1. This appeal under Section 39 of the Arbitration Act is directed against an order dated 6-11-1961 refusing to set aside an award. Material facts are as follows.
2. Two brothers Basantilal and Keshrimal who are residents of Shajapur formed a joint Hindu family possessing Joint Hindu family property. Kesharimal has two sons Vimalchand and Paraschand whereas Basantilal has two sons Ashok and Sudarshan. The family continued to be joint when in the year 1958 disputes cropped up between the two branches of the family represented by the two brothers Keshrimal and Basantilal. On 14-7-1958 the dispute as to their joint family property and its division was referred to arbitration of four arbitrators Poonamchand, Mishrilal, Kanhaiyalal and Gangabisan. Reference to arbitration was drawn up in writing, signed by Keshrimal and his sons as well as by Basantilal.
3. On 16-7-1958 all the arbitrators except Poonam Chand were present. They wrote to the latter that either he should keep himself present at each sitting or authorize the rest to carry on proceedings as to recording of evidence etc. in his absence. On 8th April 1959 while the matter was in the hands of these arbitrators Mishrilal informed that he was no longer able to participate in the proceedings in his capacity as an arbitrator. Thereupon the two brothers Kesharimal and Basantilal agreed afresh to submit the dispute to the three remaining arbitrators only. The original agreement of reference though drawn up in the name of these two brothers bore the signatures of the two sons of Kesharimal as well. But in the agreement which was made later on by the two brothers for referring the dispute to the remaining three arbitrators no signatures of the sons of Kesharimal were obtained. However even this submission became futile as Poonamchand later expressed his inability to work as an arbitrator. Ultimately by the third agreement D/-12-9-1959 the two brothers Kesharimal and Basantilal referred the dispute to arbitration of the two remaining arbitrators namely Kanhaiyalal and Gangabisan. Upon this agreement also the sons of Keshrimal did not append their signatures as they had done in the case of reference dated 14-7-1958.
4. The arbitrators then gave their award on 12-9-1959. On the same date the two brothers put their signatures of acceptance below the award. The two days later i.e. on 14-9-1959 Kesharimal addressed a notice to the arbitrators complaining that although they had obtained his signature to the award, they had not explained to him the contents of the same; that thereupon he had sent Puralal and on his going through it Puralal had informed him about its terms. According to him the award erroneously mentioned about his having accepted certain facts when factually he had not; that they had also not recorded complete evidence which he wanted to adduce; that they had not secured the signatures of his son of the submission. The sons of Kesharimal also gave notice dated 14-9-1959 questioning the award.
5. On 9-10-1959 Kesharimal and his two sons submitted an application in the Court of Additional District Judge Shajapur seeking to set aside the award on the grounds:--
(1) That whereas under submission dated 14-7-1958 four arbitrators had been appointed, the award was given only by two of them and that too after a period of one year and two months. In modifying the constitution of the body of arbitrators by dropping two of them the signatures of all parties to the original reference had not been taken.
(2) That the arbitrators had not followed the rules of natural justice.
(3) That the award was ready from before and all that the arbitrators did was to affirm it no sooner they secured the signatures of Basantilal and Kesharimal.
6. The learned Judge who heard these objections held that the reference was quite lawful as Kesharimal and Basantilal as heads of their respective branches had sufficient authority to refer the dispute as to their joint family property to arbitration. On the question of they having heard some evidence behind the back of the parties he held that the evidence related to hot talk that had taken place between the parties about two years prior to the reference when Basantilal had pressed for partition. The evidence, according to the learned Judge, was quite irrelevant and could not have any way affected the award to the prejudice of Keshrimal and his sons. The learned Judge also held that the parties had not expressed their desire to adduce evidence on any point of difference. According to the learned Judge all that Kesharimal wanted to prove by examining witnesses was that Basantilal had threatened to kill him and his sons. There was therefore no misconduct on the part of the arbitrators in not giving opportunity to the parties and particularly Kesharimal to adduce evidence on any point of dispute. He therefore held the award to be good and passed a judgment in accordance with the award. Decree followed.
7. It is now contended in this appeal that the award is bad because
(1) The sons of Kesharimal had not put their signatures to the reference dated 12-9-1959.
(2) The initial reference was made by four persons for the arbitration by four arbitrators. When there was no award by them any subsequent award does not amount to a binding award as against them.
(3) The arbitrators recorded evidence behind the back of the parties.
8. In my opinion none of these contentions have any weight. It was perfectly competent for the two heads of the branches to refer the dispute as to the division of their joint family property to arbitration by only two arbitrators in place of four. In Kanshi Ram v. Harnam Das, AIR 1940 Lah 73 at p. 74 it is held by Din Mohammad J., not following the decisions in Diwan Chand v. Punjab National Bank Ltd., AIR 1932 Lah 291 and Gainda Mal v. Nihal Chand Chhajju Mal, AIR 1925 Lah 261 that a Karta of the joint family can make a valid reference to arbitration and where he acts bona fide the award binds other members. Where the question as to division of joint family property arises as between different branches head of each branch properly represents the interest of other members of his branch. He therefore can make a reference With reference to the dispute in the family as to division of the family property.
9. This is clear from various decisions which lay down that when a partition is claimed between branchs of the family, the heads of all branches alone need be made parties. This is based on the principle that head of each branch fully represents the interest of all the members of his branch including his sons and grand-sons etc. In fact when the initial agreement of reference was drawn up it was done in the name of Kesharimal and Basantilal alone. The sons of Kesharimal at the end appended their signature indicating at the most their approval of reference. The two arbitrators out of four expressed their inability or unwillingness to work. The parties thereupon could make a fresh reference. This was done and the award was given by those two. There is therefore no illegality in the matter of reference because of failure of the two sons of Kesharimal to sign the last reference dated 12-9-1959.
10. Next question is as regards the hearing of evidence behind the back of the parties. Three witnesses were examined by the arbitrators. These witnesses were Rajmal, Bherumal and Dayaram. Their evidence related to exchange of hot words between Bansantilal and Dayaram. Their statements appear to have been taken by the arbitrators prior to the last reference and if so cannot vitiate the award particularly when the point on which they made their statement had no bearing on the award. In Vengamma v. Kesanna, AIR 1953 SC 21 when a similar question arose before their Lordships they examined the award and the evidence taken behind the back of a party and held that the evidence was relevant and had affected the award. The very fact that their Lordships examined the matter from this point of view suggests that every such irregularity cannot be put forward as vitiating the award on the ground of misconduct of the arbitrators unless the evidence was material, relevant and had gone to affect the award. In the present case the exchange of hot words between the two brothers was altogether of no relevance in the matter of division of property.
11. It is then contended that the arbitrators did not give opportunity to adduce evidence to the parties. Basantilal makes no grievance about this. Kesharimal alone raises this question. He was questioned what evidence he wanted to adduce and he mentioned that he wanted to prove the fact of threat given by Basantilal to kill him and his sons. This thing was too equally irrelevant. Moreover after the award was given both the brothers accepted the award and signed on it in token of their acceptance. Although as held in Coringa Oil Co. Ltd. v. Koegler, ILR 1 Cal 466, Burla Ranga Reddi v. Kalapalli Sithaya ILR 6 Mad 368 and Abdul Majid v. Bahawal Bakhsh AIR 1950 Lah 174 it is not competent for any party to prevent any other party from invoking the jurisdiction of the Court to object to the validity of the award on the grounds permissible under the Arbitration Act by pleading agreement not to object to the award, yet where after the award is signed and notified to the parties if they sign and give expressions to their acceptance of the same that would be a good evidence against any subsequent plea that they wanted to lead evidence but the arbitrators improperly did not afford such opportunity.
12. As regards the fact that the arbitrators gave their award shortly after the final reference was made, that point too has no substance in the absence of any conduct on their part which would vitiate the same. Parties knew full well that the two arbitrators were parties to prior two references, the parties had fully stated what the difference was, the arbitrators fully considered the question as to how the properties were to be divided and after that was done the parties signed in token of acceptance. The award consequently was not vitiated.
13. The Court below was justified in passing its judgment in accordance with the award.
14. The appeal is therefore without force and is dismissed with costs.