This is an appeal from an order allowing an award to be filed under r. 20, Sch. II, of the Civil Procedure Code.
It appears that there were four brothers named Chintamoni, Dinabandhu, Jagabandhu and Keshari who were joint in mess and property. Chintamoni had three sons—Dasarathi, Panchanidi and Brahmanund.
Keshari had a son who died in his father's lifetime and Keshari is said to have adopted Brahmanund. Keshari died in 1909. At the beginning of December 1909, the three surviving brothers separated in mess, and on the 25th December 1969 an agreement was signed by the three brothers and on behalf of Brahmanund by his natural father and guardian Chintamoni to submit their affairs to arbitration with a view to partition up their properties according to shares and to settle certain disputes among them as regards the property in certain businesses, religious endowments, liability to debts, etc. On the 26th December 1909, the arbitrators made a draft award as to the shares and as to properties standing in the names of persons outside the arbitration and as to properties standing separately in the names of Chintamoni, Panchanidi and Chintamoni's wife. They also decided the question of the shebaitship of the thakurs. No stamp was forthcoming until the 20th April 1911, and so the final award which had undoubtedly been accepted by all the parties in draft, was written out on the 21st April 1911, and the present application to file the award was made on the 5th June 1911. Dinabandhu and Jagabandbu then objected to its being filed on the ground that they had never agreed to submit the matter to arbitration at all and had been induced to sign a blank paper on which the alleged agreement was fraudulently drafted. They further contended that the alleged arbitrators never took any evidence and that the arbitrators exceeded the powers given in the said ekrarnama. The major portion of this defence is wholly dishonest.
It is proved beyond all manner of doubt that the objectors did agree to arbitration in terms of the ekrarnama, that the arbitrators who are gentlemen entirely above suspicion did meet, did take the statements of all the parties and that the objectors agreed to the specification of shares and asked the arbitrators to proceed to a division of the dwelling houses and moveable properties, which was done and the parties acquiesced and took possession accordingly. There was nothing outside the scope of the reference in all this. Then came the question of the dispute about the two thakurs, brought by Chintamoni from another place and established at his sole expense, also about the family Bhagabat whose worship, the arbitrators found, Chintamoni had performed alone even since the separation in mess, all the others being unwilling to perform the sheba. This question was in our opinion clearly before the arbitrators on the reference and they had no course open to them, under the circumstances, but to place the thakurs and the Bhagabat-gadi in charge of Chintamoni as shebait. Unfortunately, they went further and declared the order of succession to be the shebaitship by primogeniture in Chintamoni's family. This was not only in excess of their powers but was clearly contrary to Hindu Law. A mistake of law on a legal point, specifically referred to them, would not on the authorities have vitiated the award, but a decision affecting the succession that was not referred to them and a decision that is patently contrary to law could not be accepted by the Court and is a bar to the filing of the award in Court, though it may not affect the contract between the parties on the other points.
Having regard to the extreme dishonesty of the defence throughout and the separable character of the award as to succession, we have anxiously considered whether having regard to the provisions of r. 14(a) this portion of the award could not be struck out; but on a true interpretation of r. 21, it would appear that where any of the grounds mentioned in para. 14 or 15 is proved the Court cannot proceed to file the award when the matter has been referred to arbitration without the intervention of the Court. Even if it could be held that the invalid portion of the award was separable, it would still not be enforceable by the summary procedure of r. 20 as was pointed out in Mana Vikrama v. Mallichery(1).
But in the present case there is an illegality apparent upon the face of this portion of the award, though apart from this there is no objection to the legality of the award in general apparent on the face of it.
It is a pity that the arbitrators unnecessarily went out of their way to render an otherwise excellent award incapable of being filed, but the mere fact that it cannot be filed will not affect its usefulness as a contract between the parties in all matters other than the succession to the shebaitship. In view of the extreme dishonesty of the main defence and the very technical nature of the only objection on which the Appellants can succeed which in itself has no pecuniary value, we must direct that the Respondents do get their full costs from the Appellants in both Courts.
The question of the properties standing in the names of persons other than those who made the reference was rightly excluded by the arbitrators from the scope of the award. We mention this since it has been urged by the Appellants that on this point also the arbitrators exceeded their powers under the reference. The appeal must be decreed and the application to file the award must be refused, but the Appellants will bear the costs in both Courts for the reasons we have stated above. We fix the hearing fee at four gold mohurs.
Appeal allowed.