1. This is an appeal against the order of the Second Additional Subordinate Judge of Madura holding that a certain award is invalid. Defendant 1 had five sons, one by his first wife and four by his second. The father had begun life in a small way with family property apparently worth only Rs. 300 or 400 but he made a considerable fortune in Sunnadi dye. He had originally two sons by his first wife but his eldest son, Ramasami, died at the age of 18 and according to the plaintiff from about 1913 his family had been in comfortable circumstances and in 1922 there was an attempt at partition in the family. This partition did not get further than a partition of moveables. Consequently, on 16th September 1923 the family made a reference to five arbitrators to divide the family property, Ex. V. Three of the arbitrators were relations and two of them P.W. 1 and D.W. 2 were intimate friends of the family with a knowledge of all its circumstances. The reference is very short and runs as follows:
As we have named you as arbitrators to effect a partition amongst us and executed this muchilika to you, we execute this muchilika agreeing to be bound by whatever award you may pass in respect of our partition after seeing our properties and hearing what we have to state (vakumulam).
2. The reference though dated 6th June 1923, was not signed till the 16th September 1923. It is signed by the father, defendant 1, for himself and on behalf of the two minor sons by the second wife, by the plaintiff who was then the only surviving son by the first wife and by the two major sons of the second wife. It may be noted that the last signatory, Ramayyan, had been given away in adoption to another family but was by agreement to obtain a share in his natural family. In September 1924 the award, Ex. G, was given and in December 1924 there was a petition by the plaintiff to pass a decree in terms of the award. The vakumulam took the form of written statements put in by the parties and Ex. 1 dated 25th September 1923 is the statement put in by the father signed by himself alone. In this document after agreeing to abide by any award the arbitrators may pass in accordance with the muchilika the father asks shortly: (1) that he and his wife should be allowed to live in the ancestral house for their lives and that it may be taken in shares by the sons after their deaths; (2) Rs. 7,000 for pilgrimage expenses; (3) Rs. 10,000 for charities and he adds: 'I pray for orders to reserve the total sum of Rs. 17,000 for my doing charities and going on pilgrimages as I like;' (4) the income from Rs. 30,000 for his expenses and those of his daughters and 30 kalams of paddy, the Rs. 30,000 to be taken in equal shares by the sons after his and his wife's deaths; (5) Rs. 10,000 worth of land, jewels etc., as stridhanam to each of the daughters; (6) Rs. 5,000 worth of jewels for the wife to be taken in equal shares after her death by the sons and daughters; (7) all the remaining property to be taken in equal shares by the five sons. The statement filed by the plaintiff Ex. B dated 24th September 1923 points out that he assisted his father to attain success in his business after the death of his brother, Ramaswami and that the sons of the second wife never did any work. He therefore asks the panchayatdars to grant him half share in the properties he sets out and 'an elder brother's (excess) share above them according to the partition effected amongst our ancestors.' The statement filed by defendant 2 on 23rd September 1923, Ex. A asks that the five brothers should take the properties in five equal shares and adds: 'I am not willing to give any (excess) as elder brother's share to my elder brother, Vasudeva Ayyar;' but he requests the panchayatdars to do him a favour which is in their discretion. In other words, he wants more than his one-fifth share. He also requests that all the immovables be divided into five shares. Ex. C is the statement of defendant 3, that is, the adopted son, dated 25th September 1923. He merely asks for an extra share to cover the expenses that he has to incur in performing the shradda etc., in his adopted family.
3. Now, the arbitrators had submitted to them a detailed list of properties owned by the family in Exs. D and E. Ex. P is the list of property owned by the family in Kodikulam with suggested shares for the five sons and the two daughters. So, Ex. D shows an agreed valuation of the houses and Ex. F an agreed valuation of lands. The arbitrators seem to have adopted the suggested division in every way except that they substituted the daughters for the father in respect of the Kodikulam property. Now, as stated, the arbitrators issued an award which was begun on 10th April but as a matter of fact not issued till September in which they allowed Rs. 18,000 for the residence and maintenance of the father, provision for the daughters which does not concern us and marriages, and Rs. 11,000 jeshtabhagam to Vasudeva Ayyar and they divided the property into five shares as requested. In the recitals they say they examined the parties, that they gave evidence and statements as to what should be done as to the Jeshtabhagam that Vasudeva should get and that the remaining property should be divided into five shares. The panchayatdars state that they received those statements and perused the accounts and lists etc., and found that the property amounted to a total valuation of Rs. 1,75,000.
4. On this the Subordinate Judge found that the award was defective in the following particulars:
(1) that the father was not given a full share but only a life-estate; (2) that the plaintiff was awarded Jeshtabhagam which is obsolete and illegal; and (3) that the award was produced not by the joint deliberations of the five arbitrators but by one of the arbitrators, Subbayyar, who is one of the three relation arbitrators not examined, in conjunction with the writer of the award, Hari Govinda Ayyar.
5. As to the first point it is said that this is an illegality on the face of the record because defendant 1 has been deprived of his proper share without his consent. The summary given above and the father's (defendant 1's) statement before the arbitrators, Ex. 1, clearly show that he did not ask for a share. What he wanted was cash, residence in the house and a life-interest in Rs. 30,000 to put it shortly. Everything but Rs. 17,000 was to go to his sons in equal shares; viz., the immovables and Rs. 30,000 after the death of himself and the death of his wife. What he says in his evidence as D.W. 1, is that he wanted the balance i.e., after the sums allotted to him for pilgrimage, charities, etc., to be divided among his sons. He says: 'I wanted a division giving each his share and retaining something for myself.' It is now said that Ex. 1 says that the property was defendant l's self-acquisition. There is no doubt that he started with a family nucleus though small and there is no evidence that he ever threw his self-acquisition into the hotchpot and then purported to reserve something out of it for himself. The contention is based on the expression in Ex. 1: 'You know also what I have acquired by taking great pains.' And in his evidence he says:
I acquired the whole of my property. As my sons did not agree among themselves, I wanted to effect a partition.
6. It appears to me that those words alone cannot be said to point to a consciousness on the part of defendant 1 that his property was his own to do what he liked with it and was not joint family property. He made apparently no objection in 1922 when the moveables were divided and as we see he was a party on his own behalf and on behalf of the minors to the reference to arbitration. I think therefore there is nothing in that point.
7. To take the third point next. Nothing has been said against the three members of the panchayat who are related to the family. All the arbitrators are said to have known the family for thirty years. The objection is not put forward in the written statement of defendant 1 who says in para. 10 that the award is the production of three arbitrators only who acting solely as the agents of the plaintiff, that is the eldest son, produced a document of their own choice for the signature of Nagendra Ayyar and Parasurama Ayyar, i.e., the two other arbitrators. He comments on the fact that the document was commenced to be written on 10th April 1924 and was not completed till September 1924. That is explained by saying that the 10th April happened to be a lucky day and that as very often happens the first few lines of a document are written at an auspicious time leaving the rest to follow. In fact, we do not hear anything of this objection till the re-examination of Nagendra Ayyar, D.W. 2, who now appears as a witness against the plaintiff. This witness says that he did not read the document before he signed it nor did the other arbitrators and he also says that he did not know how to effect a partition and had no intention of taking part in the arbitration. He further says that:
I told Timma Subba Ayyar to privately and secretly make a division and get Hari Govinda Ayyar to note it down and bring the result to me without informing any of the parties.
8. This is a man worth two lakhs of rupees who received all the statements and apparently saw the parties and everything that was done in the arbitration happened at his house. We have been taken through the deposition very carefully and I can only say that the impression left on my mind by the evidence of this witness is an extremely bad one and if it comes to deciding between the evidence of this witness and P.W. 1 the only other arbitrator who gave evidence I have no hesitation whatever in accepting the statement of P.W. 1 in preference to the other. He (P.W. 1) says the arbitrators met seven or eight times, the parties were not anxious that any further enquiry should be made after the statements and the lists and accounts had been put in, Defendant 1 never complained to the witness that Subba Ayyar and the plaintiff and Hari Govinda Ayyar, the writer, were secretly writing the award. This theory that the award was got up behind the backs of the other arbitrators by Subba Ayyar and the writer seems to be a pure afterthought and there seems nothing in the evidence that is worthy of credit to support the suggestion.
9. The second question as to Jeshtabhagam is perhaps more difficult. We have been referred to cases like Rajangam Ayyar v. Rajangam Ayyar : (1920)39MLJ382 , which says that jeshtabhagam is obsolete and illegal; Venkata Reddi v. Kuppa Reddi  8 M.L.W. 400, which says that jeshtabhagam is obsolete; Yerukula v. Yerukula A.I.R. 1922 Mad. 150 which says it is illegal and should be omitted from the decree that had been passed in that case. So, the objection is based partly on the fact that it is obsolete and illegal and partly on the fact that it again shows an error of law on the face of the award. It must be admitted that the word appears in the preamble to the award and also in the statement, Ex. B, put in by the plaintiff. It will be remembered that he asks not only half-share but for jeshtabhagam as well and I think it is undoubted that he asks for this on account of the fact which he sets out at some length that he has been of use to his family in building up the family business. It is said, on the other hand, that the award of Rs. 11,000 is 'for the jeshtabhagam of Vasudeva Ayyar' and that is the word used and not for any service. It is rather an extraordinary fact that, although this practice is said to be obsolete and illegal, we have in the course of this case been referred to recent proceedings in four or five districts of this presidency as far apart as Tinnevelly and Ganjam where this expression at least is still in use. Mayne says that the jeshtabhagam of the eldest son is either 1/10 or 1/20. It will be seen that the arbitrators have awarded Rs. 11,000 extra which is about 44 per cent in the present case. This does not seem to be any proportion known to the Hindu Law and I think there is no doubt that as a claim merely on the ground that one is the eldest son it is illegal. The question is whether the use of the word jeshtabhagam must be held to make the award of Rs. 11,000 illegal when we are satisfied that extra amount was given for services rendered. A very similar case C.R.P. 794 of 21 came before a Bench of this Court (Krishnan and Waller, JJ.) in November 1923. That was an arbitration and it was suggested in that case that the arbitrator had followed the obsolete rule of Hindu Law giving the eldest brother an extra share as jeshtabhagam and that therefore, under Section 14 (c), Sch. 2, Civil P.C., the award was illegal. The learned Judges point out that if the arbitrator was applying the rule he would have given a half share to the eldest son and not merely Rs. 3,000 and odd would have been given in consideration of having looked after his brothers for many years and educated them. The learned Judges declined to interfere. It seems to me that this is a case of, a very similar nature and that although as there the word jeshtabhagam is used the reason why extra allowance was given rests on very good and reasonable grounds, namely, the assistance rendered by the eldest son. It cannot therefore, be said that this is an error of law, for an error of law, only exists when in an award there is stated some legal proposition which is the basis of the award and which is erroneous: Chamsay Bhara & Co. v. Jivaraj Balloo Spinning and Weaving Co. A.I.R. 1923 P.C. 66.
10. There is a further matter to be considered and that is this: Are the minors bound by the award? Defendants 4 and 5 were separately represented before us and by the award they get about Rs. 25,000. They naturally do not want the father's share increased so that they do not join in the objection that defendant 1 the father, ought to have had an 1/6th share. The question really turns again on whether the minors are bound by this award called jeshtabhagam. It is said that they were not validly or legally represented at the arbitration. There is no doubt that the father referred the matter to arbitration on their behalf, Ex. 5, but he did not sign Ex. 1 on behalf of the minors. It is further said that he was not competent to represent them as his interest was in conflict with theirs. It is to be noticed that the statement Ex. 5 was signed on 16th September 1923 and it was not till the 25th of that month that the father put in his written statement. On the father's written statement he undoubtedly demanded both absolutely and as life interest a larger amount than he was entitled to. The arbitrators have as a matter of fact awarded him a life interest in a less amount than he would have been entitled to as a sharer. It has been recently held by a Full Bench of this Court in Venkata Someshwaro Rao v. Lakshmanaswami A.I.R. 1929 Mad. 213 that it is a question of fact in every case as to whether the guardian's interests are adverse or not.
11. It cannot anyhow be held that the action or non-action of the guardian renders the matter in question void ab initio. Here the father asked for an equal share for the minors with his other sons. There is really no adverse interest because the father as shown expressly disclaimed his right to a share. Though Ex. 1 was not signed on behalf the minors Exs. D and E, the property lists, were and it is not proved that there was 'any negligence on the part of the father in respect of the minors' rights. Jagan Nath v. Mannu Lal  16 All. 231, holds that it is competent for the father of a joint Hindu family in his capacity as manager to refer the partition of the joint family to arbitration. In that case minors were involved. So also the manager of a joint Hindu family 'even if he be not the father: Balaji v. Nana  27 Bom. 287. I am therefore unable to see why the minors should not be bound by this award. They have certainly suffered no deprivation and their only real complaint is against the award of jeshtabhagam which is in my opinion justified for the reasons I have stated. It was also faintly suggested that the arbitrators were bound to take evidence and that the minors were prejudiced because evidence was not taken on their behalf. Throughout the statement put in by the adult members of the family there seems to me to be nothing in any way prejudicial to the minors, save the claims made for some additional consideration which, save in the case of defendant 1,, were not considered by the arbitrators. I can see no unfairness to the minors and no prejudice to them. Their interests seem to have been looked after by the family as well as by the arbitrators who as a matter of fact, did very little more than adopt the suggestions put before them in the lists and accounts rendered by the family.
12. With the best consideration I can give to the case I think the learned Subordinate Judge is wrong in sustaining any of these objections to the award and I think that the award is legal and proper and that a decree should be passed in accordance with it. The miscellaneous appeal must accordingly be allowed with costs here and in the Court below.
13. I agree throughout in the conclusions of my learned brother. I only to wish to add a few sentences on the matter of the jeshtabhagam award and its validity as against the minor members of the family.
14. It is quite clear from Exs. A and B that the matter of a jeshtabhagam award was included in the matters referred to arbitration, and from Ex. G that the arbitrators definitely considered the propriety of it and awarded for it what they thought proper. The award was, in my opinion, a unanimous and considered judgment, for I quite agree with my learned brother that D.W. 2's attempts now to discredit it discredit nothing and no one but himself. His present glib confession that he went into the arbitration with no intention of doing his duty, that he deliberately abstained from doing it, and that nevertheless it was he who engineered the whole award privately and secretly without the knowledge of the parties or most of his fellow arbitrators is obviously false and inspired by an unscrupulous desire to help the defendants. The whole body of arbitrators was intimately acquainted with the family and its history, and a unanimous decision by such a body cannot be upset on the grounds urged by the lower Court. There is no ground in the evidence for concluding that the arbitrators awarded the jeshtabagam because they held that the law compelled them to award it. The award of that was therefore not based on any error of law apparent on the face of the record.
15. As to the minors, they were sufficiently represented by their father and guardian, unless their interests have in fact suffered by such representation, and it is impossible to hold that opinion when they have been awarded exactly the same as their major brothers, (defendants 2 and 3), who presented their case fully, and who were fully heard by the arbitrators. The minors are unable to maintain that their case differs in any respect from that of defendants 2 and 3. I am unable therefore to hold that the award is in any way bad in law, and agree that a decree should be passed in accordance therewith. I agree in the order as to costs.