1. This is a first appeal by five-defendants against an order of the learned Civil Judge of Dehra Dun under Schedule 2, Para. 17, Civil P.C. making an order of reference to two arbitrators appointed in accordance with an agreement. The agreement in question is dated 5th September 1933 and was drawn up at Mussoorie. The family pedigree in the judgment of the Court below shows that there were ten parties to the agreement, defendants 1 to 10 and also the single plaintiff Amar Nath. Defendants 6 to 10 were persons who had separated 40 years ago and they were not concerned with the agreement which was one for reference to arbitration of the question of partition of the property situated in Kitabghar, Mussoorie, and mauza Habri, tashil Kaithal, District Karnal, in the Punjab. Although the ten names of defendants are set out in the beginning of the agreement actually the document was signed by six of them including defendants 1, 2 and 4 but excluding defendant 3, Gur Prasad, and defendant 5, Madho Ram. The main point which was in issue before the Court below was issue 1 : 'Did Datta Mai sign this agreement as karta of the branch that includes Gur Prasad, Joti Prasad and Madho Ram and Hansraj?' The Court below has found this issue in the affirmative. Learned Counsel has argued against this finding. It is a fact that Datta Mai defendant 1 is the manager of the family comprising these persons which is joint and that in 1916 Datta Mai mortgaged joint family property on behalf of all these defendants and that these defendants, 1 to 5, are joint in mess and that the mill business in which the witness for defence, Harnam Das, is a partner with Datta Mai is a business in which Dattca Mal. represents the joint family. All these points were admitted by Harnam Das Datta Mal also manages the Mussoorie property and the defendants who did not sign are said to have been absent at the time at Habri in the Punjab whereas the agreement was signed in Mussoorie, which is at a very considerable distance from Habri. Learned Counsel points out that in signing the document Datta Mal did not state that he signed as manager of the joint family. That is a mere omission which we consider to be of little importance. The mere fact that two other members of the joint family did not sign the document does not in our opinion invalidate the agreement that Datta Mal signed on behalf of the joint family. We therefore consider that the Court below was correct in its finding and that the agreement was validly signed on behalf of all the members of the joint family.
2. Issue 2 was whether the parties abandoned the agreement by their subsequent actions? It is an admitted fact that there was no agreement to cancel the agreement of 5th September 1933. Mere notices between the parties do not appear to have any bearing on the point. We consider that this issue is also correctly found in favour of the plaintiff. Issue 3 does not arise on these findings. In first appeal when the appeal was admitted, with the leave of the Court the seventh ground was added and in this there is a reference to the alleged fact that one of the arbitrators had refused to act. A great deal of argument has been based on this point and learned Counsel relies on the plaint which states in para. 8 that the arbitrators and defendants 1 to 5 have been prolonging the matter and in the month of November 1935 they flatly refused to do anything. On this point the Court below stated:
No doubt practically nothing has been done so far probably because Harnam Das has refused to act unless all the signatures are obtained.
3. We do not think that it is at all definitely established that Harnam Das refused to act and in any case in view of the finding of the Court below that defendant 1 signed on behalf of the other members of the joint family it is probable that he would not refuse further. Now learned Counsel has referred to a number of rulings. Taking at first the Allahabad rulings reference was made to Muhammad Abid v. Muhammad Asghar (1886) 8 All. 64. This was in regard to the question of an agreement for arbitration where there was no provision for the appointment of an umpire, and this Court held under the Civil Procedure Code of 1882 that the Court had no power to appoint art umpire. That is apparently still the case under Schedule 2 as Para. 19 states that the foregoing provisions so far as they are consistent with any agreement filed under Para. 17 shall be applicable Para. 4 states that in a reference by the Court provision shall be made for the appointment of an umpire. There was no provision for the appointment of an umpire in the agreement in the ruling in question and therefore it was held and would still be held that the Court had no power to appoint an umpire. Now in the first place no such question arises here as the Court below has not appointed another arbitrator. In the second place a provision does exist in Para. 17(4) itself for the eventual appointment of an arbitrator should it become necessary. The ruling therefore has no bearing. The next ruling to which reference was made was Ahmad Nur Khan v. Abdur Rahman Khan (1919) 6 A.I.R. All. 48. This was a case where it is stated on page 192:
In other words the intention of the appellant is that the Court should order the arbitration proceedings to go on as before and should direct the arbitrator to carry out the settlement of this dispute.
4. On p. 193 it was mentioned that the arbitrator expressed this willingness to resume hiss functions as arbitrator provided the Court would give him an order to that effect.
In the first place this offer, if it could be treated a an offer, was only qualified. In the next place we do not think that the Court had any jurisdiction to give the arbitrator any direction to carry on the proceedings.... We hold that it would be quite impossible for the plaintiff to have an order such as he sought in the Court below.
5. Now one of the learned Judges in this ruling was Ryves J. and in a subsequent ruling Fazal Ilahi v. Prag Narain (1922) 9 A.I.R. 133 in which he was a member of the Bench, it was mentioned on. p. 525 that that ruling had nothing to do with the question raised in the case before the Bench which was similar to the present case. That means apparently that the former ruling was concerned with the point that the plaintiff desired an order that the arbitrator should act and that such an order could not be given. Now in the present case no such order has been given by the Court to an arbitrator who refused to act. There was merely the usual reference to an arbitration under Para. 17, Schedule 2. In the case reported in Fazal Ilahi v. Prag Narain (1922) 9 A.I.R. 133 it is mentioned that the arbitration had boon begun but it fell through owing to one of the arbitrators declining to act and that an application was made to the Court below for an order under Para. 5, Schedule 2 to appoint an arbitrator in place of the arbitrator who had retired and the Judge held that he had no such power. This Court laid down that if it were necessary the words in Para. 17(4) would give such power and that a reference to arbitration should be made. Reference was also made to a ruling of this Court in Bhagwan Das v. Gurdayal (1921) 8 A.I.R. All. 188. The law has been very fully laid down in 'that ruling and we agree with the observations which are contained in that ruling lat pp. 825 and 826. As the rulings of this Court take this view of the matter we do not think that we should go to other High Courts which have formed a different opinion. Reference was made to the view of the Madras High Court in M. Narayanappa v. M. Ramachandrappa (1931) 18 A.I.R. Mad. 28 at pp. 473 to 475, in which an arbitrator had died before an application was made under Para. 17 for a reference. The Court took what in our opinion with due respect is a very narrow view of Paras. 17 and 19, and by giving an extremely literal interpretation to these paragraphs it held that a reference would not lie. We consider that we should follow the Allahabad rulings and give the more natural interpretation to these provisions for an agreement to arbitrate resulting in a reference to arbitrators. For these reasons we dismiss this first appeal from order with costs.