The main legal point established is that the negligence of a guardian and the misconduct of arbitrators in failing to protect the interests of a minor can justify setting aside an award.

Abdur Rahim, J.

1. This appeal arises in a suit to file an award and is preferred by the 2nd defendant who is a minor represented by his mother, the other parties being the 1st defendant his father, and the plaintiff the brother of the 1st defendant and uncle of the 2nd defendant. All these three persons were members of an undivided Hindu family, and the arbitration was sought for the purpose of partitioning the properties between the plaintiff on the one hand and the first and second defendants on the other. The very next day after the submission, the 1st defendant who was acting as the guardian of the 2nd defendant gave notice to the arbitrator revoking the submission, thereafter he did not appear at all in the proceedings and the arbitrator proceeded to make the partition no one being there to watch the proceedings on behalf of the 2nd defendant and to protect his interests. It has been held that the revocation by the 1st defendant was not justified and the question for decision, therefore, is whether the failure of the 1st defendant as guardian to conduct the case of the 2nd defendant before the arbitrator which in my opinion amounted to gross neglect of his duty is sufficient to vitiate the award. I am clearly of opinion that the contention of the learned vakil for the appellant that an award is ipso facto invalid if it cannot be shown to be beneficial or advantageous to the minor is not sustainable. I am not clear that the learned judge in the decision in In the matter of Romon Kissen Sett v. Hurrololl Sett (1892) I.L.R. 19 Cal. 334 has laid down any such proposition. At any rate, I agree with the view of the law as propounded in Ramji Ram v. Salig Ram (1911) 11 C.L.J. 188 on this point. Nor am I able to accept the contention of the appellant that the 1st defendants interest in the arbitration proceedings was adverse to that of the minor and the submission was bad on that ground. No doubt, one of the questions which the arbitrator had to deal with was whether certain debts incurred by the 1st defendant were binding but that question was not raised between the 2nd defendant and the 1st defendant but only between the plaintiff on the one side and the 1st and 2nd defendants on the other and the decision of the arbitrator has in no way concluded that matter between the 1st defendant and the 2nd defendant.

2. On the main question there can be little doubt that it would be open to the minor by a suit instituted either through a guardian or when he attains majority to impeach the award if he can prove that his guardian has been grossly negligent or has acted fraudulently in conducting the proceedings before the arbitrator. There can be no doubt that a decree may be impeached where there has been negligence on the part of the next friend in the conduct of the plaintiffs case, and it is stated by Vice-Chancellor Malins In re Hoghton (1874) L.R. 18 Equity, p. 573 at p. 576. " The question which I have to decide is, whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience.... The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and who will protect her interests." See also Lalla Sheo Churn Lal v. Ramnandan Dobey (1894) I.L.R. 22 Cal. 8. It is unfortunate that there is no provision in the Civil Procedure Code which makes it incumbent on the arbitrator, where a reference has been made out of court, to see that the case of the minor is in the hands of a proper guardian, similar to that laid down by Order 32 Rule 11 with respect to the Court. I think the proposition laid down by Vice-Chancellor Malins is equally applicable to proceedings before an arbitrator. This has hardly been d