Present : De Sampayo J. and Loos A.J.   1980.

HADJIAR v. RAHEEM et al.

(The Alim Will Case.)

32-D. C. Colombo, 864.

Testamentary suit-Reference to- arbitration by private agreement-Application to file award in Court-Civil Procedure Code, s. 696-

When case is pending, reference to arbitration can only be made by Court- Jurisdiction of District Court-Civil Procedure Code, s. 408.

An application for probate being refused, an appeal was preferred to the Privy Council. The District Judge, in the meantime, granted letters of administration on the footing of an intestacy to an officer of the Court, and made order that some of the heirs should bring in a certain sum of money which they had into Court or give security. At this stage the parties desired to come to a settlement on all matters, including the appeal to the Privy Council and distribution of the estate, and referred the matters to the arbitration. of N by a private agreement. The award was accepted by all the parties on the face of the document, and they signed the same as final and binding on them. The petitioners brought the award into Court in a special case, and applied by petition that the award be filed in Court under the provisions of section 696 of the Civil Procedure Code.

Held that the' matters referred to arbitration being already the' subject : of litigation in the testamentary suit, the award was not such as can be filed under section 696.

Where a suit is pending, a reference to arbitration can - only be made by the Court itself in that vult.

Held further, that the District Court had no jurisdiction over the matter in a separate suit as distinguished from the testamentary

" This does not imply that the award is wholly useless, and effect may not be given to it in some other way. The award appears to be binding on the parties as regards the method of distribution of the estate in the testamentary suit and other matters connected therewith, and although the award cannot be dealt with as such under the arbitration sections of the Code, it may, nevertheless, be treated under section 408 of the Code as an adjustment of compromise arrived at by the parties. "

THE facts are set out in the following judgment of the District Judge (W. Wadsworth, Esq.):-

This is somewhat novel application, and has no precedent in Ceylon. One Ahamadu Lebbe Marikar Alim died intestate in December, 1917, leaving very large property, and leaving behind him his widow and several children as heirs. Some of the children are minors. Some of the heirs produced a will alleged to have been made by the deceased, but the Court in case No. 6,175 held that the will was not made by the deceased, and refused to admit it to probate. In case No. 6,415 of this Courts letters of administration were issued to the widow and two of the sons of the deceased jointly, and the estate is being administered now.

The present petitioners state that " differences having arisen between the petitioners and respondents in regard to the distribution of the estate of the said deceased amongst the heirs, the petitioners and the respondents referred such differences by two writings (which they produce) to the arbitration of one Naina Marikar, whose decision they agreed to accept as final and binding on them." The petitioners further state that the said arbitrator accordingly made bis award, and they produce the said award (in two documents). They move the Court that the award may be filed in Court in terms of section 696 of the Civil Procedure Code. In effect they ask the Court that the award being filed in Court judgment be entered in terms of the award and a decree entered thereon. The fifth respondent, one of the heirs, objects to ' this award being filed in Court under that section. He has raised several objections. Some very important points of law were raised and were discussed by counsel on both sides with marked ability.

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