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1991 Supreme(Pat) 469
PATNA HIGH COURT
Binod Kumar Roy, J.
Kishun Singh
Versus
Kamta Ram
Miscellaneous Appeal No. 219 of 1982 ;
Decided On : NOVEMBER 30, 1991
An arbitration award based on an error of law, such as relying on an unprobated will to confer title, is illegal and can be set aside.
Headnote:
ARBITRATION ACT, 1940 - SECTION 34 - AWARD - SETTING ASIDE - UNPROBATED WILL - NO TITLE CONFERRED - ERROR OF LAW - AWARD ILLEGAL.
Fact of the Case:
Appellants challenged the validity of a judgment dismissing their suit to set aside an arbitration award. The dispute arose from a claim to land based on an unprobated will. The arbitrators awarded the land to the defendants, relying on the will. The appellants argued that the award was illegal as an unprobated will could not confer title.
Finding of the Court:
The court held that the arbitrators committed an apparent error of law in making their award in favor of the defendants based on an unprobated will. The court relied on precedents from the Patna High Court, which held that no right or title could be founded on an unprobated will. The court also found that the appellants had valid title to the land based on sale deeds and rent receipts.
Issues: 1. Whether the award was illegal due to an error of law in relying on an unprobated will? 2. Whether the appellants had valid title to the land based on sale deeds and rent receipts?
Ratio Decidendi: 1. An unprobated will cannot confer title to property. 2. Arbitrators are bound to follow and apply the law, and an award based on an error of law can be set aside. 3. Sale deeds and rent receipts can establish valid title to land.
Final Decision: The court allowed the appeal, set aside the impugned judgment and decree, and decreed the suit in favor of the appellants.
1. In this Miscellaneous First appeal under Sec. 39 of the Arbitration Act, 1940 the plaintiffs assail the validity of the judgment dismissing their suit filed for setting aside an arbitration award.
2. In view of the main short submission made by Mr. Keshari. Singh, learned counsel for the appellants, namely, that the trial Court in paragraph 19 of its judgment has erred in refusing to set aside the award on the ground that an unprobated will can be acted upon, it is not necessary to state facts in detail which have already stated in the impugned judgment.
3. The land in question belonged to one Sri Kishun Ram who according to the appellants had died on 12-4-73 in Sasaram Hospital leving behind his widow Most. Nagia Kuar and daughter Paudharao Devi (who however were not made parties to the petition filed by the appellants for setting aside the award in question). The appellants derived title of the suit properties on the basis of the sale deeds dated 28-12-1974 (Exts. 5 and 5/A) executed by the widow and daughter after permission of the Consolidation Authority as required under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. The defendant 1st party, however, started claiming the lands in question on the basis of a will said to have been executed on 24-4-1973 (Mr. Singh states that it should be on 21-4-1973) that is to say after the death of Kishun Ram and, thus, it is forged and fabricated, besides that as no probate has been obtained, it conferred no title on them. The said dispute was referred to five arbitrators who, however, refused to arbitrate on the ground that the reference itself has become time barred. It however, transpired later on that out of five arbitrators three came in collusion with the defendants 1st and 2nd parties and pronounced their award on 16-8-1985 and registered which for the reasons aforesaid is illegal, void and liable to be set aside.
4. In defence the allegations made by the appellants were denied by the appellants stating, inter alia, that Kishun Ram had died on 10-5-1973 that a probate case has been filed before the District Judge, Arrah which is pending; that notices were given by the arbitrators and they pronounced their award according to law. It was also asserted that the applicants have no right in the suit properties.
5. The trial Court framed the following nine issues after re-cast :-
1. Is the suit as framed maintainable? 2. Have the plaintiffs got valid cause of action for the suit? 3. Is the suit barred by law of limitation? 4. Whether the suit is hit by the principles of waiver, estoppel and acquiescence? 5. Whether the suit is hit by S. 34 of the Specific Relief Act? 6. Is the suit bad for non-joinder or mis-joinder of parties? 7. Whether the panches have misconducted themselves or the proceeding and acted against the provisions of law? 8. Is the award in question invalid or illegal? 9. To what relief or reliefs, if any, are the plaintiffs entitled to?
6. Evidence was also led by the parties.
7. By the impugned judgment the appellants case that Kishun Ram had died on 12-4-1973 was disbelieved. It was also held that it cannot be said that the arbitrators had misconducted themselves or in the proceedings or did not assess the evidence of the plaintiffs (appellants) correctly. In paragraph 19, the argument made on behalf of the appellants that without probate the will could not be relied upon was rejected by placing reliance on a decision of the Allahabad High Court reported in AIR 1978 All 268 (Bhaiya Ji V/s. Jageshwar Dayal Bajpai). The judgment shows issues Nos. 1 and 3 to 6 not pressed. The Submissions :-
8. Mr. Singh, learned Counsel for the appellants, in support of the appeal, submits as follows :-
(i) The Arbitrators erred in ignoring the law that an unprobated will vested no title in the defendants 1st party and this aspect of the matter was illegally ignored by them. In this regard he places reliance on decision of the apex court in the
