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High Court Of Calcutta
A. K. MATHUR, GIRISH CHANDRA GUPTA
MOHANLAL DUNGARMAL FUTNANI - Appellant
Versus
VISHANJI DUNGARMAL FUTNANI - Respondent
APPEAL FROM ORIGINAL ORDER 35 Of 1989
Decided On : 03/15/2001
ARBITRATION ACT, 1940 - S. 33 - REFERENCE - CONSTRUCTION OF UNPROBATED WILL - NOT CONTRARY TO S. 213 OF INDIAN SUCCESSION ACT - AWARD - NOT NULL AND VOID.
Fact of the Case:
The appellant and the respondent no. 1 are the sons of Late Dungarmal Bachumal Futnani. The respondents Nos. 2 to 4 are the sons of the respondent No. 1. The respondents Nos. 5 to 9 are the sons of the appellant, The respondents Nos. 10 and 11 are the arbitrators. An arbitration agreement dated 14-7-1983 was entered into between the appellant and the respondent no. 1 representing their respective family members and the disputes and differences were referred to arbitration of the respondents Nos. 10 and 11. The arbitration agreement dated 14-7-1983 contains amongst others the following expression : "construing of Will made by Dungarmal Bachumal Futnani. " The respondent no. 1 alleges that the aforesaid expression is a subsequent interpolation made by the appellant and his sons in collusion and consipiracy with the respondents Nos. 10 and 11 without notice and/or knowledge of the respondent no. 1 and his sons. The allegation of subsequent interpolation made by the respondent no. 1 has been denied by the appellant and the Arbitrators in their respective affidavit. After the arbitration agreement was entered into the proceedings before the Arbitrators commenced on 15-7-1983 and continued upto 28-10-1983. The Arbitrators thereafter unanimously published their award dated 12-11-1983 and served copies thereof to the appellant and the respondent no. 1 under the cover of their letter dated 12-11-1983. On 25-11-1983 the respondent no. 1 took out an application under Sections 33 and 41 of the Arbitration Act, 1940 praying for leave under Clause 12, Letters Patent and claiming inter alia the following reliefs : (I) The existence, validity and effect of the alleged agreement dated July 14, 1983 be determined and the same be declared and adjudged invalid, null and void, in-operative and of no effect. (II) The existence, validity and effect of the alleged award purporting to be dated November 12, 1983 be determined and the same be declared and adjudged invalid, null and void, inoperative and of no effect. (III) Injunction restraining the respondents Nos. 1 to 6 and the respondents Nos. 10 and 11 and their servants, agents and assigned and each of them giving effect or further effect to the said agreement dated July 14, 1983 and the purported award purported to be dated November 12, 1983 or to take any steps in connection therewith or to act thereon in any way or manner whatsoever. (IV) Ad interim order in terms of prayer (ii) above. The aforesaid application was made even before the award was filed. As a matter of fact, there is a prayer for injunction restraining the appellant and his sons and the Arbitrators from taking any step in connection with the said award and an ex-parte order of injunction in terms of prayer (III) dated 25-11-1983 was passed by the learned single Judge.
Finding of the Court:
The learned single Judge has held with regard to Section 213 of the Indian Succession Act as follows :-"the section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the Will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the Will under which the right is claimed. " The learned single Judge has held that the award is incomplete and bad in law because the Arbitrators have not decided the extent of Dungarmal's interest in the business and properties which is one of the disputes expressly referred to them. The learned single Judge has held that the award contained in Clause 31 was not arbitrable. The learned single Judge has held that the award was made on 12-11-1983. There is no mention in the award that the time for making the award was extended by the Court or by consent of the parties to the agreement. Obviously the arbitrators themselves extended the time by virtue of the power conferred upon them by the agreement dt. 14-7-83 which would be of no legal effect. The award is clearly out of time and void.
Issues: Whether the reference for construction of the unprobated Will was made for establishing rights of the legatees. Whether the award is incomplete and bad in law because the Arbitrators have not decided the extent of Dungarmal's interest in the business and properties. Whether the award contained in Clause 31 was not arbitrable. Whether the award was made on 12-11-1983. There is no mention in the award that the time for making the award was extended by the Court or by consent of the parties to the agreement.
Ratio Decidendi: An agreement to refer disputes with regard to construction of an unprobated Will is not contrary to Section 213 of the Indian Succession Act and is therefore not an illegal agreement. The award is not incomplete and bad in law because the Arbitrators have not decided the extent of Dungarmal's interest in the business and properties. The award contained in Clause 31 was arbitrable. The award was made on 12-11-1983. There is no mention in the award that the time for making the award was extended by the Court or by consent of the parties to the agreement. Obviously the arbitrators themselves extended the time by virtue of the power conferred upon them by the agreement dt. 14-7-83 which would be of no legal effect. The award is clearly out of time and void.
Final Decision: Appeal allowed.
( 1 ) - This appeal arises out of an order dated 24-12-1987 passed by the learned single Judge setting aside an award dated 12-11-1983. The facts relevant for the purpose of the present appeal are as follows :-
( 2 ) THE appellant and the respondent no. 1 are the sons of Late Dungarmal Bachumal Futnani. The respondents Nos. 2 to 4 are the sons of the respondent No. 1. The respondents Nos. 5 to 9 are the sons of the appellant, The respondents Nos. 10 and 11 are the arbitrators.
( 3 ) THE appellant, the respondents Nos. 1 to 9 with their common ancester Late Dungarmal Bachumal Futnani were carrying on 1arge number of businesses through the instrumentality of firms and private limited companies and were also having a charitable trust, particulars whereof would appear from the arbitration agreement dated 14-7-1983. Dungarmal Bachumal Futnani died on 1-4-1983. The respondent No. 1 claims to have ascertained from a letter dated 2-5-1983 addressed by the appellant to Kanga and Company, Solicitors and Advocates, that the said Dungarmal Bachumal Futnani died intestate and that the appellant and the respondent No. 5 were the executors appointed therein. The respondent No. 1 claims to have called upon the appellant to furnish a copy of the Will which was not forwarded notwithstanding repeated demands. The respondent no. 1 alleges that thereafter dispute and differences arose between the appellant and the respondent no. 1 "in respect of the right, title and interest of the said deceased in the different businesses or concerns and/or the charitable trust. "
( 4 ) AN arbitration agreement dated 14-7-1983 was entered into between the appellant and the respondent no. 1 representing their respective family members and the disputes and differences were referred to arbitration of the respondents Nos. 10 and 11.
( 5 ) THE arbitration agreement dated 14-7-1983 contains amongst others the following expression : "construing of the Will made by Dungarmal Bachumal Futnani. "
( 6 ) THE respondent no. 1 alleges that the aforesaid expression is a subsequent interpolation made by the appellant and his sons in collusion and consipiracy with the respondents Nos. 10 and 11 without notice and/or knowledge of the respondent no. 1 and his sons.
( 7 ) THE allegation of subsequent interpolation made by the respondent no. 1 has been denied by the appellant and the Arbitrators in their respective affidavit. As a matter of fact the Arbitrators in their affidavit dated 6-3-1984 have annexed an affidavit of their Stenographer who has stated on oath as follows :-"after sometime I was again called to the room of Mr. Tarachand Khushiram Gupta where I found Mr. Tarachand Khushiram Gupta, Mr. Vishanji Dungarmal Futnani, Mr. Mohanlal Dungarmal Futnani and Mr. Bishan Swarup Agarwal were having some discussions and I was asked by Mr. Tarachand Khushiram Gupta and Mr. Bishan Swarup Agarwal that on the first page of the typed agreement at the place shown, being below the names of various companies and concerns. I should add the words add construing of Will made by Mr. D. B. Futnani, I accordingly typed out the aforesaid words on the original agreements and the carbon copies and took the documents back to Mr. Tarachand Khushiram Gupta. However on reading the aforesaid words it was found that through inadvertance I had typed out the letter 's' instead of 'b ' as the initial of Late D. B. Futanani. The said mistake was corrected and I saw Mr. Vishanji Dungarmal Futnani and Mr. Mohanlal Dungarmal Futnani initial on the right hand side of the line that I had added subsequently and on the foot of the first page and at the foot of the second page and put their signatures on the third page. I also saw Mr. Tarachand Khushiram Gupta hand over a carbon copy of the said Agreement to Mr. Vishanji Dungarmal Futnani and Mr. Mohanlal Dungarmal Funtnani individually. "
( 8 ) WE shall revert to this aspect of the matter later on, if necessary. After the arbitration ag
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