Coutts, J.:— This appeal arises out of a suit for partition. In order to understand the case it will be convenient to first state the genealogy of the family, which is as follows:

2. From this genealogy it will appear that Doman Pardhan had two sons, Bacha Pardhan and Ram Lal Pardhan, by his second wife, and two sons, Sham Lal Pardhan and Kunja Pardhan, by his fourth wife, and the plaintiff's case is that Sham Lal Pardhan and Kunja Pardhan, together with their father, separated from Bacha Pardhan and Ram Lal Pardhan, each branch living as a joint Hindu family. After Bacha Pardhan died his sons, Badri Pardhan and Babua Lal Pardhan, continued to live jointly with Ram Lal Pardhan and on the death of Ram Lal Pardhan, who left no issue, Badri and Babua continued to live in a joint family. Badri died some 14 years ago, leaving a son, Bihari Lal Pardhan, and after his death Babua and Bihari lived jointly, Babua being the karta of the family and managing the whole affairs of the family. The parties continued to live amicably together so long as Babua, defendant 1, had no children. But Babua eventually married and about ten months before the institution of this suit a son was born to him (defendant 2). After the birth of this son, ill-feeling arose between himself and the plaintiff and there were disputes about shares in the family property. Eventually, to settle these disputes, an ekrarnama was executed by both the parties on 1st June 1913, by which five persons were appointed to arbitrate and settle the differences.

3. The arbitrators proceeded to take evidence and decide the matter, and on 7th September, 1913 they signed an award, by which half of the whole joint property, including the property of Ram Lal, was equally divided between the plaintiff and the defendant. Disputes still went on however and the plaintiff asked for a partition of his half-share. This was refused and a dispute arose, which culmininated in a case under Section 144 of the Cr PC, in which the defendants were successful. The plaintiff then instituted this suit asking for the following principal reliefs:

(1) That it may be determined by the Court that the plaintiff and the defendant are members of a joint family and the plaintiff has half-share in the joint family properties and the defendant has share in the remaining half. As regards the joint family properties detailed in the schedules of the plaint, so far as the plaintiff has got information about them and other properties which will be included hereafter as soon as any trace of them will be found, it may be determined that the plaintiffs have half-share, the remaining half belonging to the defendant. (1)(ka) It may be determined by the Court that under an award of the arbitrators, dated 7th September, 1913, referred to in para. 7 of the plaint, the plaintiff's share in the entire property of the joint family has been decided to be 8 annas and the parties in the suit are hound by the said award, (1)(kha) An order may be passed by the Court that defendant 1 should render an account of the receipts and expenses of the joint family to the plaintiff. (2) That it may be determined by the Court that your petitioner is entitled to get the property of the joint family partitioned in respect of his own half-share. (3) That as a result of the determination of the points set forth above, first a preliminary decree may be passed in favour of the plaintiff for partitioning half the share of the joint family properties and subsequently by deputing a Commissioner the entire property may be properly divided into two shares and one of them may be given in possession of the plaintiff. This shortly is the case for the plaintiff.

4. The defendant on the other hand contends that the plaintiff has no title to the property in suit; that the family did not split up into two as alleged by the plaintiff, but there was a complete disruption of the family. Doman divided his property between his four sons. Ram Lal, Bacha, Kunja and Sham Lal, and they remained separate. He further alleges that Ram Lal, just before his death, adopted him and that at that time he became separate from his brother Badri, the father of the present plaintiff. He consequently contends that the whole of the property in dispute belongs to him. So far as the ekrarnama referring the dispute between himself and his brother to arbitration is concerned, he alleges that he was forced into agreeing to the reference to the arbitrators and he further alleges that for various reasons, to which I shall have occasion to refer later, the award of the arbitrators is illegal and invalid. The case was heard by the Subordinate Judge of Darbhanga who has decreed the suit. Against this decree the defendant has appealed. In appeal only two points have been argued before us. These are issues 7 and 9 which are as follows: Issue 7: “Were defendant 1 and the plaintiff's father, Badri Pardhan, separate from each other at the time of Badri Pardhan's death and did Ram Lal Pardhan die in a state of separation from them? Issue 9: “Are the agreement to submit, to arbitration, dated 1st June 1913, and arbitration award, dated 7th September, 1913, legally valid and binding documents? Did the plaintiff acquire any valid right or title under them? I shall deal, as the learned Subordinate Judge has done, with the latter issue 1. The first contention of the defendant in regard to this issue is that he was coerced into executing the ekrarnama referring the dispute to arbitration. His story is that the plaintiff's mother, a pardanashin lady, being annoyed by the birth of his son, went to his shop in the bazar and demanded a partition. A dispute arose and a large crowd of people collected. The defendant felt that his family was being disgraced by the appearance of a pardanashin lady of his family in public and when she also threatened to inflict a wound on herself and go to the Thana, he was frightened and agreed to the reference of the dispute to arbitration. The learned Subordinate Judge has disbelieved the major portion of this story. On a careful consideration of the evidence, I cannot but agree with his view and in fact the matter is not very material, because the stamp paper, on which the ekrarnama was engrossed, was purchased jointly by the defendant and the plaintiff some months after the date of the alleged coercion. So even assuming that the defendant was frightened by the plaintiff's mother coming to his shop and brawling, he had ample time to re-consider the matter before he executed the ekrarnama. The reference to arbitration was made by the ekrarnama and it cannot be said that at this time there was any coercion.

5. It has been however strongly urged before us by Mr. Hassan Imam that the ekrarnama is had on account of vagueness. The ekrarnama, which is a short document after reciting who the parties are runs as follows:

“There is a dispute between Bihari Pardhan, minor son of Badri Pardhan deceased, represented by me the musammat mother and guardian of Bihari Pardhan aforesaid, and Babua Lal Pardhan in respect of sharss in and title (to some property). We both parties therefore appoint the Hon'ble Babu Brij Kishore Prasad, Pleader Babu Buddhu Lal, Babu Thanmal, Babu Jokhi Ram and Babu Hardwar Mal as arbitrators and we both parties agree that whatever the arbitrators will decide in respect of the title after taking evidence we will abide by their decision and accept it. None of the parties shall directly or indirectly object to their decision. If any of the parties make any objection as against this deed, then in the face of this deed it will be considered null and void. We therefore execute this ekrarnama appointing the arbitrators so that it may be of use when required.”

6. The ekrarnama then merely recites that there is a dispute between Bihari Pardhan and Babua Pardhan in respect of “shares in and title.” After the word “title” something is obviously omitted in the document and it is impossible to say whit this is. It is urged by Mr. Lachmi Narain Singh for the plaintiff-respondent that the ekrarnama must refer to the whole property, because the arbitrators have dealt with the whole property. Even if this were so, the contention merely begs the question and the probability in the absence of any definite evidence is that the ekrarnama was only meant to refer to the shop, because it was in regard to the shop that the proceedings under Section 144 of the Cr PC, were instituted and that the arbitrators were not sure of the scope of the ekrarnama is clear also from the award itself. In the body of the award they mention definitely certain classes of property and at the end of each class there occurs the word “etc.” It is clear from this that the arbitrators did not know what the property in dispute was and the learned Subordinate Judge himself found that the award does not cover the whole of the property but only the properties specifically mentioned in the award and he has accepted the award only to this extent. This is obviously wrong, because the ekrarnama does not mention these properties and it was not not open to the arbitrators to decide for themselves what property they would arbitrate about. It is impossible to say to what property the ekrarnama referred and as I have already said, it would appear from the wording of the ekrarnama itself that the parties were not very sure what in fact they were referring to arbitration. Probability points to its being only the shop, but it is impossible to come to any definite conclusion and, in my opinion, the ekrarnama is bad for indefiniteness.

7. I next come to the award itself. In regard to this Mr. Hasan Imam's main contentions are that it goes beyond the scope of the ekrarnama, that the proceedings of the arbitrators were not conducted in accordance with the terms of the ekrarnama and finally that the award of the arbitrators is not unanimous and there being no provision in the ekrarnama for a majority award, the award is for this reason also bad. I have already dealt with the first contention and in my view the award is bad because it is not shown to be within the scope of the ekrarnama. I next come to a consideration of the proceedings of the arbitrators. The first point urged is that by the ekrarnama it was provided that witnesses should be examined and their evidence recorded but that this was not done. It is clear from the statement of the principal arbitrator, the Hon'ble Babu Brij Kishore Prasad, Pleader, that in fact witnesses were examined, and on this point I accept the finding of the learned Subordinate Judge and agree that the award cannot be impeached but in other respects the proceedings of the arbitrators and their final award are unsatisfactory. The principal arbitrators appear to have been the Hon'ble Babu Brij Kishore Prasad and Babu Budhu Lal. Both of these arbitrators have been examined but their evidence is of the vaguest possible character. There is no suggestion nor can there be any suggestion that these arbitrators have deposed falsely, but they kept no notes and they can give no details of the proceedings. They do not even know how often they sat. They do not say that all the arbitrators were present at each of these sittings and it would appear from the evidence of Babu Lakshman Prasad, a Pleader of Darbhanga who represented the defendant, that all the arbitrators were not present at each meeting. This evidence is unrebutted. The witness is a respectable pleader whose evidence there is no reason to disbelieve and on the authority of the case reported as Nand Ram v. Fakir Chand(1) Mr. Hasan Imam has asked us to hold that the award is invalid. In the case referred to Mr. Mahmud in a carefully considered judgment has said that the presence of all the arbitrators at all meetings and above all at the last meeting, when the final act of arbitration is done is essential to the validity of the award. With this view of the law I agree. In the present case it is clear from the evidence of Babu Lakshman Prasad that all the arbitrators were not present at all the meetings which were only 3 in number and for this reason also I find that the award is bad.

8. I now come to the last point urged by Mr. Hasan Imam with regard to the award, namely that it is not unanimous. The argument is based on the fact that on the award above the signature of one of the arbitrators, Hardwar Mal, there appear words “I do not agree in this.” On the face of it this is a clear indication that the award is not an unanimous one, but it is contended that these words were interpolated by Hardwar Mal after the award had been signed and communicated to the parties. The learned Sub-ordinate Judge has accepted this contention but with his conclusion I cannot agree. With the and of a microscope I have carefully examined the writing of the words “I do not agree in this” and have compared them with Hardwar Mal's signature. I can find absolutely no difference either in the ink or in the writing, and from the appearance of the signature and the words “I do not agree in this” both would appear to have been written with the same pen the same ink and at the same time. Hardwar Mal has not been examined by either party, but in support of the view that he interpolated these words after signing the award the evidence of Brij Kishore and Budhu Lal has been relied on. The gist of the evidence of these witnesses is that the award was unanimous and that after it was signed it was handed over to Buddhu Lal that Hardwar Mal got the award from Buddhu Lal and that when he returned it Buddhu Lal found that these words had been interpolated. Mr. Hasan Imam has said that he does not desire to impugn the veracity of these witnesses, but he urges that their recollection of what actually occurred is so vague and the proceedings were conducted in such a haphazard way that their statements cannot be relied on and that in spite of their evidence it is clear that Hardwar Mal was a dissenting arbitrator.

9. A careful perusal of the evidence shows beyond doubt that their recollection cannot be relied on. Babu Brij Kishore, without looking at the award, was unable to say who the arbitrators were. He does not know how long after the award was written it was communicated to the parties, nor can he remember whether the award was made over to the parties. He further says that there were 5 or 7 sittings of the arbitrators and that the number of sittings was more than three. This last statement is certainly wrong as appears from the evidence of the plaintiff's own uncle and the whole statement is so vague that it is impossible to rely on it for any details of what occurred. Further he admits that Hardwar Mal might have been wavering, though in regard to this he is also not certain. The evidence of Buddhu Lal is equally vague and the only point about which he appears to be really certain is that Hardwar Mal made a note of dissent after he had signed the award. On evidence of this kind I am not prepared to accept the view of the learned Subordinate Judge that this note of dissent was made after the award had been signed. It was for the plaintiff to establish beyond doubt that the award which is on the face of it not unanimous was in fact unanimous but this he has failed to do. Even assuming, however that Hardwar Mal made the endorsement after he signed the award, it would still be for the plaintiff to show that he made the endorsement after the pronouncement of the award. The learned Subordinate Judge has found that the endorsement was made after pronouncement, but this finding is based on absolutely no evidence. Buddhu Lal himself, who is the only witness on the point, says he cannot remember whether the award was pronounced before or after Hardwar Mal made the note of dissent. There is nothing then to show that the note of dissent was made after pronouncement, and in the absence of such evidence it must be held that it was made before pronouncement; and until the award is communicated there is, in my opinion, nothing to prevent an arbitrator changing his mind. He cannot be said to be functus officio until the pronouncement is actually made, and even if he has signed the award this would not preclude him from further considering the matter and, if he thinks fit, recording a note of dissent. In my opinion therefore the award is also bad because it is not unanimous.

10. Roe, J.:— I entirely concur in the conclusions arrived at by my learned brother upon the two issues argued. Though loath to overrule the opinion of the learned Subordinate Judge upon the question of fact, I feel that the ekrarnama executed by Doman Singh is obscure and may best be interpreted in the light of subsequent events. Those subsequent events clearly indicate a separaration between the four sons of Doman. I take it therefore that the document executed by Doman should be regarded as indicating such a separation. The learned Subordinate Judge on the other hand, having arrived at the conclusion that Doman's document indicates a separation into two joint families only, seems to have allowed this consideration to colour his views upon all subsequent events.

11. I agree also that the ekrarnama executed by Babua did not result in a valid award. The summary nature of the proceedings and the casual manner in which both arbitrators and parties attended them indicate that they were not taken seriously and the reason for this lack of seriousness seems to me to lie in the vagueness of the issues submitted to the arbitrators. I agree too that, there being no provision for the prevalence of the views of the majority in the case of a decision not unanimous, in view of the fact that the decision was not unanimous the award cannot be maintained.

V.S/R.K

12. Appeal allowed.