JUDGMENT
1. This is an appeal against a decree following against an award with certain modifications under Para. 21, Sch. 2 of the CPC, (Act 5[v] of 1908). The Arbitration Act does not apply to this case and the matter falls within Sch. 2 of the CPC.
2. The parties to this suit had certain disputes regarding the division of their property. They were members of a joint Hindu family and she defendant was the jahagirdar of a jahagir a state in the Gwalior State. The defendant desired partition, and as the parties were unable to agree regarding several matters incidental to she partition, they decided, with the assistance of the Home Member of the Gwalior State, to refer their disputes to arbitration. The reference is Ex. P2 and is dated 30th April 1935. This was a reference made before the matter reached the Court and accordingly falls within the purview of Sch. 2 of the CPC, dealing with references without the intervention of the Court. The property consisted of the jahagir property in the Gwalior State and certain other properties—some in British India and some in Gwalior. The matter having been referred to the arbitration of five arbitrators—two chosen by each side and a sarpanch chosen with common consent—an award was delivered on 18th May 1935. This is the award which is now said to be filed. Under this award all the non jahagir property was directed to be partitioned and the jahagir property being impartible was left as it is. The defendant being the jahagirdar naturally got the jahagir property and the plaintiff was given Rs. 20,000 in lieu of maintenance which he would have obtained from the jahagir estate had the parties not partitioned the parties were given the choice of resorting to another arrangement for maintenance equivalent to that which the plaintiff was getting from the jahagir estate, but we need not concern ourselves with that. The award also contained certain other nutters which we need not enumerate at this stage.
3. On 24th August 1935, the plaintiff filed the application out of which this appeal arises to have the award filed. On 10th June 1985 the defendant had instituted a suit for partition. The partition suit was stayed pending the decision on the question of the award. According to the lower Court, the two suits were consolidated. That, however, appears to be inaccurate it seems that the partition suit was staved and the documents filed in the one case were admitted to evidence in the other.
4. The award was ordered by the lower Court to be filed and a decree followed in terms of the award, with however one variation. The lower Court held that the question of maintenance was beyond the competence of the arbitrators. It further held that this question was separable from the rest, and accordingly struck out this part of the award.
5. The plaintiff appeals against this part of the decision which strikes out the portion of the award relating to the award of maintenance to him. The defendant filed a cross-objection in which he contends that the application for filing the award should be dismissed.
6. Objection was taken at the outset to the maintainability of the application on the ground that the original award has not been produced. All that the plaintiff produced in Court is what has been called a counter-part of the original award. The description is inaccurate because as a matter of fact the document produced is not a counter-part but a copy of the original. This copy is signed by the sarpanch who alone signed the original award.
7. It may be accepted at once that in the ordinary way an application for filing an award cannot be entertained if it is based on a copy. There are, however, exceptions to this, one of them being when the original cannot be obtained, or has been lost or destroyed. In this case the original was signed by a Judge of the Gwalior High Court. He was the sarpanch, and it seems that, according to the State laws, the original has to be maintained on the files of the High Court Office and all that the parties are entitled to get is a copy of the original. Endeavour was made by the defendant to obtain the original and letters were sent to the Registrar of the Gwalior High Court. An answer was received from him dated 12th January 1940, in which he stated that the original could not be sent. That being the state of affairs, Section 65 of the Evidence Act, is called into play and it is permissible for the Court to proceed upon secondary evidence.
8. The secondary evidence in this case consists of a copy of the original signed by the sarpanch who, as we have said, signed the original. There is also on record a certified copy of the original which is among the files of the Gwalior High Court Office. There can, therefore, be no doubt about the authenticity of the copy which is produced, and secondary evidence being permissible, the objection taken on this score falls to the ground.
9. As we have said, four panchas and a sarpanch were appointed as arbitrators. The award, Ex. P1 is signed by the sarpanch alone. Objection is taken to this and it is stated that the award not having been signed by all the arbitrators is invalid.
10. The reason why the award has been signed by one alone appears to be this. Exhibit P-2, which is the deed of agreement containing the reference, has the following provisions regarding panchas and their duties it says:
“We lay down and agree that we hereby appoint the following panchas and sarpanch….
11. Then follows the names of the sarpanch and the panchas. Originally each side appointed 3 panchas and, ss we have said, the sarpanch was appointed by common consent.
12. The agreement of reference then continues:
“Any such award if unanimously given by the panchas or an award that may be given by the sarpanch in the event of the difference of opinion among the panchas shall be accepted and approved by us. Again, the panchas and the sarpanch will under this deed of agreement, give an award in the mouth of May 1935.”
13. It will be seen from that quotation that the parties appointed six arbitrators, three from each aide, and a sarpanch, and the authority given to the panchas was that they should decide the disputes between the parties unanimously if that were possible. If they were not able to reach unanimity, then the sarpanch was to give the decision. Whether this means that the sarpanch would be invested with authority to make the sole decision even if one of the remaining six disagreed need not be considered here because the situation does not arise but there was a difference of opinion between the anchas appointed by the defendant and those appointed by the plaintiff. The difference of opinion was equal, and accordingly the authority of the sarpanch at once arose under the clause quoted above.
14. We ought to have stated that though each side appointed three arbitrators, apart from the sarpanch, one from each Bide later dropped out and the matter proceeded with four arbitrators and a sarpanch. This was with consent and the patties took part in the arbitration once it started. This being the position, the award by the sarpanch is not, in our judgment, invalid.
15. That apart. Even if the provisions to which we have referred had not been in the terms of reference the law is that as soon as there is a difference of opinion between the arbitrators then the umpire assuming that the sarpanch occupied that position enters upon the reference. If not, of course, the majority opinion would prevail. That law is to be found in Russell on Arbitration Edn. 18, p. 320 where the following is quoted from the English Statute on arbitration of 1889:
“If the arbitrators (have allowed their time or ex-tended time to expire without making an award, or) have delivered to any party to the submission, or to the umpire a notice in writing, stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators.”
16. Again at page 321 Russell states:
“Where the provisions of para, (d) ‘(the provisions which we have just quoted)’ of the Schedule are in ??? in the submission, and the umpire enters ‘on the reference in lieu of the arbitrators,’ all the matters referred fall to be decided by him, and not merely the matters in respect of which the arbitrators have disagreed.”
17. The same enunciation of the law is to be found in Banerji's Law on Arbitration and Award Edn. 4, p. 734. It is clear then that even if the clause to which we have referred had not been there then the sarpanch would have had authority to decide because of the difference of opinion between the arbitrators. Also, in any event, as we have said, it this was not the law than the majority view would prevail, and the sarpanch having agreed with the views of two of the others on the disputed issue there was a majority opinion in favour of the matter enunciated in the award.
18. The latter position, however, raises fie question whether one arbitrator can sign on behalf of the others. Had the arbitration been with the intervention of the Court that would not have been proper. But in arbitrations without the intervention of the Court this can be done: see, 11 Pat 131.1
19. That brings us to the next question, viz., whether there was a difference of opinion among the panchas and to what extent the difference goes. The history of the arbitration will be, found set out in the award, Ex. P-1, which, as we have said, is signed by the sarpanch. It shows that the first sitting of the arbitrators was at Ujjain on 21st May 1935. Exhibit P. 4 is a copy of the order-sheet of that date. On this date the plaintiff's panchas were absent but the two panchas of the defendant were present, ss also both the plaintiff and the defendant in person. The plaintiff raised no objection regarding the absence of his panchas and the matter proceeded. The parties were asked to clarify the points on which they were at issue and three issues were drawn up.
20. The second sitting was on the following day, 22nd May 1985. On that date the panchas of both sides were present, as also the parties in person. The order-sheet is signed by everybody. The parties agreed on that day regarding the partition of the property. It was agreed that the defendant should divide the property in his possession into two equal shares excluding the jahagir estate and that the plaintiff should be permitted to choose one of the two lists. Similarly, the plaintiff was directed to draw two lists of the property in his possession and the defendant was given the choice. The matter was then adjourned to the following day for arguments on the other two issues on which the parties were not able to reach an agreement.
21. The order-sheet of the 23rd is Ex. P-8. The question of the plaintiff's liability to account and other incidental matters relating to the accounts was argued and the sitting was then adjourned to the 24th. Exhibit P-9 is the order-sheet of the 24th. The defendant was not present on that date and he sent a letter asking for an adjournment. The sitting was, therefore, adjourned till the morning of 27th May 1935.
22. The panchas assembled at 8-80 in the morning all were present the plaintiff was also present in person but the defendant was absent. He, however, sent a telegram asking for as further adjournment. The order-sheet records that the meeting of that day had been purposely get for the 26th (27th?) but the arbitrators agreed to wait till the evening, and accordingly the meeting adjourned till 5 in the evening.
23. It is relevant at this stags to point out that there was a certain urgency about this matter. The agreement of reference (Ex. P-2) made this condition. It stated:
“Again, the panchas and tbs sarpanchas will, under this deed of ??? given an award in the month of May 1935. In case no such award is given this agreement shall be deemed to he invalid and the parties shall not be liable for what bus ??? stated herein nor for that statements made during the arbitration proceedings and shall be entitled to seek their respective legal redresses in Court.”
24. It will be evident from this that it was essential that the award should be delivered before the end of May. That explains the urgency of the matter and explains why the arbitrators were not prepared to wait beyond 5 O'clock on khat date it is to be observed that no one raised any objection to this.
25. The arbitrators met again in the evening at 5 O'clock. The order-sheet of that date is Ex. P-11 Exactly what occurred at that meeting is a matter of dispute. It is contended on the one side that the arbitrators finished their work and after that the two arbitrators of the ??? sent a letter to the sarpanch withdrawing from the arbitration. On the other side, it is contended that the withdrawal was before the work was concluded, and accordingly the arbitration was invalid. Whether the withdrawal was before or after is a question of fact. What the effect of withdrawal would be—assuming it to have been before the conclusion of the arbitration is a matter of law. We will first deal with the question of fact.
26. The inherent evidence of Ex. P-11 indicates that the withdrawal was after the conclusion of the ??? proceedings but before the signing of the award. (Their Lordships considered the evidence on this point and continued.)
27. In our opinion, this evidence leads to the conclusion that the arbitration proceeded up to a stage when the arbitrators had to decide what their award was to be. At that juncture they discovered that they were not able to agree or, in the terms of the reference (Ex. P-2), were enable to give a unanimous award. At that stage the panchas of the defendant withdrew. The legal effect of this is that they withdrew after the arbitration had concluded in accordance with the terms of the reference but before any award was made. As we have pointed out, the agreement was that the award was to be in accordance with the unanimous decision of the arbitrators. But they were not able to agree. Therefore the sarpanch had to decide. As they were not able to agree the sarpanch became vested with authority to give the sole award. He became so vested under the terms of reference, as also under the law.
28. The next question we will deal with is the question of maintenance. The first question here is, was this matter referred to the panchas? In our opinion, it was. The relevant clauses in the agreement of reference (Ex. P-2) relating to this are as follows:
“We hereby authorize them to take the action of partitioning the properties after examining the accounts and bearing pleadings of the parties and after taking into consideration the orders passed by late Huzur; Anver Saheb dated 22nd April 1924 and the Supreme Council of the Gwalior State dated 4th August 1926 and 1934.”
29. The defendant's contention is that the orders referred to unequivocally stated that the plaintiff was not to get any maintenance in the event of a partition between the two. That is not entirely accurate. What the order states is that in the event of a partition the plaintiff will not get maintenance out of the jahagir estate. That also appears to be in consonance with R. 14-A, Gwalior Jahagir Rules. We need not here determine what exactly these orders import nor need we construe the Jahagir Rules of the Gwalior State. All that is foreign law, and so far as we are concerned the questions which arise out of them are ones of tact. We have no expert opinion before us regarding the State law on this subject and accordingly are not in a position to reach a conclusion on that point. We can, however, accept, for the basis of argument, that the contention of the defendant that the qualification which we have mentioned above is right, namely, that the law of the Gwalior State and orders referred to in the terms of agreement preclude the plaintiff from obtaining any maintenance out of the Jahagir property in the event of a partition between the two parties. The next question is what was the point of referring to this in the manner which we have set out above in the terms of reference. In our opinion, the only point of making such a reference was to enable the arbitrators to take the inequality which would result from that into consideration and make a fair partition by giving the plaintiff compensation from the rest of the property.
30. We say this foe the following reasons. If parties wish arbitrators to partition properties A, B and C, and not to partition X, they either leave X out of their reference altogether and say definitely “please partition A, B and C,” or, if they wish to make the matter clearer still, they may please partition A, B and C but not X”. That, however, is not the form in which this document is couched. It does not tell the arbitrators to leave X out of consideration, but to make the partition after taking into consideration the fact that the plaintiff cannot obtain any share or maintenance from the Jahagir estate, tin our opinion, that can only mean that the Jarbitrators were asked to make a fair partition Staking that into consideration and, therefore, compensating the plaintiff for the fact that the defendant would receive not only the lion's jshare of the Jahagir estate but all of it. We are accordingly of opinion that this question of maintenance did fall within the terms of refer, fence and that, therefore, the sarpanch had authority to deal with the matter.
31. The next question is whether he was wrong in making the award he did regarding maintenance. As we have said, he awarded Rs. 20000/- to be deducted out of the defendant's share he also made an alternative direction with which we need not concern our selves at the moment now it does not matter whether the arbitrator was right or wrong in what be did because as has been pointed out by the Privy Council, and also by this High Court, arbitrators are Judges of fact as well as law and have jurisdiction and authority to decide wrong as well as right. Accordingly, if they reach a decision and reach it fairly after hearing both sides, their award cannot be attacked. The Court, filing the award has no power to sit in appeal on the decision of the arbitrator. This law will for found in I.L.R (1936) Nag. 44,2 at p. 45 and is based on the authority of the ??? Council in 29 Cal. 1673 at p. 186. But that apart, the decision was, in our opinion, a fair and a just one. The defendant was the jahagirdar. He forced the partition. The plaintiff did not want it. He knew that once there was separation in the family the plaintiff would receive neither share nor maintenance out of the jahagir estate. Accordingly, he knew that he would get the whole of that estate. That being the position, it was the fair and just thing to make compensation to the other side. That is what the arbitrator did. Further, as we say, whether he was right or wrong in what he did is not a matter into which we can enter the matter was within the scope of the reference, and accordingly he had authority and jurisdiction to reach a decision on this point.
32. The next objection is regarding the partition. It is said that on this point at any rate either the parties were agreed, in which case the sarpanch had no authority to make an awards or, if the parties were not agreed then the sarpanch in fact made no award. What he has done has been in effect to tall the parties to do the work which he was supposed to do.
33. Now, as to this it is clear from the order, sheets as well as from the evidence of the sarpanch (P.W 5), and also from the award Ex. P-1, that the parties and their panchas were agreed that there should be partition. Farther, that the parties were agreed that each should divide the property in his possession into two pares and allow the other side to choose whichever he pleased. In order to enable the lists to be prepared, the arbitration was adjourned, anti it was only at this stage that the defendant did not turn up and did not submit his list. However, the agreement already reached was embodied in the award.
34. Now, it is evident that all the arbitrators and the sarpanch were unanimous about this. It is also evident that quite apart from what the panchas is and the sarpanch thought or decided, the parties themselves were agreed. Now it is open to the parties at any stage to modify the reference which they had originally made and to agree to modifications in the settlement of their disputes. This will be evident from the Privy Council in 21 Cal. 5904 as well as from I.L.R (1937) Nag 4495 and from 6 Pat. 556.6 These decisions are not exactly in point but the principle is there that if the parties agree to a modification of the original reference before the arbrrators then they are bound by their agreement; also the fact that when the arbitrators decide in accordance with the agreement of the parties it does not render their award invalid or make it any the lees an award. We hold that the parties are bund by this agreement and that the award is not ???. As we have said, even if the other panchas did not sign the award the ??? had authority on their behalf to deliver and sign their agreed conclusion.
35. As regards the other two matters, the maintenance and the accounts, as the panchas for the respective parties were not agreed, the clause investing the sarpanch with authority to decide the matter came into play and accordingly he had jurisdiction to decide that point on his own.
36. Objection was next taken to the accounts. It was said that the award does not make any decision regarding this. It was contended that under the agreement the plaintiff admitted that he was an accounting party and liable to render accounts. Accordingly, as the sarpanch did not investigate the accounts and detemine his liability, the award is, to this extent, vitiated.
37. The position in the terms of reference regarding this is as follows the relevant clause runs:
“We hereby authorize them to take the action of partitioning the properties niter examining the accounts and hearing the ??? …….and to cause to be paid with interest that has become duo for payment such amount as may be found due by one party to the other on rendition of accounts.”
38. In our opinion, there is no admission here by the plaintiff that he is liable to render accounts on the footing of an agent or on any footing other the as manager of a joint Hindu family. Accounting can be on many bases the accounts which an agent is expected to render are very different from the accounts which can be called for from a manager of it joint Hindu family. It is evident that the parties were at issue regarding the liability of the plaintiff to account. They referred that dispute in wide and general terms. Accordingly, the arbitrator had authority to take into consideration the law by which he parties Were governed and to determine whether the plaintiff in liable to account on the footing of an agent or trustee of the family or as manager under the Hindu law.
39. It is relevant to note that when the parties were called upon to explain the scope of their disputes before the arbitrators on 21st May 1935, (Ex. P-4) the issues upon which they agreed were simple and in general terms, viz., “Account in respect of the property situate at Harda from Samvat 1986 to Samvat 1990” In our opinion, this left the matter at large, and the arbitrators had authority to determine on what footing the plaintiff should be called upon to account.
40. The decision which the sarpanch reached on this is embodied in his award. He points out there that the plaintiff could only be called upon to account on the basis of his being manager of the joint Hindu family, and he there correctly quotes the Hindu law on the point, viz., that except as regards fraud or mismanagement or gross negligence prejudicial to the family the manager cannot be called upon to account. He pointed out that there was no evidence of fraud or mismanagement or gross negligence, nor was any evidence produced to show prejudice. Accordingly, the plaintiff was not liable to account beyond the extent to which he consented to account the plaintiff produced all his books and said he was quite prepared to account on the basis of those books provided the accounts were examined by an auditor, and he was prepared to pay what the auditor would decide was due from him. That is embodied in the award. In our opinion, the arbitrator had jurisdiction to decide as he did.
41. The decree of the lower Court embodies certain lists which the learned Judge of the lower Court appears to have thought were part of the award. A good deal of argument was addressed to us regarding these lists, and there was a certain amount of confusion because a large number of lists were prepared. The award refers to two lists. They are, however, not the lists which have been attached to the decree. The lower Court, of course, had no jurisdiction to travel beyond the award and had no jurisdiction to attach lists to its decree which were not attached to the award and which did not form part of it. The only lists which form part of the award are those to be found in Ex. P-13. These will be translated, and the lower Court's decree will be corrected after these lists have been translated. The lists given by the lower Court in its decree will be deleted and the lists attached to the award will be substituted in their place. Except for that, and except as regards the direction in the award regarding maintenance, the decree of the lower Court will stand.
42. The direction regarding the maintenance is as follows and this will now be incorporated in the decree. The defendant will pay to the plaintiff a sum of Rs. 20,000 which shall be deducted from the defendant's half share of the profits of the property in the plaintiff's possession.
43. This is not in the award in quite these terms, but counsel on both sides agree that is what this passage in the award means and we make this variation with the consent of counsel on both sides in order to clarify the position. There will also be added to the decree this clause. In the alternative, the defendant shall give the plaintiff in lieu of maintenance eight anna zamindari share in mouza Lahadpue and eight-anna share in mouza Palasner. The defendant may at his option carry into effect either of these two alternatives. The result that the appeal succeeds and is allowed with costs, and the cross-objection fails and is dismissed with costs.
44. Appeal allowed.