1. One Thiruvengatam, deceased, and his nephew Venkatarangaya. who were the members of an undivided Hindu family entered on the 25th December 1900 into an agreement in writing to submit to the decision of certain persons the disputes which had arisen between them with reference to the partition of their joint property and to abide by the partition to be made by them, On the 25th March 1901 Thiruvengatam applied under Section 523 of the Code of Civil Procedure to the District Court of Godavari to have the agreement filed. Venkatarangaya on notice to him having consented to the agreement being filed, the application was numbered as a suit and the matter was referred to the decision of the arbitrators named. Pending the proceedings before the arbitrators Thiruvengatam died on the 18th August 1901. Thiruvengatam's daughter's son Satyanarayana, a minor, who is the appellant before us, alleging himself to be the adopted son of Thiruvengatam. applied through his natural father as his next friend, under Section 365 of the Code of Civil Procedure to have his name entered on the record in the place of the deceased plaintiff Thiruvengatam. The adoption thus set up was denied by the defendant-respondent. Without pursuing either procedure prescribed by Section 367 of the Code of Civil Procedure in reference to the determination of the question whether Satyanarayana was the legal representative of the deceased Thiruvengatam, the District Judge passed an order abating the suit, In support of the Judge's order attention was drawn to Points v. Ward 1 Marshal 16 R.R, 680 Tous-saint v. Hartop 7 Taunt. 57. Cooper v. Johnson 2 B. & Aid. 394. and Rhodes v- High 2 B. & C. 435. which lay down that the authority of an arbitrator is revoked by the death of any one of the parties to the submission before an award is made. This was apparently a corollary of the rule of Common Law that the authority of an arbitrator might, at any time before the award was made, have been revoked at the pleasure of any party to the submission whether the submission was by agreement in writing, by bond, deed, Judge's order or order at nisi prius,-a rule apparently founded 6n the view that with reference to agreements to refer to arbitration any contracting party may, without the consent of the others, put an end to the contract on the mere ground that he has changed his mind, and which was due to the disfavour with which contracts to refer to arbitration were formerely looked upon in England as contracts tending to oust the jurisdiction of the ordinary courts. But in this country, as pointed out in the case of Nagasamy Naik v. Ratigasaini Naik 8 M.H.C.R. 46 the policy of the Legislature has always been different, and the English Common Law Rule has not been followed. According to the law here, the submission of an existing dispute once made is not without just and sufficient cause revocable, even in the case of a submission which has not been made a rule of Court, while with reference to a submission which has been made a rule of Court, and consequently where the matter has become the subject of a suit, the submission can be revoked only with the leave of the Court for good cause shown (Peslonjee v. Manockjee and Co. 12 M.I.A. 112.
2. It follows, therefore, that contracts to refer to arbitration should not in this country be treated upon the peculiar footing that such contracts are revocable at the mere will of a party so as to warrant the view that every such contract is essentially of a personal nature as the District Judge seems to have thought ; and the question whether a legal representative of a deceased party is or is not entitled to enforce the contract to refer is a question which would depend upon whether the right dealt with in the reference is of a merely personal nature or is one which survives to the legal representative. Accordingly where the submission has been made a rule of Court and the right is one which falls under the latter description the proceedings must under Section 361 of the Code of Civil Procedure, be held not to abate by reason of the death of a party, and as the right to partition, which is the subject-matter of the submission in the present Case, would servive to the deceased plaintiff's adopted son, if there is one. the District Judge should have proceeded under Section 367 of the Code of Civil Procedure.
3. We accordingly set aside this order and direct that the application be restored to his file and dealt with according to law. The costs of this appeal must be costs in the cause.