Sinha, J.:— This is an application in revision against an order of the learned Civil Judge of Jaunpur by which he refused to treat an arbitration award as an adjustment within the meaning of order XXIII, rule 3 of the Code of Civil Procedure. The facts are not in controversy and are briefly these.
One Lachman had five sons, Radha Kishun, Achhaibar Lal, Kishuri Kishore, Sheo Barat Lal and Sheo Saran. Radha Kishun had no children. On the 9th of September, 1928, he executed a will in favour of his brothers. On the 3rd of July, 1942, he is alleged to have executed another will solely in favour of one of his nephews, Rama Nand the son of Sheo Saran. This was followed by yet another will on the 21st of August, 1942, in favour of Kaushal Kishore, the son of Jai Kishun and the grandson of Achhaibar Lal.
It appears that, after the death of Radha Kishun there was some controversy between the parties and an application for a succession certificate was made by Kaushal Kishore and Rama Nand. The whole dispute was referred to arbitration and the arbitrator upheld the first will of the 9th of September, 1928.
The validity of the reference to arbitration was challenged on the ground that no such reference could be made in proceedings relating to a succession certificate. This objection was upheld. A request was then made by the applicant that the award might be treated as an adjustment within the meaning of order XXIII, rule 3 of the Code of Civil Procedure. The courts below have not acceded to this request, and the present application has been made on behalf of one of the sons of one of the brothers, namely, Sheo Barat Lal.
The learned counsel for the applicant takes his stand principally on the case of Dular Koeri v. Payag Koeri(1). This case is an authority for the proposition that an award can be treated as an adjustment. Indeed, section 46 of the Indian Arbitration Act of 1940 itself provides that an award can be so treated.
The learned counsel for the opposite party, however, contends that no question of jurisdiction is involved in this application in revision. It appears to me that the award is so eminently fair and the two subsequent wills are so obviously unfair to the rest of the family that the ends of justice demand that I should entertain this application. In a recent case reported in Sheikh Mohammad v. Rukmina Kunivar(2) a Bench of this Court, in the exercise of its revisional jurisdiction, interfered with the order of the court below even though it was technically right, because it was on the face of it unjust. I have already said that the award is an eminently fair document, fair to all the parties concerned, and refusal to treat it as an adjustment within the meaning of order XXIII, rule 3 of the Code of Civil Procedure will mean a negation of justice.
I, therefore, allow this application in revision, set aside the order of the court below and treat the award as an adjustment within the meaning of order XXIII, rule 3 of the Code of Civil Procedure. The parties shall bear their own costs.