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Smt. Beherani Vs. Dhormu Gowdo - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 171 of 1958
Judge
Reported inAIR1960Ori223; 26(1960)CLT434
ActsArbitration Act, 1940 - Sections 15, 30 and 32
AppellantSmt. Beherani
RespondentDhormu Gowdo
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateH.G. Panda, Adv.
DispositionAppeal dismissed
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - as the present plaintiff bases her claim on the basis of the award passed by the arbitrators in respect of the suit properties and as i have indicated above, the award was without jurisdiction regarding the suit properties, the plaintiff is bound to fail in her suit for declaration of title and for recovery of possession......property to any third person who was not a party to the award. the arbitrators in allotting the suit properties in favour of the widowed sister indeed, as a matter of grace, had manifestly gone beyond their jurisdiction and therefore the parties to the above award have every right to ignore the terms of the award which are completely beyond the jurisdiction of the arbitrators.as the present plaintiff bases her claim on the basis of the award passed by the arbitrators in respect of the suit properties and as i have indicated above, the award was without jurisdiction regarding the suit properties, the plaintiff is bound to fail in her suit for declaration of title and for recovery of possession. mr. pal, appearing on behalf of the appellant, however, has placed before me a few sections.....
Judgment:

S.P. Mohapatra, J.

1. This is a plaintiff's second appeal against the confirming judgments of the Courts below for declaration, of title and for possession in respect of the lands, descriptions of which are given in the schedule attached to the plaint, the area being 1.60. Plaintiff is the widowed sister of defendant. According to the plaintiff's version the suit lands were allotted to her in a family partition on the basis of an award (Ext. 6 dated 28-3-1942). The award was duly registered and accordingly the plaintiff was in possession in lieu of her maintenance as fixed by arbitrators.

The defendant was the cultivating lessee in respect of the disputed lands but as he refused to vacate the present suit has been brought. The defence was that this property was allotted to the defendant in the family partition and there was a subsequent material alteration in the award allotting the property to the plaintiff. The terms of the award having been materially altered, they are not effective. The defence has taken up a stronger point also that the award so far as the property is concerned is without jurisdiction and the plaintiff cannot claim any right, title or interest on the basis of the award. The trial Court found that there was no material alteration but the arbitrators had exceeded their powers. Therefore, the award was without jurisdiction in respect of the properties in the suit. The appellate Court however found both the points in favour of the defence, that is to say, that the award was subsequently materially altered and also the arbitrators had exceeded their powers.

2. The appeal can be disposed of on a very simple point. The award was passed on the reference to Ext. A dated 18-6-1941. The arbitrators were chosen by the parties to the reference and as it appears from the registered award the arbitrators had passed and signed the award which was subsequently registered. The terms of the reference are very important to be noted, the only three persons being parties to the reference. The first party was Lokenath Sahu, the father of the present defendant and also his brother.

The second party was Gopinath Gowdo, one son and the third one was the other son Dhormu Gowdo, the defendant. The terms were that some of the properties are to be allotted for the maintenance of party No. 1, the father and the balance properties have got to be partitioned between the two sons Ganapati Gowdo and Dhormu Gowdo. There was absolutely no term empowering the arbitrators to give away any items of the property to any third person who was not a party to the award. The arbitrators in allotting the suit properties in favour of the widowed sister indeed, as a matter of grace, had manifestly gone beyond their jurisdiction and therefore the parties to the above award have every right to ignore the terms of the award which are completely beyond the jurisdiction of the arbitrators.

As the present plaintiff bases her claim on the basis of the award passed by the arbitrators in respect of the suit properties and as I have indicated above, the award was without jurisdiction regarding the suit properties, the plaintiff is bound to fail in her suit for declaration of title and for recovery of possession. Mr. Pal, appearing on behalf of the appellant, however, has placed before me a few sections of the Arbitration Act in support of his contention that the remedies of the parties were available under the Arbitration Act and inasmuch as they have not availed themselves of the remedies provided for in the Act they are debarred from raising such a point in the present suit. The point seems to be misconceived.

If the arbitrators acted entirely without jurisdiction in allotting certain properties in favour of the third party and completely beyond the terms of the reference, the award can be ignored by any of the parties without having recourse to any of the provisions of the Arbitration Act. Mr. Pal draws my attention to Section 15 of the Act which lays down that the Court may by order modify or correct an award where, it appears that a part of the award is upon a matter not referred to arbitration and such part can be separated from the other part and does not affect the decision of the matter referred to.

This does not lay down that the remedies of theparties are confined simply to the provisions of Section 15when the fundamental position is that if it is withoutjurisdiction, it can be ignored completely--Section 32 barsa suit on a question of the validity of the arbitrationagreement or award. As I understand, it contemplates of cases where the award is invalid orillegal and it does not include cases of this naturewhere the arbitrators went completely out of theirjurisdiction in making certain allotments in favourof third parties beyond the terms of the reference.I must make it clear, if the parties to the award,that is, the father and the two sons, had on a subsequent arrangement amongst themselves made someallotments in favour of the present plaintiff, thewidowed sister of the defendant, it would be binding against the defendant. The binding characterwould be on the basis of the family arrangementbut not on the basis of the award which is withoutjurisdiction. The present suit is purely on the basisof the award and definitely not on the basis of anysubsequent arrangement amongst the parties. Onthese grounds, therefore, the appeal fails and is dismissed. There will be no order as to costs of thissuit


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