Judgement

Appeal (No. 87 of 1924), by special leave, from a decree of the Chief Court of Lower Burma (April 18, 1921) reversing a decree of the District Court of Hanthawaddy (October 22, 1917).

The suit giving rise to the appeal was instituted in the District Court on March 13, 1914, the present appellants and others being plaintiffs, and the respondents defendants. The claim was for a declaration that two references to arbitration, and the award made thereon upon June 10, 1910, were void and not binding upon any of the parties thereto. The arbitration related to the estates of two deceased Burmese Buddhists—namely, Ko Po Cho, who died on December 13, 1907, and his father U Baw, who died on December 28, 1907. The first appellant (plaintiff No.2) was the daughter of Ko Po Cho; the second appellant (plaintiff No. 4) was his widow.

An application by the respondents to have the award filed in Court had been rejected by the District Judge on December 9, 1910.

The facts material to the appeal appear from the judgment of the Judicial Committee.

Other questions relating to the estate of U Baw were the subject of the appeal Kirkwood v. Maung Sin. (( 1924) L. R. 51 I. A. 334.)

The District Judge held that the Indian Limitation Act, 1908, Sch.1, art.91, which relates to a suit "to cancel or set aside an instrument," applied to the suit, and that under it the right of suit of each of the appellants was barred. As to other plaintiffs, whose right of suit was not barred by limitation, he held that the reference and award were void, as those plaintiffs were minors not properly represented in the arbitration. He was of opinion that the rights of the parties were so intermixed that the award being void as against some of the plaintiffs it was necessarily wholly invalid. He accordingly made a decree so declaring.

Upon appeal to the Chief Court the view of the District Judge that the right of suit of the present appellants was barred by the Indian Limitation Act, 1908, Sch. L, art. 91, was affirmed. The learned judges held that complication arising from the award being invalid as against some of the plaintiffs did not entitle the present appellants, whose suit was barred, to have the award set aside as against them. Accordingly a decree was made reversing the decree and dismissing the suit.

1925. March 24, 26, 27, 30, 31. De Gruyther K.C. and Hon. Geoffrey Lawrence for the appellants. The order refusing to file the award was open to appeal under the Code of Civil Procedure, 1908 see Sch. II., ss. 20 to 22, and s. 104, sub-s. 1 (f). As there was no appeal, the award became a nullity; it could not be enforced by specific performance or raised as a defence Dinabandu Jana v. Durgaprasad Jana. (( 1919) I.L.R. 46 C. 1041, 1050.) As the minors were not properly represented the arbitration proceedings were wholly void as to them Rashid-un-nisa v. Ismail Khan. (( 1909) L. R. 36 I. A. 168.) Art. 91 of the Limitation Act, 1908, Sch. II., does not apply, first because the award was a nullity; secondly, because the award is not an "instrument" within the meaning of the article. [Reference was made to Petherpermal Chetty v. Muniandi Servai (( 1908) L. R. 351. A. 98.); Bijoy Gopal Mukerji v. Krishna Mahishi Debi (( 1907) L.R. 341. A. 87.); Sajid Ali v. Ibad Ali (( 1895) L. R. 22 I. A. 171.); Banku Behari Shaha v. Krishto Gobindo Joardar (( 1902) I. L. R. 30 C. 433.); and earlier decisions of the High Courts.] The suit was for a declaratory decree under s. 42 of the Specific Relief Act, 1877. Where no article applies in terms to a suit, the period of limitation is governed by art. 120, under which the period is six years Mahomed Riasal Ali v. Hasi Banu (( 1893) L. R. 20 I. A. 155, 159.) ; Kodoth Ambu Nair v. Secretary of State for India. (( 1924) L. R. 51 I. A. 257, 268.) If art. 91 is applicable time did not begin to run until the refusal to file the award, and the suit was therefore in time. Until the application to file the award the plaintiff had not, withi