NITYA NAND Vs. LALA KARAM CHAND

JUDGEMENT

(1.) These consolidated appeals owe their origin to certain partition proceedings in the Court of the District Judge, Peshawar, which were begun as long ago as 17 August 1926, and do not appear to have yet reached a conclusion. Among the plaintiffs in that suit were the present appellants (6) and (7), Lal Chand and Sant Ram, who were the sons of a predeceased son of one Lorinda Mall who had died in 1901. The defendants to the suit included the respondent Karam Chand and Parma Nand (since deceased), the only other sons of Lorinda Mall. The appellants 1 to 5 now represent the interest of Parma Nand. It was alleged by the plaintiffs, Lal Chand and Sant Ram, in their plaint, that Lorinda Mall and his sons and grandsons formed a Hindu joint family governed by the Mitakshara law and they sought partition of all the moveable and immovable properties belonging to the joint family and mentioned in the plaint, and for possession of the one-third share to which on this footing they were entitled. Parma Nand, who on the same footing was entitled to another one-third share, supported the plaintiffs and claimed partition, but Karam Chand, who was entitled to the other one-third, contested the suit on the ground (among others) that the family was separate. On 10 March 1927, the District Judge framed eight issues, of which the only ones necessary to be mentioned are the following : (1) Does the household of the parties constitute a joint and undivided Hindu family ? (4) Does the family of the parties follow Hindu law or custom in the matter of the division of the property ? (6) What are the proper shares of the parties and in what property ?

(2.) In April 1928, an order was made under the provisions of Sch.2 to the Code of Civil Procedure appointing Colonel Garstin as arbitrator in the suit to decide" all matters at issue between the parties." It may be a question whether this was intended to refer to him every question at issue in the suit, including the question of how the family property if partible was to be divided among the parties, or whether it was intended merely to refer to him the issues that had been framed by the District Judge. But there can be no doubt that the arbitrator himself took the narrower of the two views as to his position. For in his award, to which reference must be made hereafter, be said this : In April 1928 it was referred to me as arbitrator for the decision of the following issues as found by the District Judge, Peshawar, on 10 March 1927. And he then proceeded to set out the issues in full, of which, of course, not a single one was directed to the manner in which a partition of the property should be made. Evidence upon these issues was in due course taken by the arbitrator. The proceedings were, however, unavoidably delayed through one cause or another and the litigation seemed likely to be protracted and expensive. The arbitrator accordingly made a praiseworthy attempt to bring about a compromise between the parties- a compromise that would result in an agreed division of the property among them. For this purpose, with the consent of the parties, he associated with himself two other gentlemen, Rai Bahadur Dina Nath and Captain Hissamuddin Khan. The lines upon which these three gentlemen proceeded were these. Each item of the family property was to be valued and allocated to one or other of the one-third shares in severalty as at an agreed date, the owner of the share to whom the allocation was made being treated as though he were at that date the purchaser from the owners of the two other third shares of their interests at two- thirds of the agreed value. In some cases the whole of the purchase money was treated as being payable on demand: in some cases it was treated as being payable by instalments; and in many cases the purchase money was to carry interest from the date of the so-called purchase. It is sufficient to take as an illustration one item of the property. It is the item with which the present appeal is concerned, and consisted of a bungalow in Peshawar Cantonment. This was allocated to Karam Chand who was treated as having purchased each of the other two-thirds at the price of Rupees. 37,286-11-3 on 1 December 1929. In the statement of the arbitrator dated 12 January 1931, to which reference will be made later, these two sums are stated to be payable on demand with interest from 1 December 1929.

(3.) This attempt to bring about a division of the family property by agreement unfortunately failed. About seven-eighths of the property was allocated in the way described to one or other of the one-third shares, but no agreement as to the allocation of the remainder could be arrived at. In these circumstances, the arbitrator made his award on 20 December 1930. He found upon Issue 1 that the household of the parties constituted a joint and undivided Hindu family. That issue having been so decided, it was admitted by everyone that the property was to be divided into three equal shares of which Karam Chand was entitled to one share, Parma Nand to another share and Lal Chand and Sant Ram to the remaining share; and the arbitrator decided Issues 4 and 5 accordingly. He found also that all the moveable and immoveable property mentioned in the plaint was joint with a certain exception that is now immaterial. He referred at some length to the attempts that he had made to bring about a compromise between the parties, and said that he had made it clear to the parties that the division of the joint property that he had made had been made without prejudice to the main question in the suit, namely, whether the family had or had not the status of a joint Hindu family. He then added this :