Judgement

AYYANGAR, J.: This is an appeal by special leave against the judgment of the Court of Calcutta affirming the decision of a Single Judge of that Court refusing to set aside the award of an arbitrator dated May 27, 1955.

2. One Hemendra Nath Sen, father of the second appellant, died intestate in 1929 leaving his widow Premtarangini Debi and 8 sons. Respondents 1, 2, 3, 4, 6 and 7 are the brothers of the 2nd appellant. The 5th respondent is the widow of a deceased brother who died in 1933 while the 8th respondent is the wife of the 2nd respondent. The 1st appellant is the wife of the 2nd appellant. The parties were governed by the Dayabhaga School of Hindu Law. Hemendra Nath lest considerable properties and on his death disputes arose between his several heirs but by an agreement dated January 31, 1933 these were settled. By then one of the sons the husband of the 5th respondent had died leaving a widow (the 5th Respondent) and these viz., the widow, the 7 sons and the widowed daughter-in-law entered into this agreement by which the properties left by the deceased were partitioned among them. Broadly stated the agreement specified the shares of the 9 parties thereto as equal i.e. one ninth each, with however the two widows being allotted their respective shares for their life as for their maintenance. There was also a provision that in regard to a glass factory the 2nd appellant was to have a 5 annas share. the rest of the members dividing the balance of the 11 annas (presumably be cause the 1st appellant s money went in for the initial capital for starting the concern) till certain specified contingencies occurred. Fresh disputes, however arose between the parties and by a formal agreement dated May 11, 1953 they set out those disputes between themselves and agreed to refer the same to the sole arbitration of Dr. Radha Binode Pal - an eminent lawyer and jurist of Calcutta. As the terms of reference have some relevance to the points urged before us in the appeal it would be convenient to set them out. It read:

"We the undersigned hereby agree, first to refer all disputes arising out of or in connection with or in relation to the New Indian Glass Works Ltd., including the management thereof and the acts of any of the parties in respect or in relation to or arising out of the said Company, and for future management thereof including the dispute regarding the alleged lease in favour of R.N. Sen (7th respondent) and of the alleged prior leases in favour of A.N. Sen (2nd appellant) and F.N. Sen (6th respondent) of the said Company business, the legality and validity thereof and Secondly all disputes whatsoever in relation to the joint properties as per Schedule hereunder written or otherwise which were or are owned by the parties or some of them, to the sole Arbitration of Dr. Radha Binode Pal, Advocate. The said Arbitrator is to enquire, ascertain and partition the said joint properties. We agree that the said Dr. Radha Binode Pal would have summary powers and the award which would be made by him would be final and conclusive and binding upon the parties.

This was followed by a Schedule in which the joint properties were specified and to this document all the family members affixed their signatures.

3. Before, however the reference was submitted to the Arbitrator the respondent made an application to the High Court of Calcutta on its original side on July 12,1954 under Section 20 of the Indian Arbitration Act, 1940 for an order directing the agreement to be filed into Court and for making a reference to the arbitrator appointed by the parties. Notices were issued to the appellants who were impleaded as respondents to that application asked alter a hearing, an order was made on November 29, 1954 referring the disputes set out in the agreement to the arbitrator named therein. The arbitrator entered on the reference on January 16, 1955 and the parties thereafter filed statements of cases before him setting out their respective clai