Nirmaljit Singh and others vs Harnam Singh and others

J.M. Tandon, J.—The following pedigree-table, about which there is no dispute will be helpful in understanding the facts of the case :--

Dewan Singh

1Rattan Singh

Kapoor Singh

Boor Singh

C

Gurdit Singh

Dalip Singh (Defendant)

Lakhbir Singh

Harbans Singh

Balwant Singh (Defendant)

Shivjit Singh (defend ant)

Jasjit Singh (Defendant)

Karam Singh (Defendant)

Harnam Singh (Plaintiff)

Balbir Singh

Amrik Singh (Defendant)

SarstiDevi (widow) (Plaintiff)

Jibak (daughter) (Plaintiff )

Harnam Singh and Amrik Singh sons of Boor Singh along with Sarasti Devi and Janak, widow and daughter respectively of Balbir Singh, filed a suit for partition against Balwant Singh, Shivjit Singh and Jasjit Singh sons of Harbans Singh, Karam Singh son of Boor Singh, and Dalip Singh son of Rattan Singh alleging that their common ancestor Dewan Singh owned a house known as "Haveli Dewan Singh Wall" at Phagwara. The plaintiffs (now respondents) alongwith Karam Singh defendant had one fourth share in it. Similarly, Dalip Singh, Lakhbir Singh and the line of Gurdit Singh represented by Balwant Singh, Shivjit Singh and Jasjit Singh had one fourth share each. Lakhbir Singh gifted his one fourth share to Amrik Singh vide gift deed dated January 29, 1964 Amrik Singh thus became entitled to five sixteenth share in the Haveli. Harnam Singh continued to own one sixteenth share and so did Sarasti Devi and Janak plaintiffs. The share of Karam Singh was one sixteenth while that of Balwant Singh, Shivjit Singh and Jasjit Singh one fourth and of Dalip Singh one forth. The plaintiffs respondents prayed that the Haveli be partitioned in accordance with their shares The suit was contested by Balwant Singh, defendant, now dead and represented by the appellants. He denied that Harbans Singh had any share in the property because he had been adopted by his maternal grand-father Amin Chand. He also denied the share of Lakhbir Singh because the latter''s father Kapur Singh had relinquished his share in his (Balwant Singh) favour in lieu of some outstanding debts. He revealed that Boor Singh predecessor in interest of the plaintiffs had filed a suit for partition in 1983 Bk. and the matter was referred for arbitration. The Arbitrator gave the award which was made the rule of the Court on 19th September, 1987 Bk. The plaintiffs (now respondents) had, therefore, no right to get the property partitioned once again. Dalip Singh In his separate written statement also averred about the previous litigation and raised some objections The trial Court framed the following issues ;--

Whether the suit is not maintainable on the principles of res-judicata ?

Whether the plaintiffs are estopped from suing by their act and conduct?

Whether Lakhbir Singh is a necessary party ?

Whether the defendants Nos. 2 and 3 are neither necessary nor proper parties ?

What are the shares of the parties in the property in dispute ?

Issues Nos. 3 and 4 were decided against the defendants and the remaining issues in favour of the plaintiff''s respondents. The trial Court thereupon passed a preliminary decree on December 11, 1968, in favour of the plaintiffs respondents. Balwant Singh filed an appeal. He died during the pendency of that appeal. The present appellants were impleaded as his legal representatives. The learned District Judge, Kapurthala, vide his order dated May 22, 1974, confirmed the trial Court decree in favour of the plaintiffs-respondents and dismissed the appeal. It is against this order that the present regular second appeal is directed.

The main contest between the parties is about the effect of the previous litigation. The contention of the learned counsel for the appellants is that Boor Singh had filed a suit for partition of the joint property, including the Haveli, and during the pendency thereof the matter was referred to an Arbitrator, who gave the award which was made the rule of the Court. In view of this, the present suit filed by the plaintiffs respondents is barred by the principles of res judicata. The argument of the learned counsel for the plaintiffs respondents is that the previous decree passed is no decree in the eye of law and it cannot operate as res judicata to defeat the present suit.

The learned District Judge held the award given by the Arbitrator in the previous litigation bad and ignored the decree passed on its basis on the grounds that Harbans Singh who also owned a share in the property had not joined in making the reference and Amrik Singh was minor and while making a reference on his behalf permission of the Court had not been obtained.

The learned counsel for the appellants has argued that Harbans Singh had no share in the joint property inasmuch as he had been adopted by his maternal grand father Amin Chand and he had ceased to be a member of the family of the parties. His omission to make a reference for arbitration was, therefore, not material He has further argued that the finding of the learned District Judge that it is not proved that Harbans Singh had been adopted by his maternal grand-father Amin Chand is not correct. I see no force in this contention. Balwnnt Singh stated in his statement that Harbans Singh had been adopted by his maternal grand-father about 80 years back He admitted that the adoption was made before he himself came of age. The learned District Judge held that the statement of Balwant Singh alone was not sufficient to uphold the adoption of Harbans Singh by his maternal grand-father and more so when it appears to be a hearsay evidence. To meet this lacuna, the appellants have filed Civil Miscellaneous No. 4202/C of 1974 under order 41 rule 27, Civil Procedure Code, praying that they may be allowed to bring on record a copy of the adoption-deed executed by Amin Chand which was also got registered on 1(sic)th August, 1974-Bk, (corresponding to 1917 A.D.). No reason whatsoever has been given in the application under order 41, rule 27, CPC as to why the alleged adoption-deed could not be produced earlier during the pendency of the litigation before the trial Court or the lower appellate Court. After hearing, learned counsel for the parties on his application, I see no justification to allow it and the same is dismissed.

The finding of the learned District Judge that Harbans Singh was not adopted by his maternal grand father is one of fact and cannot be agitated in the present regular second appeal. This finding of the learned District Judge even otherwise appears to be correct.

The learned counsel for the appellants has contended that Harnam Singh, brother of Amrik Singh, was a guardian of the latter during the pendency of the previous litigation. Harnam Singh referred the matter to the arbitrator on his own behalf as also on behalf of Amrik Singh minor. The fact that the permission of the Court was not obtained on behalf of Amrik Singh minor to refer the matter to the arbitration would not render the reference void. It was voidable at the option of Amrik Singh, who has not voided it so far. The filing of the present suit by Amrik Singh wherein no mention is made about the previous litigation would not per se tantamount to avoidance of the previous decree. The learned District Judge, therefore, was not justified in concluding that the previous reference was bad because permission of the Court to refer the matter to arbitration on behalf of Amrik Singh minor had not been obtained. In my opinion, the contention of the learned counsel is correct. In Bishundeo Narain and Another Vs. Seogeni Rai and Jagernath, it was held that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor''s benefit. So also, an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between the members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will set it aside The rule, however, does not apply to decrees if the minor is properly represented before the Court and the decree is as binding on him as on the adult parties, unless the minor can show fraud or negligence on the part of his next friend or guardian ad litem. The ratio of this authority would apply tO the present case. It is obvious that the present suit filed by Amrik Singh will bring no advantage to the plaintiffs-respondents for avoiding the previous decree. Thus learned counsel for the plaintiffs respondents has also fairly conceded the argument of the learned counsel for the appellants on this point.

Boor Singh had filed the previous suit for partition in 1983 Bk. (corresponding to 1925 A.D). A copy of the reference dated Kartik 5, 1986 Bk. to refer the matter to arbitration and signed by the parties is Exhibit D. 7. A copy of the award given by the Arbitrator dated Kartik 11, 1987 Bk. is Exhibit D. 1. The order of the Court dated 19th September, 1987 Bk. making the award the rule of the Court is Exhibit D. 4. The learned counsel for the plaintiffs respondents has argued that Second Schedule of Civil Procedure Code, 1908 which related to Arbitration in Suits, did provide, like the Arbitration Act, 1940, that after the award had been received by the Court, a notice shall be given to the parties who may file objections and after deciding them the award could be made the rule of the Court. In the previous litigation, no notice was given to the parties after the award had been submitted to the Court and no opportunity was given to file objections against it. The decree passed by the Court by making the award the rule of the Court is therefore, not valid. The learned counsel for the appellants has argued that this contention is not available to the learned counsel for the plaintiffs respondents because it was not taken in the plaint nor was pressed before the trial Court or the lower appellate Court. I am not in agreement with this contention. The onus of issue No. 1 regarding the non maintainability of the suit filed by the plaintiffs respondents on the principles of res judicata is on the appellants. It is for the appellants to prove that the decree on the basis of the award in the previous suit which was to operate as res judiata is valid. It is, therefore, open to the plaintiffs respondents to establish that the decree passed in the previous litigation was invalid or no decree in the eye of law. The omission to press a legal argument before the trial Court or the lower Court would not operate as estoppel for raising it in the regular second appeal.

Paragraph 10 of Second Schedule to the Civil Procedure Code, 1908, reads :--

Where an award in a suit has been made, the persons who made it shall sign it and cause it to be filed in Court, together with any depositions and documents which have been taken and proved before them ; and notice of the filing shall be given to the parties

Paragraph 16(1) of this Schedule reads :--

Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration in manner aforesaid and no application has been made to set aside the award, or the Court has refused such application, the Court shall after the time for making such application has expired, proceed to pronounce judgment according to the award

It is not proved that after the award in the previous litigation had been submitted in the Court, the latter gave notice to the parties. The copies of the documents placed on the file by the appellants are rather suggestive that no such notice was given to the parties nor did they file objections against the award. In Hari Chand v. Lachhman Das and others (1948) 50 P.L.R. 57 it was held that when an award had been filed in Court by the arbitrators or umpire u/s 14 of the Arbitration Act (corresponding to paragraph 10 of second Schedule to Civil Procedure Code. 1908), the Court is bound to give notice to the parties of the filing of the award This notice may be in writing or oral if the parties are present in Court But the notice must be definite and specific. This provision is statutory and it cannot be dispensed with by the Court. This statutory obligation having not been followed in previous litigation while making the award the rule of the Court, the decree passed cannot be treated as valid and shall have to be ignored.

Harbans Singh who had a share in the property did not admittedly join in making the reference to refer the arbitration In Narsingh Das Vs. Firm Joint Hindu Family known as Gogan Ram Lachmi Narain through Kunj Lal and Others, , it was held that for a valid reference to be made to arbitration of dispute which form the subject matter of a suit, it is necessary that all the interested parties should join in the application for reference. The decree passed in the previous litigation is thus invalid on this ground as well. The finding of the lamed District Judge that the suit filed by the plaintiffs-respondents is not barred by the principles of res judicata is affirmed.

Another point argued by the learned counsel for the appellants is regarding the gift made by Lakhbir Singh in favour of Amrik Singh plaintiff respondent vide gift deed dated January 29, 1964. The contention is that Kapur Singh father of Lakhbir Singh had relinquished his share in favour of Balwant Singh predecessor-in-interest of the appellants and as such no interest in the property was inherited by Lakhbir Singh which he could gilt in favour of Amrik Singh vide gift deed dated January 29, 19(sic)4. The only evidence in support of the alleged relinquishment by Kapur Singh of his share in favour of Balwant Singh is the latter''s held statement. The learned District Judge declined to place implicit reliance as the oral testimony of Balwant Singh to return a finding no this point is in his favour. The approach of the learned District Judge is correct- Even otherwise, the finding on this point being one of fact can not be challenged in regular second appeal.

In the result, the appeal fails and is dismissed with no order as to costs. This also disposes of Civil Miscellaneous No. 4202 of 1975.