Tudball and Piggott, JJ.
1. These two appeals arise out of an application under paragraph 20 of the second schedule to the Code of Civil Procedure. They are heard together and this Judgment will cover both appeals. The parties to this proceeding are a son of Gulab Ram lani, eight grandsons of the same and the widow of a deceased son, Santosh Ram Jani. Disputes arose in the family and the members agreed to partition the property by means of arbitration. At the time of the first submission to arbitration in October, 1911, Adit Ram Jani, one of the sons of Gulab Ram Jani, was alive. An agreement was drawn up on the 11th of October, 1911, and signed by all. It set forth what the parties desired the arbitrators to do and the powers given. Three persons were appointed.
2. Before the latter were able to do anything, Adit Ram Jani and one of the arbitrators died. Therefore a fresh agreement was executed submitting the matter to the decision of the two remaining arbitrators. Then one of these refused to act and so a third agreement was drawn up on the 25th of September, 1912, and signed by all, submitting the matters to the decision of the third remaining arbitrator, Pandit Lakshmi Kant. This agreement contained a reference to the first agreement of October, 1911, and set forth that the arbitrator was to act under the conditions set forth in the latter.
3. An award was made on the 21st of April, 1913. The respondents, Lakhmi Ram Jani and his son Ganesh Ram Jani, then filed an application under paragraph 20 of the second schedule to the Code of Civil Procedure, that the award be filed and that a Judgment and decree be passed in terms thereof.
4. Notice was issued to all the parties. Objections were filed by the appellants now before us. They were heard and decided, being disallowed, and the award was ordered to be filed. The court in the course of the same order passed Judgment on the 8th of April, 1914, in accordance with the award and a decree followed in due course on the 28th of May, 1914. The present appeals are directed against the order of the court below that the award be filed.
5. A preliminary objection is taken that the appeal is incompetent in that a decree had been passed and there was no plea that it was in excess of, or not in accordance with, the award and therefore under paragraph 21, Clause 2, no appeal can lie on any other ground.
6. In our opinion there is no force in this objection. The appellants are the 2nd and 5th parties to the submission to arbitration. The appeals, in both substance and form, are appeals against the order directing the award to be filed. Section 104(f) of the Code, in plain and clear terms, grants a right of appeal against an order filing an award in an arbitration without the intervention of the court. These appeals have been filed within the period allowed by law, and it is manifest that the bare fact that the court below has passed a Judgment and a decree upon the award cannot take away the right of appeal from the order which the law allows.
7. The point is covered by the decision in Khettra Nath Gangopadhyay v. Ushabala Dasi (1914) 18 C.W.N. 381. It is obvious that if the order of the court below filing the award be set aside, the Judgment and decree based thereon must also fall to the ground; just as a final decree in a suit based on a preliminary decree falls, if on appeal the preliminary decree be set aside and the suit dismissed, vide Kanhaya Lal v. Tirbeni Sahai (1914) 12 A.L.J. 876. We therefore disallow the preliminary objection.
8. Coming to the grounds of appeal, we note that they are the same in both appeals except that Musammat Hari Kunwar takes the additional plea that it is not proved that she executed the agreement dated the 12th of December, 1912, appointing Pandit Lakshmi Kant Pande sole arbitrator.
9. On this point the court below has held against her and we fully agree with that decision.
10. The two first agreements were drawn up in English and the third in Urdu. Admittedly, it bears the lady's signature, which followed the signatures of all the other parties to the submission. The lady swears that she had never agreed that Lakshmi Kant Pando alone should act as arbitrator and that the document was blank when she signed it, except for the signatures; that she was told it was to bear a document on it which would merely expedite the decision of the dispute, and she signed because the others had already signed.
11. Her allegation is disproved by the evidence of Pandit Lakshmi Kant and of the witness Salig Ram. The latter is direct evidence of the execution by her, and the former shows that the arbitrator, when he examined her, and recorded her statement, was careful enough to ask her before hand if she had agreed to his acting as sole arbitrator. It is true that he made no record of her reply, but the witness is a man of good education and good position in life against whose honesty and honour not a word is said. He is a member of the bar in good practice at Benares, and we agree with the court below that his word is to be trusted. It is urged that he wrote a letter to the second arbitrator on the 26th of December, 1912, asking him to come and join in the arbitration and that the court below wrongly refused to allow the appellant to prove this. This letter was put forward at a late stage of the proceeding in the court below and moreover was not put to the witness in cross-examination to enable him to admit and explain it or to deny it.
12. We hold that Musammat Hari Kunwar did execute the submission of the 25th of December, 1912, and that she willingly and knowingly did so.
13. The other grounds of appeal are-
(1) That the arbitrator made three separate awards and had no jurisdiction to do so, (2) that the award is so indefinite as to be incapable of execution, (3) that the award is bad in that the arbitrator has decided points not referred to him, and (4) that he has omitted to decide all the points referred to him.
14. These are common to both appeals. It will be noticed that they raise points of the nature of grounds mentioned or referred to in paragraphs 14 and 15 of the second Schedule to the Code of Civil Procedure.
15. Paragraph 21 of that Schedule lays down that if any such grounds are not proved the court shall order the award to be filed. It is obvious that if any such ground is proved the court cannot order the filing of the award but must leave the parties to their remedy by a regular suit.
16. The power of the court to pass such an order is strictly limited by the terms of paragraph 21 of the Schedule.
17. We take the points seriatim.
(1) In regard to the so-called three awards we agree with the court below that there was only one award, viz. that of the 2lst of April, 1913.
18. The arbitrator seems to have taken very great care and to have expended a great deal of trouble and time.
19. On the 31st of March, 1913, he drew up a long proceeding setting forth the principles on which he intended to base his award and partition the property and his reasons there for. This he showed to the parties whereupon some of them filed objections. On the 20th of April, 1913, he drew up another long proceeding dealing with and disallowing these objections.
20. He then, on the 21st of April, 1913, drew up his award which is the award in the case. The other two documents are not awards in the true sense of the word and there is no force in this point. We reject it.
(2) The next is the plea of indefiniteness. This is based on a small clerical error apparent on the face of the award, but which does not in our opinion make the latter either indefinite or incapable of execution.
21. In dividing the family property the arbitrator allotted a certain house to the second party to the submission to arbitration. This was in the possession of the first party at the time. The arbitrator further ordered the second party to pay a certain sum of money to the first party within a fixed period.
22. He then laid down a further condition that possession of the house in question was not to be taken by the second party unless and until the latter had paid the said sum of money to the first party. In writing down these conditions in his award he made a slip and wrote 'unless the 'third' party pays this sum to the first party they will not be entitled to take posession of the house.' This was clearly only a slip, but the meaning of the word is clear. The house was allotted to the second party and the sum of money was ordered to be paid by that party to the first party who was in possession of the house.
23. There is no force in the appellant's contention.
(3) The next plea is that the award is bad in that the arbitrator decided points not referred to him.
24. This plea relates to two matters entered in the award.
25. The first is as follows: Musammat Hari Kunwar is the widow of one of the deceased sons of Gulab Ram Jani, and as a Hindu widow in a joint family is entitled to rights of maintenance and residence in the family house. There was also a dispute as to her stridhan. In the agreement to submit to arbitration it was set forth that she was entitled to stridhan, maintenance and right of residence, and the arbitrator was authorized to decide as to all these as he pleased.
26. The arbitrator awarded to the lady a lump sum to cover her stridhan and her maintenance, giving to her full power to deal with it as she pleased during her life-time or by will. In other words he made her absolute owner thereof.
27. He then added that if she died intestate, leaving any portion of the sum, that balance would go to her husband's heirs in equal shares.
28. It is urged that he had no power to decide this question as to the inheritance of what she might thus leave on her dying intestate, as it was not a question in dispute.
29. In the first place what he has thus stated is apparently merely what the Hindu law lays down to be the law in case of this class of stridhan; and in the next place it is a matter which can be entirely separated without affecting the determination of any of the matters referred.
30. It was, however, we consider, merely an expression of the arbitrator's opinion as to the law which would govern the inheritance to the property if she were to die intestate.
31. We do not think that there is any force in this contention. The second point relates to that part of the award where the arbitrator makes provision for the marriage expenses of Data Ram, one of the parties to the submission. It is urged that there was no reference on this point and there ought to have been no decision. With this we cannot agree. The arbitrator was given power to ascertain what was the divisible property of the family and to divide it up, as he thought best, among the members of the family. He saw that the marriage expenses of the other members of the family had been met, as is usual, out of the family income. He saw that Data Ram had not been married. He therefore thought it just when dividing the property to allot to Data Ram an extra sum to enable him to meet his marriage expenses. If he had given no reason for thus awarding this sum of money to Data Ram, his award could not have been touched. The bare fact that he gave his reason does not vitiate it, and he cannot be said to have decided a point not referred to him. We reject this plea also.
32. The fourth and last objection is that the arbitrator has failed to decide all the points r of erred. This plea is based on three points; (1) that he has failed to partition certain property at Jaipur, (2) that he has passed no award as to the expenses of the Gaya, Sradh and Brahman Bhojan, and (3) that he has failed to decide as to the widow's (Musammat Hari Kunwar's) right of residence.
33. As to the first, the arbitrator's evidence shows that when in the course of his inquiry he came to the Jaipur property, the parties all informed him that it no longer belonged to them, as they had created a waqf, dedicating this property to a certain God. He therefore did not partition that which was not divisible. In the agreement the parties gave him power to ascertain the divisible property and to divide it. They clearly all stated that this was not divisible having been dedicated. His evidence is clear on the point and can be trusted. He therefore has not failed to do his duty in respect to this property.
(2) In regard to the expenses of the Gaya Sradh and Brahman Bhojan, these are expenses which had been met in the past out of the monies in the family chest. The arbitrator has testified (and we believe him as the court below did) that the parties told him that he need pass no orders in respect to these as they would each separately spend what they could afford from time to time under these heads. Such expenditure is not fixed in amount. What a man spends under these heads depends oh the length of his purse and his temperament. The parties having deliberately withdrawn the point cannot be now heard to say that there has been no decision thereon.
(3) Lastly, we come to the question as to the widow's right of residence. Here unfortunately we come to what we are forced to hold is a flaw in the award.
34. We have noted above that in the agreement executed by the parties it was distinctly laid down that the arbitrator was to decide as he pleased in regard to the widow's stridhan, maintenance and right of residence. The arbitrator's evidence shows that in the course of his inquiry he questioned Musammat Hari Kunwar. He asked her what she wished to be arranged for her benefit. She made many demands and in the course of her statement she said that she had always lived in the house, or that portion of the house, occupied by Rabi Ram Jani, the father of the appellant Harakh Ram Jani, that she wished to live in that house-hold and would not live anywhere else, Rabi Ram Jani was questioned as to her demands. He did not agree to at least one of them, but in regard to her wish to live with him he expressed a full consent. None of the other parties expressed any objection. Admittedly the award is silent on the point and does not give the widow a right of residence in any part of the family house, nor allot to her any sum as compensation in lieu thereof.
35. It is urged that the parties having come to an agreement on the point it was not necessary for the arbitrator to pass Judgment on it and that there was a practical withdrawal of the point by the parties from his jurisdiction. With this it is impossable to agree. The fact that she asked for something and that Rabi Ram acquiesced in her demand and no one else objected made the arbitrator's task simple; but it did not absolve him from passing judgement. When parties to a suit compromise, either the suit is withdrawn or a decree passed in terms of the compromise. There was no withdrawal in the present case, but at the utmost a statement by the parties giving the terms of a compromise. Where there is no specific withdrawal of the suit, the court must pass a decree in accordance with, the compromise effected between the parties.
36. In our opinion the arbitrator ought in his award to have decided the question of the widow's right of residence and the manner in which it was to be satisfied.
37. As he has not done so, one of the matters referred has been left undetermined by the award and this being so, that court, in view of the language of paragraph 21; of the second schedule, ought to have rejected the application made under paragraph 20.
38. We therefore allow the appeal and set aside the lower court's order and reject the application. The appellant will have her costs in both courts.