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Mohammad HusaIn Vs. Mt. Nanhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All242
AppellantMohammad Husain
RespondentMt. Nanhi and ors.
Cases ReferredRaghunath Shukul v. Ramrup Raut A.I.R.
Excerpt:
- .....could be upheld by the court below. ,3. on the first point it seems clear from the petition of reference that saddu was not a party to the reference. nobody signed for him and nobody professed to verify the petitions before the court on saddu's behalf.4. on the second point it appears that ' the arbitrator made an award granting a joint decree for money against all the defendants and against the property mortgaged by chhedda. it is urged on the authority of raghunath shukul v. ramrup raut a.i.r. 1924 pat. 33 that it was open to the court below to differentiate and exempt the share of saddu and to make a decree against the rest. the case quoted however was entirely different from the facts before us. there the several defendants were severally and separately in possession of different.....
Judgment:

Mukerji, J.

1. This is an application in revision against an order passed by a learned Munsif, dated 1st April 1930, by which he set aside an award and directed that the suit should proceed in his Court. It appears that the plaintiff paid off a certain debt due by these persons, Mt. Nanhi and her two children Amir Husain and Allah Dei as the heirs of Chhedda. The debt was a mortgage debt for Rs. 500 and the plaintiff paid off the debt on the assurance that his nephew would be married by the mother to the daughter and the mother would relinquish her share in the inheritance in favour of Mt. Allah Dei, the proposed wife of the plaintiff's nephew. After the payment, the negotiations fell through and the plaintiff brought this suit out of which this revision has arisen. During the course of the hearing Amir Husain died, and he was succeeded by his mother's sister and paternal uncle Saddu, a brother of Chhedda, the father and mortgagor. It was agreed that there should be a reference to arbitration, and that one Mr. Zahiruddin should decide the matter in difference among the parties. Mr. Zahirud-din submitted an award and an exception was taken to it by Saddu that he had made no reference and he was not bound by the award.

2. Two points have been taken in this Court : firstly, Saddu was, as a matter of fact, a party to the reference to arbitration and secondly even if he was not he could be exempted from his proportionate liability as the plaintiff proposed to do so and the rest of the award could be upheld by the Court below. ,

3. On the first point it seems clear from the petition of reference that Saddu was not a party to the reference. Nobody signed for him and nobody professed to verify the petitions before the Court on Saddu's behalf.

4. On the second point it appears that ' the arbitrator made an award granting a joint decree for money against all the defendants and against the property mortgaged by Chhedda. It is urged on the authority of Raghunath Shukul v. Ramrup Raut A.I.R. 1924 Pat. 33 that it was open to the Court below to differentiate and exempt the share of Saddu and to make a decree against the rest. The case quoted however was entirely different from the facts before us. There the several defendants were severally and separately in possession of different plots of land, and it was held that if some of the defendants holding separate property were not bound by the award their shares could be exempted. Here we find that the decree was a joint one, and unless we sit down to calculate the different shares, distributable to the different heirs we cannot uphold the award even partially. In the circumstances we do not think that we should interfere in revision. In the result the application fails and is hereby dismissed with costs.


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