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Shripad Baji Garware Vs. Dattatraya Vithal Garware - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 50 of 1935
Judge
Reported in(1939)41BOMLR485
AppellantShripad Baji Garware
RespondentDattatraya Vithal Garware
Excerpt:
civil procedure code (act v of 1908), section 115, order xxxii, rule 7 - reference to arbitration-award-minors as parties-leave of court not taken on behalf of minor-order to file record-revision-high court.;an application in revision, under section 115 of the civil procedure code, lies against an order dismissing objection taken under order xxxii, rule 7, and ordering a decree to be drawn up in terms of the award, provided that the requirements of the section are satisfied : ;ghuuun jilani v. muhammad hassan (1901) l.r. 29 i.a. 51 : s.c. 4 bom. l.r. 161, bhikhalal v. acharatlal (1924) i.l.r. 49 bom. 535 : s.c. 27 bom. l.r. 423; mariam bibi v. artma bibi [1397] all. 317 f.b. and khandubhai lallubhai desai v. morarji lallubhai desai (1932) c.r.a. no. 69 of 1931, followed.;it is open to a..........award do not bind the minor but they do bind the adult parties thereto. mr. coyajee says if the minors' application be allowed the arbitration as a whole must fail because the award could not be split up. there could be no adjustment of shares as between the minors and the other parties and it would be impossible to say that the award is good in part and bad in part. but that seems to me to be a rather good reason for remitting the minors to their remedy by a suit.8. the award and the subordinate judge's finding affirming it have also been attacked with reference to the arbitrators' finding that the defendants are liable to account for a sum of rs. 21,000. this represents the plaintiff's half share of cash held to belong to the family and to have been kept in the family house. there.....
Judgment:

Broomfield, J.

1. In a suit for partition of joint family property filed by the plaintiff, the opponent in this application, against four defendants, the present applicants, of whom defendants Nos. 2 to 4 were the minor sons of defendant No. 1, an application was made by the plaintiff and assented to by defendant No. 1 for the reference of the matters in dispute in the suit to arbitration. The Court allowed the application and appointed the arbitrators suggested by the parties, two pleaders. In course of time, after nearly three years in fact, the arbitrators gave an award. The defendants then applied under paragraph 15 of Sch. II of the Code to set aside the award on various grounds, the principal of which were that the arbitrators have been guilty of misconduct, that they had without any justification held the defendants liable to account for a sum of Rs. 21,000 and that the award was illegal and invalid on the face of it. This last objection was mainly based on a ground not mentioned in the application itself but developed in the arguments, viz. that though defendants Nos. 2 to 4 were minors and defendant No. 1 had been appointed their guardian ad litem, the leave of the Court had not been obtained for the reference to arbitration as required by Order XXXII, Rule 7.' The Subordinate Judge heard arguments on these and the other objections, and holding that there was no substance in them, dismissed the application and ordered a decree to be drawn up in terms of the award. The defendants now apply for revision of this order under Section 115 of the Civil Procedure Code.

2. A preliminary objection has been taken by Mr. Thakor who appears for the opponent that no application in revision lies against an order made under these provisions of the Code. The same objection was taken in Khandubhai Lallubhai Desai v. Morarji IMlubhai Desai (1932) C.R.A. No. 69 of 1931 and I overruled it though with some hesitation. I pointed out in my judgment in that case that the Privy Council decision in Gkulam Jilani v. Muhammad Hassan (1901) L.R. 29 IndAp 51 : 4 Bom. L.R. 161, as interpreted by this Court in Bhikhalal v. Acharatlal I.L.R. (1924) 49Bom. 535 : 27 Bom. L.R. 423, does not preclude interference in revision, in such cases provided that the requirements of Section 115 are satisfied, i.e. when it can be shown that a Court has exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction go vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. Mr. Coyajee who appears for the applicants has pointed out that the same construction has been placed on this Privy Council case by a full bench of the Allahabad High Court in Mariam Bibi v. Amna Bibi [1937] All. 317 F.B.. I have accordingly heard the application argued.

3. The first and in my opinion the only really substantial ground on which this Court is asked to interfere is the failure to comply with the provisions of Order XXXII, Rule 7. Although, as I have said, defendants Nos. 2, 3 and 4 were minors and defendant No. 1 was their guardian ad titem, there is nothing to show that the leave of the Court was obtained for the reference of the disputes to arbitration, and certainly the leave of the Court was not expressly recorded in the proceedings as required by the rule. The learned trial Judge thought that this difficulty could be got over because defendant No. 1 was the manager of the family and entitled as such to get the family disputes settled by arbitration so as to bind minor members of the family. He referred to several cases but in none of these was there any question of the operation of Order XXXII, Rule 7. When the manager of a Hindu family is the next friend or guardian of a minor in a suit, his powers qua manager do not absolve him from the obligations imposed by the Civil Procedure Code. It was so held by the Privy Council in Ganesha Row v. Tuljaram Row . The learned Judge was quite clearly wrong on this point.

4. The effect of the second clause of Rule 7 and the authorities Atmmam v. Bhiki (1912) 15 Bom. L.R. 223, Chhotabhai v. Dadabhai : AIR1935Bom54 and Mariam Bibi v. Amna Bibi may be referred to as well as the Privy Council case] is that the minor or his next friend or guardian may repudiate an agreement including a reference to arbitration which has not been sanctioned by the Court as required by law. If the reference is repudiated, the result is, as pointed out in the Allahabad case, that the award and the decree passed upon it fall to the ground as far as the minor is concerned. That being the law, I think the Judge ought certainly to have allowed the application when it was brought to his notice that the requirements of Order XXXII, Rule 7, had not been satisfied. No doubt he says in his order 'The Court was fully cognizant of the interest of the minors and inasmuch as it sanctioned the reference it must be presumed to have given the leave also'. But the Judge who made the order sought to be revised was not the same Judge who sanctioned the reference and it is not clear how he could be in a position to speak about the knowledge of his predecessor. There does not appear to be anything in the papers on record to show that the Court was asked to apply its mind to the interests of the minors or did in fact apply its mind to that aspect of the case, although no doubt the pleadings of the parties would have disclosed the fact that there were minors concerned. Anyhow the rale in question requires that the leave of the Court should be express and not merely implied.

5. It does not follow, however, that the minor is entitled to get relief by way of revision of the Court's order disallowing among other objections the objection based on this rale. Mr. Thakor has relied on the Privy Council case, Ghulam Jilani v. Muhammad Hassan, which, according to him, is an authority for holding that the minor has no such right. That is really the same point as the one taken in the preliminary objection and it is disposed of as far as I am concerned by BMkhalal v. AcharatM. The point is discussed at length in Mariam Bibi v. Amna Bibi, at pp. 324 and 325 by Sulaiman C.J., and at pp. 330 to 333 by Iqbal Ahmad J.

6. On the other hand it is quite true that there is no direct authority in the applicants' favour, and on this particular point the full bench decision of the Allahabad High Court in Madam Bibi v. Amna Bibi is against the maintainability of this application. One of the questions referred to the full bench was whether the decision of the Court that made the reference to arbitration overruling an objection relating to the invalidity of the order of reference and passing a decree in accordance with an award can be challenged by an appeal or by an application in revision. The grounds on which the order of reference was said to be invalid was precisely the same as in the present case, viz. that a minor was concerned and the sanction of the Court had not been obtained. The answer given to the question was that the decision of the Court that made the reference to arbitration overruling the objection and passing a decree in accordance with the award cannot be challenged by an appeal or by an application in revision, for at most that amounts to an error of law. No doubt the answer then went on to say that the order made by the Court, where it acted illegally or with material irregularity in the exercise of its jurisdiction, can be challenged by way of revision, though not by way of appeal, whether the illegality or irregularity was committed before the reference to arbitration or after the receipt of the award. Reading the two parts of the answer together in the light of the observations in the judgments, it seems that what was held was that in the case of a reference invalid by reason of failure to obtain the Court's sanction, the order of reference itself was open to revision but not the decision of the Court overruling the objection. In view of the state of the authorities it seems to me to be very difficult to say what the legal position precisely is. But on the whole I am not satisfied that revision lies under the circumstances of this case. That is to say, I am not satisfied that the trial Court has been guilty of any illegality or irregularity which comes within the scope of Section 115.

7. In any case even if revision lies, I am not satisfied that it is a case in which the Court ought to use its extraordinary powers. There is no doubt that the minors have an alternative remedy by suit. The effect of Order XXXII, Rule 7(2), is that the reference to arbitration is voidable against all parties other than the minor. The reference and the award do not bind the minor but they do bind the adult parties thereto. Mr. Coyajee says if the minors' application be allowed the arbitration as a whole must fail because the award could not be split up. There could be no adjustment of shares as between the minors and the other parties and it would be impossible to say that the award is good in part and bad in part. But that seems to me to be a rather good reason for remitting the minors to their remedy by a suit.

8. The award and the Subordinate Judge's finding affirming it have also been attacked with reference to the arbitrators' finding that the defendants are liable to account for a sum of Rs. 21,000. This represents the plaintiff's half share of cash held to belong to the family and to have been kept in the family house. There are entries about this money in the accounts. Mr. Coyajee says that the cash balance was not carried forward after 1892 and there is no legal evidence to justify the finding that the defendants are accountable for it. The Subordinate Judge held that the arbitrators were acting within the scope of their authority in dealing with the question of the cash balance and that there was nothing to show that they had violated the rules of equity, justice and good conscience. It is obvious that he had jurisdiction to decide this point, and whether he was wrong or right there is no ground for interference in revision. The legislature has very clearly indicated its intention that the awards of arbitrators, on the merits of the case at any rate, should be final.

9. The only other point urged on behalf of the applicants was one which was not taken in the trial Court at all. It is said that the award deals with some properties not within the jurisdiction of the Court. That, however, would not necessarily invalidate the award as a whole. It would depend upon whether the part of the award dealing with such property was separable or not. In that connection I may refer to my judgment in Shamrao Ganesh Vaidya v. Shankar Laxmam Vaidya (1938) C.R. No. 261 of 1936. Moreover this is an application to revise the Subordinate Judge's order, not to revise the decree. If the point had been taken before the Subordinate Judge at the proper time, the difficulty could probably have been got over. In any case I cannot agree that this Court should interfere in revision on a point which has never been taken in the Court below.

10. For these reasons I hold that the rule should be discharged with costs.


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