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Bhaurao Jivaji Tivle Vs. Radhabai Laxaman Jivaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in2Ind.Cas.431
AppellantBhaurao Jivaji Tivle
RespondentRadhabai Laxaman Jivaji
Excerpt:
award equivalent to judgment - binding on parties--partition directed by- award--dissolution of joint family--want of jurisdiction of arbitrator can he shown. - - the former like the latter question depended upon evidence......into a decree or not. it is binding upon the parties. and where it directs partition to be effected, it dissolves the joint family, and from the moment of its date, severs their joint interests. on these grounds we confirm the decree with costs.
Judgment:

1. The first point raised on appeal is that the decision of the arbitrators with regard to the partition which they directed to be made by the award was ultra vires, because there was no submission upon that point to their judgment and that, therefore, the award so far as the direction as to partition was concerned was invalid and not binding upon the parties. It is no doubt open to the appellant to urge and show that the award is not binding upon him for want o]f jurisdiction in the arbitrators. But the question of jurisdiction turns in the case on a question of fact, viz., did the submisson or reference to arbitration include the question of partition or was it confined only to the dispute whether the property was joint or self-acquired? The former like the latter question depended upon evidence. But the pleadings in the Court below show that that question was not only not raised there but was virtually waived. On the basis that the award was valid, what was urged in the Court below was that the award did not effect a partition by metes and bounds or create a severance of interests between the two brothers, and dissolve the co-parcenery between them, but that it merely resulted in an inchoate partition, which could not legally take effect until the award passed into a decree. It was urged that the award, so long as it did not pass into a decree, could not effect severance of interests between the brothers. But that is not the law. Muhammad Newaz Khan v. Alam Khan 18 C. 414 and Laldas Jibhai v. Bai Lala 11 Bom. L.R. 20 : (1909) 1 Ind. Cas. 105 : 5 M.L.T. 226 are authorities for the proposition that an award is equivalent to a judgment, whether it has passed into a decree or not. It is binding upon the parties. And where it directs partition to be effected, it dissolves the joint family, and from the moment of its date, severs their joint interests. On these grounds we confirm the decree with costs.


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