Sadhu Singh and Others vs Ramdeo Singh

Fazl Ali, C.J.—This appeal arises out of a partition suit in which a decree has been passed by the learned Subordinate Judge on the basis of an award. It appears that there are four contesting parties in the partition suit. The plaintiff is admittedly entitled to a one-sixth share in the properties under partition and defendants 1 and 2 also have a one-sixth share each. Defendants 3, 4, 8 and 9 have, on the other hand, an eight annas share. In May 1940 there was a reference to arbitration by the Court below upon the application of all the interested parties to three persons, namely, Hardwar Singh, Mukhram Singh and Ganpat Singh. The award was filed on 1st August 1940 after several adjournments had been granted by the Court and on the same day one of the arbitrators, Ganpat Singh, filed an objection to the award stating among other things that there had been no formal sittings of the punches and that he had not been allowed to take any part in the arbitration proceedings.

Thereupon the learned Subordinate Judge gave an opportunity to the parties for filing objections, if any, against the award. On 10th August 1940 defendant 3, brother of defendant 4 and father of defendants 8 and 9, filed an objection attacking the award on various grounds. The learned Subordinate Judge upon hearing such evidence as was adduced by the parties decided on 27th September 1940 that the objections had not been made good and confirmed the award. The present appeal has been filed as a first appeal against the decree passed by the Subordinate Judge on 27th September 1940.

Under Schedule 2, Para. 16, Civil P.C., it was provided that after an application for setting aside an award has been refused and judgment pronounced according to the award no appeal shall lie from the decree which shall follow except in so far as the decree is in excess of or not in accordance with the award. As in this case it is not suggested that the decree is either in excess of or not in accordance with the award, it is contended that though no appeal would lie under the provisions contained in Schedule 2 of the old Civil P.C., yet this case would be governed by Section 39, Arbitration Act, which now replaces the provisions which formerly found a place in Schedule 2, Civil P.C. Section 39 does provide that an appeal shall lie from an order setting aside or refusing to set aside an award. But Section 48 of the Act provides in clear terms that:

The provision of this Act shall not apply to any reference pending at the commencement of this Act to-which the law in force immediately before the commencement of this Act shall, notwithstanding any repeal effected by this Act, continue to apply.

Now, as the reference in the present case was pending at the commencement of the Arbitration Act, it is clear that this case will be governed by the old law and not by the Arbitration Act. That being so, the appeal is clearly incompetent. The learned Counsel for the appellants, however, pressed us to treat the memorandum of appeal which has been filed in this case as an application in revision and though as a rule we would have discouraged an application in revision which is directed against an order based upon an award, we have decided to treat the memorandum of appeal as an application in revision in the special circumstances of the case which I will now proceed to set out.

The most prominent feature of the present case is that herebefore the parties could say any-thing either for or against the award, one of the arbitrators came to Court with an application in which he complained among other things that he had been made to put his signature on a'' plain paper on the representation made by one of the panches, Hard war Singh, that the signature was required in token of his attendance on that day and that a decision would be given at Arrah on looking into all the papers on 1st August 1940. The arbitrator in question further alleged that though Hardwar Singh had told him that the arbitration would be completed after local inspection, yet it subsequently appeared that this representation was made to him for the purpose of his being kept in ignorance of what was going on and of the fact that an award had been filed without his concurrence, the same being engrossed upon a paper which had been already signed by him.

Now, as we have to deal with the case in revision we cannot go behind such findings of fact as have been already arrived at by the learned Subordinate Judge and, therefore, for the purpose of deciding whether the order of the learned Subordinate Judge can be interfered with in revision I must proceed on the assumption that the view of the learned Subordinate Judge negativing the allegations made by the arbitrator is correct. On behalf of the appellants, very great stress was laid on the fact that there are some suspicious features about the manner in which the signature of the three arbitrators run on the award and it was also pointed out to us that one part of the award has been signed only by two arbitrators and not by three arbitrators. But, as I have already stated, strictly speaking these considerations must be overlooked for the present purposes. In my opinion the strongest ground which has been urged against the order of the learned Subordinate Judge is that in dealing with the case of the arbitrators'' alleged misconduct he has confined himself only to the question of corruption or dishonesty of the arbitrators and paid no heed to the fact that there may be misconduct even though the arbitrators may have been honest or free from corruption. It was pointed out by the Judicial Committee of the Privy Council in Mt. Amir Begam v. Saiyed Badruddin AIR 1914 P.C. 105 that if irregularities in procedure can be proved which would amount to no proper hearing of the matter in dispute, that would be misconduct sufficient to vitiate the award without any imputation on honesty or impartiality of the arbitrator.

I take it therefore that if there is an indication of gross negligence or recklessness on the face of the award, that might also amount to a form of misconduct on the part of the arbitrators, because that might by itself be sufficient to show that "there was no proper hearing of the matter in dispute," to use the words which have been used by the Privy Council.

Now, in the present case our attention has been drawn, among other things, to certain special matters. In the first place, it has been pointed out that Hardwar Singh the arbitrator who has given evidence in support of the award has stated in his evidence that the arbitrators had divided the lands according to the shares of the parties which were according to this arbitrator 1/2, 1/4 and 1/4. Now, this is clearly wrong because, as I have already stated, the share of three of the parties was 1/6th each and none of the parties had a 1/4th share. It has been pointed out to us that the written award gives the correct specification of shares; but it is common ground that the author of the written portion of the award, with the exception of the schedule attached to it, was a pleader who has been examined in this case.

However that may be, that is in my opinion only a comparatively small matter. A more important matter is that Hardwar Singh, the arbitrator, to whom I have referred just now, has stated in his evidence that not only was the milkiat interest divided according to the shares of the parties, but also the houses were divided similarly. Now, it is common ground that defendants 3, 4, 8 and 9 have not received any share of the houses which were mentioned in the pleadings of the parties. The arbitrator''s attention was apparently drawn to this fact and his answer in that connexion was--"I do not know if the house allotted to defendant 8 was under partition in the plaint." Now, the exact position is as follows: either the arbitrators have allotted no share to the appellants in the houses or they have allotted to them a house which was not the subject of partition and which they had no jurisdiction to allot. In either case the arbitrators must prima facie be held to have acted with gross negligence and recklessness and a question may arise whether such negligence or recklessness will or will not amount to misconduct. Then it was pointed out to us that some of the plots which had been allotted to defendant 3 in the schedule attached to the award have been included in the schedule more than once. Instances of such plots are Nos. 257, 298, 783 and 814. It is suggested on behalf of the appellants that the result of these plots being included at more than one place in the schedule is to make up the deficiency in the area which should have been allotted to the plaintiff in a somewhat artificial manner which can be attributed either to dishonesty or negligence.

Then again, there are several plots which are not to be found in the schedule attached to the plaint. These are plots Nos. 12, 73, 1029, 358, 214 and 300. The grievance of the appellants is that the arbitrators have allotted to them lands which were outside the scope of the partition proceedings and over which they had no jurisdiction and it is also suggested that some of the lands did not belong to any of the parties, but in fact belonged to outsiders.

It has been, on the ether hand, pointed to us on behalf of the respondents that some of these plots, for example, Nos. 1029 and 358 were mentioned in the written statement, and, therefore, the arbitrators were competent to make them subject of partition. It is also contended that the respondents have had no opportunity of investigating this point in order to offer a proper explanation as to why the arbitrators have included these plots in the schedule of partitioned property. If no explanation is forthcoming prima facie of partition would also amount to gross negligence or recklessness in conducting the partition proceedings and here again a question may arise as to whether such negligence or recklessness does or does not amount to a misconduct of the arbitrators. With such points staring us in the face, it seems to us that the case should be re-considered by the learned Subordinate Judge with a view to finding out whether the award can (sic) set aside on the ground of misconduct, if (sic) the arbitrators have in dividing the property shown such negligence as amounts to no proper disposal of the matters in dispute.

As I have already stated, the learned Subordinate Judge has entirely overlooked the fact that there may be misconduct on the part of the arbitrators without the imputation against their honesty or impartiality being substantiated; and, that being so, I would set aside the order as well as the decree which is based upon that order and remit the case to him for disposal according to law, after considering the matters to which I have referred. I wish to make it absolutely clear that we have formed no decided opinion on the merits of the case and it will be for the learned Subordinate Judge to decide as to whether upon the materials before him any case of misconduct has been established or not and to deal with the award in accordance with law on the basis of such decision as he may arrive at upon the materials before him. Costs will abide the result.

Sinha, J.

I agree.