JUDGMENT

Mahmood, J. - The dispute which has given rise to this litigation has two main branches: one relating to the validity of an alleged adoption of the plaintiff Lekhraj by Chandan Singh, zamindar of the Gabhana estate, and the other relating to an alleged adoption of the defendant Ganga Sahai by Musammat Khushal Kuar, one of the widows of Hira Singh, who was the zamindar of Birpura, another estate of considerable extent. Both these branches of the litigation raise important questions of fact and difficult questions of law which require disposal. But, independently of these questions, some further complication has been introduced by the course which the proceedings in this case took in the Court below. It will be convenient to dispose of the last mentioned matters before going into the merits of the litigation itself, for these matters are of a preliminary nature, and formed the subject of the first part of the argument addressed to us by the learned Pandit who has appeared on behalf of the appellant in this Court.

2. The suit was instituted on the 2nd July 1881, and the principal part of the relief prayed for, was to obtain a declaration that the alleged adoption of the defendant Ganga Sahai by Khushal Kuar be declared null and void, as also such proceedings as the latter may have taken in the nature of alienations of her deceased husband Hira Singh's estate to the prejudice of the plaintiff, who claimed to be presumptively entitled to succession to the estate upon the widow's death. The parties impleaded as defendants to the suit were Khushal Kuar and Ganga Sahai under the guardianship of his natural mother Bhawani Kuar, who, however, by an application of the 25th July 1881, declined to act as guardian of her minor son.

3. The Court below, however, did not allow her to withdraw, but directed o that both she and the alleged adoptive mother Khushal Kuar should be appointed to act as guardians ad litem. Bhawani Kuar does not, however, appear to have taken any further action in the matter; for we find that on the 19th August 1881, Khushal Kuar by herself filed a written defence on her own behalf, and also as guardian ad litem of the minor Ganga Sahai. Issues were settled on the same day, and the 10th of September 1881, was fixed for the decision of the case; but on that day the parties, acting under the provisions of chapter XXXVII of the Civil Procedure Code, applied to the Court to refer the matter to the arbitration of Raja Lachman Singh, a gentleman who had been summoned as a witness in the case, and in whom the parties appear to have had confidence; for the submission, in somewhat general terms, goes on to say: "We do hereby agree that the award in this case, which the arbitrator shall conscientiously deliver, and as regards the costs also, shall be accepted by us as a decision of court." The order of reference was thereupon made, and was issued on the 15th September 1881, and reached the arbitrator the same day together with the papers of the ease, the 22nd September being fixed by the Court for delivery of the award.

4. It is now important to consider the exact nature of the arbitrator's proceedings, because the award which was made by him has been set aside by the lower Court, and the first ground of appeal before us impugns that part of the judgment of the Court below. But upon this point we have already intimated our opinion that there was no reason to call upon the respondent to reply, and in dealing with this part of the case we are relieved of the necessity of going into any very minute examination of the evidence, on account of the exhaustive order which the learned Judge of the Court below passed on the 24th April 1882, setting aside the arbitration award. With all the main conclusions arrived at in that order I fully concur, and I do not think it is necessary for me to do more than state the principal points which the evidence upon this part of the case established.

5. The order of reference reached the arbitrato