1. This is an appeal from an order of the Joint First Class Subordinate Judge of Poona refusing to file an award in an arbitration without the intervention of a Court. The award relates to the estate of the late Laxman Moreshwar Deshpande of Poona. There were disputes among the members of his family which were referred for settlement to two distinguished lawyers, Rao Bahadur Narhar Krishna Deshmukh and Rao Bahadur Ganesh Krishna Chitale. They are intimate friends of the family. The reference was made on July 28, 1931, and the award was given on January 27, 1933. The application for filing it in Court under para. 20 of Schedule II of the Civil Procedure Code was made by the appellants on August 19, 1933. Some of the other members of the family raised objections of various kinds which were made the subject of seventeen issues. Practically every point was decided in favour of the award, but the trial Judge refused to file it on two grounds; because he found (1) that one item of the property dealt with by the award is outside British India, and (2) that in certain respects the award is indefinite and incapable of execution. It may be mentioned that the second point was not the subject of any issue.
2. This is obviously a very unfortunate result. The estate is a considerable one. The portion of the award affected by the first objection is quite insignificant and even the part affected by the second objection appears to be less than a quarter of the whole. The trial Judge was evidently satisfied, and rightly, in our opinion, that the award is fair and equitable, and on most points a final settlement of the disputes between the parties. He thought, however, that in these two particulars which I have mentioned the award was invalid and that he had no alternative but to refuse altogether to file it. We are of opinion that the learned Judge was wrong on both points.
3. The point of jurisdiction arises in this way. Among the outstandings due to the estate there is a small debt (the principal being only Rs. 90) secured by a mortgage of land in a village called Angaon or Khoda, which is in the Bhor State. In the schedule of properties attached to the reference paper this land was included among the immoveable properties to be dealt with, but in the award it is not included among the immoveable properties nor are any instructions given about the mortgaged land. The only directions given are these : 'In Schedule (c) the debts taken by people on hand and on mortgages are mentioned. All those debts should be recovered by Dattatraya. Whatever amount remains with him after defraying the expenses should be distributed by him equally among the three sharers after retaining one share for himself'. Then the names of the sharers are mentioned. Schedule (c) contains this provision:-'Lands at Powd and Angaon. These are mortgaged in the name of Mr. D.L. Deshpande who should arrange to make the recoveries.
4. The learned Counsel who appears for the appellants argues that the land is not dealt with at all. All that the award says is that Dattatraya is to recover the money and after recovery-by which time it would be moveable property within the jurisdiction-he is to distribute it among the persons entitled to it. We hold that this contention is correct. It may be that in order to recover the money proceedings would have to be taken in respect of land outside the jurisdiction. But on that point the award is silent. So far as the award goes, it cannot be said that it deals with any property outside the jurisdiction. That being so, the legal difficulty which the learned trial Judge found to be insuperable does not really arise. But we think that there is no substance in it anyhow. No doubt Krishna Iyer v. Subbarama Iyer I.L.R. (1932) 55 Mad. 689, cited by the learned Judge, supports the view which he has taken. The Madras High Court has held in that case that the language of para. 20 of the second schedule requires that the Court must have jurisdiction over every item of the property dealt with by the award, and that if this is not so, the award cannot be split up and nothing can be done but to refuse to file it. This would mean that in many cases private arbitrations could never be made effective in the manner contemplated by the legislature, since: there would be no Court to which the application could be made. With all deference to the learned Judges who decided this case we are not satisfied that this is the law. In Ramlal Hargopal v. Kiskanchand (1923) L.R. 51 IndAp 72 : 26 Bom. L.R. 586 their Lordships of the Privy Council declined to commit themselves to the proposition that an application to file an award can only be dealt with by a Court having, jurisdiction over the whole of the subject-matter. In Amir Begam v. Badr-ud-din Husain I.L.R. (1914) All. 336 : 16 Bom. L.R. 413, which was a case of an arbitration without the intervention of the Court, the Privy Council treated it as settled law that if the part of an award which is invalid is separable, it may be separated and the rest of the award maintained. No doubt, the invalidity in that case consisted in the fact that the arbitrators had exceeded their powers under the terms of the reference. But if the principle of separability is to be accepted (and that principle is recognized in para. 14 of the second schedule to which para. 21 refers back), it is not easy to see why it should not be applied so as to get rid of the invalid part of the award, whatever the nature of the invalidity.
5. There are decisions of this Court which are inconsistent with the view taken in Madras. In Raghawendra Ayyaji v. Gururao Raghawendra I.L.R. (1913) 37 Bom. 442 : 15 Bom. L.R. 362 this: Court held that it does not follow that an award cannot be filed because it deals with some matters which are not within the jurisdiction. I may refer also to the observations of Mr. Justice Baker in Kashinath v. Gmgubai (1928) 31 Bom. L.R. 349. In the referring judgment of Page C.J. and Mr. Justice Mya Bu in S.A. Nathan v. S.R. Samson I.L.R. (1931) 9 Bam. 480, f.b, the position is stated thus (p. 485) :-
Whether such want of jurisdiction vitiates the decree as regards both the property over which the Court has jurisdiction, and that over which the Court has no jurisdiction, or only as regards the latter depends, in our opinion, on whether the nature of the case permits of a, separation of the part concerning the one from that concerning the other without affecting its basis.
We hold that that is the correct view to take. Even in cases where a part of an award deals with property outside the jurisdiction, if that part is separable without disturbing the basis and equilibrium of the award as a whole, the Court may delete that part of it and order the rest to be filed.
6. The provisions in the award which have been held to be bad for indefiniteness are the following :-After dealing with certain ornaments which are ordered to be distributed among the four persons named, the award says this :-'Or if any one desires to purchase them the market price of all these ornaments should be assessed and deducting the amount of his own share distribute the balance equally among the three sharers.
7. Then one of the houses (house No. 377) is dealt with in this way :-
There are three claimants to this. But in order that there may be no dispute and as if the house is divided into three parts it will not be convenient to any one and it will not be convenient for residence also and if the house is so divided the value of the house and of the parts also will not remain the same-considering all these things we decide that this house should be divided into two parts only by an equitable partition. Each one of those two who take the whole house as their shares should pay to the third sharer Rs. 2,667 as the price of his third share. That is to say both together should pay Rs. 5,334. Then they should make two equal divisions by an equitable partition and take possession thereof.
8. Another house No. 149 (was dealt with as follows :-
The four sharers, viz., (1) Dattatraya, (2) Gangadhar, (3) Vasudev, and (4) Ganesh and Manohar have got four-fifths share. The disputes between the bhau-bands regarding this house are not settled as yet. We have assessed the value of the said four-fifths share as Rs. 3,000. It is our opinion that it is desirable that the said house, considering its condition, should be kept by any one. It will be neither convenient nor desirable to partition the same according to shares. Hence we decide that any one of the four sharers who wants to keep the house for himself may keep it after paying to each of the remaining sharers Rs. 750.
9. Then a piece of land, survey No. 5 at Vadgaon, is disposed of thus :-
Disputes are up to now going on regarding survey No. 5 at Vadgaon (that means admittedly disputes with third parties, not among the parties to the award). After that dispute is settled any one who wants that land should pay to the remaining three sharers the amount of his share of the market value of that land and keep the same in his possession.
10. The learned trial Judge referring to these provisions in the award says :-
They (that is the arbitrators) do not settle as to what individual sharer should keep possession of this house and pay the rest. Thus the matter is left unsettled, as to who should demand money or possession and from whom. Similar direction is given in the award as regards the land of Survey No. 5 of Vadgaon. The matter as to who should keep possession and who should pay money and to whom is left unsettled. And the same remarks have to be made, as regards ornaments and silver pots directed to be divided in four equal parts, in the award. There also, the matter is left unsettled and it is not known who is to keep ornaments and who to pay and to whom and what. If application for execution of the decree is made to the executing Court, the decree will be found incapable of execution in the absence of explicit and unequivocal orders.
11. The learned Judge is mistaken in saying that the award does not settle amount to be paid. But apart from that we do not consider that the objection taken by him is really substantial. He appears to consider that the cardinal point in the controversy was a complete partition. If he means by that however that under the terms of the reference the arbitrators were bound to specify in every particular which person was to take a particular portion of the estate, he appears to be wrong. No support for that view can be deduced from the terms of the reference. What is stated in exhibit 40 is this :-
A dispute has arisen between all of us as to what share each one of us has in the aforesaid property or what right and interest each one of us has in the aforesaid property. There is also dispute as to the way in which the whole of the property is to be equitably divided. The dispute is being settled between us by mutual consultation. Hence all of us are appointing both of you as arbitrators unanimously. Whatever award is given by you unanimously will be acceptable to us.
As I have mentioned, the arbitrators are all friends of the family and no doubt well-acquainted with the character and circumstances of its members. It may well be that certain matters of detail must be left or are better left to be settled by mutual arrangement. It cannot be said that the provisions to which objection has been taken render the award an invalid award. The most that can be said I think is that the award in these respects is only declaratory. That does not mean however that it is void for indefiniteness. In that connection I may refer to Raghawendra Ayyaji v. Gururao Raghawendra I.L.R. (1913) 37 Bom. 442: 15 Bom. L.R. 362. Here also of course the principle of separability might probably be applied, if necessary. We hold, however, that it is not necessary at all.
12. The result is that the appeal must be allowed. The trial Judge is directed to file the award and to proceed in accordance with para. 21 of Schedule II. The parties will pay their own costs in the trial Court. In the appeal the appellants will get their costs from the respondents who have appeared.