Chaudhri Hira Sing vs Chaudhri Gunga Sahai and Amin Singh

Richard Couch, J. 1. This is an appeal in a suit brought by the Appellant against the Respondents for complete possession after partition of two thirds of six houses and a tank in mouzah Asaura, in zillah Meerut, the Plaintiff being alleged to be a co-sharer and possessor of two-thirds and the Defendants of one-third thereof. 2. The Plaintiff is the son of liar dial Singh, who had two sons, the Plaintiff and Debi Singh. The Defendants are the sons of Golab Singh, the uncle of Hardial. The Plaintiff''s grandfather, Dharam Singh, and Golab Singh were the sons of Baji Bai, whose brother, Bhore Singh, had a son, Halas Bai. Hardial died in 1871. It did not appear when Halas Bai died. After his death his widow, Rupkoer, adopted Debi Singh. It was admitted that the Plaintiff was born deaf and dumb, and was consequently, by Hindu law, incapable of inheriting. But it appeared, by a proceeeding of the lie venue Court, on the 24th of April, 1872, and an order of the Collector on the 6th of May, 1872, that on the death of Zalin Singh, the lamberdar of mouzah Asaura, Hira Singh was appointed lamberdar under the management of Bebi Singh with the consent of the Respondents; and an issue in this suit whether Bebi Singh was in possession, on behalf of the Plaintiff the (Appellant), of any property belonging jointly to the Plaintiff and the Defendants (the Respondents), was found for the Plaintiff by the District Judge. 3. On the death of Rupkoer, the date of which did not appear in the proceedings, disputes arose in the family as to the succession to the property, and to the property of Ilardial, and, on the 26th of December, 1874, an agreement for arbitration was made between Amin Singh and Gunga Sahai (the Respondents), Ram Bukhsh, son of Phul Singh (a brother of Golab Singh), Jawakir Singh, and Nawal Singh, sons of Ram Dial Singh, another brother of Golab, and Shadi Ram and Khasi Bam, sons of Shanhar Singh, the first party, and Bebi Singh, the second party, whereby, after stating that there was dispute between them "in respect to three matters, (1), as regards the legal heir to the property left by Musammat Rupkoer, deceased, (2) as regards the heir now and hereafter to the property left by Chaudhri Hardial Singh, and (3) as regards property and documents which stand recorded ''Ismfarzi'' between the first and the second parties," they appointed Chaudhri Zalim Singh as arbitrator to decide all the aforesaid matters, and declared that if any other matter besides those in dispute should be submitted to the arbitrator, he should have power to decide the same. The submission was signed by Deli solely on his own behalf. Zalim Singh, by his award, found, as to the first point, that Rupkoer had adopted Debi Singh, and that he was the lawful heir to the entire property left by Hulas Rai and Rupkoer. "As regards the second point," he said, "I am of opinion that Chaudhri Hardial Singh has two sons, Hira Singh and Debi Singh, Chaudhri Hardial Singh died in 1871, and then the name of Hira Singh alone (Debi Singh having been adopted by Chaudhrain Rup Koer), who, though dumb, was the sole heir, was entered in the column of proprietorship, and he is in proprietary possession of the property, and enjoys the profits thereof. And the parties admit that Hira Singh is the heir and exclusive possessor of the property left by Chaudhri Hardial Singh, therefore Hira Singh should, in my opinion, continue to be the owner and possessor of the entire property, as lie is, and that after him his male issue, will become owners; that if (God forbid) he may have no such issue, the said property also will devolve on Deli Singh, and his descendants will have no right whatsoever to the property left by Chaudhri Hardial Singh, moveable or immoveable." 4. On the third point the arbitrator decided as to some parts of the property which was the subject of it in favour of Gunga Sahai and Amin Singh. He then stated that the first party had re-quested that as they had no property near Asaura, their place of residence, they should have a portion of Deli Singh''s property by purchase, which appeared to him to be reasonable; that Debi Singh reluctantly and coercively agreed to give certain property mentioned, on receipt of consideration; and he, the arbitrator, by agreement of the parties, had fixed the price at Rs. 30,000, which was paid in his presence. 5. All the parties to the arbitration signed the award in token of their consent to it, and the parties of the first part, on the same day, executed a razinama, relinquishing all claim to the inheritance and the property, Hira Singh did not sign, nor did Debt Singh do so on his behalf. 6. The question in this appeal is, what was the effect of the arbitration and award and razinama as regards Hira Singh, it being contended before their Lordships that he acquired an interest under the award, and had a right to insist upon it. The case first came before two of the Judges of the High Court for the North-Western Provinces at Allahabad, who referred it to a Full Bench. Of the five Judges, by whom it was then heard, four were of opinion that the award could only bind the parties to the arbitration, and the Plaintiff not being a party thereto was not bound by it, and not being bound by it could not claim to take any advantage from it, and that it could not confer on him, who was not a party to the arbitration, a right which he did not possess by law. The remaining Judge was of opinion that the award might be evidence of a family arrangement or cession of claim by the Defendants which might be enforced as against them. Accordingly the suit was dismissed. 7. Their Lordships are of opinion that the decree of the High Court should be affirmed, it did not appear that Hira Singh or any one having authority to act for him in that behalf had consented to be bound by the terms of the award. He was in possession before the arbitration, and continued in possession, and he made that possession and not the award the foundation of his claim to a partition. The award was produced by Deli Singh, who was indeed his witness, but who proved that it was signed by Amin Singh and Gunga Sahai, in answer to a question by the pleader for the Defendants, Hira Singh was a stranger to the submission, and was under no obligation to abide by the award, and consequently he could not avail himself of it. Their Lordships will therefore, humbly advise her Majesty to affirm the decree of the High Court, and to dismiss the appeal, and the costs thereof will be paid by the Appellant.