KIRKWOOD, ALIAS MA THEIN vs MAUNG SIN (DEFENDANTS)

Headnote Court Copy Facts Arguments Court observation Judicial Analysis Case Map Category Hierarchy Table of Content

1925 Supreme(SC) 24

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKINSON, LORD CARSON, AND SIR JOHN EDGE.
KIRKWOOD, ALIAS MA THEIN - Appellant
Versus
MAUNG SIN (DEFENDANTS) - Respondents
On appeal from the Chief Court of Lower Burma.
Decided On : May. 5. 1925.

Important Points

The limitation period for setting aside an arbitration award under Art. 91 of the Indian Limitation Act, 1908, begins from the date of the award. Additionally, an arbitration award is not binding on minors who were not properly represented in the agreement to refer to arbitration.

Subject

Civil Law - Arbitration & Limitation

Act Referred

LIMITATION ACT: Sch.i, Art.91
SPECIFIC RELIEF ACT: S.39, S.42

Headnote

(A) Indian Limitation Act, 1908, Sch. 1, Art. 91 - Suit to cancel or set aside an instrument - Limitation period for setting aside an arbitration award begins from the date of the award and not from the date of a court's refusal to file the award.

(B) Specific Relief Act, 1877 - Sections 39 and 42 - Application of sections regarding declaratory decrees in suits to set aside instruments.

(C) Arbitration - Representation of minors - Where minors are not properly represented in the agreement to refer to arbitration, the resulting award is not binding upon them.

Facts of the case:
A dispute arose regarding the administration and distribution of assets of two deceased individuals. A submission to arbitration was executed by several adults and by purported guardians on behalf of three minor children. It was later established that the purported guardians had no legal authority to act for the minors. An application to file the resulting award in court was rejected. Subsequently, a suit was instituted seeking a declaration that the arbitration and award were void. Some plaintiffs were minors at the time of the award, while others were adults.

Findings of Court:
The court found that the minors were not properly represented during the arbitration and were therefore not bound by the award. However, the suit brought by the adult plaintiffs was barred by limitation under Art. 91 of the Indian Limitation Act, 1908, as the period had elapsed from the date of the award, regardless of the subsequent refusal to file it.

Issues: Whether the suit to set aside the arbitration award was barred by limitation; whether the award was binding on the minor children who were not properly represented; and whether the award should be set aside in its entirety if void as against some parties.

Ratio Decidendi: The court held that the limitation period for setting aside an instrument under Art. 91 of the Indian Limitation Act begins to run from the date of the instrument. The lack of proper representation of minors in the arbitration submission renders the award non-binding on those minors. The court further determined that it could decide the appeal based on the concurred findings of the lower courts regarding limitation and minority without needing to resolve the conflict regarding whether the award should be set aside in toto.

Result: Appeal dismissed with costs.

Legal Category Hierarchy

Advocates:
Solicitors for appellants:Light & Fulton. Solicitor for respondents: Douglas Grant.

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,