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Payyavulu Kesanna Vs. Payyavulu Vengamma and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtChennai
Decided On
Reported in(1949)1MLJ462
AppellantPayyavulu Kesanna
RespondentPayyavulu Vengamma and ors.
Cases ReferredMohindar Singh v. Ramindar Singh
Excerpt:
.....and the first defendant ended with a request to the arbitrator to look into the plaint and the written statement and make an award on their basis. it would undoubtedly have been better and more in accordance with recognised procedure for the arbitrator to have sent for both parties before him and recorded their statements in each other's presence. no hard and fast rule can be laid down as to what precisely constitutes misconduct either of the arbitrator or of the arbitration proceedings. but for better or worse they chose to submit their disputes to a relative whom they trusted and who was not a lawyer, and he has given just the sort of award that might be expected from a lay arbitrator in the circumstances. he appears to us to have discharged a difficult and delicate task assigned..........her late husband's second wife. her husband died in 1927, after, according to the averments in the written statement, making a will dated 1st may, 1927, giving the plaintiff 40 acres of land, with which she was satisfied for 11 years, until she filed this suit, in forma pauperis, for maintenance at rs. 100 a month, arrears of maintenance for 11 years amounting to rs. 13,200, the recovery of stridhanam jewels or their value estimated at rs. 4,800, rs. 2,000 for the construction of a house, and utensils valued at rs. 150. this is prima facie a very exaggerated claim without the curb of any court-fee, seeking relief of over rs. 20,000.3. both the parties joined in a petition under section 21 of the arbitration act, which was in the following brief terms:both the parties in this suit have.....
Judgment:

Mack, J.

1. This is an appeal by the defendants in a suit filed by a widow Vengamma in forma pauperis for the recovery of maintenance, stridhanam jewels, and so on, which was referred at the request of both parties to the arbitration of one Rayala Govindappa. Vengamma who was dissatisfied with his award, filed the petition under appeal to set it aside. The learned District Judge, finding that the arbitrator was guilty of misconduct, set the award aside.

2. The facts are briefly these : The plaintiff, Vengamma, was the widow of the brother of the first defendant, Kesanna. Defendant 2 is his nephew, and defendant 3 is the plaintiff's step son by her late husband's second wife. Her husband died in 1927, after, according to the averments in the written statement, making a will dated 1st May, 1927, giving the plaintiff 40 acres of land, with which she was satisfied for 11 years, until she filed this suit, in forma pauperis, for maintenance at Rs. 100 a month, arrears of maintenance for 11 years amounting to Rs. 13,200, the recovery of stridhanam jewels or their value estimated at Rs. 4,800, Rs. 2,000 for the construction of a house, and utensils valued at Rs. 150. This is prima facie a very exaggerated claim without the curb of any court-fee, seeking relief of over Rs. 20,000.

3. Both the parties joined in a petition under Section 21 of the Arbitration Act, which was in the following brief terms:

Both the parties in this suit have agreed to appoint Rayala Govindappa as the sole arbitrator to settle the suit disputes and to abide by his decision. Therefore the plaint and written statements and record may be sent to him for his decision.

4. The arbitrator examined the widow, Vengamma, by herself in Amidala village, where she was residing on 6th March, 1945, and recorded from her a statement which concludes with the following request:.it is prayed that you look into my plaint and the written statements of the three defendants and give your decision according to law.

A week later, on 10th March, 1945, the arbitrator examined Kesanna, the first defendant, separately, and recorded from him a statement which substantially sets out the facts alleged in his written statement and similarly ends with the following sentence:

as both of us stated before the Court that we will abide by your decision and as per the order of the Court, I trust that you will settle our disputes after perusing the plaint and the written statement in the suit.

5. The arbitrator accordingly, without taking any evidence, passed a brief award dealing with the claims made on the basis of the pleadings. His award gave Vengarnma 8.1 cents of land more on the basis that she was in enjoyment of the 40 acres provided for her under her husband's will. He also awarded her a house for her residence which she may choose from among the houses belonging to the family other than the one occupied by the defendants. In addition, he gave her Rs. 1,400 towards costs to be paid by the defendants within a month and also directed the defendants to pay the entire pauper court-fee on her plaint.

6. The award was challenged on several grounds in Vengamma's petition. The important ground pressed before us is that the arbitrator misconducted the proceedings in examining the first defendant behind the back of the plaintiff without giving her an opportunity to challenge his statements. It is well-settled law that an arbitrator should not hear the evidence of one party behind the back of the other. It is not necessary for us to traverse the wealth of authority in support of this principle in English and Indian case-law, commencing with Drew v. Drew (1855) 2 Macq. 511 and recognised and stressed in a number of English cases set out by Mukherjee, J., in Ganesh Narayana Singh v. Malida Koer (1911) Cri.L.J. 399 a Bench decision of the Calcutta High Court. This principle is universally accepted as based upon broad principles of justice, equity and good conscience. We concede the contention of the learned advocate for the respondent that it is settled law that an arbitrator who records evidence on behalf of either party behind the back of the other must be held to misconduct the proceedings. Our particular attention has been drawn to the decision in W. Ramsden and Co., Ltd. v. Jacobs (1932) 1 K.B. 640. That does not help the case for the respondents. There, in a commercial dispute, the arbitrators obtained written statements from parties, and having considered them, summoned the defendant Jacobs to attend before them. He stated his case. He was asked to retire. The arbitrators then summoned the sellers and heard their submissions in the absence of the buyer. Jacobs applied to have the award set aside on the ground that he should have been allowed to be present when Ramsden and Co. were heard and, if he had thought fit, to cross-examine their witnesses. Bray, J., condemned the procedure of the arbitrators of hearing the evidence of one party in the absence of the other as absolutely wrong. He, however, felt a difficulty as to whether Jacobs should be heard to complain, as he made no protest at the time. But in order to show judicial disapproval of the procedure that were followed, the Bench which decided that case, with some reluctance, set aside the award.

7. The simple point for determination in the present case, as it appears to us, is whether by interviewing the plaintiff and the defendant separately and by recording the statements he did, the sole arbitrator recorded evidence from one party behind the back of the other or even received information from one party which the other had no opportunity of meeting. The learned District Judge's reasons on the material for setting aside the award are summed up in paragraph 17 of his judgment. In connection with the present contention, he made the following observations:

The arbitrator does not seem to have had any personal knowledge nor is there anything to show that he consulted or adopted the opinions of other people. He seems to have been solely guided by first respondent's statement and surrendered his own judgment or consciousness.

Another reason he gave was that the arbitrator disallowed the claim for a large sum by way of arrears of maintenance and a claim for stridhanam jewels without bestowing a single thought about it but merely acting on the word of the first respondent. These adverse findings against the arbitrator, we have no hesitation in saying, are quite unwarranted. The learned District Judge has failed to observe that both the statements he recorded from the plaintiff and the first defendant ended with a request to the arbitrator to look into the plaint and the written statement and make an award on their basis. It is true that the statement recorded by the arbitrator from the first defendant is a little longer. There is however no material fact in that statement which does not appear in the written statement except one detail on which a great deal of stress is laid by the learned advocate for Vengammal, namely, that the Government accounts would show that she was in possession of the lands bequeathed to her by her husband. Apart from this, there is not a single fact recorded by the arbitrator from the first defendant which does not find a place in his written statement.

8. The arbitrator presumably was agreed on by both parties as one in whom they had mutual trust and confidence. Neither the petition nor the reference to him authorised him to import his own knowledge of the affairs of this family into the award. If he had any such knowledge prior to his being appointed an arbitrator, it is quite impossible to expect him to divest his mind completely of all such knowledge of the affairs of this family in the making of the award. There is, however, nothing whatsoever to show that the arbitrator did not make his award within the narrow confines of the pleadings which both parties requested him. to do. The significant fact is that neither party desired to adduce any evidence. It would undoubtedly have been better and more in accordance with recognised procedure for the arbitrator to have sent for both parties before him and recorded their statements in each other's presence. In Ramaswami Iyer v. Subbier : AIR1926Mad1158 a Subordinate Judge held that arbitrators were guilty of misconduct merely because they first sent for the defendant and questioned him about the facts of the case and then sent for the plaintiff who came and represented his case. There, a week later, they examined the plaintiff. Phillips and Madhavan Nair, JJ., upheld the award, which was challenged by the plaintiff on the ground that he was examined after the defendant, because there was nothing to show that he was not told the case of the defendant which he had to meet, and therefore misconduct by the arbitrators had not been proved. The facts in that case were, as the learned Judges there observed, somewhat peculiar. No hard and fast rule can be laid down as to what precisely constitutes misconduct either of the arbitrator or of the arbitration proceedings. This must depend upon the circumstances of each case. In the present case, we have no hesitation in holding that, by merely taking down the statements he did from the parties in which they merely reiterated the request contained in their petition for arbitration that the arbitrator should give his award on the basis of the pleadings, no evidence was recorded from one party behind the other party and to the latter's prejudice.

9. A broad general ground on which the learned District Judge has also set the award aside is that the arbitrator has acted in a manner which is inconsistent with equity and natural justice. We are unable to agree with his observation that the arbitrator made up his mind in five minutes accepting all the first defendant's statements as true without finding out what the plaintiff's answer to these allegations were. He was also of the opinion that the arbitrator should have placed before the plaintiff her husband's will in regard to her maintenance and should have examined her about it. He also thought the award gave no reasons for the arbitrator's conclusions. We are quite unable to agree with these inferences adverse to the arbitration and the award, and are wholly unable to see in what manner the arbitrator has acted in violation of principles of equity and natural justice. There was the very eloquent fact that Vengamma had made no claim for maintenance for 11 years, and her then coming forward with what is prima facie a very exaggerated claim asking for 11 years' arrears of maintenance. The arbitrator was placed by the parties themselves in a difficult position with authorisation from them both to decide the disputes by a reference to the pleadings and the records. This is the type of case which appears to us to be covered by the dictum of the Privy Council decision in Mohindar Singh v. Ramindar Singh (1944) 2 M.L.J. 227 in a case where the parties appointed a layman as an arbitrator:

True the decision he gave was not one that a Court could have given, nor was it one that perhaps would have been given by an arbitrator who was also a lawyer. But for better or worse they chose to submit their disputes to a relative whom they trusted and who was not a lawyer, and he has given just the sort of award that might be expected from a lay arbitrator in the circumstances.

In this case the only difference is that Rayalu Govindappa was not a relative. We observe that one of the grounds on which the award was challenged in the petition under appeal was that the arbitrator gave effect to an invalid will which could not be made by a member of a joint family. But on the pleadings, there was this averment of a maintenance provision made for Vengamma by her husband with an almost irresistible inference that she was content with that maintenance during her 11 years of inactivity after her husband's death.

10. We are unable to see any legal grounds on which the award of the sole arbitrator can be upset. Vengamma herself was the only witness examined on her petition, and there was only ipse digits that the arbitrator, Govindappa, came to her hotel at Anantapur of his own accord before the reference and asked her to accept his arbitration, and that she was informed by her younger brother that Govindappa had practised some fraud. No attempt has been made to substantiate any allegation of any fraud by the arbitrator. He appears to us to have discharged a difficult and delicate task assigned to him to the best of his ability at the request of both parties within the narrow scope of his reference. An allegation has been made before us, any comment on which would be quite outside the scope of this appeal, that the widow has been set up by family enemies to file this suit.

11. In the result, the appeal is allowed with costs throughout, and the award will be made a decree of Court.


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