Kulwant Sahay, J.:— (after stating the facts set out above, proceeded as follows): This appeal has been argued at great length by the learned Vakils for the parties and after a careful consideration, I am of opinion that the contentions raised by the appellant are unsound, and the order of the District Judge directing the award to be filed is a valid and legal order and ought to be affirmed.

I may at the outset, dispose of a preliminary objection taken towards the end of the argument by Mr. Lakshmi Kanta Jha who appeared for the defendant no. 2 respondent, namely, that no appeal lay against, the order filing the award. The order under appeal is one passed under paragraph 21 of the Second Schedule to the Code of Civil Procedure upon an application made under paragraph 20 with reference to an arbitration without the intervention of the Court. Under section 104(1)(f) such an order is appealable. The contention of the learned Vakil, however, is that after the order made, by the District Judge to file the award he proceeded to pronounce judgment according to the award and a decree had been prepared in accordance with such judgment, and under clause (2) of paragraph 21 no appeal lies from such decree except in so far as the decree is in excess of or not in accordance with the award. His contention is that when a decree is prepared in accordance with the award, the order to file the award is no longer subject to appeal. This contention has absolutely no force. Section 104 of the Code clearly gives a right of appeal against an order to file the award and the fact that a judgment has been pronounced and decree drawn up, does not render the order to file the award incapable of appeal. The question was considered in several cases and I need only refer to the decision of Mookherji and Beachcroft, J.J, in Soudamani Ghosh v. Gopal Chandra Ghoshi where it has been held that the right to appeal against an order directing to file an award made by arbitrators without the intervention of the Court is not lost as soon as a decree is drawn up in accordance with the judgment pronounced on the basis of the award. The order does not merge in the decree. The preliminary objection must therefore be overruled.

As regards the merits; in order to determine whether the award is in excess of the jurisdiction vested in the arbitrator it is necessary to refer to the terms of the agreement, because the authority of the arbitrator is derived from the terms of the reference contained in the agreement itself. The agreement of the 16th of April, 1919 (Exhibit 1 in the case) runs thus:

“We the three brothers are separate in mess but a large property is being held jointly by us. A dispute is going on amongst us in respect of the partition of the ancestral properties and the properties acquired by purchase as well as of the nami and benami properties. Therefore taking into consideration the loss to be sustained on account of the posts of the suit, which is calculated to ruin the properties we appoint Shaikh Abdullah, son of Munshi Badan Lal, by occupation a zamindar and cultivator, resident of mauza Rahimabad, pargana Saraisa, police-station Tajpur, sub-registry office Samastipur, district Darbhanga, an arbitrator for the settlement of all points in dispute and do declare as follows: The said arbitrator shall hear the objections and take oral or documentary evidence of the parties and pass tin award in respect of and nutrition the properties forming the milkiyat interest, kabza kasht lanas, faqirana, minhai and mikarari lands, ancestral and acquired in the name of any one of the parties or any other person which exist at present. The said award shall be approved and accepted by us. Not one of the parties shall have any right of raising any sort of objection against the said award. The award passed by the said arbitrator shall be in writing. In the said award a full detail shall be separately given of the properties belonging to each of the parties. The original award of the said arbitrator shall be engrossed on a stamp of Rs. 5, shall bear the signature of the arbitrator and shall remain in possession of me, executant no. 1, while two copies thereof bearing the signature of the arbitrator shall be engrossed on stamps for Re. 1 each, and shall remain in possession of the remaining extenuates. The said award shall be final, and none of the parties shall have any right of disobeying it and bringing a suit in Court against it. Therefore, we executed this deed of agreement, so that it might be of use when required.”

The executant no. 1 referred to in the body of this agreement was Shaikh Abdul Rahim, the plaintiff, executant no. 2 was Mohammad Khalil the defendant no. 1, and executant no. 3 was Abdul Aziz the defendant no. 2. It has been contended on behalf of the appellant that the award is in excess of the authority given to the arbitrator inasmuch as the properties which were joint between only two of the parties and not between all the three parties to the reference have been partitioned by the arbitrator. As regards this objection, on a reference to the terms of the agreement, I have no doubt that the parties intended that such properties as were held jointly between only two of the parties to the reference were also to be partitioned by the arbitrator. There can be no doubt that whether the dispute related as to matters common to all the three parties or to only two of them, all such disputes were referred to the arbitrator and the arbitrator had full authority under the terms of the agreement to decide such questions also.

The next objection is that the arbitrator professed to deal with the interest of persons who were not parties to the reference. In order to understand this objection it is necessary to state that the three brothers who are parties to the present proceedings had inherited a portion of the properties in dispute from their father and, in such ancestral properties, their sisters would ordinarily, under the Mohammadan Law, also have some shares. The properties which were to form the subject-matter of the partition were not set out in the agreement and the arbitrator had to find out what were the properties which was to be partitioned amongst the three brothers. In order to determine this, he had to enquire as to whether the sisters had any share in the ancestral properties or not. It appears from the proceedings before the arbitrator, especially from the deposition of Mohammad Khalil, that the parties represented before the arbitrator that the sisters had no share in the ancestral properties or, in any event, that they had relinquished their interest in such properties. When all the parties to the reference represented to the arbitrator that the whole of the ancestral properties in dispute belonged to them and that their sisters or third persons had no interest in such properties, I think the arbitrator was justified in treating the whole of such properties as belonging to the parties to the reference. If, as a matter of fact, third persons had any interest in those properties and the parties agreed to have such properties partitioned between them by the arbitrator, it is not open to any one of them to contest; the validity of the award on the ground that it deals with matters in which third parties are interested. In the present case, however, the arbitrator appears to have made enquiries and to have been satisfied that the sisters had no interest in the ancestral properties. One of the sisters, Mussammat Latifan is married to one Nawab Jan and he appears to have helped in bringing about the amicable partition which formed the subject-matter of the barawarda prepared in July 1919. That barawarda, it is admitted before us deals with most of the ancestral properties held by the brothers and a small portion was left out from it which was the subject-matter of the subsequent partition by the arbitrator. That barawarda, it is admitted before us was the result of a private partition amongst the brothers and it deals with almost the whole of the ancestral properties held by the brothers. No portion of such ancestral properties was then left out by the three brothers as forming the interest of the sisters. It is clear, therefore, that they themselves treated the whole of the ancestral properties as belonging exclusively to them and not to the sisters. The arbitrator states that he made enquiries from the sisters and he was satisfied that they had no interest in the ancestral properties. There is no reason to doubt the truth of the statement made by the arbitrator and I am of opinion that, even, assuming that the sisters had any interest in the ancestral properties, the award was not in excess of the authority of the arbitrator, because he proceeded to partition such ancestral properties amongst the brothers. Under the terms of the agreement it was his duty to determine what the properties to be divided between the parties were and, if, in coming to this decision, he committed any mistake that is no ground for holding the award to be invalid.

The same remarks would apply to the objection of the appellant that the arbitrator has proceeded to deal with properties belonging to third persons who have been found by the arbitrator to be benamidars for the parties. This is dealt with in clause (2) of the award. It appears that certain properties were acquired in the name of Shaikh Nawab Jan under two deeds of sale, dated the 30th May, 1912, and 10th May, 1912. The arbitrator says that Shaikh Nawab Jan admitted that he was a benamidar for the parties. There were certain other properties which stood in the name of one Shaikh Mohammad Ismail and had been acquired under a deed of sale, dated the 17th December, 1918, and the arbitrator says that the lands covered by this deed also belonged to the three brothers and that Mohammad Ismail was merely a benamidar for them. It is apparent from the evidence on the record that the three brothers represented before the arbitrator that the property standing in the names of Nawab Jan and Mohammad Ismail were their properties and the deeds of sale were produced before the arbitrator by one of the parties to the reference. Both Nawab Jan and Mohammad Ismail were examined as witnesses in the present proceedings before the District Judge and none of them laid any claim to the properties standing in their names. It is significant that although, on 22nd November, 1922, Nawab Jan and his wife (one of the sisters of the parties) filed a petition before the District Judge claiming interest in some of the properties partitioned by the award, yet when Nawab Jan was examined as a witness on the 25th June, 1923, no question was put to him in respect of his own or his wife's claim in respect of any of the properties dealt with in the award. I am of opinion that the award is not invalid on account of the arbitrator having partitioned properties standing in the name of these two persons.

It has further been argued on behalf of the appellant that as regards certain kabza kasht and inam lands situate within the area of mousa Tisi, Narsam the arbitrator has proceeded to make a partition not only between the three brothers but also between another person named Mohammad Ismail who, it appears, is a different person from Mohammad Ismail held to be a benamidar of the parties under the deed of the 17th December, 1918. Now, it appears from the award that Mohammad Ismail's share in these kabza kasht lands had already been separated into a separate takhta by private partition and Mohammad Ismail had nothing to do with the shares of the three brothers which were held separately from the takhta held by Mohammad Ismail and the arbitrator has proceeded to partition only that portion of the kabza kasht and inam lands which was held jointly by the three brothers and in which Mohammad Ismail had no share. The objection on these grounds must therefore fail.

Objection is next taken to the matter dealt with in paragraph 7 of the award. Various objections were taken before the District Judge as regards this paragraph, but before us the only objection urged by the learned Vakil for the appellant is that the arbitrator has reduced the share of the appellant and his wife from three-fifths to one-half. This paragraph as translated and printed in the paper-book is vague and unintelligible, and in part the translation is inaccurate. I have, however, looked into the original award in the vernacular and I am satisfied that the complaint of the appellant is unfounded. The real facts appear to be that in the village Nawachak Minhai the parties held certain lands which formed their kasht or tenancy right. These lands they divided amicably and the shares allotted to each was set out in the barawarda of July 1919. Over and above the kasht right the parties had also got some proprietary interest and in the record-of-rights prepared in the Cadastral Survey under Chapter X of the Bengal Tenancy Act, their proprietary shares were shown in the khewat as follows:—

Mohammad Khalil ……… 2 shares. Mussaramat Bibi Bihan (wife of Mohammad Khalil)… … … 1 share. Abdur Rahim … … … 1 share. Abdul Azis … … … 1 share.

It appears that there were other proprietors also who owned the rest of the village and the shares shown in the khewat were not two-fifths or one-fifth as translated on page 68 of the paper-book. The parties subsequently acquired by purchase the shares of Shankar Thakur Hajam and Jailal Thakur Hajam and the arbitrators treated all the shares held by the three brothers as consisting of 16-annas and he declared the shares of Abdul Rahim and of Abdul Aziz to be 4-annas each and he left the remaining 8-annas to Muhammad Khalil and his wife Bibi Biban. This did not amount to a reduction of the share of Mohammad Khalil. Indeed it appears from the deposition of the defence witness 2 and defence witness 5 that it was agreed between the parties that Abdul Rahinr and Abdul Aziz should each get four annas proprietary interest in the village and the arbitrator did not award them more than 4-annas each. I am of opinion that this portion of the award is not in excess of the authority of the arbitrator.

As regards the matters found by the learned District Judge to be beyond the authority of the arbitrator, there is no dispute before us that those matters were decided by him in excess of his authority. They are dealt with in clauses (3), (4) and (6) of the award. In clause (3) the arbitrator awarded a certain sum of money as mesne-profits against the defendant no. 2; in clause (4) the arbitrator awarded a sum of money as compensation to Abdul Aziz as against Muhammad Khalil on account of certain brick kilns; in clause (6) the arbitrator directed certain rents to be realized by Abdul Aziz for the period from 1326 to 1328. As has been held by the learned District Judge, these matters were not referred to the arbitrator and he had no authority to decide these points. It has, however, been argued by the appellant that the whole award is bad in law and the Court had no jurisdiction to order the award to be filed when any portion of it was in excess of the authority of the arbitrator irrespective of the fact that such portion could be separated from the rest of the award without affecting the determination of the matters referred to therein. There has been a divergence of judicial opinion on the point as to whether the Court has authority to direct an award to be filed in a reference to arbitration without the intervention of a Court when a portion of the award deals with matters not referred to arbitration, even where such portion is separable from the rest of the award. Dinabandhu Jana v. Chintamani Jana and Jaldhari Rai v. Mohammad Abdul Kabir are direct authorities for the proposition that even where the portion of the award open to exception is separable from the rest the Court cannot proceed to give effect to the portion which is valid, in a proceeding under paragraph 21 of the Second Schedule to the Civil Procedure Code. On the other hand, Mahendra Nath Das v. Mohilal Kolya, is an authority for the proposition that the Court is competent to direct the award to be filed in respect of the portion which was within the authority of the arbitrator where the portion in excess of such authority is separable from the rest. The Judicial Committee of the Privy Council, in Amir Begum v. Badruddin Hossain, in dealing with an award, an portion whereof was found to be outside the power of the arbitrator observed as follows:—“The award further purported to assign specific lands in the zamindari of Rusibigha by way of partition, a matter clearly outside the power of the arbitrator which would render his award invalid unless this portion of his award is separable from the rest. In the opinion of their Lordships there is no defect whatever in separating this portion of the award from the rest. It is well recognized law that when a separate portion of an award is bad the remainder of the award if good can be maintained. No doubt, no reasons have been assigned by their Lordships for coming to this conclusion; but the question was directly raised in the arguments of the learned Counsel on both sides, and their Lordships laid down the law that where a separable portion of an award is bad the remainder of the award if good can be maintained. That case appears to deal with a reference to arbitration without the intervention of the Court and the appeal arose out of an application under the provisions of Schedule 2, paragraph 20 of the Code of Civil Procedure. This decision of the Privy Council is binding upon us and we are bound to follow it and to hold that even in cases of a reference to arbitration without the intervention of a Court, when an application is made under paragraph 20 of the Second Schedule to file an award the Court, is competent to make an order to file the award even where the award deals with matters in excess of the authority conferred upon the arbitrator, where the portion of the award dealing with such matters can be separated from the rest of the award. The decision of the Privy Council in Buta v. Municipal Committee of Lahore also supports this view. On examining the terms of paragraph 21 of the schedule, it appears that the Court has power to order the award to be filed in respect of the portion which is within the authority of the arbitrator when the portion beyond such authority is separable from the rest. Paragraph 21 provides that where the Court is satisfied that the matter has been referred to arbitration and that an award has been made thereon, and where no ground such as is mentioned or referred to in paragraph 14 or paragraph 15 is proved, the Court shall order an award to be filed and shall proceed to pronounce judgment according to the award. Paragraph 14 deals with the grounds upon which a Court may remit an award to the reconsideration of the arbitrator where the award has left undetermined any of the matters referred to arbitration or where it determines any matter not referred to arbitration, unless such matter can be separated without affecting the determination of the matters referred. This power to remit the award to the reconsideration of the same arbitrator is given in references to arbitration in suits and paragraph 21 provides that the grounds referred to in paragraph 14 if proved in cases of arbitration without the intervention of a Court will make the award invalid, inasmuch as the Court has no power to remit the award for reconsideration when the reference is made without the intervention of the Court. The ground, however, in clause (a) of paragraph 14 is that the award has determined any matter not referred to arbitration and such matter cannot be separated without affeeting the determination of the matters referred. Where, however, such matters can be separated, the ground referred to in clause (a) of paragraph 14 does not apply, and the Court can under paragraph 21 order the rest of the award which is within the authority of the arbitrator to be filed directing the portion which is in excess of his authority to be expunged. The ground upon which the Court can refuse to file an award under paragraph 21 is the ground upon which the Court should remit an award under paragraph 14 and as the Court cannot remit an award under paragraph 14 if the portion in excess of the arbitrator's authority be separable from the rest. It follows that it cannot refuse to file the award under paragraph 21 in those circumstances. I am, therefore, of opinion that this objection of the appellant cannot be sustained.

As regards the objection that after July 1919 the arbitrator had no authority to proceed with the arbitration and that the arbitration came to an end with the barawarda of July 1919, it is clear from the evidence that the objection cannot be sustained. What actually happened was that after the reference to arbitration, the first sitting of the arbitrator took place in May 1919. The arbitrator has been examined as a witness in the case and he says that in that sitting he called for written-statements of the claims of the parties and they filed the same, that he asked the parties to produce witnesses and the parties gave their own evidence and produced their documents. There had been a previous arbitration and he examined those arbitrators and also village people. The previous arbitrators had made patibandis and the parties caused the papers relating thereto to be filed by the amin, Abdus Samad. The second sitting took place in July 1919 and in this sitting the baraivarda of the lands of which the parties had divided privately and amicably was filed before the arbitrator and all the parties and witnesses present signed the barawarda. This, however, did not exhaust all the properties and several other properties were left for partition. The arbitrator in the second sitting ordered the amin, Abdus Samad, to measure the other lands which had not been partitioned. It appears from the evidence that the amin made attempts to measure the lands in October 1919 and in June 1920 but he could not do anything, as on the first occasion there was a death in the family and on the second occasion Muhammad Khalil was engaged in building a pakka house. The third sitting took place in March 1921 when the arbitrator directed the measurement of the remaining lands and the measurements were made by the amin, Abdus Samad, in March, April and May 1921 during which period he also prepared the papers and the maps. It is clear from the evidence that the arbitration was not complete in July 1919 and the power of the arbitrator was not put an end to in any way either by notice or by any act of the parties cancelling the reference.

The objection that the long delay in making the award went to show a revocation or an abandonment of the arbitration is equally groundless. There was no time limit to effect the arbitration and, under the circumstances disclosed in the evidence, I am not prepared to say that the delay was so unreasonable as to lead to a conclusion that the parties had abandoned or revoked the reference. Reliance has been placed by the appellant upon the cases of Mohammad Ramzan v. Mussammat Sardar Begum and Madhao Kashinath v. Sambashiva. In the first case there was a delay of about five years and in the second case a delay of about six years, and under the peculiar circumstances of those cases it was held that the delay was such as to lead to a reasonable presumption that the parties had abandoned or revoked the reference. In the present case the delay does not appear to be so unreasonable as to lead to any such presumption.

Reference has been made to the fact that the award was made at a time when a criminal case between the parties had just come to an end and it is argued that this gives rise to a suspicion that the award was not a real decision made by the arbitrator but was the result of collusion between some of the parties to the reference and the arbitrator. We have considered the evidence on the point, and I am not prepared to say that, the fact that the award was made about the time when the criminal case came to an end is any reason for holding that the award is the result of any collusion between the arbitrator and the other parties to the reference. No imputation of any misconduct as against the arbitrator has been established by the evidence, and the arbitrator who appears to be a man of position and a gentleman in whom the parties had confidence in the beginning seems to have acted with perfect impartiality in deciding the difference between the parties.

The objection that the award was bad inasmuch as the arbitrator delegated his functions to the amin Abdus Samad is also baseless. It is open to the arbitrator to have ministerial and other works performed by a third person and because the measurements were made and the maps prepared by the amin it cannot be said that the partition was effected by the amin and not by the arbitrator. It is contended that the arbitrator has admitted in his deposition that he did not, find the valuations or raibandis of the lands; but it is clear from the evidence that although the valuation was really made by the amin the question was considered by the arbitrator when the amin submitted the papers before him.

Another point taken by the learned Vakil for the appellant is that although the arbitrator in his award says that the barawarda prepared in July 1919 did not form a part of his award yet the District Judge has ordered the same to be treated as a part of the award. The reasons given by the learned District Judge for doing so appear to be sound. Although a portion of the properties was partitioned amicably between the parties it did not exhaust the whole of the properties and the fact that they presented the barawarda of 1919 before the arbitrator goes to show that they desired the same to be made a part of the award.

I see no reason to disturb the decision of the learned District Judge and I am of opinion that the appeal must be dismissed with costs.

Mullick, J.:— I agree that the appeal should be dismissed with costs, but I desire to make a few observations with regard to the validity of the award in this case.

It is clear that the arbitrators have gone outside the terms of reference in regard to certain matters and this being an arbitration without the intervention of the Court, the question is whether a decree can be passed on that portion of the award which is within the terms of the reference. In Kunj Lall v. Banwari Lall, to which I was a party, it was held by this Court that where the arbitrators had omitted to decide a question referred to them the entire award was bad. In Jaldhari Rai v. Muhammad Abdul Karim to which also I was a party, one of the questions was whether in an arbitration without the intervention of the Court a decree could be given upon that portion of the award which was within the terms of the reference if such portion was separable from the rest. In point of fact in this case the award failed because among other reasons the two portions were not separable; but there are observations in the judgment which expressed the view that even if the valid portion can be separated from the invalid portion the Court has no option under the Civil Procedure Code but to refuse to cause the award to be filed. This view was based upon Dinabandhu Jana v. Chintamoni Jana and the case cited therein as well as on earlier decisions in other Courts. Some of these earlier decisions were referred to in Mustafa Khan v. Phulja Bibi where it was laid down broadly that the Court had no power to amend a private award or to remit it for reconsideration, but only possessed the power to file and enforce it or to reject it. It has been contended that as paragraph 12 does not give the Court any express power to modify or correct an award made without the intervention of the Court and paragraph 14 does not give any power to remit the award and that as paragraph 19 makes the provisions of paragraph 12 applicable to an award following upon an agreement filed in Court under paragraph 17 while no such provision is made in respect of an award made without the intervention of a Court, the intention of the legislature is that such an award must be rejected in its entirety if any part of it is bad for want of jurisdiction even if such part can be separated from the other part, and does not affect the decision on the matter referred. There is much force in this argument; and it may be said that the legislature has given power to a Court to modify an award made with its intervention because the jurisdiction of the arbitrators is from the outset clearly defined by the Court itself. In private arbitration it is often a matter of considerable difficulty to determine the scope of the reference and to say how far the decision upon one point has influenced the decision on the other parts of the award.

The matter, however, appears to be settled by authority. Neither in Kunj Lall v. Banwari Lall nor in Jaldhari Rai v. Muhammad Abdul Karim was any reference made to the decisions of the Privy Council in Buta v. Municipal Committee of Lahore and Amir Begam v. Badr-ud-din Husain but these cases seem to be directly in point and conclusive. In both these cases it was held by the Judicial Committee that if the part made with jurisdiction could be separated from the rest, then the former part of the award was valid and could be maintained. There is, therefore, no occasion to refer the question to a Full Bench even if it could be held that the point now raised was directly decided in Jaldhari Rai v. Muhammad Abdul Karim.

S.A.K

Appeal dismissed.