(1) These two appeals arise out of the same suit and can be disposed of together.
(2) On Chander Mohan made a gift of a house exclusively belonging to him in favour of his nephew Gian Chand appellant by a registered deed dated 29-6-1937. Chander Mohan appears to have changed his mind subsequently and on 8-12-1937, he filed a suit for cancellation of the gift. The parties to the suit agreed to refer the dispute to R. B. Harish Chand as the sole arbitrator. The arbitrator gave his award on 20-6-1938, and on the same day the award was made a rule of the Court and a decree on the basis of it was passed. The arbitrator instead of confining himself to the matter in dispute proceeded to decide as to how the property was to devolve after the death of Chander Mohan the donor. In order to understand the terms of the award, a pedigree table of the parties now before us has to be given and it is as follows:
MURLI MOHAN____________________________|____________________________| | |Hirde Mohan Chander Mohan Mohinder Mohan| defendant No. 2 |Gian Chand | |Deft. No. 1 ___________|___________ || | |Mst. Tarawati Ram Devi |deceased daughter from first wife Deft. No. 4 || (second Wife) || | |Vijay Kumar Rabinder Mohan |Deft. No. 6 (Minor) |(Deft. No. 3) |________________________________________________________ || | |Prem Narain Roop Narain Kishan NarainPlaintiff Plaintiff Plaintiff
(3) According to the award Chander Mohan, the donor, was to remain in possession of the house as a tenant for life. After his death the house was to be divided as under:
(1) One-third to go to his daughter Mst. Tarawati and after her death to her son absolutely.
(2) One-third to go to Gian Chand defendant.
(3) The remaining one-third to go to Prem Narain, Roop Narain and Kishan Narain, the plaintiff's.
Chander Mohan died intestate on 21-5-1947. On 17th June 1954, Roop Narain and others, sons of Mohinder Mohan, instituted the present suit for accounts and recovery of their one third share in the rents and profits of the house, which was in exclusive possession of Gian Chand defendant No. 1. Mohinder Mohan the plaintiffs' father, Ram Devi and her son Rabinder Mohan, and Vijay Kumar son of Tarawati were impleaded as pro forma defendants.
(4) The suit was contested by defendant No. 1 alone on various grounds. A preliminary decree for rendition of accounts was passed by Shri P. C. Saini, Subordinate Judge 1st Class, Delhi, on 24-5-1954. On appeal by defendant No. 1, the case was remanded for fresh decision after framing a number of issues. A preliminary decree for the taking of accounts was again passed on 7-11-1956. It was held that the plaintiff's were entitled to claim one-third share of the rents and profits of the property realised by defendant No. 1, after the death of Chander Mohan. The claim of defendants No. 3 and 4, to one-third share of the rents and profits was, however, disallowed.
Gian Chand defendant No. 1 and Rabinder Mohan and Ram Devi, defendants Nos. 3 and 4, filed two separate appeals against that decree. Mr. Jasmer Singh, Additional Senior Subordinate Judge, Delhi, dismissed the appeal of Gian Chand but accepted that of the other defendants and modified the preliminary decree to the extent that defendants Nos. 3 and 4 were also entitled to recover one-third share of the rents and profits of the house realised by defendant No. 1 after the death of Chander Mohan. Gian Chand defendant has not preferred these two appeals, R. S. A. Nos. 61-D and 62-D of 1958, against that decision of the first Appellate Court.
(5) The main contention of Mr. Avadh Behari, the learned counsel for the appellant, is as regards the locus standi of the plaintiff's to file the suit. It is submitted that the plaintiff's were not parties to the earlier suit or to the reference; by the decree or the award and, therefore, they could not claim any right under the award or the decree. The matter appears to be quite simple and I am of the view that the contention must prevail. the plaintiff's based their suit merely on the award and the decree passed thereon. If the gift is to be regarded as having been set aside and Chander Mohan having died intestate, the plaintiff's had no right to succeed to the suit property or any share in it in the lifetime of their father Mohinder Mohan.
They, as the reversioners of Chander Mohan, had no locus standi to file the suit nor did they claim any relief on that ground. Decidedly, Roop Narain and others, the plaintiffs, were to joined as parties to the suit brought by Chander Mohan to set aside the gift. Nor were they parties to the reference, the result being that they were not bound by the award or the decree. Chander Mohan and Gian Chand, who alone were parties to that suit, appear to have compromised before the arbitrator and the latter's award was based upon that compromise.
(6) Under order XXIII Rule 3, Civil Procedure Code, the Court may Act upon a compromise between the parties with respect to the subject-matter in the suit and pass a decree in accordance therewith only so far as it relates to the suit, Similarly, a reference to arbitration, through Court during the pendency of a suit, can only be made in respect of the matter in difference between the parties. The award cannot go beyond the agreement of reference or bind a person who was not a party to the agreement. In other words, an award or a decree would not be effective against or create any rights in favour of persons who were not parties to the reference or the suit and ought to be regarded as nullity so far as they are concerned.
(7) In Chaudhri Hira Singh v. Chaudhri Ganga Sahai and Amin Singh, 11 Ind App 20 (PC), it was held by their Lordships of the Privy Council that a stranger to the submission was under no obligation to abide by the award, and consequently he could not avail himself of it or derive any right or interest therefrom. In Chouthmal Jivrajjee Poddar v. Ramchandra Jivrajee, AIR 1955 Nag 126, a dispute with regard to the distribution of property of the deceased was referred to an arbitration by his heirs. D, who was one of the heirs, refused to join in the reference. Nevertheless the award allowed him a share and a decree in terms of the award was passed with the consent of the D. D subsequently filed a suit to enforce his rights arising out of the award. It was held that as D was not a party to the arbitration agreement and was not bound by the award, he could not get the benefit of the decree based on the award; nor could that decree be made effective in his favour.
(8) On behalf of the respondent it is contended that the award, which was based on a compromise, ought to be regard as a family arrangement and a third party to whom some benefit was given under that family arrangement would be entitled to enforce the agreement. Mt. Dan Kuer v. Mt. Sarla Devi, AIR 1947 PC 8 is relied upon as an authority in support of the proposition. In that case the award partitioned the joint family property between N, the father of the joint Hindu family, and his sons and also made a provision for the maintenance of S, the wife of N. The award was regarded as a family arrangement between the members of the family arrangement between the members of the family and as such the award was held to create a charge in favour of S on the property allotted to N as stated in the award.
In the instant case, the dispute merely related to the validity of the gift by Chander Mohan in favour of Gian Chand, and that too was confined to the parties to the gift. The other members of the family had no concern with that dispute. None of them had joined the suit or the reference. By no stretch of argument the compromise between Chander Mohan and Gian Chand or the award can be regarded as a family arrangement relating to partition of the joint family property. The authority cited has, therefore, no application to the facts of the present case.
(9) Defendants Nos. 3 and 4 did not joint as plaintiffs; they would not be entitled to any relief if the plaintiffs failed to establish their locus standi to file the suit. Moreover, Ram Devi and Ranbinder Mohan were not given any share under the award on which the suit was based. Their claim was based on their right to succeed Chander Mohan in preference to Vijay Kumar, defendant No. 6, daughter's son of Chander Mohan. These are matters which could not be decided in the present suit based on the award.
(10) In the view that I take no other point arises in these appeals. Both the appeals are accordingly accepted and the judgment and decree of the Additional Senior Subordinate Judge set aside. The plaintiffs' suit shall stand dismissed. In view of the facts of the case, the parties are directed to bear their own costs throughout.
(11) Appeals allowed.