B.P Sinha, J.:— Miscellaneous appeal no. 7 of 1961 and Miscellaneous Appeal No. 8 of 1961 arise out of Title Suit No. 12 of 1949 and Title Suit No. 35 of 1950 respectively. They are against the same order dated 23-12-1960 passed by the 1st Additional Subordinate Judge of Arrah. They have arisen under the following circumstances.
2. Sheo Prasanna Singh was the owner of four annas share in respect of Mauza Rajapur bearing Tauzi No. 1503/14 in the district of Shahabad. This share was coming in his family since the time of his ancestors. The said share comprised of 153 bighas 10 kathas of bakasht land beside tenancy lands. The ancestors of Sheoprasanna Singh (plaintiff no. 1 of Title Suit No. 35 of 1950) had let out in rehan their aforesaid proprietary interest with Bakasht lands in favour of Naurang Thakur and later on in favour of Lalmohan Thakur (ancestors of defendants 1st party of Title Suit No. 35 of 1950) by sixteen registered deeds. The total amount covered by those documents was Rs. 61,154/15/6. The rehandars got possession over the mortgaged properties. Subsequently by agreement dated 1-3-1921 an area of 27 bighas and 4 kathas of bakasht lands was released to the mortgagors. Ambika Thakur and other heirs of the rehandars let out 36.76 acres of the bakasht lands, appertaining to the aforesaid share in darrehan to Thakur Prasad and Girdhar Prasad pro forma defendants 7 to 8 of Title Suit No. 35 of 1950 by a registered deed dated 23-3-1942 for a sum of Rs. 23,300/- and put them in possession there. They further executed two darrehan deeds, one dated 12-12-1940 for a sum of Rs. 4,750/- and the other dated 20-3-1945 for a sum of Rs. 7,000/- in favour of Sheopujan Ahir and Baburam Ahir ancestors of defendants 9 Jto 11. They also executed another dar-rehan bond dated 12-12-1940 for a sum of Rs. 3,000/- in favour of Munshi Benimadhav Lai. Sheoprasanna Singh executed several pattas with regard to 83 bighas of Bakasht lands appertaining to the aforesaid share making perpetual mokarari settlement with different persons on receipt of Nazarana money to the extent of Rs. 61,154/15/6. Ambika Thakur and others instituted Title Suit No. 12 of 1949 on 1-6-1949 for a declaration that they have got the right to redeem the darrehan bond executed in favour of Thakur Prasad and Girdhari Prasad as mentioned above. It was alleged that out of the consideration of the darrehan bond Rs. 10,000/- was paid by them earlier and as such they were liable to make payment of the remaining amount only which they tendered to the darrehandars who, however, disclosed to them that their darrehan money was paid to them by Sheoprasanna Singh through his pattadars. Such payment by the Pattadars was denied and hence it was prayed that it may be adjudicated that the payment by the Pattadars was null and void and ineffective. Besides the darrehandars, Sheoprasanna Singh, some of his Pattadars and one Inderdeo Rai were made defendants in that suit.
3. Written statements were filed by the darrehandars, Sheoprasanna Singh and his Pattadars denying the allegations of the plaintiffs and contending that the darrehan money was paid by the Pattadars with the consent of the rehandars.
4. A petition, dated 27-6-1965, was filed by Ambika Thakur and other plaintiffs, darrehandar Thakur Prasad, and also some of the Pattadars making a prayer for referring the matter to the arbitrators Babu Mukteshwar Kuer, Pleader, Buxar and Babu Shyam Narain Kuer for decision. Sheoprasanna Singh and some other defendants did not join in that petition. Sheoprasanna Singh raised objection to the aforesaid prayer for reference. Consequently the plaintiffs filed a petition for expunging from record the names of Sheoprasanna Singh and other persons who had not joined in the petition filed for reference. Accordingly they were expunged from the record.
5. Another suit, which was numbered as Title Suit No. 35 of 1950 was filed by Sheoprasanna Singh and his Pattadars for redemption of the sixteen rehan deeds which were executed in favour of the ancestors of Ambika Thakur and others. It was alleged that out of the total consideration of the sixteen rehan bonds Rs. 38,050/- was paid by the plaintiffs to the darrehandars with the consent of the rehandars and as advised by them, and they got possession over the lands covered by darrehan bonds. The plaintiffs approached the rehandars for accepting the balance of the rehan money, amounting to Rs. 23,104/15/6, but the rehandars did not accept and consequently the said amount was deposited in court and then the suit for redemption was filed claiming mesne profits as well.
6. The defence of the rehandars was that no payment was made by the plaintiffs to the dar-rehandars. If at all payment was made, it was voluntary payment and deposit made was insufficient it was further contended that the plaintiffs were not entitled to khas possession over the lands inasmuch as some of them were in possession of tenants. It was contended that in order to maintain the bakasht character of some of the lands the rehandars had to spend a huge amount in fighting out litigation. On accounting the total amount inclusive of damages came to Rs. 51,884/-/6. In lieu of such amount they were allowed to remain in possession of 73 bighas, 16 kathas and 10 dhoors of the bakasht lands as tenants. Seda receipt was granted to them. They therefore, resisted the claim of redemption until payment of the aforesaid amount along with the rehan money.
7. A petition dated 27-6-1955 was filed for referring the dispute of this suit to the arbitration of Babu Mukteshwar Kuer Pleader, Buxar and Babu Shyam Narain Kuer. Some of the parties to the litigation did not join in that petition. Thereafter they were expunged from the record on a petition filed by the plaintiffs on 29-6-1955. After they were expunged from the record, a fresh petition dated 29-6-1955 was filed by the parties who remained on the record for referring the matter in dispute to the arbitration of Babu Mukteshwar Kuer, Pleader, Buxar, Babu Shyam Narain and Babu Ramkawal Singh. Accordingly a reference was made to those arbitrators.
8. After several adjournments 2-12-1955 was the date fixed for filing awards in both the suits. On that date a petition was filed by Sheoprasanna Singh that no step in respect of the arbitration had been taken till then nor there was any hope of the same being done. He prayed that the arbitration may be superseded. On that very day another petition was filed by Ambika Prasad Thakur and other rehandars saying that the statements in the petition of Sheoprasanna Singh were false. They asserted that awards had already been announced, signed and delivered by arbitrators in presence of all the parties and in fact one of the arbitrators, namely, Babu Shyam Narain Kuer was deputed to file the award, and the said arbitrator had to catch the morning train, but he missed that train and sent a telegram to the court saying that he was reaching with the awards. They, therefore, submitted that question of superseding the arbitration did not arise as the awards had already been signed and delivered by the arbitrators. No award was, however, filed that day. The Court recorded an order that one of the arbitrators who was present in court said that the award was not complete. The petition of Ambika Prasad Thakur and others was directed to be put up next day in presence of the parties. On 3-12-1955 rejoinders to the petition of Ambika Prasad Thakur and others were filed by Sheoprasanna Singh and also two of the Pattadars, namely Ramkawal Rai and Babli Thakur. They denied the statements made in the petition of Ambika Thakur and others. The Court passed an order:
“Call for the record from the Sarpanch with or without the award as the case may be …… The reference is recalled if the award has not been already delivered”.
9. On 5-12-1955 the Sarpanch Babu Mukteshwar Kuer returned the copies of the pleadings of the suits which were sent to him and informed the Court that other papers were with Babu Shyam Narain Kuer who was one of the arbitrators.
10. On 7-12-1955 Ambika Thakur and others filed a petition stating that they were prepared to prove by unimpeachable evidence not only the existence of the awards but also the terms of the awards. It was prayed that a special peon may be deputed to Babu Shyam Narain Kuer calling upon him to send the awards and other papers with a request that in case of his failure to do so evidence may be taken about the awards, and decrees in the suits may be prepared in accordance with the awards. The court passed an order directing issue of letter to Babu Shyam Narain Kuer through a special peon to send the order sheet and other papers in connection with the arbitration by 10/12/1955. On 10-12-1955 the special peon returned the letter because he could not meet the said arbitrator. Ambika Thakur and others filed a petition that day stating that the awards were in existence and that they were being withheld by Shyam Narain Kuer to whom they were given to be filed in court and they prayed that necessary enquiry may be made in that connection. A rejoinder was filed by Sheoprasanna Singh denying the allegations in the petition of Ambika Thakur and others. The trial court by its order dated 12-12-1955 rejected the prayer of Ambika Thakur and others. Ambika Thakur and others filed miscellaneous appeals nos. 14 and 15 of 1956 before this court against the order dated 3-12-1955 recalling the reference and civil revision nos. 1200 of 1955 and 38 of 1956 against the aforesaid order dated 12-12-1955. This court directed an enquiry into the existence of the alleged awards to be made.
11. Ultimately enquiries about the existence of the awards in both the suits were taken up together at the request of the parties for convenience. During the enquiry two exhibits 1 and 1(a) alleged to be draft awards, were produced in court and documentary and oral evidence were adduced by the parties on a consideration of which the Court below held that there were sittings of the arbitrators, oral and documentary evidence were adduced by the parties, arbitrators held local inspection and thereafter they consulted among themselves and then the drafts Exts. 1 and 1(a) of the awards were prepared by Babu Mukteshwar Kuer, Sarpanch and awards were faired out by Shyam Narain Kuer and they were delivered. The Court further held that the awards which were delivered in presence of the parties on 27-11-1955 were not filed in the court on the date fixed because Shyam Narain Kuer had gone in collusion with Sheoprasanna Singh and others. It was found that the awards were valid. The court, therefore, ordered on 23-12-1960 that the suits be decreed in terms of the awards, the drafts of which are exhibits 1 and 1(a). It is against this order that these two appeals have been filed. They have been heard together and they will be governed by this judgment.
12. Sri Gama Lal and Sri Mahesh Lal, who are appellants nos. 22 and 23 respectively in M.A 8 of 1961 were minor plaintiffs nos. 20 and 21 respectively in Title Suit No. 35 of 1950. At the time when this case was first put up for hearing in this Court it appeared that no leave of the court to refer the dispute to arbitration was obtained by the next friend of the aforesaid minor plaintiffs of Title Suit No. 35 of 1950. Consequently it was argued that the agreement to refer the said dispute was void and as such the award based on such an agreement was also void.
13. The other side contended that the award was not void and that this point was not raised at any stage of the suit and therefore proper materials could not be brought on the record to show that by the time when the dispute was referred to arbitration these two minors had attained their majority. This court therefore, felt that a finding should be called for from the court below on this point.
14. Accordingly the matter was referred back to the court below for a finding as to whether on the date on which the dispute was referred to arbitration Gama Lal and Mahesh Lal were minors or not. In the court below the parties adduced evidence both oral and documentary on this point. On a consideration of such evidence the learned Additional Subordinate Judge held that Gama Lal was born on 16-1-1948 and Mahesh Lal was born on 28-7-1949 and as such on 29-6-1955, the date on which the matter was referred to the arbitration, they were minors. This finding was remitted to this court.
15. In this Court Gama Lal and Llahesh Lal, appellants Nos. 22 and 23 in N.A 8 of 1961 sought permission to proceed with the appeal in their names as majors and for the discharge of their next friend Jagdish Lal who represented them so long. Neither party had any objection to it and the prayer was allowed. Accordingly memorandum of appeal, was directed to be amended.
16. I would like to first dispose of the objection of the respondents to the maintainability of these appeals. It has been contended in this connection by learned counsel for the respondents that in absence of an application to set aside the award, the order of the court below cannot amount to a refusal to set aside the award and as such it is not appealable under section 39(1)(vi) of the Arbitration Act. It has been submitted that in the petitions filed by the appellants the very existence of the award was challenged and so the objection was not covered by Section 30 of the Arbitration Act and as such the order is not appealable. In this connection learned counsel has relied upon three decisions. Abdul Karim v. Mostt. Maniran, AIR 1954 Pat 6, Madan Lal v. Sunderlal & Another, 1967 BLJR 669 : (AIR 1967 SC 1233) and Nilkanth Sidaramappa Ningashetti v. Kashinath Somanna Ningashetti, AIR 1962 SC 666. In AIR 1954 Pat 6, objection was filed under section 33 of the Arbitration Act challenging the validity of the arbitration agreement itself. It did not cover the grounds mentioned in Section 30 of the Act and it was therefore held that the appeal did not lie and so the appeal was converted into revision and disposed of accordingly. In 1967 BLJR 669 : (AIR 1967 SC 1233), a written statement was filed attacking the validity of the award on various grounds, which were covered by Section 30 of the Act. It was observed by Supreme Court that though there was no specific prayer for setting aside the award, that was what the party really wanted the Court to do after hearing the objection. It was held that if the party wants the award to be set aside on any of the grounds mentioned in Section 30, it must apply within 30 days of the service of the notice of the filing of the award as provided in Article 158 of the limitation Act. The Supreme Court further held that there was no special form prescribed for making such an application and in appropriate cases an objection of the type made in that case under consideration might be treated as such an application. But the difficulty felt was that written statement was filed after more than 30 days from the service of the notice of the filing of the award. Thereafter the objection in the written statement could not be treated as an application for setting aside the award. It was under such circumstances that the decision of the High Court dismissing the appeal on the ground of its maintainability was upheld. This decision does not lay down that there must be a specific prayer to set aside the award in the objection petition.
17. In AIR 1962 SC 666 also objection as to the validity of the award was taken in a written statement filed by the party. That written statement, however, was filed after the expiry of the period of limitation prescribed under Article 158 of the limitation Act it appears that such objection was therefore ignored and it was held that there being no prayer for setting aside the award during the specified period, no question of refusing to set aside the award could arise and therefore, no appeal was maintainable under section 39(1)(vi) of the Arbitration Act it thus appears from these decisions that where there is no application containing a prayer (specific or implied) to set aside the award on the grounds covered by Section 30 within the period prescribed under Article 158 of the limitation Act the order accepting the award and passing the decree in terms thereof could not be treated as an order refusing to set aside the award and as such order is not appealable under section 39(1)(vi) of the Arbitration Act.
18. This proposition of law has not been disputed by Mr. Lalnarain Sinha the learned counsel appearing for the appellants. He has however, submitted that the petitions filed by the appellants in court on 3rd December, 1955 in substance contained the objection as to the validity of the awards as well. In this connection his submission has been that it is not necessary that the existence of the awards should be admitted before its validity is challenged. According to him substance of the contention in the petitions has to be looked into and similarly the substance of the order passed by the court is to be considered in deciding if it was an order refusing to set aside the award. He means to say that it is not necessary to state in so many words in the objection that the awards be set aside, if such prayer be implied under the circumstances of the case.
19. I think the contention of the learned counsel is correct. In the instant case on 2-12-1955 the appellants filed a petition to the effect that no step in respect of the panchaity was taken till then and there was no hope of the same being done and as such the arbitration may be superseded. In reply to that a petition was filed by the respondents asserting that awards had already been announced, sited and delivered by arbitrators in presence of all the parties and in fact one of the arbitrators was deputed to file the awards, but he missed the train and as such there was no question of superseding the arbitration. As a rejoinder to this assertion the appellants filed two petitions on the next day i.e on 3-12-1955 disputing the fact that the awards had been announced, signed and delivered in presence of the parties. They further alleged that the arbitrators had not done anything. Thus it appears that the appellants had not only challenged the existence of the awards but at the same time impliedly attacked the validity of the awards, if at all existing, on the ground that the arbitrators had done nothing in connection with the arbitration and thereby misconducted the proceeding and the awards were invalid. The said expression “the arbitrators have not done anything” occurring in the objection petition would mean that the arbitrators had not taken any step in the arbitration matter, not taken any evidence and not even heard the parties. Their failure to take such steps amounted to misconduct and such an objection comes within the purview of Section 30(a) of the Arbitration Act. The word “misconduct” has wide import pandit includes mishandling of the arbitration proceedings or any neglect of duty on the part of the arbitrators which is likely to lead to substantial miscarriage of justice. Those grounds are covered by Section 30 of the Arbitration Act.
20. It appears that the parties also understood the objection to be like that and invited decision of the Court on the validity of the awards. Accordingly the court had summarised the point for consideration in paragraph 5 of its judgment thus: “the only point that arises for consideration is whether the awards were delivered by panches in both the suits, if so, whether the awards are valid and decree can be passed in terms of the awards”. I am therefore inclined to accept the contention of the learned counsel that it was not necessary for the appellant to accept the existence of the awards before they could challenge their validity. In my opinion it was also not necessary to make a specific prayer in so many words that the awards be set aside. Such prayer can be read as implied in the petitions filed by the appellants. This view gets support from the aforesaid decision reported in AIR 1962 SC 666. In that case as has been noted above, the validity of the awards was questioned in the written statement. The Court there did not insist on a regular petition for setting aside the award but observed that the written statement itself was beyond the prescribed period of limitation. So in a way impliedly the court considered the objection as a valid objection for setting aside the award. Similar consideration should arise in interpreting the order of the Court below with reference to the context. The order of the trial Court is that the awards are valid and the decrees should be passed in terms there oo this the Court below did after disposing of the objection raised regarding the validity of the awards. Therefore in effect the order of the court below must be taken to be one refusing to set aside the award within the meaning of section 39(1)(vi) of the Arbitration Act it was not necessary for the court to say in specific words that the prayer for setting aside the awards was being refused. In this connection reference can be made to a decision of this court in P.M Chauhan v. Union of India, 1967 BLJR 745. I reject the contention of learned counsel for the respondents that the appeals are not maintainable.
21. It has been contended by learned counsel for the appellants that neither the original awards nor secondary evidence of their contents have been filed in this case and therefore the order of the Court below directing the decrees to follow in terms of the awards is fit to be set aside. As an answer to this contention learned counsel for the respondents has submitted that the drafts of the awards are on the record, which could be treated either as the original awards or in the alternative as secondary evidence of the contents thereof. It is his submission that because the drafts bear the signature of the sarpanch they should be treated as the original awards.
22. There is no substance in this contention of the learned counsel for the respondents. The evidence as led by the respondents is that the awards were prepared from the drafts and those awards were signed by the arbitrators. In this connection the evidence of the Sarpanch Sri Mukteshwar Kumar (P.W 2 in Title Suit No. 12 of 1949) itself is relevant. He deposed that the awards were written and on his preparing the draft the awards were faired out by Shyam Narain and then they were signed by the arbitrators. He meant that the drafts themselves were to be treated as awards. His evidence further is that he made over those awards to one of the Panches, namely Shyam Narayan Kuer who withheld them and did not file them in the court. The drafts do not bear the signatures of all the arbitrators. Under such circumstances these alleged drafts cannot be considered as original awards. The contention of learned counsel has to be rejected in this connection.
23. In view of the evidence that the original awards have been withheld, the secondary evidence with regard to their contents can be admissible under certain circumstances. Secondary evidence has been defined in Section 63 of the Evidence Act as follows:—
“Secondary evidence means and includes:—
(1) certified copies given under the provisions hereinafter contained:
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral account of the contents of a document given by some person who has himself seen it.
24. The expression “means and includes” makes it quite clear that the five clauses of section 63 referring to secondary evidence are exhaustive. It is to be seen whether the drafts exhibits 1 and 1.a could be taken as secondary evidence of the contents of the awards. Obviously they do not come under any of the clauses (1), (2), (4) and (5) of the section mentioned above. It is to be seen whether they do come under Cl. (3) of the Section the drafts are not the copies from the original. Nonetheless, they could be admissible as secondary evidence, if there be evidence to show that they were compared with the original, that is to say the drafts can be called secondary evidence only when they are shown to be accurate copies of the original awards. A piece of written paper cannot be admitted as secondary evidence of the contents of a document simply by calling it a draft.
25. Learned counsel for the respondents, however, has submitted that the five clauses of Section 63 of the Evidence Act referring to secondary evidence are not exhaustive and in this connection he has relied upon a decision in P.K Kalliani Amma v. M.T Narayanan Nambiar, AIR 1915 Mad 962. That was a case where a question arose whether a written admission could be admitted as secondary evidence within the meaning of that term in Section 91. With reference to Section 65 of the Evidence Act it was held that the written admission was relevant under Section 65(b) of the Evidence Act. In that connection it was observed that the five clauses of Sec. 63 referring to what secondary evidence means and includes were not exhaustive. But that was a case where if the written admission was not covered by the five clauses of section 63 it was found admissible under Section 65(b). The consideration was, therefore, different.
26. A contrary view has been expressed in a later decision of the same High Court in Jagannath Naidu v. Secretary of State for India in Council, AIR 1922 Mad 334. It was observed therein “It (the document) does not conform to the definition of secondary evidence, as it is not a ropy made from or compared with the original. Nor is it an oral account of the contents of the original given by some person who has seen the original. The definition in Section 63 is exhaustive as the section declares that secondary evidence ‘means and includes’ and then follows the five kinds of secondary evidence.”
27. The Lahore High Court also held in Hafiz Mohammad Suleman v. Hari Ram, AIR 1937 Lah 370 that Section 63 of the Evidence Act is exhaustive of the meaning of ‘secondary evidence’. Here if the drafts do not come under Section 63, they do not become admissible under any other provision of the Evidence Act in proof of the contents of the awards. Another case relied upon is a decision in Public Prosecutor v. G. Sadagopan, AIR 1953 Mad 785. In that case the copy of sanction for prosecution was lost. Original sanction order from the file was produced as secondary evidence. It was held that as a matter of fact the sanction order produced from the file which bore signature of the authority concerned was really original sanction order. Further it was not disputed in that case that the paper produced from the file was genuine original office copy of the relevant document.
28. Another decision relied upon is reported in AIR 1967 SC 526, Hindustan Construction Company Ltd. v. Union Of India.. In that case a signed copy of the award was produced. It, however, showed that the person signing authenticated the accuracy or the correctness of the copy and under such circumstances the copy produced was treated as signed copy of the award. The document produced itself began with the words “Now I hereby reproduce true copy of the award which is as follows” End at the end the words were “certified as correct copy of the award dated 27th May, 1961”. Therefore the document was treated as true or accurate and full reproduction of the original award bearing the signature of the umpire and as such it was held to be a signed copy of the award. Production of the signed copy of the award was sufficient compliance of the requirements of Section 14(2) of the Indian Arbitration Act to enable the Court to take action under section 17 of that Act. That is not the case here.
29. Learned counsel has also referred to certain English decisions: (1750) 27 ER (Chancery) 1097; (1875) 20 Eq Cas 238 and (1847) 60 ER 729 as also Halsbury's Laws of England II Edition volume XIII 596. But in view of the fact that we have our own codified Evidence Act, the admissibility or otherwise of any evidence has to be determined with reference to the provisions of that Act and not with reference to any law of England. In Lakhraj v. Mahpal, (1880) ILR 5 Cal 744 (PC). The Privy Council observed that a person willing to I tender evidence must show that his documents are admissible under some provisions of the Indian Evidence Act. It is, therefore, needless to refer to the English decisions. These references, however, do not lay down that even without a proof that the contents are the same as in original document a piece of paper becomes admissible as secondary evidence simply by calling it a draft. In Halsbury's Laws of England reference to draft being secondary evidence is based upon decision in Waldy v. Gray, (1875) 20 Eq Cas 238. In that case the drafts themselves bore endorsement that the deeds were engrossed from those identical drafts and that they were duly stamped and duly executed. In (1750) 27 ER 1097 the draft was strongly proved (it is not clear how it was proved).
30. In (1847) 60 ER 729 it is clear how the draft was proved.
31. Here the drafts can be admitted in evidence only if it is shown by evidence on the record that they were compared with the original and the contents are the same. Such evidence is wanting in this particular case. The drafts have been proved by Shri Mukteshwar Kuer (P.W 2). His statement is: “We consulted among ourselves and came to a conclusion. The decision of the Panches was unanimous. The awards were written. I prepared the drafts and they were faired out by Shyam Narain Kuer. The awards were read out to the parties and were delivered. They were signed by arbitrators. I made over awards and other papers including the order sheet and depositions and notices to the parties etc. to Shyam Narayan Kuer for filing in the Court. Those drafts were written by me and bore my signature (marked exhibits 1 and 1.a)”. So according to his evidence the original awards were written out by Shyam Narain Kuer. Of course though this witness says that the originals were faired out from the drafts, he does not say with reference to the contents of the same as in the original awards which were later signed by the arbitrators. That is to say, he does not vouchsafe that the contents of the original awards are accurately reproduced in the drafts. He does not say that the drafts were compared with the originals. No other witness has spoken anything in this connection. Shvam Narain Kuer (D.W 2 in Title Suit No. 12 of 1949) has denied to have fair copied any award. Therefore, the drafts have not been proved to have accurately contained the contents of the original awards. They are not admissible as secondary evidence of the alleged awards. That being so, neither the original awards nor the secondary evidence of the contents thereof are on the record and hence no judgment and decree could follow on the basis of the alleged drafts, exhibits 1 and 1.a.
32. Next it has been contended by the learned counsel for the appellants that in Title Suit No. 35 of 1950 the agreement to refer to arbitration was bad, inasmuch as, no leave of the court was obtained by Jagdish Lal who was next friend of the minor plaintiffs Gama Lal and Mahesh Lal, appellants nos. 22 and 23 respectively in Miscellaneous Appeal No. 8 of 1961, as required under Order 32, R. 7 of the CPC and as such the whole reference was illegal and consequently the award following is fit to be set aside. It has also been contended that in view of the very nature of the dispute in both the suits, the subject-matter and parties being so overlapping, there should not be two inconsistent decrees. They are inseparable and therefore if award in Title Suit No. 35 of 1950 is set aside on the aforesaid ground the award in Title Suit No. 12 of 11949 in which the aforesaid minors were not parties also has to be set aside.
33. The plaint of Title Suit No. 35 of 1950 indicates that Gama Lal and Mahesh Lal were minors under the guardianship of Jagdish Lal. In order to ascertain the fact whether Gama Lal and Mahesh Lal were minors at the time the agreement to refer the dispute to arbitrators was filed was enquired into by the court below, as directed by this Court. As has been noted the decision of the Court below is that these two persons were minors at the time the agreement was filed. No attempt was made by the respondents to dislodge the findings of the court below on this point. Therefore, the fact remains that these two persons were minors and the agreement to refer the dispute to arbitration was not legal, so far these minors are concerned in absence of sanction of the court. If they were majors, the reference was bad inasmuch as they did not join in the reference and they were not represented.
34. Learned Counsel for the respondents conceded that whether they are minors or majors, in either case reference is bad, so far Gama Lal and Mahesh Lal are concerned and the award is not binding on them. His submission, however, has been that the award has to be upheld, so far other parties to the litigation are concerned and the suit will proceed so far the interest of these two persons are concerned.
35. Title Suit No. 35 of 1950 was instituted by these appellants of Miscellaneous Appeal No. 8 of 1961 for redemption of the Rehan deeds. In view of the pleadings of the parties the dispute involved a point as to on what terms, i.e on payment of what amount the claim for redemption could be allowed. This was the common question in which all the appellants were equally interested. It cannot be said that the rehan deed will be redeemed by one person on payment of one amount and on payment of a different amount if the redemption is by another person having such a right of redemption. Interest of any of the appellants was not severable from that of the other. Under Section 21 of the Arbitration Act, the reference was to be made by all the parties interested. The section runs as follows:
“Where in any suit all the parties interested agree that any matter in difference between them in the suit shall be-referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference.”
36. Therefore, according to this section the dispute had to be referred to by all the parties interested in it. The only exception to this section is as provided in section 24 of the Arbitration Act. That section runs as follows:
“Where some only of the parties to a suit apply to have the matters in difference between them referred to arbitration in accordance with, and in the manner provided by, Section 21, the Court may, if it thinks fit, so refer such matters to arbitration (provided that the same can be separated from the rest of the subject-matter of the suit) in the manner provided in that section, but the suit shall continue so far as it relates to the parties who have not joined in the said application and to matters not contained in the said reference as if no such application had been made, and an award; made in pursuance of such a reference shall be binding only on the parties who have joined in the application.”
37. Here in view of the very nature of the dispute which arose on the pleadings of the parties, it cannot be said that the matters in difference between the parties joining in the reference to arbitration can be separated from the rest of the subject-matter of the suit. Any attempt to separate the subject-matter in dispute may lead to inconsistent decrees. Therefore the present case cannot be covered by section 24 of the Arbitration Act. In that view of the matter the entire reference has to be treated as illegal and consequently the award, if at all following has to be set aside.
38. In this connection reference may be made to a decision of this court in Deonarain Singh v. Siyabar Singh, AIR 1952 Pat 461. That was a case in which a suit for declaration of possession in respect of a piece of land was filed. Some of the plaintiffs were minors. One of the defendants also was minor. The minors-were represented by natural guardians. The natural guardians entered into a compromise. They did not obtain the leave of the court for that purpose. It was therefore held that the reference to the arbitration on behalf of the minors was not valid. Having regard to the nature of the suit it was held that it was essential that all the parties to the suit should have joined in the reference and that leave of the Court should have been obtained by the natural guardians on behalf of the minors before valid reference could be made. That having not been done, the entire reference and the whole proceeding which followed thereafter were held to be illegal. It is true that the major persons who joined in the reference could not contend that the reference and the arbitration proceeding following were illegal and not binding on them on this ground. But it is well settled that on account of the non-compliance of the previsions of Order 32, Rule 7 of the CPC the minors could avoid the award and that can be done by raising the question in appeal, even though no application to set aside the award on that ground was filed by the minors in the trial Court. The appeal has to be treated as continuation of the suit and the minors' right to challenge the award and the decree following continues and when the award is not binding on the minors, in view of the very nature of the dispute as has been noted above, the entire award has to be set aside. In this connection reference can be made to a decision in Lilju Mandal v. Smt. Chandra Devi, AIR 1964 Pat 498.
39. Therefore, in view of the above legal position, I hold that the award, if at all given in Title Suit No. 35 of 1950, is fit to be set aside as a whole.
40. If Title Suit No. 35 of 1950 is to be decreed in favour of the appellants, it will be decreed on the footing that Rs. 38050/- was already paid and redemption could be allowed on deposit of Rs. 23,104/15/6 only. This will be on the ground that Rs. 38050/- was already paid to the Dar-rehandars at the instance and with the consent of the Rehandars. In Title Suit No. 12 of 1949 which has been instituted by rehandars for declaration of right of redemption of the darrehan bunds, the claim is that Rs. 10,000/- was already paid by the rehandars and the darrehandars were entitled to the balance of the darrehan money only. Therefore, the allegations in both the suits are contradictory. If Title Suit No. 35 of 1950 is decreed, that will mean that the entire darrehan money has been paid and darrehan bonds stand redeemed. If Title Suit No. 12 of 1949 is decreed, it will be on the footing that only Rs. 10,000/- of the darrehan is paid and the balance is still due and the claim for declaration could be decreed on condition of payment of such balance amount. Therefore, there is likelihood of two inconsistent decrees. Under such circumstances in view of the nature of the dispute and the properties involved the award, if at all delivered in Title Suit No. 12 of 1949 has also to go.
41. Next it has been submitted on behalf of the appellants that no award was signed and delivered by the arbitrators in these two suits and if at all there are such awards, they are fit to be set aside on the ground that the arbitrators misconducted the proceeding. So much so, that there was no sitting and the arbitrators did not deliberate on the matter referred to them. This contention is refuted by the learned counsel for the respondents, according to whom the proceeding was conducted properly and the arbitrators came to a decision, signed the awards and delivered them before the parties to the litigation. (After going through the evidence, his Lordship continued). Therefore, there cannot be any doubt that there were some sittings of the arbitrators.
42. The most important thing to be seen is whether the arbitrators, as a matter of fact, gave their awards. In this connection it is to be noted that the original awards have not been produced. It is said that the original awards were handed over to Shyam Narain Kuer, one of the arbitrators, for filing them before the Court on 2-12-1955 but he withheld them and did not file them in the Court. Shri Mukteshwar Kuer who was the Sarpanch, has given evidence as P.W 2. He has supported the case of the respondents by stating that the awards were written and then signed by the arbitrators. He has further said that the awards and other papers were handed over to Shyam Narain Kuer for filing in the Court. Shyam Narain Kuer has denied all these statements. He is being supported in this connection by the other arbitrator Ramkewal Singh.
43. Both Ramkewal Singh and Shyam Narain Kuer denied to have signed any award. They have denied delivery of any such award.
(After discussing evidence in Paras 24 to 27 his Lordship proceeded.)
44. In view of all these circumstances, it is not possible to believe that oral evidence adduced on behalf of the respondents which consists of the statements of the Sarpanch, a pleader and Ambika Thakur himself, who is a respondent.
45. On a consideration of the entire fact and circumstances of the case, I hold that no award in either of these two cases was signed by the panches and delivered in presence of the parties. That being so the suit could not have been disposed of in terms of the awards. Order of the Court below is, therefore, fit to be set aside.
46. The result is that the appeals are allowed with costs. The order dated 23-12-1960 of the learned Additional Subordinate Judge is set aside. The appeals have been heard together and hence there will be one set of hearing fee and the appellants of each appeal will get half of that hearing fee. Other costs they will get separately. Costs in M.A No. 7 of 1961 will be payable by respondents 1 to 4 only. In M.A No. 8 of 1961 costs will be payable by respondents 1, 2, 5 and 6 only. The trial Court is now directed to try the suits and dispose them of in accordance with law.
47. Tarkeshwar Nath, J.:— I agree.
RGD
48. Appeals allowed.