Roe, J.:— The defendant Laldhari Prasad was the first cousin of the deceased husband of the plaintiff; the second, third, fourth and fifth defendants were the sons of Laldhari Prasad and the sixth defendant was the adopted son of the plaintiff's husband Hit Prasad. The property in dispute was that of Sakhi Chand, the father of Hit Prasad and uncle of Laldhari Prasad. The plaintiff's case was that the partition of this property had been referred to arbitration by all the parties to the dispute and that an award had been made in terms of the reference. She therefore asked that under; Section 21, Sch. 2 of the CPC, the award should be filed and a decree made I thereon. Some ten objections were made by the various parties and these the learned Subordinate Judge discarded as without foundation. He ordered the award to be filed and a decree was thereon made in accordance with the award.
2. The three appeals before us are by Laldhari Prasad and his major son Rajballabh Narain No. 59, by Brij Narain No. 58, and by Chottey Lal No. 57. The application in revision is made by Keshwar Narayan on the allegation that he, being the son of the defendant Brij Narain, was entitled to a share in the property and was therefore a proper party to the suit. He had applied during the course of the trial to be joined as a party. His application had been rejected by the learned Subordinate Judge. In the appeal as argued before this Court, the first objection taken is that of Chottey Lal the second defendant, on the ground that he was a major at the time of the reference to arbitration and was no party to it. By Brij Narain it is argued that the arbitrators made their award carelessly in that three debts Nos. 21, 22 and 23 of the schedule attached to the award were debts barred by limitation and in that a debt worth only Rs. 442 was valued at Rs. 510 in the award. It is further urged that he was not served with notice and that the arbitrator acted improperly in pressing for the payment of a debt due to a servant of his while the consideration of the award was actually in progress. By Laldhari Prasad it is urged that the arbitrators were guilty of carelessness, in that item No. 17 of the debts allotted to his share have been grossly overvalued. It is also urged that though the property was worth two lakhs of rupees the arbitrator managed to finish the work in one month's time; that he did not write the award himself and that he did not certify at the end of it that it was written at his dictation.
3. The learned Subordinate Judge dismissed the objections now urged by Brij Narain and Laldhari Prasad summarily, and indeed it is apparent on the face of it that there is no substance in them at all. With regard to the unfairness of the allotment, it is to be noted that though the property is worth two lakhs of rupees, the only unfairness alleged is with regard to sums of money amounting in all to less than Rs. 1,000. On this point the plaintiff's first witness has given evidence that the debts were divided into three classes, (1) those which were easily realisable, (2) those which could be realised with difficulty, and (3) those which were barred or not realisable at all. There is no real evidence on the defendants' side to rebut this assertion, and I have no doubt that, in making the award, the arbitrator acted fairly enough. There is no real evidence that Brij Narain received no notice. It is indeed certain that he was present during the proceedings and was aware of them, otherwise there could be no sense in his suggestion that pressure was brought to bear upon him during the proceedings to pay a debt due to the arbitrator's servant. The evidence with regard to the latter suggestion of misconduct is of the flimsiest character. The learned Subordinate Judge had no hesitation in rejecting it and I can see no reason for differing from him. The suggestion that the arbitrator was unduly hasty is not substantiated by evidence, nor is there any substance in the contention that the arbitrator was required to write the whole award with his own hand. It is not contended that the award that was made by the arbitrator was in any respect different from that filed in Court. The award filed in Court was signed by the arbitrator and that signature was a sufficient indication that he was responsible for it.
4. The real difficulty in the case is that the one vital point, namely, the age of Chottey Lal at the time of the reference to arbitration seems to have received no attention at all from the plaintiff. The defendant Chottey Lal gave evidence that he was a major at the time of the reference to arbitration. He produced an entry made at the time of his first admission into the Monghyr Training Academy, and in that entry it is mentioned that the date of his birth is 3rd Baisakh 1306 Fs., which, on a reference to the Chronological Tables, will be found to correspond to the 28th April, 1899. The Ekrarnama upon which the reference to arbitration was made was dated the 31st August 1917 and the award was filed on 27th September, 1917. Prima facie, therefore, this boy was 18 years and 4 months at the time of the reference to arbitration. His father Laldhari did not pretend to be acting as Karta of the family. He signed the reference to arbitration as guardian of Chottey Lal. The major son Raj Ballabh signed in his own capacity. It is clear, therefore, (and Mr. Hasan Imam admits this) that if Chottey Lal was of age on the 31st August 1917 he was no party to the Ekrarnama. The learned Subordinate Judge gives the following reasons for not accepting this certificate.
5. His father stated in the Ekrarnama that he was a minor. His elder-brother Raj Ballabh deposed in the suit, but did not mention the fact that Chottey Lal was a major and Chottey Lal himself did not know before the date of hearing that he had attained majority:—
“Chottey Lal swears that when he took admission in the school he took his horoscope with him and the date of his birth was entered in the school register from that horoscope. No horoscope has been filed in this suit. The school register shows that there was no horoscope brought by Chottey Lal and the date of birth was entered according to the statement of some person. It is significant that the father Laldhari Prasad, who is the Karta of the family, has not deposed in the case. From the deposition of Chottey Lal it appears that his father and others consulted in the morning of the 17th January, 1918 and then he was approached, and then Chottey Lal came with his objection. I do not believe that Chottey Lal has attained majority; his appearance too does not support his statement.”
6. The learned Subordinate Judge then goes on to make a misstatement of the law with regard to the binding nature of the reference even though Chottey Lal had attained majority. In the reasons given by the learned Subordinate Judge, he seems to me to have entirely lost sight of the fact that if Chottey Lal was indeed a minor on the 31st August 1917, he must have been within a very short time of his majority. Certainly age can be more nearly told by appearance in a child of 8 years of age than in a boy nearly 18 years of age. In Indian families no festivities are held to celebrate birthdays and it is extremely rare for members of a family to know with any certainty the month in which even their adult sons or brothers were born. Oral evidence given upon the point would have been absolutely valueless and might by cross-examination at once have been shown to be so. We have before us the only documentary evidence extant of the date of this boy's birth. In spite of the fact that Chottey Lal himself has been foolish enough to say that his horoscope was shown to the head master, there is no real evidence on the record that he ever had a horoscope at all. He was under 8 years of age when he first attended the Monghyr Academy. He cannot possibly remember now whether a horoscope was sent with him or not. The school register shows that no horoscope was in fact sent with him.
7. The evidence of the correctness of the entry in the register that he was born on the 3rd Baisakh 1306 stands entirely unrebutted on the plaintiff's side and no question was asked in cross-examination of the defendants' witnesses to suggest that this date was inaccurate. Mr. Hasan Imam suggests in his argument that the entry was falsely made in order to qualify the boy for the Entrance Examination eight years later. There seems to be no point in this suggestion, for if his birthday had in fact been the 1st September 1899, he would have been, I understand, equally eligible for an Entrance Examination in 1917. It was never suggested in the Court below that the 3rd Baisakh was a date which would create an ability or remove a disability in respect of an examination. A statement of this description, made at a time when there was no apparent reason for a misstatement, is to my mind of far greater value than the statement that might be made when the question had become one of controversy. In the absence of any rebutting evidence, I feel that it is impossible to hold that this entry was not correct. It follows, therefore, that I must with great regret come to the conclusion that Chottey Lal was a major at the time of the reference to arbitration and that therefore he was no party to it and that, therefore, the suit as against him should have been dismissed.
8. Similarly Keshwar Narain is stated in an affidavit, dated the 16th April, 1918, to be one and a half years old, implying that he was born in October 1916. He too should have been represented in the reference to arbitration as one having a share in the joint family properties. The learned Subordinate Judge holds upon this point that it is unnecessary that he should be a party to the suit for the reason that when he comes of age he may, if he wishes, contest the arbitrator's award. It would seem to me that an award purporting to partition the property of, a joint family but liable to be set aside at once by Chottey Lal and in sixteen years' time by Keshwar Narain is not a valid award. In my opinion the first proviso to section 21 of the second Schedule has not been fulfilled.
9. I am not satisfied that the matter has been referred to arbitration by all the parties necessary to a suit for partition. Notwithstanding the provisions of Order 1, R. 9, I hold that the partition of the family property cannot be regarded as having been validly referred to arbitration. In this view the learned Subordinate Judge's order directing that the award be filed should be set aside. I would therefore set it aside and I direct that the appeal be decreed and the suit of the plaintiffs dismissed.
10. With regard to costs I am satisfied I that Chottey Lal has been put forward solely for the purpose of defeating an equitable claim on a technical objection. I would, therefore, order that all the parties bear their own costs throughout, the litigation.
11. Coutts, J.:— I agree.
V.S/R.K
12. Appeal decreed.