Abdur Rahim, J.
1. This appeal arises in a suit to file an award and is preferred by the 2nd defendant who is a minor represented by his mother, the other parties being the 1st defendant his father, and the plaintiff the brother of the 1st defendant and uncle of the 2nd defendant. All these three persons were members of an undivided Hindu family, and the arbitration was sought for the purpose of partitioning the properties between the plaintiff on the one hand and the first and second defendants on the other. The very next day after the submission, the 1st defendant who was acting as the guardian of the 2nd defendant gave notice to the arbitrator revoking the submission, thereafter he did not appear at all in the proceedings and the arbitrator proceeded to make the partition no one being there to watch the proceedings on behalf of the 2nd defendant and to protect his interests. It has been held that the revocation by the 1st defendant was not justified and the question for decision, therefore, is whether the failure of the 1st defendant as guardian to conduct the case of the 2nd defendant before the arbitrator which in my opinion amounted to gross neglect of his duty is sufficient to vitiate the award. I am clearly of opinion that the contention of the learned vakil for the appellant that an award is ipso facto invalid if it cannot be shown to be beneficial or advantageous to the minor is not sustainable. I am not clear that the learned judge in the decision in In the matter of Romon Kissen Sett v. Hurrololl Sett I.L.R. (1892) Cal. 334 has laid down any such proposition. At any rate, I agree with the view of the law as propounded in Ramji Ram v. Salig Ram (1911) 11 C.L.J. 188 on this point. Nor am I able to accept the contention of the appellant that the 1st defendant's interest in the arbitration proceedings was adverse to that of the minor and the submission was bad on that ground. No doubt, one of the questions which the arbitrator had to deal with was whether certain debts incurred by the 1st defendant were binding but that question was not raised between the 2nd defendant and the 1st defendant but only between the plaintiff on the one side and the 1st and 2nd defendants on the other and the decision of the arbitrator has in no way concluded that matter between the 1st defendant and the 2nd defendant.
2. On the main question there can be little doubt that it would be open to the minor by a suit instituted either through a guardian or when he attains majority to impeach the award if he can prove that his guardian has been grossly negligent or has acted fraudulently in conducting the proceedings before the arbitrator. There can be no doubt that a decree may be impeached where there has been negligence on the part of the next friend in the conduct of the plaintiff's case, and it is stated by Vice-Chancellor Malins In re Hoghton (1874) 18 Eq 573. ' The question which I have to decide is, whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience.... The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and who will protect her interests.' See also Lalla Sheo Churn Lal v. Ramnandan Dobey I.L.R. (1894) Cal. 8. It is unfortunate that there is no provision in the Civil Procedure Code which makes it incumbent on the arbitrator, where a reference has been made out of court, to see that the case of the minor is in the hands of a proper guardian, similar to that laid down by Order 32 Rule 11 with respect to the Court. I think the proposition laid down by Vice-Chancellor Malins is equally applicable to proceedings before an arbitrator. This has hardly been disputed before us. The argument which is used to uphold the award is that the court can refuse to file an award only on the grounds mentioned in the second Schedule of the Code Rules 15, 14 etc, and that, though a separate suit may lie, the same objections to an award which would justify a suit are not available to the minor when the award is filed and sought to be made a decree of court under the special procedure provided by the second schedule. If this argument were accepted it would follow that where an award which affects a minor is invalid because of the fraud or neglect of the guardian in the conduct of the arbitration proceedings the court is bound to pass a decree in the terms of the award although the next day it would be set aside by a suit on the very same allegations. Unless one is compelled by clear words of the statute one would not countenance such an interpretation of the law.
3. Rule 15 says, 'No award shall be set aside except on one of the following grounds :- be it noted that this does not seem to be confined merely to objections to filing an award but is wide enough to cover suits to set aside an award including those mentioned in Clause (c) which runs as follows, 'the award having been made after the issue of an order by the court superseding the arbitration and proceeding with the suit or after the expiration of the period allowed by the court, or being otherwise invalid.' The phrase 'or being otherwise invalid' was for the first time introduced into the new code and it seems to me that it is wide enough to cover such a case as this. If an award is invalid under the law governing minors I see no difficulty why such invalidity is not included in these words. It was suggested that 'invalid,' means 'void' and an award which an infant could get set aside would only be voidable, but I do not think that there is any substance in this distinction. If a party does not choose to get rid of an award even in cases falling under Clause (c) it would be binding on him and there seems to be no sense in the distinction between void and voidable awards so far as Rule 15 is concerned. In fact, that rule itself states the circumstances under which an award becomes 'void' in cases dealt with in Rule 14 suggesting that awards which can be set aside under Rule 15 are not to be treated as void awards.
4. Then it was suggested that we must read the words ' or being otherwise invalid,' as ejusdem generis with the other cases mentioned in Clause (c) that is to say, it would only apply to cases where an award is bad on grounds like want of jurisdiction. It seems to me that those words do not call for an ejusdem generis interpretation, but are meant to include all cases of invalidity on grounds, other than these mentioned. This view seems to have the support of a Full Bench Decision of the Allahabad High Court in Lutawan v. Laohya I.L.R. (1918) All. 69 where Richards, C.J. says, 'It seems to me that it was the clear intention of the legislature by this amendment of the code that objections to the award on the ground of invalidity from any cause whatever would be decided by that court and by no other court.'' This passage might also suggest that the only remedy of the 2nd defendant to the suit would be under Rule 15 of the 2nd schedule and not by a separate suit. But it is not necessary in this case to consider whether that general proposition is correct.
5. It is argued by Mr. Sitarama Rao in support of the Lower Court's order that it has not been shown that the 1st defendant as the guardian of the 2nd defendant was, in fact, negligent in the conduct of the case of the 2nd defendant before the arbitrator. But he was not justified in rescinding the submission and when he found that the arbitrator proceeded with the arbitration it was his duty to appear and watch the proceedings and put forward the case of the minor' before him. This is not one of those cases in which there may be a question whether the minor had a good defence or not, if a minor has not a good defence to a suit it is undoubtedly not the duty of the guardian to incur unnecessary costs in defending the suit. The very nature of the arbitration proceeding is ordinarily such that every person having a claim would be interested in seeing that the partition made by the arbitrator is just and fair. In this case the minor alleges that by the partition he has been prejudiced. I am of opinion that ' the appellant has a valid objection to any decree being passed on the award.
6. Having regard to the nature of the award which is one for partition, the proper order to be passed is that the suit must be totally dismissed. As regards costs, since it was the conduct of the 1st defendant that led to the award being treated as invalid I would make him pay the costs of the 2nd defendant in this court and in the lower court. The plaintiff--respondent will bear his own costs throughout.
7. This is an appeal against an order of the District Judge, South Kanara under Section 21 Schedule II C.P.C. filing an award, and against the decree passed in its terms. We have to deal only with the order, since no independent objection has been made to the decree. The arbitrators were asked to make a partition of family property between plaintiff and 1st defendant, brothers, and 2nd defendant, minor son of the last mentioned, the present appellant.
8. The first objection to the award is that on 2nd defendant's behalf there was no valid submission to arbitration, first defendant, who acted for him, having an interest adverse to his in the proceedings, because an important question in them was whether 1st defendant had incurred certain debts as manager of the family and whether he or its members, including 2nd defendant, were liable for them. But the partition, it was not disputed before us, was of the family properties between the plaintiff on one side and the 1st and 2nd defendants on the other and the interest of the two last mentioned was identical in it, to establish the liability of the family and make a portion of the debts recoverable from plaintiff instead of the whole being recoverable from the 1st defendant primarily and 2nd defendant secondarily in virtue of his sonship.
9. It is urged next that the lower court should, before filing the award, have considered whether the submission to arbitration and the award itself were advantageous to 2nd defendant. As regards the latter there is, so far as we have been shown, only one authority in support of 2nd defendant's claim, Romon Kissen Sett v. Harrollol I.L.R. (1892) Cal. 334, and its weight is small, since it is the decision of a single judge in an uncontested case. It is in fact impossible to consider whether the award, as distinguished from the submission, is advantageous to the minor concerned, without a discussion of the merits of the questions referred, which would be inconsistent with the principles of arbitration procedure; and it was held in Balaji v. Nana I.L.R. (1903) 27 Bom. 872 following Jagan Nath v. Mannu Lal I.L.R. (1894) All. 231, that where the reference was not impugned, the court was bound to pass a, decree in terms of the award, if there were none of the objections specified in the Code to doing so. I accordingly turn to the objection that the reference itself was disadvantageous and therefore invalid. Under Section 21(1) Schedule II C.P.C. the court must be satisfied that the matter has been referred and no doubt, must therefore enquire into the validity of the reference. There is then authority in the first of the two last mentioned cases, which I should be inclined (if necessary) to follow, for the view that the question of benefit to any minor concerned can be raised in such enquiry. See also Ramji Ramv, Salig Ram (1911) 14 C.L.J. 188. But it is unnecessary to pursue the matter further, because the objection to the reference as distinguished from the award, on the ground of disadvantage to the minor 2nd defendant has not been taken in the grounds of appeal here and was not, so far as appears, taken in the lower court; and I am not prepared to condone the omission and dispose of the point on the materials on record, because it is eminently one which should be stated explicitly with a clear specification of the matters in respect of which disadvantage to the minor was to be feared. It may be added that no attempt at such specification was made in the argument before us.
10. The next objection is more important. The 1st defendant, the day after he consented to the reference, revoked his consent and no suggestion has been made that this revocation was legally effective. Subsequently he did not attend the arbitration proceedings although as regards him personally the arbitrators fully complied with their duty because they did not proceed or place him exparte until they had given him notices of their intention to do both. But throughout 1st defendant appears to have acted also as the guardian of 2nd defendant the decision to proceed exparte affected both; and the proceedings took place and the award was passed without any person attending to protect the latter's interest. It is contended that in these circumstances the award should be set aside either under Section 15(1) on account of the arbitrator's misconduct or under Section 15(3) as 'otherwise invalid'.
11. As I shall accept the first of these contentions, I need not consider whether the general words 'otherwise invalid' cover all conceivable grounds other than those already specified, on which an award might in proceedings of any description be set aside or only gvound ejusdem generis with those specified in Section 15(3). Turning to Section 15(1), I observe first with reference to Lola Sheo Churn Lal v. Ramnandan Doobey I.L.R. (1894) Cal 8 a decision which has been followed in various unreported cases, that, if first defendant's conduct had occurred in proceedings before a regularly constituted tribunal, it would have justified the subsequent vacation of any decision passed adversely to the minor he represented, since there is no suggestion that he absented himself on consideration of the merits of the case or because he could have had no contention worth advancing with reference to them; and next with reference to Order 32 Rule 11 that the court would have been bound to be vigilant in the minor's interest, and after removing 1st defendant for his failure in his duty, to appoint another guardian in his stead. Are arbitrators, acting, like those here in question, on a reference without the court's intervention under that or any similar . duty and is their failure to perform it misconduct No authority directly in point has been shown us. But generally arbitrators will fail in their clear duty and be guilty of misconduct, if they do not secure for each party an opportunity to present his case: and according to English authority they should even go beyond strict legal requirements in order to do so. Crompton & Co. v. Mohan Lal (1811) 9 Dow 461, Gladwin v. Chilcote (1841) 9 Dow 461, Haigh v. Haigh (1861) 31 L.J. Ch 430 and Whatley v. Morland (1833) 2 C. & M. 847.s The principle involved is one of substance and the case of a minor, such as that before us, is not one, in which it should be relaxed, True, arbitrators cannot, like a regularly constituted court, protect his interest by removing the detaulting guardian and appointing in his stead. But their duty may fairly be taken to be to refrain from passing an award, so long as they are deprived of the power to pass a just one, and either to adjourn the proceedings in case a change in the representation of the minor is probable or, if one is not probable either generally or within the time (if any) fixed for the return of the award, to refuse to act. In the present case the arbitrator's failure in this duty amounted in my opinion to misconduct; and on this ground their award must be set aside.
12. This entails that the appeal should be allowed, the lower court's decision being set aside and the petition being dismissed. I agree with the order proposed by my learned brother as to costs for the reasons he gives.