Perumalla Satyanarayana vs Perumalla Venkata Rangayya

One Thiruvengadam deceased and his nephew Venkata Rangayya, who were the members of an undivided Hindu family, entered, on the 25th

December 1900, into an agreement in writing to submit to the decision of certain persons the disputes which had arisen between them with

reference to the partition of their joint property and to abide by the partition to be made by them. On the 25th March 1901, Tiruvengadam

applied, u/s 523 of the Code of Civil Procedure, to the District Court of Godavari to have the agreement filed. Venkata Rangayya, on notice to

him, having consented to the agreement being filed, the application was numbered as a suit and the matter was referred to the decision of the

arbitrators named. Pending the proceedings before the arbitrators, Tiruvengadam died, on the 18th August 1901. Tiruvengadam''s daughter''s son

Satyanarayana, a minor, who is the Appellant before us, alleging himself to be the adopted son of Tiruvengadam, applied through his natural father

as his next friend u/s 365 of the CPC to have his name entered on the record in the place of the deceased Plaintiff Tiruvengadam. The adoption

thus set up was denied by the Defendant (Respondent).

Without pursuing either procedure prescribed by Section 367 of the CPC in reference to the determination of the question whether

Satyanarayana was the legal representative of the deceased Tiruvengadam, the District Judge passed an order abating the suit. In support of the

Judge''s order our attention was drawn to Potts v. Ward 1 Marshall 366: 15 R.R. 680, Toussaint v. Hartop 7 Taunt 571, Cooper v. Johnson 2 B.

& Ald. 394 and Rhodes v. Haigh 2 B. & C. 345, which lay down that the authority of an arbitrator is revoked by the death of any one of the

parties to the submission before an award is made. This was apparently a corollary of the rule of common law that the authority of an arbitrator

might, at any time before the award was made, have been revoked at the pleasure of any party to the submission, whether the submission was by

agreement in writing, by bond, deed, Judge''s order or order at nisiprius,-a rule apparently founded on the view that with reference to agreements

to refer to arbitration any contracting party may, without the consent of the other, put an end to the contract on the mere ground that he has

changed his mind, and which was due to the disfavour with which contracts to refer to arbitration were formerly looked upon in England as

contracts tending to oust the jurisdiction of the ordinary Courts. But in this country, as pointed out in the case of Nagasawmy Naik v. Rungasamy

Naik 8 Mad. H.C.R. 46 the policy of the Legislature has always been different and the English Common Law rule has not been followed.

According to the law here the submission of an existing dispute once made is not, without just and sufficient cause, revocable even in the case of a

submission which has not been made a rule of Court, while, with reference to a submission which has been made a rule of Court and consequently

where the matter has become the subject of a suit, the submission can be revoked only with the leave of the Court for good cause shown

(Pestonjee v. Manockjee 12 Moo.I.A., 112).

It follows, therefore, that contracts to refer to arbitration should not, in this country, be treated as standing upon the peculiar footing that such

contracts are revocable at the mere will of a party so as to warrant the view that every such contract is essentially of a personal nature, as the

District Judge seems to have thought, and the question whether a legal representative of a deceased party is or is not entitled to enforce the

contract to refer is a question which would depend upon whether the right dealt with in the reference is of a merely personal nature or is one which

survives to the legal representative. Accordingly, where the submission has been made a rule of Court and the right is one which falls under the

latter description, the proceedings must, u/s 361 of the Code of Civil Procedure, be held not to abate by reason of the death of a party. And as the

right to partition which is the subject-matter of the submission in the present case would survive to the deceased Plaintiff''s adopted son, if there is

one, the District Judge should have proceeded u/s 367 of the Code of Civil Procedure.

We accordingly set aside his order and direct that the application be restored to his file and dealt with according to law. The costs of this appeal

will be costs in the case.