Seshagiri Ayyar, J.:— Plaintiff sues for a share in the family properties. The defence is that he was born blind and that consequently he is not entitled to any share under the Hindu Law. A number of issues were raised including the one on the question whether the plaintiff was congenitally blind. After the settlement of the issues, the parties agreed to refer the dispute to certain arbitrators. The agreement to refer is very general in its terms and apparently all questions of fact and of law were referred to arbitrators. Upon the reference, the arbitrators decided that the plaintiff was entitled to a life-interest in a fourth share in the properties subject to its becoming an absolute interest in case the plaintiff married.
On the submission of this award, objections were taken by the, plaintiff on the ground that it was illegal on the face of it and the Court should not accept it. Both the Courts below have upheld this contention and have set aside the award.
In Second Appeal, the learned vakils have argued the case vary elaborately; we have come to the conclusion that the Courts below are wrong.
Paragraph 14 of the second schedule to the Civil Procedure Code seta out the grounds on which an award may be set aside. Clause (a) refers to the arbitrators not deciding what has been referred to them and to deciding matters not within their jurisdiction, clause (b) refers to an indefinite award. Clause (c) refers to an award whose illegality is patent upon the face of it.
In the present case, the complaint is that the award is illegal as it apparently proceeded on the ground that the plaintiff, though not born blind, was not entitled to his full rights in the family. It may be observed in passing that the rights off the plaintiff were not beyond question until the recent decision of the Judicial Committee in Mussumat Gunjeshwar Kunwar v. Durga Prashad Singh(1). The arbitrators were of opinion, whether rightly or wrongly, that the plaintiff should not have anything more than a life-interest in the properties. Now the point is whether this conclusion is so patently illegal as to come within the mischief of clause (c) of paragraph 14.
A large number of English decisions were quoted by Mr. Somasundaram for the respondent. They all assume that where an error of law appears on the face of the award the error can be remedied by Courts. The various dicta to be found on this subject all refer to the decision in Hodgkinson v. Karnie(2) as enunciating this proposition. On examining that case, we find this statement of the law in the judgment of Wills, J., one of the ablest common law Judges of his time:
“I am entirely of the same opinion, and I should have been of that opinion if I had came to the conclusion that very experienced arbitrator, Mr. Richards, had decided this matter as erroneously as, upon reading the affidavit, I am satisfied that he decided rightly. The parties agreed to take his decision upon the question of damages instead of that of the Court and Jury; and if we were now to substitute ours for his, we should be acting contrary to the agreement of the parties, and without jurisdiction. It is quite clear that before the passing of the last Common Law Procedure Act, the Court could not, as a general rule, interfere with the discretion of an arbitrator. An exception had been introduced in the case of a mistake of law apparent on the face of the award. I do not say that my reason assents to that exception. We are bound by the course of decisions. I regret that we are so, however, this case does not come within the exception.”
If we may say so with respect, we share the doubt expressed by the learned Judge regarding the ‘practicability’ and soundness of enforcing the time-honoured principle referred to by him. Moreover, the later decisions to which we shall presently refer and the Civil Procedure Code do not appear to have accepted the proposition that an erroneous view of law appearing on the fact of the award vitiates it. In King and Duveen, In re Channel, J., said that if on a question of law referred to the decision of an arbitrator he has given an erroneous decision, it should not be questioned by the Court. In Muhammad Newaz Khan v. Alam Khan, the Judicial Committee have laid down the same principle. In Ghulam Khan v. Muhammad Hassan(3) they say expressly that an arbitrator has jurisdiction to decide both on facts and on law and that the Courts have no right to sit in judgment over his views. In Adams v. Great North of Scotland Railway Company(4), the same view was held. See also Dinabhandu Jana v. Chintamoni Jana(5). As regards the decision in British Westing House Electric and Manufacturing Company, Limited v. Underground Electric Railway Company of London, Limited(6), what was said by Lord Haldane in the House of Lords was that if the result of an arbitration was induced by a wrong direction as to law given by a Court, the Appellate Court is not powerless and the Court below is not entitled to shelter itself under the award. It is true that the decision of a Division Bench in Landauer v. Asser(7) supports the contention of the learned vakil for the respondents. But that case stands by itself, and although there are dicta of a very general character in the English Reports, in no case except in I the case in Landauer v. Asser was an award set aside on the ground that the arbitrator has given an erroneous decision on law.
Coming to the Civil Procedure Code, we think that clause (c) of paragraph 14 should be confined to cases like those where the arbitrator perversely and manifestly misapplies a rule of succession or applies to the parties a rule by which they are not bound; we are not to be supposed to have exhausted the category of the cases which may come under that clause; but we do think that where the arbitrator has applied his mind honestly and has arrived at a decision to the best of his ability, the fact that a Judge might take a different view is not a ground for holding that the award is illegal on its face. We must reverse the decrees of the Courts below and remand the suit to the Court of First Instance for its being heard on the other objections taken to the award. Costs to abide the result.
K.R