Judgement

This appeal is directed against the judgment and decree of the Subordinate Judge of Amalapuram fixing the maintenance of the plaintiff at Rs. 1200/- per year. Defendants 1, 2 and 4 are the appellants and their main contention is that the rate fixed is high and excessive. The question for consideration in the appeal is as to whether the amount of maintenance fixed by the Court below is fair and reasonable.

2. Sri P. V. Vallabhacharyulu, the learned Advocate for the appellants, contended that the Subordinate Judge ought not to have acted on the report of the Commissioner Sri B. Prakasam for fixing the net income derived from the lands belonging to the joint family. In order to appreciate his argument, it is necessary to set out a few facts leading to the appointment of Sri B. Prakasam as a Commissioner.

Immediately after the institution of the suit, the plaintiff, respondent herein, applied for the appointment of a commissioner to estimate the value of the crops standing on the various lands so as to arrive at an estimate of the net income. The petition was allowed and an Advocate Sri G. V. S. Prakasa Bao was appointed as a Commissioner. He submitted a report and both the parties being dissatisfied with the report filed objections thereto. Four witnesses were examined on behalf of the plaintiff, and D. W. 1 was examined for the defendants. As to what happened at that stage is set out by the Subordinate Judge in the following terms : "At that stage, it was suggested that the best way of getting correct estimate of the income of the lands is to suggest the name of any senior member of the Bar in whom both sides have confidence so that he may be sent to inspect the lands and make a report about the yield. It was also suggested that if any such senior member is to be sent with the consent of both sides, the report to be filed by him must be the last word in the matter so far as the yield on the family lands is concerned.

This had to be suggested because both sides filed objections to the report of the first commissioner and each party was taking his evidence to one extremity. In suits where the sole question for determination is about the nature of the lands and the net income to be derived from them and where witnesses on each side are taking a swing to the extremity of the side that they have come to support, one will be compelled to take an average, which may after all be not a correct figure.

When this was explained to both the parties, they readily agreed to the suggestion and suggested that Sri B. Prakasam, one of the senior most members of the Bar, who himself is possessed of paddy growing lands and cocoa-nut gardens, may be appointed as the Commissioner to appraise the yield on the suit lands and both parties filed a memo saying that they would abide by the Commissioners report, so far as the net yield is concerned. Though it is undesirable to appoint a Commissioner, where there is already the report of one, it is under the above circumstances that the need for the appointment of a second commissioner was felt. He inspected all the lands in the presence of both parties and made a detailed report of the gross as well as the net income from the paddy growing lands as well as the coconut gardens". Sri Vallabhacharyulu, the learned Advocate for the appellants contended that on account of the pressure exercised by the Subordinate Judge, their advocate signed the memo and agreed to the appointment of a second commissioner. Though the appointment of a second commissioner is attacked on various legal grounds, no ground of appeal has been raised that the Subordinate Judge compelled the advocates to agree to the appointment of a second Commissioner. No affidavit has been filed by the advocate who appeared for the defendants making any such allegations. It appears from the records that the inspection by Sri. B. Prakasam was made in the presence of the defendants and that no objections to his report were filed by them.

While I agree with Sri P. V. Vallabhacharyulu that the suggestion must have been made by the learned Subordinate Judge, I am not inclined to uphold his contention that the memo was signed by the advocates for the plaintiff and for the defendants under any pressure. I am inclined to take the view that as Sri B. Prakasam was one of the senior-most members of the Bar in whom both the parties had ample confidence and he owned large paddy-growing lands and cocoanut gardens in the of the joint family lands, the parties agreed to abide by his estimate of the yield on the suit lands on the suggestion made by the Court.

3. Sri Vallabhacharyulu strongly contended that the appointment of a second Commissioner without disposing of the objections filed in regard to the first commissioners report was unwarranted by the provisions of the Civil Procedure Code. In support of that contention, he relied on the decisions in Kunhi Kutti Ali v. Muhammad Haji, ILR 54 Mad 239 : (AIB 1931 Mad 73) (A) and Bamachar v. Krishnachar, 1949-1 Mad LJ 183 : (AIR 1949 Mad 612) (B). There is no doubt that two separate commissions should not be issued to deal with one and the same subject and to treat the reports of both the commissioners as evidence in the case.

It is only if the report of the first commissioner is unsatisfactory and the Court is dissatisfied with his proceedings that a second commissioner may be appointed under the provisions of O. 26, B. 10 (3), C. P. C. It appears from the facts set out by the Subordinate Judge in paragraph 16 of the judgment that the report of the first commissioner was unsatisfactory and that both the parties were dissatisfied with it and filed objections thereto. It was under those circumstances that the memo set out hereunder signed by the advocates of both the parties was filed :

"Sri B. Prakasam may be appointed as a Commissioner to appraise the yield on the suit lands and both parties agree to abide by the commissioners report."

The learned Subordinate Judge was well aware that it was undesirable to appoint a second commissioner when there was already a report of one, and he rightly added that in the peculiar circumstances of the case, there was the need for the appointment of a second commissioner. I am therefore unable to hold on the facts of this case that the appointment of a second commissioner by the Court on the common consent of the parties was unwarranted or opposed to the provisions of the Civil Procedure Code. No objections to this Commissioners report were filed by the defendants as stated supra.

The parties acquiesced in the appointment of the second commissioner and accompanied him during the course of his inspection. The contention that the second commissioners report is null and void is, in my opinion, untenable. The defendants, who have agreed to his appointment and to abide by his estimate, are not entitled to turn round and contend that the second commissioners report is not evidence under the terms of O. 26, B. 10 (2), C. P. C.

4.Even assuming that the procedure adopted by the Court below is not contemplated or warranted by the provisions of the Civil Procedure Code, it has been constantly recognised by Courts that such an agreement is valid and binding upon the parties. The Commissioner appointed by the Court in pursuance of the memo filed by the parties is an officer of Court and the judgment of the Subordinate Judge accepting his report as conclusive and binding upon the parties is in the nature of an arbitrators award. When the parties agreed to abide by the estimate of the commissioner appointed by the Court, their intention was "to obey or to comply with it without questioning its correctness or validity". It is not open to them to resile from the agreement when the report is against them. In Halsburys Laws of England (2nd Edition), Volume 1, (Lord Hailsham) at page 624, it is stated as follows :

"When in proceedings pending before the Court the parties agree to accept the Judges decision as final, it is said that they thereby constitute the Judge a quasi arbitrator. The effect of such an agreement is that the decision of the Judge is unappealable and cannot be questioned in any way; but the Judge is not thereby really placed in the position of an arbitrator; and his decision is not; and does not in any way resemble an award." This principle is well established. The leading English decision on the point is Burgess v. Morton, 1896 AC 136 (C). At page 141, Lord Watson sums up the law in the following terms : "There are several decisions of this House, in cases coming from Scotland, which appear to me to affirm that the judgment of a Court below, pronounced extra cursum curiae, is in the nature of an arbitrators award, and that, as a general rule at least, no appeal from it will lie." In one of the cases referred to by the learned Law Lord, the parties agreed to accept the decision of the Court upon a proof to be taken by commission.

5. In the latest decision of the Madras High Court reported in Cuddappa Bai v. Ramanna Banta, 1956-2 Mad LJ 504 : (AIR 1957 Mad 95) (D), the same principle is laid down reviewing all the earlier decisions of that Court including that of Rajamannar C.J., and Rajagopalan J. in Kunjammal v. Raja Gopala Ayyar, 1948-2 Mad LJ 291 : (AIR 1949 Mad 267) (E).

6. Sri Vallabhacharyulu sought to distinguish those cases on the ground that the parties in the present case did not agree to abide by the decision of the Court but only abide by the estimate of the yield made by the commissioner. That, in my view, makes no difference in law. As stated already, the Commissioner is an officer appointed by the Court and if the parties agreed to abide by his decision, it tantamounts to saying that they would abide by the decision of the Court adopting that report.

7. A case exactly similar to the present one is that reported in Moosa Sahib v. Subbamma, 1937-1 Mad LJ 672 : (AIR 1937 Mad 563) (F). In that case, the parties agreed to abide by whatever amount was found due by the commissioner. Following the decision of Pandrang Row, f. in Makudam Mohammad v. Mohammad Sheik Abdul Kadir, 71 Mad LT 281 : (AIR 1936 Mad 856) (G), Horwill J. held that by agreement, the Court became an arbitrator and that if the parties agreed to accept the arbitration by the Court, they were bound by it even though the procedure of the Court was Extra Cursum Curiae and not contemplated by the Procedure Code. In the decision reported in 71 Mad LJ 281 : (AIR 1936 Mad 856) (G), decided by Pandrang Row, J., a Commissioner was sent to see whether the key produced by the plaintiff or the 2nd defendant would open the door of the house. The observations of Pandrang Row J., at p. 283 (of Mad LJ) : (at p. 857 of AIR) are very apt and apply to the facts of this case. They are as follows :

"The Court did what it was asked to do by the second defendant. After this was done namely, after a Commissioner was appointed and it was actually found that the key did not fit the lock, it was not open to the second defendant to resile from what he stated before in Court. When a party invites the Court to adopt a procedure which is not contemplated by the Code of Civil Procedure and is in fact a procedure Extra Cursum Curiae he cannot turn round and say that the Court is to blame for adopting the very procedure which he invited the Court to follow."

Following these two decisions and the observations of Lord Watson at p. 141 in 1896 AC 136 (C), I hold that the parties are bound by the decision of the Court adopting the Second Commissioners report.

8. Sri Valabhacharyulu next contended that the appointment of Sri B. Prakasam, a third party, to estimate the yield of the income would be in the nature of a reference to arbitration to a third party and that as the proceedings taken by the arbitrator are not in accordance with the provisions of the Arbitration Act, the report or award submitted by him should not be accepted. Even assuming that the reference to Sri B. Prakasam is not a reference to Court and that the decisions already referred to do not apply, I am inclined to hold that his contention is untenable.

The memo filed by the parties referring one of the issues as to the income derived from the joint family lands is in accordance with the provisions of S. 21 of the Arbitration Act. On the strength of the memo, Sri B. Prakasam was appointed by the Court. The parties accompanied the commissioner and he inspected the lands and submitted his report or award. Sri Vallabhacharyulu has not been able to indicate how the report or award of the commissioner was invalid under the terms of the Arbitration Act.

No objections whatsoever were filed by the defendants to this report or award. I am therefore inclined to hold that even if the report is treated as an award, it is not invalid under any of the provisions of the Arbitration Act. The award is conclusive and binding upon the defendants. No steps to modify or set aside the award have been taken by the defendants. So, this contention based on the report being viewed as an award is bound to fail.

9. Sri M. Krishna Rao, the learned Advocate for the 1st respondent, sought to support the judgment of the Court below by reference to S. 20 of the Indian Evidence Act. He contended that by means of the memo, the defendants have expressly referred for information in reference to a matter in dispute, namely as to the income realised from the suit lands, and that the defendants are consequently bound by the statement or report made by the commissioner as the statement is in the nature of an admission within the meaning of S. 20 of the Indian Evidence Act. There is no doubt considerable force in this contention.

But, it is unnecessary to rest my judgment on this ground. Sri Vallabhacharyulu relied on the decision of the Privy Council in Chhabba Lal v. Kallu Lal, 1946-1 Mad LJ 339 : (AIR 1946 PC 72) (H), and contended that the reference made in this case is similar to the reference made in the Privy Council decision. I am unable to accept this contention as the reference that was made to Sri Swami Ramanandji was for the decision of all the facts in dispute in the suit and also for a decision in respect of the costs of the suit. It was therefore that Sir John Beaumont observed as follows at p. 340 (of Mad LJ) : (at p. 73 of AIR) :

"It is obvious that a reference to an outside party to decide matters in dispute in a suit and the question of costs is not a reference to that party for information in reference to a matter in dispute......"

The facts of this case are clearly distinguishable from that case as the reference that was made to Sri B. Prakasam was only for information as to the yield from the joint family lands. I am unable to hold that the information referred to in the section must be information specially within the knowledge of the person referred to. The information may be gathered by inspection of the lands as in this case or by reference to accounts or by other means.

10. I shall now deal with the decision of the Privy Council in Kessowji Issur v. G. I. P. Rly. Co., ILR 31 Bom 381 (P. C.) (I) strongly relied on by Sri Vallabhacharyulu. That decision has no application to the facts of this case. It appears that during the course of the hearing of the appeal the counsel on both sides welcomed a suggestion made by the learned Judges as to visiting the scene of the accident. There was no consent memo filed in that case as in the present one. That appears clearly from the passage at page 392, which runs as follows:

"It was suggested by one of the learned counsel for the respondents (in irreconcilable inconsistence with the leading argument) that this proceeding was so remote from regular judicial methods as to constitute an arbitration, and that the result was not appealable. Their Lordships do not think that appellant is shown to have done anything to exclude his appeal. In the judgment it is stated that the counsel on both sides welcomed the suggestion which is thus traced, in its inception, to the Bench. But the suggestion was that we should visit the scene of the accident under conditions approximating as closely as possible to those which prevailed when the plaintiff met with his injuries. As stated already, this case falls within the principles laid down by Lord Watson in 1896 AC 136 (C), and the line of cases already referred to. In my opinion, the Privy Council decision in ILR 31 Bombay 381 (PC) (I), has no application to the facts of this case. It may also be noticed in this connection that the parties to the suit had let in ample evidence in the case and that the Trial Judge Mr. Justice Tyabji had come to definite conclusions on that evidence. That was why Lord Robertson observed as follows at page 392 :

"Their Lordships do not approve of such a suggestion; but even if it had been tentatively carried out, it did not necessarily follow that the Court would cast to the winds the legal evidence in the case, and decide on impressions arising on the concerted representation. It would be too strict to hold that it is the duty of counsel, at their peril, to restrain Judges within the cursus curiae, and to insist on their abstaining from experiments which to some may prove too alluring to admit of adherence to legal media concludendi."

The note of caution sounded by the learned Law Lord should be duly heeded by the advocates at the Bar and by the Judges administering law and justice.

11. For the reason stated supra, I hold that the report of Sri B. Prakasam was rightly taken into consideration by the learned Subordinate Judge in fixing the maintenance. According to the report, the total yield comes to Rs. 7140/-. The learned Subordinate Judge has discussed in paragraph 20 of the judgment that the maximum amount of maintenance payable to the 1st respondent herein was slightly over Rs. 1750/-, per annum. The amount of Rs. 1200/- fixed by the learned Subordinate Judge as payable to her per year is, in my opinion fair and not excessive. I therefore confirm his finding.

12. Sri Vallabhacharyulu next contended that as item 42 was sold in favour of the 5th defendant, no charge ought to have been created on that land. The learned Subordinate Judge found that the purchaser was aware of the rights of the maintenance-holder and that his property might also be charged for the amount payable under the decree. There is no doubt that a charge might be created on that property but as the defendants own several other lands and are willing to substitute Item 17 for Item 42, I modify the decree of the Court below by substituting for item 42 item 17. This course does not, in any way, prejudice or affect the rights of the plaintiff.

13. It was next contended that as a registered partition deed was executed between the defendants in 1949, charge should not have been created on items 1 to 10. This point does not appear to have been argued in the Court below though it was raised in "the written statement. On the material on record, I am unable to vary the decree and substitute other properties in accordance with the terms of the partition deed.

14. The learned Subordinate Judge decreed the suit with proportionate costs, but in drafting the decree, there is a mistake in paragraph 7.

It is admitted by both the advocates that the figure of Rs. 467/- should be substituted for Rs. 1213-2-3 in paragraph 7. It will be amended accordingly.

15. As the appeal substantially fails except for the modifications referred to supra, it is dismissed with costs of the 1st respondent.

Appeal dismissed.