Judgement

Appeal (No. 17 of 1928) from a decree of the High Court (May 28, 1925) reversing a decree of the Subordinate Judge, Fourth Court of Dacca.

The plaintiffs-respondents by their plaint claimed a declaration that they were entitled to a 3 annas 12 gandas share in a hat (market) known as Taltola Hat under an arbitrators award and an agreement, dated January 23, 1917; or, if the award and agreement were unenforceable, they claimed as purchasers a 10 annas share of the property against some of the defendants.

Among the issues settled were whether the award and agreement were valid and enforceable.

The Subordinate Judge held that the reference to arbitration and the agreement were made to stifle a prosecution for a non-compoundable offence, and therefore were contrary to public policy and unenforceable ; on the alternative claim he made a decree for a 1 anna 4 pies share in certain plots.

On appeal the High Court (Walmsley and Ghose JJ.) held, on grounds which appear from the present judgment, that the award and agreement were valid, but that they bound only some of the defendants, against whom the Court decreed the plaintiffs a 3 anna 12 gandas share of the property.

1929. Nov. 14, 15. Subba Row for the appellants.

The respondents did not appear.

1930. Jan. 21. The judgment of their Lordships was delivered by

SIR BINOD MITTER. The facts out of which this appeal arises are as follows —

The Basu family referred to in the pleadings in the suit, owned Taltola Hat and Bazar, which was an old and estab lished hat of considerable repute. It was originally held on land owned by the Basu family on the bank of the River Dhaleswari. The site of the hat had to be changed from time to time owing to the action of the river, and ultimately, in the year 1916, there was no land owned and possessed by the family on which the hat could be held and it was removed to some lands belonging to a Mussulman family. There was a great scramble for the purchase of such lands from the different members of the Mussulman family amongst the plaintiffs on the one hand and the principal defendants on the other. One Abdul Aziz purported to execute conveyances in favour both of the plaintiffs and the principal defendants in respect of the same land, and in the course of the proceedings taken by both parties to have their respective documents registered, he sometimes admitted and sometimes denied the execution of such documents before the sub-registrar.

On December 14, 1916, one Rohini, a servant of the plaintiffs, and on their behalf, complained before the Sub-Divisional Officer of Munshigunj, against various persona, including some of the principal defendants—namely, Paresh Chandra Basu, defendant No. 16, Gopal Chandra Basu, defendant No. 13, Benoy Chandra Basu, defendant No. 14, Krishna Kumar Basu, defendant No. 18, Kamini Kumar Basu, now defendant No. 2 (son of Ananta Kumar Basu, since deceased, who was originally defendant No. 2 in the suit). The complainant charged them with having committed offences under ss. 465, 467, 193 and 194 of the Indian Penal Code, all of which offences were non-compoundable. The persons against whom the complaint was made are referred to for the purposes of the judgment as the accused in the criminal proceedings. The magistrate did not issue any summons, but directed the complainant to prove his case on January 8, 1917.

The criminal proceedings served to bring matters to a head, and after its institution Ananta, whose son, Kamini, was accused No. 6, became exceedingly alarmed, and was very anxious to have all the disputes settled between the plaintiffs and the defendants, including the criminal proceedings. He desired that the disputes should be referred to the arbitration of A. C. Basu, a relation of the parties, and one of the pro forma defendants in the suit.

The disputes as to the title concerned the plaintiffs and defendants Nos. 1 to 21. A. C. Basu in his deposition, stated that at the time of the reference there were only