1. The suit was brought by the plaintiff for partition and recovery of her share of her father's estate. It was dismissed by the District Judge on the ground that the parties had agreed to refer the matters in dispute between them to arbitration and that the suit was therefore barred by Section 21 of the Specific Relief Act.
2. It is proved that on the 23rd Octobor, the plaintiff's husband acting under a general power of attorney and the defendants executed a muchilika (Exhibit B) by which they agreed to refer the dispute to arbitration. Three arbitrators were appointed by that muchilika; Mustan Saheb for the plaintiff, Gafur Saheb for the defendants Venkafcarangiah for both parties. On the 30th October, the plaintiff's husband issued a notice (Exhibit C) revoking the reference to arbitration as illegal because he said it was only to three persons and not to five. The plaintiff's husband also stated in the notice that unless in five days the defendants chose five arbitrators the matter would be put into Court. The Judge has held that this notice though erroneous-was bona fide. Venkatarangiah, plaintiff's witness No. 1 says that he was appointed an arbitrator without his knowledge or without his consent being taken; that he was and is unwilling to act as an arbitrator. Mustan Saheb, plaintiff's witness No. 2 gives evidence to the same effect; it is clear therefore that the agreement between the parties to refer the differences between them to the arbitration of these three persons named in the muchilika cannot now be carried out and as there is no provision in the muchilika (Exhibit B) for the appointment of new arbitrators in their place Exhibit B has become inoperative and has no effect.
3. Under section 11 of the Common Law Procedure Act, 1854 it was held in Datche Springs Stoff Action Gesell Schaft v. Briscoes 20 Q.B.D. 180 that if there is no subsisting agreement or agreement capable of being carried into effect the suit is maintainable. In India Section 21 of the Specific Relief Act provides that if any person has entered into a contract with another to refer a controversy between them to arbitration and has refused to perform it 'the existence of such contract' shall bar any suit by him in respect of any subject which he has contracted to refer. This section in our opinion requires that there must be a subsisting contract to bar the plaintiff's suit. Because, if as in this case the agreement cannot be carried out and the plaintiff's suit is not maintainable there is no tribunal for the determination of the disputes between the parties.
4. The case in Ram Kumar Singh v. Jagmohan Singh I.L.R. (1910) A. 315,-is directly in point. In that case the disputes were referred for decision to three named arbitrators. One of the parties gave notice to the arbitrators asking them not to make any award. The arbitrators took no action after that nor did the other party for many years. It was held on the facts that the agreement had ceased to be operative at the time of the suit. Section 21 of the Specific Relief Act was therefore held not to be applicable.
5. It was then argued that there is a general agreement to refer the controversy to arbitration and the fact that two arbitrators refuse to act does not entitle the plaintiff to maintain the suit. But as we have pointed out the agreement was to refer the dispute to three named arbitrators without any provision for the appointment of other arbitrators.
6. We therefore reverse the decree of the court below, direct the suit to be restored to file, and to be disposed of in accordance with law. The appellant is entitled to costs of the appeal. The costs in the Lower Court will be provided for in the revised decree.