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Ganga Dhar Vs. Indar Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All195
AppellantGanga Dhar
Respondentindar Singh
Excerpt:
.....appellant. it is well settled that an arbitrator must be careful to see that his award is a final decision on all matters requiring his determination. 12. a perusal of this case shows that unless there is an agreement between the parties which authorizes the arbitrator to make several awards, it is not competent to him to do so and that the whole award should be like a judgment complete, giving the decision of the arbitrator on all the points involved in the case. learned counsel for the appellant conceded before us that if the parties agreed between themselves that the arbitrators will have the power to give decisions in more than one award and then if the arbitrator gave awards seriatim, there would be nothing objectionable in that and the awards would be good. under the agreement of..........on 10th march 1934 ganga dhar and indar singh entered into an agreement by which they referred the matters in dispute between them to one karan singh who is the husband of their sister. in this reference they stated at one place:where there is a dispute between us about; the partition of properties moveable and immovable and about the accounts of profits of the property and cash, etc., on account of which there is a danger of litigation in future and which will entail loss and ruin of the parties.3. at another place it is stated,and we agree that whatever the arbitrator decides about the assets (tarka) of naubat singh, father of the parties, moveable and immovable properties and profits of the properties and cash, etc, from his sense of justice, the same will be acceptable to us like a.....
Judgment:

Rachhpal Singh, J.

1. This is a first appeal from order against the decision of the learned Judge of the Court below dismissing the objections raised by the defendant to the validity of an award made by an arbitrator. The facts which have given rise to the dispute between the parties briefly put are these. Indar Singh and Ganga Dhar are two brothers. Indar Singh made an application for partition of mahal Naubat Singh in the Revenue Court. The Revenue Court proceeded with that application and eventually lots were prepared and drawn. It appears that Ganga Dhar, defendant, drew a lot containing properties which were considered to he batter than the properties which went into the other lot. Thereupon Indar Singh applicant prayed the Collector that he may be permitted to withdraw his application. The Collector granted that application in spite of the objections raised by the opposite party. Ganga Dhar preferred an appeal to the Commissioner and was successful in getting an order under which the decision of the Collector was set aside. There was a further appeal by Indar Singh to the Board of Revenue which was however unsuccessful.

2. On 10th March 1934 Ganga Dhar and Indar Singh entered into an agreement by which they referred the matters in dispute between them to one Karan Singh who is the husband of their sister. In this reference they stated at one place:

Where there is a dispute between us about; the partition of properties moveable and immovable and about the accounts of profits of the property and cash, etc., on account of which there is a danger of litigation in future and which will entail loss and ruin of the parties.

3. At another place it is stated,

and we agree that whatever the arbitrator decides about the assets (tarka) of Naubat Singh, father of the parties, moveable and immovable properties and profits of the properties and cash, etc, from his sense of justice, the same will be acceptable to us like a decision of the Court and no party shall have any objection at any-case and at any time.

4. The arbitrator gave two awards in the case. The first award was made by him on 18th April 1934. The arbitrator decided the dispute between the parties in respect of mahal Naubat Singh and also about profits of the same mahal. A short time after, the arbitrator made a second award under which the other points in dispute between the parties were decided by him. It may be pointed out here that before the second award had been given by the arbitrator the defendant-appellant had sent him a written notice asking him not to take further proceedings in respect of the properties about which no award had been made by him.

5. Indar Singh, plaintiff, made an application in the Court of the learned Civil Judge praying that the award made by the arbitrator be made a rule of the Court. To this application several objections were taken by Ganga Dhar, defendant. In the view which we take of the case it is not at all necessary to refer to all of them. One of them was that no valid award had been made by the arbitrator. It was pleaded that it was not competent to the arbitrator to give his decision about the points in dispute piecemeal as had been done in this case. The contention therefore was that both the awards given by the arbitrator were not valid and therefore the application of the plaintiff should be rejected. The learned Judge of the Court below came to the conclusion that the two awards which, ware given by the arbitrators were quite good and that it was open to the arbitrator to give his decision piecemeal and as under the two awards all the points all widen parties were at variance had been decided the awards were good. It is against that decision that the present appeal has been preferred by the defendant.

6. We have heard learned Counsel on both sides and after consideration of the question have come to the conclusion that the appeal must succeed. Sir Taj who appeared on behalf of the appellant has contended baton us that the awards given by the arbitrator in the present case were no awards. He further contended that it was the duty of the arbitrator to give one complete award and as he failed to do so, the two awards which he gave piecemeal ware not good and therefore could not be enforced. We think that the contention is well founded and is amply supported by the authorities which have been cited before its by him. The first authority to which a reference might be made is in Comyn'a Digest, Vol. I, p. 666. It is laid down there as follows:

So an award ought to be entire; and therefore if it be made, part at one day and part at another though all be made before the time limited for it, it shall be void.

7. In Russell's Law of Arbitration, Edn. 11 p. 224 the statement of law on the point is stated to be as follows:

It is implied in all cases, unless something to the contrary is expressed, or may be inferred from the submission, that the arbitrator can make but one award : Gould v. Staffordshire Potteries Waterworks Co. (1850) 5 Ex. 214 at p. 223, per Parke, B. This must be one entire and complete instrument in itself; therefore if it is made part at one day and part at another, though each and every part is made within the time limited for the award it will be void (Comyn's Digest, Arb. E. 16.). If without special power, the arbitrator makes two awards, each deciding part of the matters referred, and not one entire award on all together, both may be set aside for there is no one final award on all the subjects : Winter v. Munton (1818) 2 Moore 723.

8. Sir Tej in his arguments addressed to us has also cited the view expressed in a book recently published on the Law of Arbitration in England and that is the Law of Arbitration by Quintin Mcgarel Hogg. At p. 137 the learned author states that:

The principle from Bacon'a Abridgement set out at the beginning of this chapter requires an award to be final as well as complete. It is not enough that the arbitrator should determine the issues referred to him and all of them; he must further determine them finally, so that in relation to them no further controversy can arise.

9. The view enunciated in the above mentioned books is amply supported by authority. In this connexion we need only refer to the case in at Gould v. Staffordshire Potteries Waterworks Co. (1850) 5 Ex. 214 p. 96 where Baron Parke made observations which clearly support the contention raised before us by learned Counsel for the appellant. Baron Parke observed as follows:.and this was contended for by analogy to the ordinary practice or submission to arbitration, where everything to be inquired into must be included in the award. But the ground for the rule is to be found in. the agreement of the parties to the submission, in which it is usually one of the terms that the arbitrator is to make but one award. That condition is implied in all cases, unless something to the contrary is either expressed in or may be inferred from the submission....

10. This view has been taken in several English cases and it is clear that there should be one and complete award which should determine the dispute between the parties finally. The law in India is the same. We may also refer in connexion with this matter to the case in Ganesh Narain Singh v. Malidas Koer (1911) 13 C.L.J. 399. Mookerji J. at p. 403 observed that:

It is well settled that an arbitrator must be careful to see that his award is a final decision on all matters requiring his determination. The obligation so to decide depends upon the question whether the submission requires that all or only Borne of the matters in dispute are to be determined by him.... The same rule has been adopted in the American Courts in a series of decisions.... The position of course is different where the arbitrator is empowered to make one or more awards at his discretion as in Dowse v. Cox (1825) 3 Bing 20, Wrighton v. Bywater (1838) 3 M. & W. 199 and the decision of this Court in Shoshemukhi Dabia v. Nobin Chunder Roy (1879) 4 C.L.R. 92, must be taken to fall within this class of cases, In the case before us however it was dearly the duty of the arbitrator to give a complete adjudication of the matters in controversy.

11. The case in Shoshemukhi Dabia v. Nobin Chunder Roy (1879) 4 C.L.R. 92 is also in favour of the appellant. It was laid down in that case that where an arbitration bond provides that the matters in dispute referred to the arbitrator may be taken up and dealt with seriatim and the award delivered bit by bit, it is not necessary under Section 327 of the Act 8 of 1859 that all the matters referred should have been decided before the first portion of the award dealing with some only of the subjects in dispute can be filed. At p. 94 we find the following observations:

Thirdly, the objection is again raised that the arbitrators did not decide all the points in dispute. The parties, it seems to me, were at liberty, if they chose, to allow the arbitrators to take up seriatim the matters in dispute, and so to say, to deliver series of awards.

12. A perusal of this case shows that unless there is an agreement between the parties which authorizes the arbitrator to make several awards, it is not competent to him to do so and that the whole award should be like a judgment complete, giving the decision of the arbitrator on all the points involved in the case. Learned Counsel for the appellant conceded before us that if the parties agreed between themselves that the arbitrators will have the power to give decisions in more than one award and then if the arbitrator gave awards seriatim, there would be nothing objectionable in that and the awards would be good. The question therefore for consideration is whether in the present case the agreement, under which Karan Singh was appointed an arbitrator, gave him powers to make several awards. We have perused the terms of the reference, and we do not think that it gives any power to the arbitrator to make more than one award. All that the agreement of reference says is that Karan Singh is appointed arbitrator and he is empowered to decide matters in dispute in any manner and the matter is left to his sense of justice. The parties agreed to accept his decision, but there are no words from which it can be gathered that the arbitrator was given a power by the parties to make more than one award. It is therefore clear to us that it was the duty of the arbitrator to decide all the points in difference between the parties and then to make his award. In the present case the arbitrator stated that he had forgotten to give his decision on some of the points and therefore it became necessary for him, after his having given one award, to give another. We do not think that this statement of the arbitrator can be accepted. Under the agreement of reference he was given powers to decide all the points in difference between the parties, He is a close relation of both the parties to the suit and his statement that he by mistake omitted to give an award in respect of the properties other than mahal Naubat Singh is clearly not correct.

13. We accept the contention of learned Counsel for the appellant that after the arbitrator had given his first award he became functus officio and it was no longer open to him to make a second award. The result is that both the awards made by the arbitrator are in fact no awards and cannot stand. We must there, fore hold that the decision of the learned Civil Judge on this point is not correct. The result is that this appeal is allowed, the order passed by the Court below directing that a decree be passed in terms of the awards set aside and the suit of the plaintiff is dismissed with costs in both the Courts.


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