Mam Raj vs Mt. Kishni and Others

Kapur, J.—By way of preliminary objection the Respondents'' advocate has submitted that no second appeal lies against an appellate order passed under the Indian Arbitration Act. The objection seems to be well founded and I therefore hold that no second appeal lies and I would treat S.A.O. NOS. 19 and 20''of 1949 to be petitions for revision.

The suit relates to the estate left by one Munshi who was the last male-holder. It is alleged that he left a will bequeathing the whole of his estate to Mamraj who brought a suit for declaration (suit No. 246 of 1947) that he was the legatee of the whole of the estate of Munshi under the will and was in possession and that the revenue authorities had wrongly refused to mutate the land in his favour.

Lehna Singh and others claiming to be members of the proprietary body brought a suit (No. 291 of 1947) for possession alleging that they were the proprietors in the patti and were therefore, entitled to succeed as such. Kishni, a widow, was party to both these suits.

Both suits were consolidated and were then referred to the arbitration of a Pleader who on 13-5-1948, made an award in favour of Mamraj holding that the will was valid and Mamraj was the legatee under the will and therefore entitled to the estate of Munshi. It appears that no objections were filed against this award within the time prescribed under the Limitation Act. Objections were, however, filed after the period of limitation and the learned trial Judge after hearing the parties held that the notice of the filing of the award in Court was given on 13-5-1948, and as the objections had not been filed within 30 days of that date they were barred by time and could not be gone into. He dismissed the objections and decreed Mamraj''s suit and the other suit was dismissed. Against this order two appeals were taken to the learned District Judge, one by Kishni and the other by Lehna Singh, which were both allowed and the suit was remanded for trial to the learned trial Court. Against this order, two second appeals were brought to this Court, and as I have held above these second appeals are not competent and I have treated them as petitions for revision.

The Petitioner submits that all parties with the exception of Kishni had joined in the arbitration and they cannot be allowed to challenge the legality of the award. Reliance is placed on Achiran Bibi and Others Vs. Babur Ali Sapui alias Baburali Sipai, and U.P. Hlaing v. Daw Ngwe AIR 1941 Rang. 22 : 192 I.C. 801 and it was also submitted that the mere fact that one of the heirs had not joined in the arbitration does not make the whole award void. Reliance was placed on a judgment of their Lordships of the Privy Council in AIR 1925 226 (Privy Council) where, their Lordshipa observed:

"Dismissal of application to file an award on the ground that certain parties were minors and were not properly presented may per se deprive the adult parties to the award of the power of enforcing it by certain effective statutory methods, but it does not render the award void or otherwise unenforceable as against those parties."

Relying on this it was held in U.P. Hlaivg v. Daw Ngwe AIR (28) 1941 Rang. 22 : 192 I.C. 801 that the mere fact that all the heirs did not join in the reference to arbitration of a dispute about inheritance is no ground for upsetting the award so far as those people who made the reference are concerned, and in a later judgment; Achiran Bibi and Others Vs. Babur Ali Sapui alias Baburali Sipai, it was held that the High Court will not interfere to set aside an award in revision ate the instance of a party who joined in the reference to arbitration, took part in it and having lost it was trying to back out of it.

As against this the learned advocate for the Respondents relied on a judgment of Tek Chand J., in Karam Bibi v. Muhammad Alam Klian AIR 1929 Lah. 477 : 119 I.C. 235, where the learned Judge held that where one of the persons against whom ex parte proceedings had been taken did not join a reference it was invalid and the award would be wholly void. It appears that the judgment of their Lordships of the Privy Council was not brought to the notice of the learned Judge and in face-of the observations of the Privy Council it is difficult to follow this judgment.

In my opinion, therefore, the award is valid as far as those parties are concerned who joined in the reference and they at any rate cannot turn round and attack its validity, and the learned District Judge was in error in allowing the appeal of the parties other than Kishni and aa this point went to the root of the matter which the learned Judge has not considered, I think it is a proper case in which I should interfere in revision. I would therefore allow the petitions for revision to this extent that the award will remain good in regard to the parties who were parties to the reference, but with regard to Kishni who never joined in the reference the case must proceed and the-order of remand with regard to her is good. Parties will bear their own costs throughout. The parties have been directed to appear in the trial Court on 3rd October 1950.