Skip to content


Madho Prasad and ors. Vs. Kanhaiya Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1946All1
AppellantMadho Prasad and ors.
RespondentKanhaiya Lal and anr.
Excerpt:
.....board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - in view of all the facts and circumstances and the subsequent conduct of ragho prasad, we fepl satisfied that he was a consenting party and......the case in detail. the claim was for rs. 11,749-14-6. the suit was brought against madho prasad, beni prasad and ragho prasad who are brothers. ragho prasad was a minor. his eldest brother madho prasad was his certificated guardian, but as madho prasad refused to act as his guardian in the case bindeshari prasad vakil was appointed his guardian ad litem. bishambhar nath khazanchi was impleaded as defendant 4 on the ground that the hundis on the basis of which the suit was filed and which were originally in favour of bishambhar nath khazanchi had been transferred by him in due course to lala kanhaiya lal, the plaintiff. various objections were raised by the defendants and they pleaded that the hundis had been obtained by bishambhar nath khazanchi by undue influence and the said hundis.....
Judgment:

Malik, J.

1. This appeal has arisen out of a suit for recovery of money filed by one Kanhaiya Lal. It is now not necessary to set out the facts of the case in detail. The claim was for Rs. 11,749-14-6. The suit was brought against Madho Prasad, Beni Prasad and Ragho Prasad who are brothers. Ragho Prasad was a minor. His eldest brother Madho Prasad was his certificated guardian, but as Madho Prasad refused to act as his guardian in the case Bindeshari Prasad Vakil was appointed his guardian ad litem. Bishambhar Nath Khazanchi was impleaded as defendant 4 on the ground that the hundis on the basis of which the suit was filed and which were originally in favour of Bishambhar Nath Khazanchi had been transferred by him in due course to Lala Kanhaiya Lal, the plaintiff. Various objections were raised by the defendants and they pleaded that the hundis had been obtained by Bishambhar Nath Khazanchi by undue influence and the said hundis were not for consideration. It was further pleaded that an account should be taken from Bishambhar Nath Khazanchi of the income of certain property which was the subject-matter of a litigation which went up to their Lordships of the Privy Council, In the written statement the defendants alleged that it was to avoid having to render an account of the income of the property that Bishamhhar Nath Khazanchi transferred the hundis fictitiously to the plaintiff, a relation of his, and it was pleaded that the plaintiff had no right to file the suit. The learned Subordinate Judge of Agra decreed the suit on 25th May 1933 and he held that the plaintiff was a holder in due course. On all the other points also, the learned Subordinate Judge held against the defendants. Defendants 1 to 3 filed this first appeal. Bindeshwari Prasad who was the guardian ad litem of Eagho Prasad having refused to join in the appeal, the appeal on behalf of Ragho Prasad was filed under the guardianship of Mt. Indrani under the Court's order dated 23rd January 1934. The appeal was filed through Messrs. S.K. Dar, S.B.L. Gour and Din Dayal advocates.

2. In the year 1939 Ragho Prasad attained majority, but no application was made on his behalf for the removal of his guardian till several months later and it was on 13th March 1942 that this Court declared Ragho Prasad as major and discharged the guardian. Ragho Prasad on 11th March 1942, had engaged Mr. Gopal Behari, an advocate of this Court, who filed a vakalatnama. The Execution First Appeal No. 25 of 1935, has arisen out of certain proceedings in execution of the decree in this case. The two cases came up for hearing before this Court on 28th March 1944 and on that date an application was filed that the parties had agreed that all their disputes in these two cases be referred to the arbitration of Mr. Gopal Sarup Pathak and Mr. Shambhu Nath Seth, advocates of this Court, whose unanimous decision would be binding on them. The application, however, was signed by Beni Prasad one of the appellants, and by Pandit Gopi Nath Kunzru who signed himself as advocate for the appellants. Bishambhar Nath Khazanchi, one of the respondents, signed this application and Dr. K.N. Katju, advocate for Bishambhar Nath Khazanchi, also signed it. On the application being presented before a Bench of this Court, the two cases were referred to the arbitrators for their decision. The period originally given for making the award was three months from 29th March 1944. Pandit Gopi Nath Kunzru had been engaged on behalf of the appellants, that is Madho Prasad, Beni Prasad and Ragho Prasad minor through Mt. Indrani, and he had filed a memorandum of appearance in this Court on 2nd September 1941 on behalf of these appellants as instructed by Beni Prasad. On the strength of this memorandum of appearance Mr. Gopi Nath Kunzru was entitled to plead but he could not act. The arbitrators gave their award on 16th September 1944. On 24th July 1944, the date when the Court re-opened after the vacation, they filed an application for extension of time, but no orders were passed on that application (we have, however, by a separate order granted that application today) and on 16th September 1944 the arbitrators, as already stated, filed their award. Notice of the filing of the award was given to the parties by registered notices issued on 21st September and the objector received the notice sent to him on 23rd September 1944. An objection was filed on his behalf on 23rd October 1944 that he was not a party to this reference and he was not bound by the award.

3. The first point taken on behalf of the respondents is that this objection is barred by limitation. This point was evidently taken under a misapprehension that the notice of the award was given on 16th September 1944. In view of the fact that the notice was not served on the objector till 23rd September 1944 and he had thirty days under Article 158, Limitation Act, to file his objection the objection, was within time.

4. As regards the objection that Eagho Prasad was not a party to this reference, learned Counsel has drawn our attention to the fact that the application for reference to arbitration was signed only by Beni Prasad and by Mr. Gopi Nath Kunzru, who was only engaged to plead and had no authority to act on behalf of the appellants. Beni Prasad, however, had a general power-of-attorney in his favour executed by Madho Prasad for self and as the certificated guardian of Ragho Prasad. It was Beni Prasad who came into the witness box on behalf of the defendants. He stated:

I stopped my studies after father's death.... After father's death I took up work, elder brother was (?) a life of wandering about at Delhi. I obtained a mukhtarnama from Madho Prasad because the elder brother did nothing....

Beni Prasad was not only acting for himself, but for all the appellants. It is argued that on attainment of majority the authority of Beni Prasad must be deemed to have ceased, as a matter of law, as he had been appointed by the guardian of Ragho Prasad and no fresh power-of-attorney was executed by Ragho Prasad in his favour. We do not see why that should be so. The agency could terminate only in accordance with the provisions of Section 201 and other relevant sections of the Contract Act. To our mind, it must be held that Beni Prasad had authority to sign the application and agree to refer the case to arbitration on behalf of all the appellants. Pandit Gopi Nath Kunzru had been engaged while Ragho Prasad had not been declared a major by this Court and his guardian had not been removed. The mere fact that Ragho Prasad was declared a major on 13th March 1942 would not terminate the engagement of Mr. Gopi Nath Kunzru in the absence of any notice to him by Ragho Prasad terminating his engagement. Pandit Gopi Nath Kunzru was authorised to appear for all the appellants on 28th March 1944, the date when he appeared before the Court, and agreed to the case being referred to arbitration. He, however, not having been engaged to act, his signature on the application was unauthorised but his oral consent binds his clients. In view of all the facts and circumstances and the subsequent conduct of Ragho Prasad, we fepl satisfied that he was a consenting party and. agreed to the reference. The mere fact that Ragho Prasad did not sign the application for reference to arbitration would not be enough to invalidate the reference : see Umed Singh v. Sobhag Mal ('15) 2 A.I.R. 1915 P.C. 79 and Mohammad Sulaiman v. Mazhar : AIR1931All320 . Information that the matter had been referred to arbitrators, was given by Beni Prasad to both his brothers, Madho Prasad and Ragho Prasad. It is not denied by Ragho Prasad that he knew of this reference. The arbitrators fixed 27th August 1944 at 11-30 for the hearing of the cases and had sent notice to all the parties by registered post. Notice on Ragho Prasad was served on 22nd August 1944. It appears that Beni Prasad was not at Agra on that date and the notice addressed to him was redirected by Ragho Prasad to his address in Delhi. Beni Prasad appeared before the arbitrators on that date and from the proceedings before the arbitrators it appears that Beni Prasad stated that Ragho Prasad knew of the arbitration proceedings and in fact it was he who had redirected to Delhi the postcard sent by Mr. Kunzru informing him of the date. It further appears from those proceedings that Mr. Din Dayal, one of the advocates, who had filed the appeal, appeared before the arbitrators, and stated that he represented? Ragho Prasad. The statement made by Mr. Din Dayal is as follows:

Mr. Din Dayal states that he holds the brief of Mr. Gopal Behari who represents Ragho Prasad and is conducting the case on behalf of Ragho Prasad also.

Learned Counsel appearing for Ragho Prasad before us to-day has challenged this statement and has said that it was not correct that Mr. Din Dayal had the brief of Mr. Gopal Behari. Even if that be so, Mr. Din Dayal was entitled in his own right to represent Ragho Prasad before the arbitrators. Mr. Din Dayal had been engaged by or on behalf of all the appellants and had filed the appeal on their behalf. His engagement had never been cancelled. The mere fact that Ragho Prasad attained majority. in 1939 and his guardian was removed in 1942 was not enough to terminate the engagement of Mr. Din Dayal. He had been engaged on behalf of Ragho Prasad by his guardian during his majority. Order 3, Rule 4, Civil P.C. (Act 5 of 1908), provides that no pleader shall act for any person in Court unless he had been appointed for the purpose by a document in writing and signed by such person, and every such appointment shall be filed in Court

and shall be considered to be in force until determined with the leave of the Court, by a writing signed by the client or the pleader as the case may be, and filed in Court, or until the client or the pleader dies or until all proceedings in the suit are ended so far as regards the client.

It is, therefore, clear that Mr. Din Dayal was entitled to act and represent Ragho Prasad in the proceedings before the arbitrators. In this view of the matter we are of opinion that Ragho Prasad was a party to the reference and he also took part in the proceedings before the arbitrators. After the award, with which apparently he was dissatisfied, he thought that he had enough loophole, by reason of the fact that he had not signed the application and Mr. Gopi Nath Kunzru had merely filed a memorandum of appearance, to raise the objection that he was not represented.

5. Another point raised on behalf of the appellants is that Kanhaiya Lal plaintiff was not a party to this reference. Before the trial Court the plea taken on behalf of the defendants was that Kanhaiya Lal was a mere benamidar for Bishambhar Nath Khazanchi and Bishambhar Nath Khazanchi in order to avoid certain defences being raised by the defendants had dishonestly transferred these hundis in favour of Kanhaiya Lal and made him file the suit. The learned Subordinate Judge had held that Kanhaiya Lal was a holder in due course and did not accept the allegations made by the defendants. After the decision of the Court below Bisambhar Nath Khazanchi and Kanhaiya Lal fell out and there was a litigation (suit No. 25 of 1938, Civil Judge's Court, Agra). The case was referred to arbitrators. In those proceedings it was held that Bishambhar Nath Khazanchi was the real owner of these hundis. After the decree in that suit an application was filed in this Court on behalf of Bishambhar Nath Khazanchi on 17th April 1939 that he was the real plaintiff and Kanhaiya Lal was a mere benamidar for him and that he should be allowed to defend this appeal and support the judgment of the lower Court. That application was granted by an order of this Court elated 10th January 1940. In view of the decision in suit No. 25 of 1938 Kanhaiya Lal plaintiff has no longer any interest in these proceeding's and the real plaintiff must now be held to be Bishambhar Nath Khazanchi. The fact, therefore, that Kanhaiya Lal did not sign this reference to arbitration is immaterial.

6. We, therefore, dismiss the objection filed on behalf of Ragho Prasad and direct that a decree in terms of the award may be passed. We, however, make no order as to costs of these proceedings. The arbitrators have not yet been paid anything for the work done by them. We fix the fee of the arbitrators at Rs. 500 which sum will be paid by Bishambhar Nath Khazanchi within two weeks, and no decree will be prepared till the amount is paid.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //