Judgement

Appeal (No. 29 of 1944), by special leave, from a decree of the High Court (September 8, 1939), which set aside a decree of the Subordinate Judge of Cawnpore (November 3, 1933), passed in a partition suit and sent the case back to the Subordinate Judge with directions to re-admit it under its original number and to decide it in accordance with law.

The following facts are taken from the judgment of the Judicial Committee. The question for decision in this appeal was whether a reference to arbitration made in this suit, and an award made thereon, were valid, as the Subordinate Judge held, or invalid, as the High Court held in appeal. The question arose in the following circumstances. The plaintiff (appellant) brought this suit for division of the property of a Hindu family governed by the Mitakshara. The plaintiff was the son of one Mukta Prasad, and the first three adult defendants (first three respondents), Kallu Lal, Sohan Lal and Sewak Lal were the sons of the only brother of Mukta Prasad, whilst the fourth and fifth defendants (respondents Nos. 4 and 5), Ram Lal and Jainarain, were the minor sons of Kallu Lal. The plaintiff alleged that the family had separated in status but that the property had not been divided, and he claimed partition of the property and that a half share be allotted to him. In their written statement, the adult defendants alleged that the family was still joint, but the claim for partition was not disputed. In the suit, Sohan Lal was appointed guardian ad litem of the minor defendants, and as such he adopted the written statement of the adult defendants.

On September 1, 1933, an application was made to the Subordinate Judge by Kallu Lal, Sewak Lal and the plaintiff stating that the parties had appointed Shri Swami Ramanandji, who was the Guru of the parties, a referee for the decision of all the facts in dispute in the suit and also for the decision in respect of the costs of the suit, and they asked that the Swami might be appointed a referee under s. 20 of the Indian Evidence Act. On September 2, 1933, Sohan Lal appeared before the learned Subordinate Judge and verified that application, and the learned judge made the following note " This application was verified to-day by Sohan Lal, defendant, " on being identified by Babu Munna Lal, Vakil, after hearing " and understanding the same."

On October 4/ 1933, the learned judge made an order that, according to the application of the parties, Shri Swami Ramanandji was appointed a referee under s. 20 of the Evidence Act for deciding this case and directed him, after deciding the case, to present himself in court or send in writing his statement in respect thereof. On October 7, 1933, the referee made his report dividing the family property into two parts, allotting one part to the plaintiff and the other to the defendants. Objections to the report on behalf of the minors were lodged on October 17, 1933, the two principal objections being, first, that the guardian of the minors did not purport to act as a guardian entering into the agreement for reference, and that as no previous sanction of the court had been obtained the agreement was not binding on the minors, and secondly, that the alleged agreement in terms only constituted Swami Ramanandji a referee under s. 20 of the Indian Evidence Act, and that as such he could only make statements and had no authority to make a division of the property. Objections were also filed on behalf of the adult defendants alleging fraud against the Swami, but it was not necessary to consider those objections on this appeal On November 3, 1933, the learned Subordinate Judge, having held that the reference to arbitration and the award were valid, passed a decree in the terms of the award.

From that decree an appeal was brought to the High Court of Allahabad (Thorn C.J. and Ganga Nath J.) which, on September 8, 1939, allowed the appeal, set aside the decree of the lower court and sent the case back to the lower cou