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PATNA HIGH COURT
Rai and Banerji JJ.
Gopal Choudhary
Versus
Sundari
Appeal From Appellate Decree No. 1069 of 1949 ;
Decided On : NOVEMBER 19, 1954
ARBITRATION ACT - SECTION 17, 41(A) - ORDER 32, RULE 7, CIVIL PROCEDURE CODE - APPEAL - SECOND APPEAL - AWARD - VALIDITY - MINOR - COMPROMISE - SANCTION OF COURT - SCOPE OF REFERENCE - DIVISION OF PROPERTY - DECLARATORY SUIT - JURISDICTION OF ARBITRATORS.
Fact of the Case:
Plaintiffs filed a suit for a declaration that the registered deed of sale and the deed of gift executed by Mt. Sanichari in favor of defendants 1 and 2, respectively, were illegal, without jurisdiction, null and void, and not binding on the plaintiffs, who were the next reversioners to the estate of Ramlal Chaudhari. The defendants contested the suit, and the matter was referred to arbitration. The arbitrators gave an award, which was accepted by the trial court and a decree was passed accordingly. The defendants appealed to the District Judge, who set aside the decree and the award, holding that the order of reference was illegal and the arbitrators had gone beyond the scope of the reference.
Finding of the Court:
The court held that the appeal before the District Judge was competent, but no second appeal lay to the High Court. The court also held that the order of reference was illegal as it did not comply with the requirements of Order 32, Rule 7, Civil Procedure Code, and the arbitrators had gone beyond the scope of the reference. Therefore, the court upheld the decision of the District Judge setting aside the decree and the award.
Issues: 1. Whether a second appeal lies to the High Court from a decree based on an award? 2. Whether the order of reference was illegal for non-compliance with Order 32, Rule 7, Civil Procedure Code? 3. Whether the arbitrators had gone beyond the scope of the reference?
Ratio Decidendi: 1. Section 17 of the Arbitration Act deals with the finality of the decree based on an award and provides for an appeal where the decree is in excess of or not otherwise in accordance with the award, but it does not contemplate a second appeal. 2. Order 32, Rule 7, Civil Procedure Code, requires that a compromise or agreement on behalf of a minor must be sanctioned by the court before it can be binding on the minor. Non-compliance with this provision renders the compromise or agreement voidable at the instance of the minor concerned. 3. The scope of a representative suit filed by the nearest heir of a deceased person is merely declaratory, and the arbitrators cannot divide the properties between different persons or grant life interests in the properties.
Final Decision: The appeal was dismissed, and the parties were directed to bear their own costs.
Rai, J.
1. Dulhin Sitali and her son, Ram Ekbal Singh, minor, instituted, in the court of the Munsif, 1st Court, Arrah, title suit No. 50 of 1946 for a declaration that the registered deed of sale and the deed of gift, dated 21-1-1946, executed by Mt, Sanichari in favour of Gopal Chandhari, defendant1, and Dulhin Bas Kuer, defendant 2, respectively, were illegal, without jurisdiction, null and void and inoperative and not binding on the plaintiffs who were the next reversioners to the estate of Ramlal Chaudhari. The plaintiffs gave the following genealogy of the family of Ramlal Chaudhari;
277.htm
According to the plaintiffs, Ramlal Chaudhari was the last surviving male member of the joint family, and after his death his entire inheritance had devolved on his wife Mt, Saniehari. Plaintiff 1 claimed to be the daughter of Mt. Sunichari and plaintiff 2, Ram Ekbal Singh, claimed to be her daughters son. In the suit the plaintiffs impleaded, apart from the transferee, Mt. Sundari, widow of Ram Ratan Chaudhari, and Kesho Chaudhari, daughters son of Ram Ratan as defendants 4 and 5.
2 The suit was contested by the defendants. Several sets of written statements were filed. Defendant 4, Mt. Sundari, widow of Ramntttan Chaudhari, challenged the correctness of the genealogy filed by the plaintiffs. According to her, the following genealogy gave the correct relationship of the various members of the family of Ramlal Chaudhari and his brothers;
277_1.htm
According to her, Ramratan Chaudhari was the last surviving male member of the family who died leaving behind him his widow Mt. Sundari, his daughter Mt. Sitia and a daughters son Kesho Prasad Chaudhari, defendant 5. On 13-6-1942, defendant 4 executed a deed of gift in respect of 8.3 acres of land in favour of her daughters son Kesho Prasad Chaudhari minor. She alleged that she was all along in possession of the joint family properties and the properties gifted away to Kesho Prasad (sic) were in his possession since the date of the gift. She further alleged that Dulhin Sitali, plaintiff 1, was really the daughter of Ramjatan Chaudhari and not of Ramlal Chaudhari. She asserted that Mt. Sundari had no right to execute the sale deed and the deed of gift in favour of defendant 1 and defendant 2 which, according to her, were nominal documents.
3 Defendant 1, Gopal Chaudhari, the vendee under the sale deed, dated 21-1-1946, executed by Mt. Saniehari, filed a third written statement in which he gave a different genealogy of the family of Ramlal Chaudhary. The genealogy given by him runs thus:
277-2.htm
He asserted that plaintiff 1 and plaintiff 2 were daughter and daughters son of Ramjatan Chaudhari and had no right to institute the present suit as reversioners of the estate of Ramlal Chaudhari who, according to that defendant, was the last surviving member of the family. He asserted that the sale deed in his favour had been executed by Mt. Sanichari for legal necessity and was binding on the estate of Ramlal Chaudhari.
4 Defendants 2 and 3 filed a separate written statement supporting the pleas put forward by defendant 1 in his written statement.
5. On 17-7-1947, an application was filed before the learned Munsif for referring the dispute for the arbitration of a number of panches mentioned in that petition. The learned Munsif passed the following order on this petition:
"Parties file a joint petition for referring the suit for arbitration. Permission petition to join the same on behalf of the minor (sic) defendant also filed. Requisites also filed. Heard Pleaders. Order: Natural guardian is granted permission to appear on behalf of minor defendant. Let the suit be referred to arbitration as prayed for. To 15-8-1947 for submission of award. Let the records be made over to the arbitrator who is said to be present in court."
6. The panches gave an award on 15-8-1947, which was placed before the learned Munsif on 21-8-1947. On 28-8-1947, another award was filed before the trial Court. In the
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