Mt. Indrawati, respondent, filed a civil suit in the Court of the Civil Judge of Muttra against Rai Saheb Govind Das and certain other defendants. The value of the subject-matter of the suit was Rs. 18,00,000. The suit was for a declaration that Indrawati, plaintiff, was the next reversioner after her mother Mt. Bhagwati of the property left by her father Kalyan Singh who was alleged to be separate from Govind Das and the other members of his family. Indrawati further claimed a declaration that a deed of agreement dated 18 October 1919 entered into between her mother Mt. Bhagwati and the other members of the family of Kalyan Singh was null and void.

(2.) The defendants contested the suit and pleaded inter alia that Kalyan Singh was a member of a joint Hindu family with them and that the agreement dated 18 October 1919 was a valid and binding agreement and had been acted upon by all the partners. They maintained that the agreement was in the nature of a family settlement and was binding not only on the parties to that settlement but even on Indrawati plaintiff. They also alleged that Kalyan Singh had before his death made an oral will to the effect that the male members of his family would be the owners of the property after his death. After the issues were framed in the case the suit was transferred for trial to the Court of the Additional Civil Judge of Muttra and we are informed that the learned Judge recorded oral evidence adduced by the parties for about 10 to 11 months. During the progress of the hearing of the suit the parties agreed to refer the matter in difference between them to the arbitration of three persons, viz. (1) Rai Bahadur Ram Nath Bhargava, Muttra, (2) B. Basdeo Sahai, Vakil, Agra, and (3) B. Mathura Prasad, Rais, Sasni. They accordingly filed an application in Court on 2 January, 1934 praying for an order of reference to the three gentlemen named above. In the application the authority given to the arbitrators to summon and record evidence and to decide the dispute between the parties was specified. There was however no provision in the application to meet the contingency of difference of opinion amongst the arbitrators. The Court accepted the application and referred to the three arbitrators the matter in difference between the parties for decision. In making this order of reference the Court also overlooked the provisions of para. 4 of Sch. 2 to the Civil P.C., and failed to make any provision in the reference about the appointment of an umpire or the decision of the case being according to the opinion of the majority of the arbitrators in the event of a difference of opinion among them.

(3.) The case remained pending before the arbitrators for some months and eventually on 19 May 1934 two awards were filed in Court, one signed by Rai Bahadur Ram Nath Bhargava and B. Basdeo Sahai dismissing the suit, and the other signed by B. Mathura Prasad decreeing the suit. The Court then allowed ten days time to the parties to file objections to the awards. On 28 May the plaintiff filed an objection against the award of B. Ram Nath and B. Basdeo Sahai. By her objection she maintained inter alia that the award delivered by these two gentlemen was invalid as it was not a unanimous award. The next day, viz. on 29 May the defendants filed an objection against the award of B. Mathura Prasad. In this objection it was stated that the award signed by B. Ram Nath and B. Basdeo Sahai was in fact the unanimous award of all the arbitrators and that after that award was prepared with the consent of all the three arbitrators Indrawati won over B. Mathura Prasad arbitrator and did not let him sign the aforesaid award and that instead she got an award filed by B. Mathura Prasad decreeing the suit. It was also alleged in the objections that as a matter of fact the parties had agreed to be bound by the decision of the majority of the arbitrators, but by an oversight and through inadvertence this fact was not mentioned in the application for reference to arbitration.