1. This second appeal arises out of a suit brought by the plaintiff-appellant on a mortgage dated 7th November 1910 executed by one Ganga Ram to Mt. Lachho and Ram Narain. The successors-in-interest of the mortgagor are defendants 1 and 2. Defendants 13 and 18 are said to be transferees of the mortgagee Ram Narain. The plaintiff sues as the successor-in-interest of Mt. Lachho. The suit was resisted only by defendants 13 and 14 as successor-in-interest of Ram Narain, the co-mortgages of Mt. Lachho.
2. The plaintiff based his claim to represent Mt. Lachho on the following facts. He produced an award dated 1st August 1912 which appears to have awarded the interest of Mt. Lachho in this deed to one Anrudh Prasad. He says that when Anrudh Prasad died, his interest devolved on his widow Mt. Sheorani and his adopted son Ambika Prasad. They sold him that interest by a deed dated 22nd October 1925. As noted above, the only persons to resist this suit were the successors-in-interest of Mt. Lachho's co-mortgagee Ram Narain.
3. The trial Court dismissed the suit because the plaintiff did not manage to procure the attendance of the arbitrator who gave the award, namely Chaudhri Surajpal Singh, and held consequently that the award had not been proved It also held that Ambika Prasad was not the adopted son of Anrudh Prasad.
4. There was an appeal, and the lower appellate Court very properly on the facts sent the case back to give the plaintiff a further chance of procuring the attendance of the arbitrator Surajpal Singh The arbitrator gave his evidence in Court, and apparently with reluctance had to admit the fact of his being asked to make the award and of his having made it.
5. When the case came up after his evidence had been obtained, the Subordinate Judge in whose Court the appeal was pending had been replaced by another Subordinate Judge. The latter dismissed the appeal and the suit on the ground that
mere proof of the award without proof of the terms of the agreement which was admittedly reduced to writing does not advance plaintiff's claim any further.
6. He also held that the award itself showed that Ram Narain, the co-mortgagee, was the only heir of Mt. Lachho, the other nominee.
7. The present appeal is based on the contention that the award alone was sufficient evidence of its having been made and of its being in order, and that at any rate, in the circumstances, the lower appellate Court should have given the plaintiff an opportunity of proving the reference to the award.
8. The Subordinate Judge is clearly wrong in stating that an arbitration award is no evidence of the fact of the award and of the validity of the award in the absence of the agreement to refer to arbitration By his remark that the agreement was admittedly reduced to writing I p.esumq that the Subordinate Judge invokes Section 91, Evidence Act. Section 91 is not applicable. The agreement to refer to arbitration was not a contract, grant or other disposition of property. The principle that acts done by persons in a judicial or quasi judicial capacity are presumed to have been done correctly until the contrary is proved will apply. In this case we have the award proved, and it was for the party denying its validity to bring some evidence to cast suspicion upon it. In this case the respondents instead of themselves examining the award and the terms of reference to see if the award could be impugned on the ground that it was not in accordance with the reference, contented themselves with merely putting the plaintiff to proof of the award. He proved the award, and then the Subordinate Judge dismissed the suit, because he had not proved the reference. The plaintiff could rely on the fact of the award as raising the presumption that there was a reference, and that the award was in accordance with reference.
9. The appellant's counsel has not had a translation of the award made as required by law, and if it had been necessary to examine the award his appeal might have been dismissed on this ground, but I find that the judgment of the lower Court admits the award and admits, by its failure to criticize that award, that it purported to be in pursuance of an agreement refer to arbitration, It is not therefore, necessary to examine the award to see whether it recited the fact of the agreement to refer.
10. For the above reasons, I allow this appeal. At the same time I desire to punish the plaintiff in the matter of costs for the slovenly way in which the plaint was drafted and the suit conducted. In his plaint he failed even to mention the award. The consequence was that the defendant did not get an opportunity by his written statement to contest the fact or the validity of the award. Again it appears from the evidence of the trial Court that the plaintiff was negligent in summoning such evidence as was necessary to prove the award and its validity. In allowing this appeal, therefore, I decree the suit but only award half costs throughout to the plaintiff.