Sinha, J.:— This appeal is directed against the order of the learned Additional Subordinate Judge of Gaya in a proceeding for filing an award, and making it a decree of the court. The plaintiff, who is the appellant in this Court, filed the plaint on the allegations that he and the sole defendant (as the suit was constituted on the original plaint) were at one time members of a joint Hindu family; that there were differences between the brothers on the question of liquidation of debts and other matters relating to the joint family properties, which necessitated reference of their disputes to the arbitration of three persons, Babu Nand Kumar Singh, Babu Ram Pukar Singh and Babu Jirjodhan Prasad Singh, the first two of whom happened to be relatives of either both the parties or one of them; that in pursuance of the decision of the parties to have their differences settled by the aforesaid persons they entered into a registered agreement called the panchnama (exhibit 1) on the 6th of May 1940, the appellant was the second party and the defendant was the first party in that deed, which was executed in favour of the three persons aforesaid;-that the parties had separated in estate before the execution of the deed aforesaid though there had been no division of their-properties by metes and rounds; that the plaintiff, soon after the separation, had been functioning as the kart a of his branch of the family, and similarly the defendant as the harta of his branch of the family, that the arbitrators aforesaid, after considering the case of the parties, and the documents and evidence adduced before them, gave their award and divided the common properties into two parts for the two branches of the family; that those debts, which remained outstanding against the family, after the application of Rs. 20,000 raised by execution of the sale deed dated the 13th September, 1940, in respect of village Ratanpura, were divided between the two branches of the family by the arbitrators; that as the arbitrators put off the registration of the award given by them in spite of the repeated demands of the plaintiff, he had to apply for compulsory registration of the award, and the proceeding was pending before the Sub-Registrar of Aurangabad. As the defendant was not prepared to, abide by the award of the arbitrators, the plaintiff had to file the application in order that the award might be made a decree of the court. The suit was filed on the 27th of October 1941, though the award was signed by two of the arbitrators, namely, Rani Pukar Singh and Jirjodhan Singh, on the 29th of March, 1941, and by the remaining arbitrator Nand Kumar Singh on the 4th of April, 1941.

The defendant no. 1 filed a written statement contending that it was not a fact that he was for, sometime separate from the plaintiff; that he was never the karta of his branch of the family; that the parties still, continued to be members of the joint Mitakshara Hindu family;, that he executed the panchnama (exhibit 1) in the hope that the arbitrators would effect a fair and equitable partition of the joint family assets; that the arbitrators acted most perfunctorily, and without any proper material; that Babu Ram Pukar Singh, who is related to the plaintiff brought the other two punches into his collusion, and, made the most inequitable partition as a result of which the defendants' portion of the properties would yield an income much less than his half share in the family property; that the arbitrators did not divide all the properties which were joint between the parties. He also contended that he had adult sons who were necessary parties to the suit.

It appears that the two sons of the sole defendant were added as defendants 2 and 3 on their own application, and not at the instance of the plaintiff. They filed a separate written statement on the 17th of March, 1943, supporting their father's case that there was no separation between the plaintiff's and the defendants' branches of the family. They also alleged that the defendant no. 1 had grown old not being less than 70 years of age and therefore unable to look after the zamindari affairs, and that he was a man of very obliging disposition; that the defendants, who were adults being aged 37 and 30 respectively, were locking after the kashtkari and zamindari business along with the plaintiff and his sons who also are adult; that the plaintiffs never informed these defendants about the proposal of having the properties divided by the arbitrators, and that as a matter of fact the plaintiff dishonestly prevailed upon the defendant no. 1 to have the former's relations and creatures as punches; that these defendants had no knowledge about the proposed arbitration, and that they would not have consented to the appointment of these punches who were actually selected as arbitrators; that the defendant no. 1 had no authority in law to agree to the appointment of certain arbitrators to divide the ancestral properties without their consent; that on that account the division of the properties made by the arbitrators was not binding on them; that the punches aforesaid never took the trouble of ascertaining all the family properties moveable and immoveable, and that they never held any sittings, and on that account-also their award was vitiated; that the punches have not divided certain moveables which they had been called upon to do; that no allotment paper had ever been furnished to the defendant no. 1; that the award was one-sided, and the allotment made by them was so inequitable and unjust that the income of the properties allotted to the plaintiff is much in excess of that of the properties allotted to the defendant, and, finally, that the arbitrators were guilty of misconduct inasmuch as their proceedings were wholly irregular, and they were negligent in the discharge of their duties. They also averred that the defendant no. 1 had not executed the reference to arbitration (the punchnama) as karta of his branch of the family. It may be noted at this stage that in none of the two written statements filed one by the defendant no. 1 and the other by the defendants nos. 2 and 3 was it stated specifically that the plaintiff was the karta of the family, nor has it been denied specifically that before the separation between the two branches of the family as alleged by the plaintiff the defendant no. 1 was the karta of the family being the eldest member.

Hence, the two principal questions to be determined in this appeal are:—(1) Was the reference to arbitration invalid on account of the fact that the sons of the defendant no. 1 did not join in the agreement appointing the arbitrators and (2) whether the award is bad either on account of the misconduct of the arbitrators or because it is illegal on the face of it.

On the first question, the reference to arbitration by the two brothers, plaintiff and defendant no. 1, would be valid and binding on the two branches of the family only if they acted in their capacity of leading members of their respective families. Hence, it must first be determined whether the joint family of the two brothers had at any time before the reference been separated into two branches as alleged by, the plaintiff. The learned Additional Subordinate Judge appears to have taken the view that there was no such separation. In my opinion, this part of the judgment of the learned additional Subordinate Judge is vitiated by a confusion between the two distinct ideas, namely, separation in estate and actual partition by metes and bounds. In his discussion of this question, the learned Additional Subordinate Judge has omitted to consider that there may not have been a division by metes and bounds, and still the two branches of the family may be said to have separated in estate. The learned Additional Subordinate Judge has criticised the oral evidence adduced on behalf of the plaintiff in support of his allegations that the two branches had separated. It is not always an easy matter to determine the exact point of time when member of a joint, family can be said to have become separate in state unless this is done in pursuance of a formally drawn up document. In this case there is no such document but the facts and circumstances brought out in the documentary evidence adduced by the parties, in my opinion, clearly point to the conclusion that the two brother had become separate in state with the result that the plaintiff became the head of his family and the defendant no. 1 of his own. From exhibits B and B1 it would appear that the plaintiff gave evidence in court in June and July, 1939, in two suits, in which he was one of the defendants, for realising money debts incurred by the defendant no. 1 and some by the plaintiff himself. The suits had been instituted for realisation of debts incurred by the defendant no. 1 as the karta of the family before 1938. As the suits had been instituted in that year the debts might have been incurred, though it is not clear from the evidence, before 1342 Fs. corresponding roughly to 1935 inasmuch as the plaintiff in this case who was one of the defendants in those cases pleaded separation since 1342 Fs. apparently with the view to avoiding liability for debts incurred by his brother, the defendant no. 1. In those cases, as it appears from the judgments (exhibits F and F1), the court held that the brothers were not separate. This decision appears to have been based on the ground that even after 1342 Fs. they had been executing ijara and other deeds for payments of debts jointly. The judgments aforesaid can be said to have decided that the then defeadant's case of separation in 1342 Fs. had not been established. In those cases the courts were not concerned with deciding the status of the family after the date of the debts, which were the subject-matter of those suits. It must be noted that the plaintiff, as one of the defendants in those cases, had filed the written statement in court alleging separation from the defendant, his brother. Now, what is the effect of the written statement filed in 1938 or 1939 (the exact date not being known), in my opinion, from the date of the filing of the written statement the two brothers must, he deemed to be separate in estate, if indeed they were not separate from before that date. In Hindu law it is not necessary that there-should be a formal document executed by the parties concerned in order to effect a separation in estate. The law was clearly laid down by their Lordships of the Judicial Committee in Girja Bai v. Sadashiv Dhundiraj. In order to effect a separation in estate it is only necessary that one of the co-parceners should; clearly and unequivocally intimate to the other co-parceners his desire to sever himself from the others, and the consent of the other co-parceners is wholly immaterial. The filing of a plaint unless subsequently withdrawn, or of a written statement, or giving of a notice to the other co-parceners by a co-parcener that he desires to be separate from the rest of them is enough, to effect separation in estate. The learned. Additional Subordinate Judge has laid some stress on the fact that in the judgments aforesaid given against the plaintiff in those money suits the court held in July 1939 that the two brothers were joint, but those judgments are conclusive of the matter only with reference to the dates of the transactions which were in issue in those cases. It has been held by a Full Bench of the Madras High Court in the case of Q.L.K.K.N Kannapa Chettiar v. Commissioner of Income-tax, Madras, that where the co-parceners had filed separate sworn statements before the Income-Tax Officer to the effect that they had become divided in status ten years ago but the Income-Tax authorities held those declarations to be false, and made an assessment on the basis that they were joint undivided family, that at any rate on the date when the statements were made, the brothers had become divided in status by reason of their, declarations aforesaid, though it was open to the. Income-Tax authorities to find on the facts that the statements, as regards-separation at any time before the declarations had been made, had not been established. Hence, at any rate, the two brothers must be deemed to have become separate in estate since July, 1939. In July 1939 the plaintiff had deposed that though the zamindari was still joint, their cultivation was separate and they had been messing separately. In my opinion, that statement seems to be correct inasmuch as it is common experience that in a joint Hindu Mitakshara family separation amongst the co-parceners ordinarily does not take place as a result of a particular act. Generally speaking there are differences amongst the copartners on the question of the management of the property, or the incurring of expenses in relation to the needs of a particular co-parcener, or his issue, or because the leading member happens to be dissipating family assets, and the other members resent such a conduct of the karta of the family. The co-parceners begin by separation in mess which necessitates owning of separate moveable either by division or by arrangement. If it is a cultivating family, separate messing necessitates separate cultivation which itself leads to division of agriculture lands. In zamindar families zamindari property may not be divided and still the different branches of the family may become separate in estate remaining content with the division of the income therefrom. In the present case, it appears that the family Carrie's on the business of, zaminciari and cultivation. There is no doubt that, as appears from the judgment (exhibit F) of the First Subordinate Judge ar. Gaya delivered in July 1939 that the, subject-matter of the suit was a number of handnotes, most of them executed by the elder brother (defendant no. IV and on by the younger brother (the plaintiff), and one by both of them jointly. It would appear therefrom that first the authority of the elder brother to incur debts was unchallenged, and the creditors would be willing to lend money to him alone. Subsequently, apparently, on account of the differences between the two branches, the creditors made both the brothers execute the promissory notes, and the last transaction was by the younger brother alone. That judgment itself is evidence of the fact that there, were differences. Between, the two brothers over the payment of debts. Such differences are mentioned in the panchnama (exhibit no. 1) itself. As a matter of fact those differences over the management of zamindari and “oral and documentary monetary transactions” were the occasions for the reference to arbitration. The arbitrators had been called upon to adjudicate-upon the division of the properties, and as also upon the debts due from the family. In the face of these recitals by the two brothers it is a little difficult to appreciate how the learned Additional Subordinate Judge came to the conclusion, that there was never any separation in the family, and that it was still joint. It is common experience that co-parceners do not go to the length of appointing arbitrators to divide their properties moveable and immoveable unless there has been a separation in estate for sometime, and the parties were not agreeable to effect partition, amicably by metes and bounds. The learned. Additional Subordinate Judge also held, that the plaintiff (the younger brother) was the harta of the family because he deposed (see exhibit B) that he was the harta. The learned Additional Subordinate Judge has fallen into this error by failing to appreciate the inconsistency in his findings. The plaintiff was then claiming to be harta because he was alleging separation, and was apparently attempting to avoid debts incurred by his elder brother, who in the ordinary course would be karta, of the family so long as the two brothers' confined to be joint. I have advisably made no reference to the oral evidence because that must be characterised as was done by the learned Additional Subordinate Judge himself as interested evidence, but the facts and circumstances of this case make it absolutely clear that be two brothers were separate in estate at any rate at the time when they entered into the agreement (exhibit 1) to refer their disputes to arbitration. That being so, it must be held that the two brothers representing their respective branches' of the family were competent to enter into the agreement aforesaid.

The question now is whether this, agreement is binding upon the sons of the plaintiff who are not parties to the suit, and the sons of defendant who have intervened on their own account, and the grandsons who are not parties to the suit, and are admittedly minors. In the leading case of Jagan Nath v. Mannu Lal Chief Justice Edge and Banerjee, J. have held that it is competent to the father of a joint Hindu family in his capacity of the managing member of the family to refer to arbitration, the partition of the joint family property, and the award made on such a reference if in other respects valid, is binding on the sons. So far as I know this case has never been dissented from, and has been consistently followed by the Lahore High Court in the cases of Dwarka Das v. Krishan Kishore, Guran Ditta v. Pokhar Ram and Kanshi Ram v. Harnam Das. In the case of Sheo Shankar Ram v. Jaddo Kunwar their Lordships of the Judicial Committee have made the following observations and have lent supportee the proposition that in a, matter like this a father as the leading member of the family effectively represents his sons and grandsons: “There seems to be no doubt upon the Indian decisions (from which their Lordships see no reason to dissent) that there are occasions, including foreclosure actions, when the managers, of a joint Hindu family so effectively represent all other members of the family that the family as a whole is bound”. Though, that case related to a foreclosure action the principle equally applies to a matter in which the whole family is interested, and such an act of the father, apparently for the benefit of the family, as a reference to arbitration, is meant to avoid expensive litigation. The learned Additional Subordinate Judge has made reference to the case of Chottey Lal v. Musammat Madho Bibi decided by a Division Bench of this Court in which the head note runs as follows: “Where the question of the partition of the family properties of a joint Hindu family is referred to arbitration and some of the, members of the joint family are not party to the reference, the award given in pursuance of such reference partitioning the family property is invalid and cannot be filed……………”. In that case it would appear that some member admittedly interested in the joint family property had not joined in the reference, and in the view taken in that case was not represented by any other member. It does not appear from the report that the particular member was the son of any of the parties who had joined in the reference. That case, in my opinion, cannot be taken as an authority for the proposition that the father of a, joint Hindu Mitakshara family is not competent as the karta of the family to make a valid reference to arbitration. Hence, that case is of no assistance to the defendants respondents in this case. In view, of these considerations, it must be held that the two branches of the family were fully represented in the matter of the reference to arbitration, and that if the award of the arbitrators is not otherwise vitiated, it is binding upon the two families.

The next question that arises for consideration is whether the award given by the arbitrators is vitiated. The first branch of this question relates to the alleged misconduct of the arbitrators. It is said that they did not discharge their duties properly and diligently, and, that as a matter of fact, they are guilty of gross laches and carelessness. The learned Additional Subordinate Judge has given effect to this contention of the defendant-respondents. He has also accepted as proved the defendants' allegations that the award is on the face of it illegal inasmuch as the property of the value of more than Rs. 5,000 a year has been allotted to the share of the plaintiff's branch of the family and that allotted to the defendants' branch of the family cannot yield more than roughly Rs. 4,000 a year. It has to be examined as to whether these contentions are well founded, and whether the learned Additional Subordinate Judge's decision on this part of the case is correct in-law-and in fact. It is said that the arbitrators did not act diligently inasmuch as they did not prepare any raibandi and divide the properties after properly valuing them. The simple answer to this contention is that admittedly the arbitrators proceeded on the basis of the raibandi of the year 1342 Fs. which had been prepared for the purpose of partition of the family properties between the parties to this litigation on the one hand and their collaterals on the other. It was suggested that statements of valuation prepared in or about the year 1935 could, not the sure basis for partition to be effected in 1940 or 1941. I fail to see any point in this contention for the simple reason that the same basis of valuation has been taken for all the properties. It has not been suggested, far less proved, that any particular property has appreciated in value to a, much large, extent than the other items of properties to be divided between the parties. The second contention relating to the comparative value of the two allotments is a more serious one and if made out his certs in the effect of vitiating the award. In this connection it is necessary to narrate certain events which took place between the date of the reference to arbitration and the date of the award itself. The defendant no. 1, it was all eared, in his capacity of the karta of the family had incurred certain debts, and the plaintiff was questioning the binding nature of those debts so far as his branch of the family was concerned. One of the properties belonging to this family was village Ratanpura. It had been agreed to be sold for Rs. 20,000 in order to liquidate the outstanding debts. It appears that the plaintiff was insisting upon the partition being effected as expeditiously as possible, and perhaps the defendants branch of the family was not interested in having the partition expedited. Hence, the plaintiff urged before the arbitrators that unless the divided the zamindari properties by metes and bounds he would not join in the execution of the sale deed. But the intending purchaser would not take the sale deed from only one of the two brothers. Admittedly, therefore, came into existence the document which has been marked exhibit 4 on behalf of the plaintiff. This document has been described, by the learned Additional Subordinate Judge as the draft award, but it can more properly be described as an interim award. This document, which is mostly admitted (I will presently show in what respect it is not admitted), shows that ten items of zamindari properties had been allotted to the plaintiff's share the not income of these properties is shown roughly as Rs. 5,000. This document is based upon the raibardi of 1342 Fs. as aforesaid. It is, in my opinion, the most important document in the case as it clinches the matter in favour of the plaintiff-appellant. It contains the specific statement signed both by the plaintiff and the defendant no. 1 “the allotment of shares is accepted and admitted”, which also bears the separate but identical statement signed by each arbitrator on the 13th of September, 1940 “the of shares took place in my presence and the share was allotted to Ram Sewak Singh.” It would appear from this document that a similar allotment was prepared in respect of the properties given to the share of Rama Prasad Singh, the defendant no I. But curiously enough the defendants alleged that there was no such allotment prepared, and that this allotment also was not complete inasmuch as the details of the tenth item of property in respect of shares and net income as also aggregate of all the ten items had not been made out when this document was executed on the 13th of September, 1940. I have quoted the exact statement made by the parties as also by the arbitrators to show that this suggestion made on behalf of the defendants is not acceptable. The defendants have not produced the counter-part of this document which, in my opinion, was, as a matter of fact, prepared and, as stated by the arbitrators, examined on behalf of the plaintiff, made over to the defendant no. 1

As I have observed above, the interim award was followed later on by a complete award in which not only the zamindari property but houses, debts and moveable properties were shown to have been allotted to the two branches of the family. This award was signed, by two of the arbitrators, namely Ram Pukar Singh and Jirjodhan Prasad Singh on the 29th of March, 1941, and by the remaining arbitrator Babu Nand Kumar Singh on the 4th of April, 1941. It was presented for registration on the 29th of July the same year, and execution was admitted by the first two arbitrators aforesaid but refused by Nand Kumar Singh. Nand Kumar has been examined on behalf of the defendant and his case is that he along with the other arbitrators were negligent in the discharge of their duties as they did not prepare the raibandi; that the document (exhibit 4) was drawn up for the benefit of the plaintiff on his insistence without the proper materials' being there, and that all papers relating to arbitration were kept, with Rama Prasad Singh, and he had in his possession only the raibandi which he produced and was marked as exhibit C. Exhibit C is a document which purported to be handed over by the parties to the arbitrators for the purposes of effecting the partition. It contained statements of assets as prepared in 1342 Fs, for the purpose of partition amongst the co-sharers of the parties to this litigation. On the other hand, the other two arbitrators have been examined on behalf of the plaintiff, and their statement is that all papers were kept with Nand Kumar Singh who took an active part in the arbitration proceedings and that exhibit C was not that document inasmuch as the document made over by the parties bore the signatures not only of the parties but also of the arbitrators, Exhibit C does not bear any such signature. Nand Kumar, Singh also supports the defendants' case that exhibit 4 as originally drawn up did not contain the details of the tenth item of property to be allotted to the plaintiff hor had all the items been totalled up, Their suggestion is that exhibit 4 had been tampered with by the plaintiff or by the arbitrators at his instance. I am not prepared to accept this most improbable story. If, as it is admitted by both parties, the plaintiff insisted upon the allotment of zamindari property between the two branches, there is no reason why the two allotments should not have been completed then and there, specially when the raibandi of 1342 was ready at hand in font of the arbitrators. In my opinion, this story of tampering with exhibit 4 and that there was no counter part of the same meant for the defendants' allotments has been invented by the defendants in order to make out a false case that the value of the properties allotted to the defendants' share was much less than that of the properties' allotted to the plaintiff's share. There is no reason to support such suggestion. Nand Kumar Singh is admittedly related to the plaintiff as also to the defendants. He is the brother-in-law of both the plaintiff and the defendant no. 1 Both his sisters are dead, but whereas his sister married to the plaintiff left no issue; his sister married to the defendant no. 1 left some children including Raghubir, one of the defendant. Hence, in my opinion, the learned Additional Subordinate Judge was not right in observing that Nand Kumar Singh was equally interested in both the branches of the family being equally related. He has lost sight of the fact that whereas his relationship with the plaintiff has ceased by the death of that issueless sister, his relationship with the defendant's branch of the family still continues because she left behind her some children. In my opinion, the said arbitrator Nand Kumar Singh has deposed in court in full support of the defendants' case because he is interested in favour of the defendants. No sufficient ground has been made out by Nand Kumar Singh to hold that the award was vitiated by any remissness or negligence on the part of the arbitrators. Nand Kumar Singh has not given any sufficient explanation why he signed the award if in his opinion it was neither complete nor just and equitable to both the parties to the reference to arbitration. In my opinion, Nand Kumar Singh was prevailed upon later on, after he had signed the award, to withdraw his support from the same when it was presented for registration as the defendants found that the properties allotted to their share were not what they would have liked to possess as compared to those allotted to the other branch. But no partition, however, diligently and honestly effected, satisfy all the parties, apparently because no allotment can be perfect in the sense that all the shares would be absolutely of the same value. From what I have said above it follows that the defendants have failed to make out that the arbitrators were either guilty of incompetence, or negligence, or that the award on the face of it was illegal in the sense that the two branches of the family have not been given properties of equal value. It was also suggested that the arbitrators did not make a separate valuation in respect of the bakasht lands in the different villages to be partitioned. It is enough to point out that the parties had agreed to proceed on the basis, of the valuation made 1934-1935. It has been conceded on behalf of the defendants that raibandi of 1342 Fs. does not take account of the bakasht lands separately. I do not see any reason why it should have been necessary for the arbitrators to value the bakasht lands separately in this partition when admittedly it was not done in the partition of 1935 between these parties on the one hand and their collaterals on the other hand. The learned Additional Subordinate Judge has characterised the evidence of the two arbitrators examined on behalf of the plaintiff as unreliable and has preferred the evidence of Nand Kumar Singh to their evidence Though Ram Pukar Singh is a relation of the plaintiff, Jirjodhan Prasad Singh the third arbitrator is not related to either party, and I lake it that the was appointed as third arbitrator to maintain the balance between the two others who are more or less interested in one or the other party. That third arbitrator has supported the plaintiff's case and corroborated, the evidence of Ram Pukar. As the evidence of the two arbitrators deposing on behalf of the plaintiff is supported by the admitted document (exhibit 4), I would prefer to act upon their testimony and would reject the testimony of Nand Kumar Singh as unacceptable, running as it does to counter the tenor of the admitted-document (exhibit 4).

There is another serious difficulty in the way of the defendants respondents. The award in order to be vitiated must be illegal on the face of it, but it is sought to be made so to appear by reference to exhibits C and C1 which are documents not incorporated either directly or indirectly into the award. In my opinion, these extraneous matters sought to be proved by these documents exhibits' C and C1 cannot be taken into account in judging the validity of the award. In this connection the decision of their Lordships of the Judicial Committee in the case of Champsey Bhara and Company v. Jivraj Balloo Spinning may be referred to with advantage. In that case their Lordships have held that an award of arbitration can be set aside on the ground of error of law on the face of the award only when in the award or in a document, incorporated with it, as for instance a note appended by the arbitrator stating the reasons for his decision, there is found some legal proposition which is the basis of the award and which is erroneous. In that case the terms of a contract which had not been incorporated in the award were sought to be referred to with a view to showing that the award was illegal on the face of it and their Lordships of the Judicial Committee repelled that contention. For the reasons aforesaid, it must be held that the learned Additional Subordinate Judge was not right in his view that the arbitrators were guilty of misconduct, or that the award was illegal on the face of it. It may be that the defendants have good reasons to be dissatisfied with the decision of the arbitrators. The arbitrators may have gone wrong in their estimate of the value of the properties or in their allotments, but that is no ground, in the absence of proof of misconduct, to set aside the award. It may be mentioned by the way that the plaintiff appellant was agreeable to exchanging his allotment with that of the defendants, but that proposal though accepted by the defendants could not be given effect to as portions of those properties had been sold by the defendants, and the parties were not agreed as to the substituted thereof.

In my opinion, the learned Additional Subordinate Judge has misdirected himself on both the point in Controversy between the parties. His judgment is both erroneous on facts and in law. The appeal must accordingly be allowed, the orders passed by the court below set aside, and the award filed in court should be made a decree of the court. The appellant is entitled to his costs both in this Court and in the court below.

Manohar Lall, J.:— I agree.

K.D

Appeal allowed.