1. This first appeal has been filed by the defendant against the decree obtained by the respondent from the Court of Civil Judge 1st Class, Durg, directing that the property in dispute be partitioned between the parties. The appellant and the respondent are respectively referred to in this judgment as defendant and plaintiff.
2. The plaintiff Mst Bindabai is the widow of one Brijlal, who was the brother of the appellant Baratilal. It is not disputed that Brijlal and Barattlal were joint till the former died in 1952.
3. The plaintiffs case was that the defendant turned her out of the house in July 1953 and refused to give her a share in family property to which she was entitled as the widow of Brijlal. The plaintiff has given a list in the schedule annexed to the plaint of the lands and moveables which she wanted to be divided. The plaintiff also stated that she had made an attempt to settle the dispute in 1952 by calling the village Fancfias to provide for her maintenance. The Panchas advised the defendant to give her 10 acres of land and some move-abfes, but the defendant did not act according to the Pancha's advice.
4. The defendant stated that after the death of his brother Brijial in 1952, the plaintiff collected the Panchas of the village who gave an award in writing allotting 10 acres of land, two houses and some moveables to the plaintiff, but she herself resiled from the award. He pleaded that the plaintiff is not entitled to anything more than what was given to her by the Panchas. He filed his own list of moveables challenging the list filed by the plaintiff as incorrect.
5. The learned judge of the trial court held that the award was inadmissible for want of registration. The advice of the Panchas was restricted to the question of awarding maintenance to the plaintiff and even if it amount ed to an award, it does not bar the present suit. Hefurther found that the defendant did not give anythingunder the award to the plaintiff. Accordingly, he passed a preliminary decree for partition allotting half share in the lands and moveables to the plaintiff. The extent of moveables which were with the defendant was determined but we shall refer to the details of this finding later.
6. The first contention of Shri R. K. Pandey for the appellant is that after the award had been given by the Panchas, the only remedy open to the plaintiff was to proceed under the Arbitration Act either to have it set aside or to make it a rule of the Court, and as the plaintiff has done neither, the suit for partition is not maintainable.
7. In order appreciate this plea, we may refer to the pleadings of the parties.
In paragraph 7 (Kh) of the plaint, the plaintiff stated as follows :
'The defendant was not properly maintaining the plaintiff. The plaintiff then in the month of Pus 1952, collected the Panchas at Mehgaon, complaining to them that the defendant should be ordered to give her propar maintenance. The Panchas then told the defendant to allow separate maintenance, to the plaintiff by giving 8 acres Dhana and 2 acres Bharra land, 4 gadas of Dhan, one house, one pair of buffaloes and one cart and to give similar maintenance to Krishnabai, the other co-widow. The defendant accepted this and falsely assured the Panchas to act accordingly, The plaintiffs thumb mark was taken on a paper for this. The defendant did not pay heed to the decision of the Panchas till this date and did not give any land, house, grain or cattle to her.'
8. To this, the defendant replied in paragraph 9 of the written statement as follows :
'That the plaintiff had collected Panchas In the village on 26-12-52 and had agreed to abide by their award in the matter of the dispute regarding family property. The defendant had consented to the settlement of the dispute as proposed by the Plaintiff. Thus with the consent of the parties the Panchas gave an award by which the plaintiff was given 10 acres of land, two houses, a pair of buffaloes, a Bagar and a share in the produce of that year. The parties accepted the award which was reduced to writing and was signed by them.'
9. It is clear from these pleadings that the parties did not enter into a written agreement to make a reference to the Panchas. Shri R. K. Pandey has stated before us that the submission to the Panchas was oral. In is now to be seen whether such an oral submission and the award based thereon are valid under the Arbitration Act, 1940 and would bar a suit. Section 2 of the Act defines an arbitration agreement to mean 'a written agreement to submit present or future differences to arbitration, Obviously, therefore, a reference to the arbitrators would satisfy the requirements of the Act only if it is in writing. The award which the arbitrators give under Section 14 of the Act is the one which follows such a reference. The words 'award' and 'arbitration agreement' as used in Sections. 30, 32, 33 and 34 refer to the words as defined In Section 2 of the Act. Accordingly, it follows that the bar In Section 32 to suits contesting arbitration agreement or award operates only when the agreement is in writing as required by Section 2 of the Act. That section does not operate as bar to a suit in the case of an award following an oral reference, as such an award is not in accordance with the provisions of the Act.
10. Discussing the question of awards upon oral submissions in Gaurisingh v. Ramochansingh, AIR 1948 Pat 430, Meredith, J. observed in paragraph 28 as under:
'The problem whether it was intended that awards upon oral submissions could be enforced under the Act is a difficult one, but the opinion that I have formed is that that was not contemplated. The only provision for enforcement of an arbitration award made without the intervention of the Court is Section 14(2). I am of opinion that this section can only be read as referring to awards based upon written arbitration agreements.'
Finally, the learned judge concluded in paragraph 32 that the Act contains no provisions for filing any award based upon an oral submission. If there can be no proceeding under Section 14(2) of the Act for filing of the award and no proceeding under Section 30 for having it set aside, we fail to see how such an award can operate under Section 32 of the Act as a bar to the suit.
We may refer to another decision in Firm Narain Das Balak Ram v. Bhagwan Das, AIR 1951 All 850 in which also it has been held that an arbitration agreemant must be in writing and an award given on an oral submission is without any valid reference and therefore no decres can be passed on its basis.
11. We, therefore, hold that the so called award given by the Panchas cannot operate as a bar to the present suit.
12. Further it will be seen that the plaintiff hat stated in paragraph 7(kh) that she had collected the Panchas to direct the defendant to give her some maintenance. This does not amount to a formal reference of the dispute regarding partition to the Panchas at all. In paragraph 9 of the written statement, the defendant does not state specifically that the dispute referred to the Panchas relate to partition, although he says that the plaintiff had agreed to abide by the award of the Panchas in the matter of 'the dispute regarding family property.'
Purushottam (D. W. 2), who was one of the Panchas, has also admitted that the plaintiff had complained to him that the defendant was not giving her maintanancg and so it would be better if he decided the dispute. Thus there was no formal reference to the Panchas about any dispute regarding partition. We may in passing observe that it is precisely for avoiding such difference regarding the terms of the agreement that it is required to be in writing. Without such a writing, the scope of the dispute, which the arbitrators are called upon to decide, cannot be clear.
13. If the only dispute referred to the Panchas was for providing some maintenance to the plaintiff, such a reference would hardly bar a suit for partition. Under the Hindu Women's Rights to Property Act, 1937, a Hindu widow is entitled to the same interest as her husband. She can demand a partition of her share. The widow can also ask for maintenance if she so likes. However, the two demands would be quite separate and distinct. It is true that she cannot ask for both at the same time but there is nothing to prevent her from asking for main-tenance first and if that is not given, to ask for a partition later.
14. The next point which Shri R. K. Pandey has raised during the course of his arguments is that there-was a co-widow of the plaintiff by name Krishnabai, who has now remarried and the plaintiff is not entitled to her share as it passes by survivorship to the plaintiff. According to him, the plaintiff is entitled to only 4th share in the property. In the first place, this contention.cannot be raised, as the defendant did not allege the necessary facts in his written statement. Further, co-widows are entitled to interest of their husbands jointly with the incident of survivorship between them. (Sea Mulla's Principles of Hindu Law, 12th edition, Para 43, page 122). That being so, the interest of Krishnabai would pass to the plaintiff after she remarried. On the date of suit, therefore, the plaintiff had half interest in the joint family property.
15. Turning now to the extent of family property, there is no dispute about tha extent of lands held by the defendant.
As regards moveables, the findings of the lower court that there were head of cattle wotth Rs. 1725/- is in accordance with the statement of the defendant himself. The funding about grain worth Rs. 640/- is not disputed. Shri R. K. Pandey disputes the findings of the trial court as regards utensils and ornaments. We deal with this part of the dispute as below:
(a) Utensils.-- The trial court has found that the plaintiff valued the utensils at Rs. 800/- or 900/-, but the defendant said that they were worth Rs. 240/-. In the witness-box the defendant admitted that he had 23 items of utensils whereas he had admitted only 19 items in the written statement. There is no evidence adduced by the parties regarding the value of utensils, but their value must be more than what has been stated by the defendant, as he has later admitted that he has in possession a larger number of utensils. We do not see any reason to interfere with the valuations of utensils as Rs. 450/- as arrived at by the trial Court.
(b) Ornaments.-- The trial court has found the value of ornaments to be Rs. 1600/- (gold ornaments worth Rs. 1200+ silver ornaments worth Rs. 400). In view of the statement of the plaintiff herself that whatever ornaments were given to the women of the family belonged to them and were retained by 'them (paragraph 23), it is clear that ornaments which were held by the womenfolk of the family became their personal property and are not liable to partition. Therefore, the plaintiff's claim for share in the ornaments is disallowed.
16. In view of the findings above, the appeal ispartly allowed. The decree of the trial Court shall bemodified by substituting the amount of Rs. 1407/8 for theamount of Rs. 2207/8 therein. The defendant shall pay half the costs of the trial court to the plaintiff. Costs ofthe appeal shall be borne as incurred.