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Lenka Polipillai, Minor, by Karri Dalemma Vs. Karri Ammanna - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in114Ind.Cas.367
AppellantLenka Polipillai, Minor, by Karri Dalemma
RespondentKarri Ammanna
Cases ReferredKrottapalli Gopalam v. Myneni Suryanarayana
Excerpt:
minor - arbitration--reference by guardian on behalf of minor agreeing to abide by decision of majority of arbitrators, legality of. - .....to the reference. it is conceded that parties who can contract for themselves can agree to a majority award, but it is said that the mother and guardian acted improperly and to the prejudice of the minor in consenting to an award by a majority. it is argued that although such a submission might have been lawful had it been made by parties both of whom were sui juris, it could not be sustained when one of the parties was a minor represented by a guardian. and reference was made to sanyasi v. venkata rao : air1923mad301 . the facts of that case were, however, entirely different, there the minor's mother and guardian consented to an arbitrator deciding the minor's claim upon information and evidence, howsoever obtained by the arbitrator. it was held that the guardian's consent.....
Judgment:

Mackay, J.

1. This is a petition in which it is sought to revise an order made by the District Munsif of Chodavaram declining to set aside an award passed by arbitrators. The first point taken is that the award is invalid as it was not made by the arbitrators unanimously. It was decided in Ayyasawmi Mudaliar v. Appandai Nynan 54 Ind. Cas. 912 : 38 M.L.J. 145 following the United Kingdom Mutual Steamship Assurance Association v. Houston & Co. (1893) 1 Q.B. 507 : 65 L.J.Q.B. 484, that an award to be enforceable in law must be the award of all the arbitrators without difference. Here, however, there is this distinction, that the petition of reference itself clearly states 'we shall accept as final the award given by the majority of the Panchayatdars'. The award is signed by a majority of three out of five. The District Munsif has found as facts that all the arbitrators were present at the deliberations, that two dissented from the decision of the majority and that they were not present when the award was actually written. He rightly concluded that the last fact did not vitiate the proceedings. There is nothing wrong in parties agreeing to abide by the award of a majority. Here the award has been signed by a majority and it is binding on the parties to the reference. It is conceded that parties who can contract for themselves can agree to a majority award, but it is said that the mother and guardian acted improperly and to the prejudice of the minor in consenting to an award by a majority. It is argued that although such a submission might have been lawful had it been made by parties both of whom were sui juris, it could not be sustained when one of the parties was a minor represented by a guardian. And reference was made to Sanyasi v. Venkata Rao : AIR1923Mad301 . The facts of that case were, however, entirely different, there the minor's mother and guardian consented to an arbitrator deciding the minor's claim upon information and evidence, howsoever obtained by the arbitrator. It was held that the guardian's consent amounted to a surrender of the minor's rights and that the arbitrator's eventual decision was vitiated by this misconduct and was invalid under Section 15 of Schedule II, Civil Procedure Code. The ruling has no application.

2. It was urged that the guardian cannot validly do anything which is beyond the ordinary course of litigation. I do not consider that agreeing to abide by a majority award is materially different from agreeing to abide by the award of a single person; and it cannot be said that such a course would be invalid. It is anomalous that the minor is still represented by the same guardian whose action is now characterised by her Advocate as grossly imprudent and detrimental. This is not a case where the guardian committed the interests of the minor into the absolute power of Panchayatdara who were permitted to follow a procedure opposed to natural justice; and the objection fails.

3. Thirdly, it is said that the award is bad because it is based on personal knowledge and because there must be express permission before personal knowledge can be imported. Reliance is placed on Krottapalli Gopalam v. Myneni Suryanarayana : (1926)50MLJ514 . In that case, however, the decision of the arbitrators was based only on their personal knowledge; moreover it was passed by a majority of only one and that one borrowed his knowledge at second hand from two of his fellow arbitrators. In the present case a reading of the award clearly shows that it was based on the documentary and oral evidence adduced by the plaintiff.

4. The fact that one of the three documents was produced by a Panahayatdar makes no difference. So far as appears the 'only facts known to us' on which reliance may have been placed are the facts stated in para. 3 that the 1st defendant is maintaining the guardian and also the minor which may equally be a conclusion from the plaintiff's evidence. The award is this based entirely or almost entirely on the evidence. The Panahayatdars were probably selected because of their personal knowledge and that knowledge they only used to understand and appreciate the evidence. They were appointed to decide 'whether they examine the proceedings in this suit and witnesses or not' which can only mean that if they did not make an enquiry they were to decide, on their personal knowledge. But in fact they decided on the documentary and oral evidence as is clear on the face of the award;

5. There is absolutely no ground which would justify interference with the procedure and order of the Court below in dealing with the objections to the award, and the petition is dismissed with costs.


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