1. There was a first appeal pending before this Court by Kunwar Puran Singh and Nitrapal Singh, plaintiffs, against defendants, Musammat Bahal Kunwar and Musammat Javitri Kunwar. These persons are related as follows:
MAHTAB SINGH |Musammat Bhan Kunwar died in 1895| _________________________| |Puran Singh Narain Singhplaintiff No. 1 died in 1922| =MusammatNitrapal Singh Bahal Kunwar plaintiff No. 2 defendant No. 1 = Musammat Javitri defendant No. 2.
2. The plaintiffs sued for declaration that they were owners in possession by right of survivorship of the whole of the property of Narain Singh alleging that Narain Singh and the plaintiffs had formed a joint Hindu family. The defendants resisted the suit on the ground that Narain Singh died as a separated Hindu. This suit was brought in 1925 On 8th February, 1926, the plaintiff No. 2 and mukhtari-am of plaintiff No. 1 and mukhtar i am of Musammat Javitri Kunwar made an application in Court asking for the names of the plaintiffs to be recorded in place of Musammat Javitri Kunwar over her share of the property of Narain Singh and stating that in lieu of a payment of Rs. 180 every six months from the plaintiffs to her she agreed that she would have no right of ownership or possession in the disputed property. On 17th February 1926, Musammat Javitri Kunwar applied to cancel the said compromise on the ground that it was made by her mukhtar-i-am without her consent or permission That application was rejected. But the learned Subordinate Judge held that the compromise did not amount to an alienation by Musammat Javitri Kunwar of her right as a widow in the estate of Narain Singh in favour of the plaintiffs He further added: 'This may, at the best be treated as a surrender, sufficient to effect a valid acceleration of her estate. In that view of the case the other co-widow would succeed to that estate by right of survivorship.' This is a proposition of law to which we do not agree.
3. The Subordinate Judge dismissed the suit of the plaintiffs holding that the family was not joint and that Narain Singh died as a separated Hindu, and that the widows had a right to hold as Hindu widows for their lifetime.
4. When the appeal was pending in this Court an application was filed for a reference to arbitration, This is on the basis of a registered agreement executed by the parties or their mukhtar-I-ams and dated 12th April, 1929. It is regrettable that the words of this reference to arbitration, are extremely vague and, in our opinion, not at all in accordance with para, 1 of the second Schedule of the Civil Procedure Code. That paragraph lays down that where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration, they may apply to the Court. We consider that any such agreement between the parties should clearly set forth what are the matters in difference between them on which the arbitrators are required to arbitrate. Such points should be set forth clearly in the form of issues. On the contrary, the agreement of 12th April, 1929, is couched in vague language and makes no attempt to set forth the points at issue. There is a reference to the relinquishment by Musammat Javitri Kunwar, but that reference merely says that the arbitrators are to decide about the relinquishment. In no place is it set forth in this agreement that the arbitrators were to decide between Musammat Bahal Kunwar and Musammat Javitri Kunwar whether any rights had accrued to Musammat Bahal Kunwar from this relinquishment alleged to have been made by Musammat Javitri Kunwar.
5. Further this agreement to refer to arbitration sets forth that any matters which might in future arise between the parties might also be referred to the decision of the arbitrators on application of the parties. There is no provision in the Second Schedule for a reference to arbitration of that nature.
6. The award of the arbitrators was given on 7th November, 1929, and is now before us and objection has been taken to the award on behalf of Musammat Javitri Kunwar. The award contains the following passage: 'During the pendency of this suit MusammatJavitri Kunwar defendant executed a deed of relinquishment in respect of all her rights in favour of the plaintiffs, but, in our opinion, the relinquishment intfavour of the plaintiffs is invalid as has already been held by the Court of the Subordinate Judge of Moradabad also. We, therefore, decide that Musammat Bahal Kunwar defendant is the exclusive heir to all the property left by Narain Singh, and that Musammat Javitri Kunwar defendant is only entitled to maintenance. As regards Musammat Jayitri Kunwar we accordingly decide that Musammat Bahal Kunwar aforesaid and her heirs shall duly pay to Musammat Javitri Kunwar for her lifetime the sum of Rs. 360 annually. The entire property of Musammat Bahal Kunwar shall stand pledged and hypothecated against the amount of maintenance.'
7. We consider that there was no authorization in the agreement to refer to arbitration for the arbitrators to decide any matter between Musammat Bahal Kunwar and Musammat Javitri Kunwar defendants. The mere fact that the Subordinate Judge had made a statement of his opinion on the relative rights of these two widows in his judgment does not authorise the arbitrators to come to any decision on this point. In the decree of the Subordinate Judge there was no such order as regards the rights of the defendants, nor could any such matter have been embodied in the decree. Accordingly that matter not being a matter in the case and not being in the reference to arbitration could not legally be decided by these arbitrators.
8. Further the portion of the award beginning with the paragraph 'in addition to the dispute which is the subject-matter of the suit and which has been mentioned above, the parties by means of applications in writing submitted other objections before all of us the arbitrators down to the end of the award deals with matters which admittedly were not in the reference to arbitration. Accordingly those matters are matters which the arbitrators could not validly decide.
9. It appears to us that the correct course for us is to act under para. 12(a) of the Second Schedule of the Civil Procedure Code and separate these matters which have been decided by the arbitrators on matters which were not referred to arbitration from the rest of their award, and correct the award accordingly.
10. We, therefore, correct the award in this manner that the decision in the award between the two defendants in regard to the rights of those two defendants inter se, and in regard to the payment of maintenance by defendant No. 1 to defendant No. 2 will be deemed expunged from the award and also those matters which come in the portion of the award subsequent to the words 'in addition to the dispute which is the subject-matter of the suit etc,' already quoted.
11. The operative portion of the award which is left is that the family of Narain Singh was not a joint family, and that the suit of the plaintiffs should be dismissed and that each party should bear their own costs. We accordingly accept the award corrected as stated above and direct that a decree be passed in these terms of the award to the effect that the suit of the plaintiffs be dismissed and each party pay their own costs.