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PATNA HIGH COURT
Tarkeshwar Nath and B.P.Sinha JJ.
Girdhar Prasad
Versus
Ambika Prasad Thakur
Appeal From Original Order No. 7 of 1961 ; 8 of 1961 ;
Decided On : JULY 10, 1968
ARBITRATION - Award - Validity - Reference to arbitration - Leave of the court not obtained by the next friend of the minor plaintiffs - Agreement to refer to arbitration - Void - Award based on such an agreement - Void - Order of the court below refusing to set aside the award - Appealable - Arbitration Act (10 of 1940), Secs. 21, 24, 30, 39(1)(vi).
Fact of the Case:
In two suits, one for redemption of rehan deeds and the other for declaration of right of redemption of the dar-rehan bonds, the parties agreed to refer the dispute to arbitration. In one of the suits, some of the plaintiffs were minors and the agreement to refer the dispute to arbitration was not legal, as no leave of the court was obtained by their next friend. The arbitrators gave their awards in both the suits. The court below, on a consideration of the evidence, held that the awards were valid and decreed the suits in terms thereof.
Finding of the Court:
The court held that the agreement to refer the dispute to arbitration was void, as no leave of the court was obtained by the next friend of the minor plaintiffs. The award based on such an agreement was also void. The order of the court below refusing to set aside the award was appealable. The awards were not signed by the arbitrators and delivered in presence of the parties. The suits could not have been disposed of in terms of the awards. The order of the court below was, therefore, fit to be set aside.
Issues: 1. Whether the agreement to refer the dispute to arbitration was void, as no leave of the court was obtained by the next friend of the minor plaintiffs? 2. Whether the award based on such an agreement was also void? 3. Whether the order of the court below refusing to set aside the award was appealable? 4. Whether the awards were signed by the arbitrators and delivered in presence of the parties?
Ratio Decidendi: 1. The agreement to refer the dispute to arbitration was void, as no leave of the court was obtained by the next friend of the minor plaintiffs. (Paras 11, 18, 19) 2. The award based on such an agreement was also void. (Paras 11, 18, 19) 3. The order of the court below refusing to set aside the award was appealable. (Paras 13, 14) 4. The awards were not signed by the arbitrators and delivered in presence of the parties. (Paras 24, 28)
Final Decision: The appeals were allowed with costs. The order dated 23-12-1960 of the learned Additional Subordinate Judge was set aside. The trial Court was directed to try the suits and dispose them of in accordance with law.
B.P.Sinha, J.
1. Miscellaneous appeal No. 7 of 1961 and Miscellaneous Appeal No. 8 of 1961 arise out of Title Suit No. 12 of 1949 and Title Suit No. 35 of 1950 respectively. They are against the same order dated 23-12-1960 passed by the 1st Additional Subordinate Judge of Arrah. They have arisen under the following circumstances.
2. Sheo Prasanna Singh was the owner of four annas share in respect of Mauza Rajapur bearing Tauzi No. 1503/14 in the district of Shahabad. This share was coming in his family since the time of his ancestors. The said share comprised of 153 bighas 10 kathas of bakabht land beside tenancy lands. The ancestors of Sheoprasanna Singh (plaintiff No. 1 of Title Suit No. 35 of 1950) had let out in rehan their aforesaid proprietary interest with Bakasht lands in favour of Naurang Thakur and later on in favour of Lal-mohan Thakur (ancestors of defendants 1st party of Title Suit No. 35 of 1950) by sixteen registered deeds. The total amount covered by those documents was Rs. 61,154/ 15/6. The rehandars got possession over the mortgaged properties. Subsequently by agreement dated 1-3-1921 an area of 27 bighas and 4 kathas of bakasht lands was released to the mortgagors. Ambika Thakur and other heirs of the rehandars let out 36.76 acres of the bakasht lands, appertaining to the aforesaid share in dar-rehan to Thakur Prasad and Girdhar Prasad pro forma defendants 7 to 8 of Title Suit No. 35 of 1950 by a registered deed dated 23-3-1942 for a sum of Rs. 23.300.00 and put them in possession thereof. They further executed two dar-rehan deeds, one dated 12-12-1940 for a sum of Rs. 4.750/-and the other dated 20-3-1945 for a sum of Rs. 7,000.00 in favour of Sheopujan Ahir and Baburam Ahir ancestors of defendants 9 to 11. They also executed another dar-rehan bond dated 12-12-1940 for a sum of Rs. 3,000.00 in favour of Munshi Benimadhav Lal. Sheoprasanna Singh executed several pattas with regard to 83 bighas of Bakasht lands appertaining to the aforesaid share making perpetual mokarari settlement with different persons on receipt of Nazarana money to the extent of Rs. 61,154/15/6.
3. Ambika Thakur and others instituted Title Suit No. 12 of 1949 on 1-6-1949 for a declaration that they have got the right to redeem the dar-rehan bond executed in favour of Thakur Prasad and Girdhari Prasad as mentioned above. It was alleged that out of the consideration of the dar-rehan bond Rs. 10,000.00 was paid by them earlier and as such they were liable to make payment of the remaining amount only which they tendered to the dar-rehandars who, however, disclosed to them that their dar-rehan money was paid to them by Sheoprasanna Singh through his pattadars. Such payment by the Pattadars was denied and hence it was prayed that it may be adjudicated that the payment by the Pattadars was null and void and ineffective. Besides the dar-rehandars, Sheoprasanna Singh, some of his Pattadars and one Inderdeo Rai were made defendants in that suit.
4. Written statements were filed by the dar-rehandars, Sheoprasanna Singh and his Pattadars denying the allegations of the plaintiffs and contending that the dar-rehan money was paid by the Pattadars with the consent of the rehandars.
5. A petition, dated 27-6-1965, was filed by Ambika Thakur and other plaintiffs, dar-rehandar Thakur Prasad, and also some of the Pattadars making a prayer for referring the matter to the arbitrators Babu Mukteshwar Kuer, Pleader, Buxar and Babu Shyam Narain Kuer for decision. Sheoprasanna Singh and some other defendants did not join in that petition. Sheoprasanna Singh raised objection to the aforesaid prayer for reference. Consequently the plaintiffs filed a petition for expunging from record the names of Sheoprasanna Singh and other persons who had not joined in the petition filed for reference. Accordingly they were expunged from the record.
6. Another suit, which was numbered as Title Suit No. 35 of 1950 was filed by Sheoprasanna Singh and his Pattadars for redemp
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