Gopal Choudhary And Others v. Mt. Sundari And Others

Rai, J.:— Dulhin Sitali and her son, Ram Ekbal Singh, minor, instituted, in the court of the Munsif, 1st Court, Arrah, title suit No. 50 of 1946 for a declaration that the registered deed of sale and the deed of gift, dated 21-1-1946, executed by Mt. Sanichari in favour of Gopal Chaudhari, defendant 1, and Dulhin Bas Kuer, defendant 2, respectively, were illegal, without jurisdiction, null and void and inoperative and not binding on the plaintiffs who were the next reversioners to the estate of Ramlal Chaudhari. The plaintiffs gave the following genealogy of the family of Ramlal Chaudhari:

2. According to the plaintiffs, Ramlal Chaudhari was the last surviving male member of the joint family, and after his death his entire inheritance had devolved on his wife Mt. Sanichari. Plaintiff 1 claimed to be the daughter of Mt. Sanichari and plaintiff 2, Ram Ekbal Singh, claimed to be her daughter's son. In the suit the plaintiffs impleaded, apart from the transferee, Mt. Sundari, widow of Ram Ratan Chaudhari, and Kesho Chaudhari, daughter's son of Ram Ratan as defendants 4 and 5. The suit was contested by the defendants. Several sets of written statements were filed. Defendant 4, Mt. Sundari, widow of Ramrattan Chaudhari, challenged the correctness of the genealogy filed by the plaintiffs. According to her, the following genealogy gave the correct relationship of the various members of the family of Ramlal Chaudhari and his brothers:

3. According to her, Ramratan Chaudhari was the last surviving male member of the family who died leaving behind him his widow Mt. Sundari, his daughter Mt. Sitia and a daughter's son Kesho Prasad Chaudhari, defendant 5. On 13-6-1942, defendant 4 executed a deed of gift in respect of 8.3 acres of land in favour of her daughter's son Kesho Prasad Chaudhari minor. She alleged that she was all along in possession of the joint family properties and the properties gifted away to Kesho Prasad (sic) were in his possession since the date of the gift. She further alleged that Dulhin Sitali, plaintiff 1, was really the daughter of Ramjatan Chaudhari and not of Ramlal Chaudhari. She asserted that Mt. Sundari had no right to execute the sale deed and the deed of gift in favour of defendant 1 and defendant 2 which, according fo her, were nominal documents.

4. Defendant 1, Gopal Chaudhari, the vendee under the sale deed, dated 21-1-1946, executed by Mt. Sanichari, filed a third written statement in which he gave a different genealogy of the family of Ramlal Chaudhary. The genealogy given by ton runs thus:

5. He asserted that plaintiff 1 and plaintiff 2 were daughter and daughter's son of Ramjatan Chaudhari and had no right to institute the present suit as reversioners of the estate of Ramlal Chaudhari who, according to that defendant, was the Fast surviving member of the family. He asserted that the sale deed in his favour had been executed by Mt. Sanichari for legal necessity and was binding on the estate of Ramlal Chaudhari.

6. Defendants 2 and 3 filed a separate written statement supporting the pleas put forward by defendant 1 in his written statement.

7. On 17-7-1947, an application was filed before the learned Munsif for referring the dispute for the arbitration of a number of panches mentioned in that petition. The learned Munsif passed the following order on this petition:

“Parties file a joint petition for referring the suit for arbitration. Permission petition to join the same on behalf of the minor (sic) defendant also filed. Requisites also filed. Heard Pleaders.

Order: Natural guardian is granted permission to appear on behalf of minor defendant. Let the suit be referred to arbitration as prayed for. To 15-8-1947 for submission of award. Let the records be made over to the arbitrator who is said to be present in court.”

8. The panches gave an award on 15-8-1947, which was placed before the learned Munsif on 21-8-1947. On 28-8-1947, another award was filed before the trial Court. In the first award the panches held:

“Point No. 1—Dulhin Bas Kuer, defendant 2, is the daughter of Mt. Sanichari, defendant 3, and Ramlal Chaudhari.

Point No. 2—Dulhin Sitali, plaintiff 1 is not the daughter of Ramlal Chaudhari, rather she is the daughter of Ramjatan Chaudhari and her name that has been given in the plaint is wrong.

Point No. 3—Ramjatan Chaudhari died during She lifetime of his father. After the death of Sheobalak Chaudhari, Ramlal Chaudhari and Ram Ratan Chaudhari entered into possession and occupation of the whole property left by Sheobalak Chaudhari. Ramratan Chaudhari also died in the state of jointness.

Point No. 4—Under this heading the arbitrators divided the joint family properties into three schedules, the first schedule consisting of about 4.25 acres was given to defendant 1, the second schedule consisting of about 5.965 acres of agricultural lands and a portion of the house plus some mahua trees were given to Dulhin Bas Kuer, and by the third schedule some 5.98 acres of culturable lands and a portion of the house plus some mahua trees were given to Kesho Prasad Chaudhari, defendant 5.”

9. It was further provided that Mt. Sundari and Mt. Sanichari would have life interest in the properties allotted to Kesho Prasad Chaudhari and Bas Kuer, respectively.

10. The plaintiffs filed an objection to this award which was ultimately heard and decided on 4-2-1948. The learned Munsif held that the award dated 28-8-1947, was an invalid one. According to him, the award dated 15-8-1947, was a valid one. He accepted and ordered a decree to be drawn up on its basis. On 14-2-1948, the decree of the trial court was sealed and signed.

11. Defendants 4 and 5 thereafter preferred an appeal before the District Judge of Shahabad. It appears that the lawyer who filed the appeal on their behalf was not sure whether the appeal would lie from the order dated 4-2-1948, or from the decree which was sealed and signed on 14-2-1948. It was probably for this reason that the memorandum of appeal mentioned that the appeal was directed against the order dated 4-2-1948, and against the decree dated 14-2-1948, and a stamp of annas three only was affixed to it. The serishtadar reported that a court-fee of Rs. 37/8/- was payable on the memorandum of appeal. The appellate court accepted the correctness of this report and demanded the deficit court-fee from the appellants which was subsequently paid. Ultimately the appellate court held that the order of reference passed by the learned Munsif was wholly illegal as the requirements of O. 32, R. 7 of the CPC, had not been complied with by him. The learned District Judge was also of the opinion that the arbitrators had gone beyond the scope of the reference, and on that ground also their award was fit to be set aside. On these findings he ordered the award to be set aside and directed the suit to be heard on merits. Defendants 1 to 3 thereafter came up in second appeal before this Court.

12. Mr. D.N Varma, who represented the appellants before this Court, first contended that as no appeal lay before the District Judge, his clients were entitled to file a second appeal to this Court. He next contended that even if the appeal before the District Judge be held to have been filed in accordance with the provisions of Section 17 of the Arbitration Act, his clients had every right to file a second appeal before this Court. In this connection he directed our attention to Section 41(a) of the Arbitration Act which runs thus:

“Subject to the provisions of this Act and of rules made thereunder—

(a) the provisions of the Code of Civil Procedure, 1908 (V of 1908), shall apply to all proceedings before the Court, and to all appeals, under this Act.”

13. He submitted that when a second appeal was not barred under the Arbitration Act, his clients were entitled to file a second appeal as the decree passed by the courts below are not in conformity with the award. In my opinion, S. 17 deals with the finality of the decree based on an award. It no doubt provides for an appeal where the decree is in excess of or not otherwise in accordance with the award, but it does not contemplate a second appeal. Chapter VI of the Arbitration Act which deals with appeals also forbids a second appeal to the High Court. Section 41(a) of the Arbitration Act does not mean that apart from the provisions of that Act appeals will lie under Sections 96, 100 or 104 of the CPC. In my opinion, the appeal before the lower appellate court was quite competent but no second appeal lies to this court. But even if it be held that a second appeal lies to this court, the lower appellate court had, under O. 41, R. 33 of the CPC, every jurisdiction to set aside the entire decree of the trial court when it came to the conclusion that the order of reference itself was vitiated which made all the proceedings subsequent to that order wholly infructuous.

14. Mr. Varma next contended with reference to the order of reference dated 17-7-1947, that the provisions of O. 32, R. 7 of the CPC, were complied with so far as the minor defendant 5 was concerned. He submitted that though the order did not specifically mention that the compromise was for the benefit of the minor defendant 5, yet that omission would not invalidate the order of reference as was held in the case of — ‘Satindra Prasad Sukul v. Padumnabh Prasad’, 1944 Pat WN 108 (A). Mr. Varma had however, to concede that the order of reference does not even mention that any application to refer the matter to arbitrators was filed on behalf of minor plaintiff 2, but he argued that as no appeal before the lower appellate court was filed on behalf of that minor, the award based on that defective order of reference cannot be set aside at the instance of any other plaintiff or defendant. He urged that non-compliance with the provisions of O. 32, R. 7 of the CPC, does not render the award null and void. It is only voidable at the instance of the minor concerned. In this connection he referred to the decision of their Lordships of the Supreme Court in the case of — “Bishundeo Narain v. Seogeni Rai’, AIR 1951 SC 280 (B). The relevant portion of the judgment of their Lordships runs thus:

“In our opinion, O. 32, R. 7 must be read as a whole. Sub-r. (2) contemplates a position where the mandatory provisions of sub-r. (1) have been ignored. In such a case, the resultant agreement or compromise is not to be held a nullity. It is only voidable. Therefore, it is good unless the minor chooses to avoid it. It follows that a decree or order based on the agreement is also good unless the minor chooses to challenge it. That is the position where there is no sanction of the court. Reading the two provisions together, the rule merely means this. No next friend or guardian for the suit can enter into an agreement or compromise which will bind the minor unless the Court sanctions it.”

15. Mr. Varma also cited in this connection the case of — ‘Umar v. Mahabir Lal’, AIR 1940 Pat 59 (C). In my opinion, the decisions cited by Mr. Varma cannot be of any assistance to his clients. The appeal before the lower appellate court was filed by one of the minors, namely, minor defendant 5. The attention of the superior court was thus drawn to the illegality committed by the trial court while making the order of reference, and once the appellate court was apprised of the illegality, it was not possible for that court to have shut its eyes as was held by Sarjoo Prosad J. in the case of — ‘Deo Narain Singh v. Siabar Singh’ AIR 1952 Pat 461 (D).

16. It is also clear that the award in question had incorporated matters which had not been referred for the decision of the arbitrators. The present suit was a representative suit filed by plaintiff 1 who alleged herself to be the nearest heir of Ramlal Chaudhari who, according to her, was the last surviving male member of the family. The, scope of such a suit is merely a declaratory one. The arbitrators were not entitled in this suit to divide the properties between Gopal Chaudhary, Dulhin Bas Kuer and Kesho Chaudhary with life interest to Mt. Sanichari and Mt. Sundari in the properties allotted to Bas Kuer and Kesho Chaudhary respectively. The suit itself related to an alienation in respect of about 8 acres of land but the arbitrators divided about 16 acres of land between, three persons. These acts of the arbitrators were certainly beyond the scope of the reference. In, my opinion, the Court of appeal below had rightly set aside the decree of the trial court and the award which was the basis of that decree. The result is that the appeal fails and is dismissed but, in the circumstances of this case, parties will bear their own costs of this court.

Banerji, J.:— I agree.

V.B.B

17. Appeal dismissed.