1. This appeal arises out of a suit for partition and accounts.
2. Raghunandan, the deceased husband of the plaintiff and defendants Nos. 1 to 3 are sons of one Karulal, who died in the year 1939. Defendants Nos. 4 and 4(a) ate sons of defendant No. 1, Defendant No. 5 is the son of defendant No. 2. The coparcenary, of which Karulal was at one time the Karta, possessed, according to the plaintiff, considerable movable and immovable properties and a business carried on under the name and style of 'Nathun Sao-Karulal'.
3. Plaintiff alleged that her husband Raghunandan died on June 18, 1938, leaving the plaintiff, the widow, and Kamala and Bimala, two minor daughters, as his heirs. Since then Kamala has been given in marriage. Bimala remains unmarried. Plaintiff claimed to have become entitled to her husband's interest in the co-parcenary properties, under the provisions of the Hindu Women's Right to Property Act, 1937.
4. After the death of Karulal, plaintiff further alleged, defendant No. 1 became the Karta and began to manage the joint estate. According to the plaintiff, she came to know, in or about the months of April 1951, that the defendant No. 1, in collusion with defendants Nos. 2 and 3, had misappropriated considerable amounts out of the joint funds and out of the income of the joint estate, including the income from the business 'Nathun Shao-Kanilal'. Thereupon, the plaintiff is said to have claimed accounts from the defendants, particularly from defendant No. 1. The reaction of the claim on defendants Nos. 1 to 3 was that they wanted to separate.
5. It is in the aforesaid circumstances that the plaintiff filed the suit, out of which this appeal arises. In Schedule 'A' to the plaint the plaintiff included the description of immovable properties, claimed to be joint. In Schedules 'B(1), B(2), B(3), C, D and E, movables claimed to be joint were described. Also included in Schedule 'E' was the business Nathun Shao-Karulal and some other businesses, said to be joint. Schedule 'F' is the same as items 7, 8, 12 and 18 of Schedule B(3) and those properties were claimed to be the stridhan properties of the plaintiff herself.
6. Defendants Nos. 1 and 2 filed one written statement. They pleaded that the properties owned by Karulal were his self-acquired properties. Item No. 1 of Schedule 'A' to the plaint, being premises No. 13, Tej Pal Lane in the town of Assansol, was said to be the self-acquired property of the grand mother of defendants Nos. 1 to 3, Saro Kunwar, now deceased and defendants Nos. 1 to 3 alone claimed to have inherited the same. Item No. 3 of Schedule 'A' to the plaint was claimed to be the self-acquiredproperty of Bhubaneswari Debi, wife of defendant No. 1, and was, therefore, said to be not liable to partition. It was further stated in the said written statement that when Karulal died, defendant No. 1 was a minor. The mother of the defendants Nos. 1 to 3, who was ailing at the time of Karulal's death, also died a short time thereafter. The plaintiff, therefore, became mistress of the family and remained, it was alleged, in charge of the joint movables and also joint funds.
7. The defendants also disputed the existence of the properties described in Schedules B92, C and D and denied knowledge of the particulars of those described in Schedules B(1) and B(3) to the plaint. The movables embedded in the floor of the kitchen, room of the house at No. 13, Tej Pal Lane were said to bo the personal properties of the grand mother of defendants Nos. 1 to 3 and defendants Nos. 1 to 3 alono claimed to be the owners thereof. The plaintiff's claim in respect of the properties in Schedules 'E' and 'F' of the plaint was also disputed. The business known as 'Nathun Sao-Karulal' was said to have been closed after the death of Karulal and thereafter a new business, under the same name, was said to have been started with one Motilal Shau as a partner. The defendants, therefore, contended that the plaintiff was not entitled to ask for partition and accounts as claimed by her.
8. At the time when the plaint was filed, the Hindu Succession Act, 1956 had not come into operation and the plaintiff, therefore, invoked the provisions of Hindu Women's Right to Property Act, 1937, now repealed. It was not, however, disputed before us that on the plaintiff succeeding in proving her share in the properties in dispute, she would have been absolutely entitled thereto under the provisions of the Hindu Succession Act, 1956, if the circumstances hereinafter stated did not happen.
9. Sometime after the filing of the suit, the parties agreed to refer their disputes to the arbitration of five persons, named in the petition for reference to arbitration. The terms contained in the application for. submission to arbitration were:
(a) That all disputes and all matters of difference between parties shall be referred to the said Arbitrators for their decision.
(b) That each and all of the parties shall be bound by the decision and Award made by the said Arbitrators and no body shall have any right to challenge the same.
(c) That in case of difference the Award made by the majority shall prevail.
(d) That the Arbitrators Nos. 1 and 2 mentioned in the Schedule below have been nominated by the plaintiff and the Arbitrators Nos. 3 and 4 mentioned in the said Schedule have been nominated by the defendants and the Arbitrator No. 5 mentioned in the said Schedule has been nominated by both the parties.
(e) That in case of inability of any of the Arbitrators on account of his infirmity of death or removal, to proceed with the arbitration proceeding, he will be replaced and substituted by the party or parties by whom he was nominated.
(f) That the Award shall be made by the said Arbitrators within 2 months from this date, unlessthe date for submission of the Award is extended by the Court.'
10. On the aforesaid application, the court below passed the following order. (Order No. 92 dated 15-2-52):
* * * 'The petition filed by all the parties on 11th December, 1951 praying for referring all disputes and all matters in difference between all the parties to arbitrators named in the schedule of the petition is put up. Heard learned lawyers. Perused the petition of the parties for reference to arbitration. Permission sought for is accorded to guardians. Let all disputes and all matters in difference between all the parties in this suit be referred to the arbitrators. Issue writs to the arbitrators fixing 29th March, 1952 for submission of award. Parties are hereby directed to file copies of relevant papers within a week.'
11. Pursuant to the order aforesaid, there was a writ issued to the arbitrators. The writ, curiously enough, contained certain specified points of reference, not to be found either in the application for submission to arbitration or in the order passed thereon. How this came to be could not be explained to us by anybody. When the parties had agreed to refer all disputes and all matters of difference between them to arbitration and after the court below had ordered accordingly, there should not have been certain specified points of reference incorporated in the writ. Fortunately, the arbitrators were not misled thereby and we therefore, ignore the points of reference super-added to the writ. On 28-5-1952, the arbitrators filed their award in the court below. The material portion of the award is hereinbelow quoted:
'Re: Property No. 1 of Schedule (A) to the plaint:
1. The plaintiff has no right over the property to sell or to let it out but she has every right to live in the south-east room in which she lives at present with the right of usual passage. She may reside there till her death. The plaintiff will have no right to raise any objection and she will vacate the same as soon as the property is disposed of.
Re: Property of item No. 3 of Schedule (A).
2. It is a joint property and Sm. Bhubaneshwari Debi has no right over it. We hold that holding No. 5 of Munshihat Lane being item No. 3 of Schedule A of the plaint is a joint property of the parties and does not belong to Sm. Bhubaneshwari Debi, wife of defendant No. 1.
3. The remaining immovable properties were the coparcenary properties of late Shree Karolal Sao and his sons and as such are the joint coparcenary properties of the parties.'
'5. (sic) Regarding B(1), B (II) and B (III) --The movable properties stated in Schedule B(1) said to have been kept buried underground in the kitchen room of No. 13, Tejpal Lane. We hold that those movables belonged to the grandmother of the defendants Nos. 1, 2 and 3 and they have become ownersthereof and the plaintiff has no claim over these.'
* * *'Regarding movables mentioned in the Schedules C and D of the plaint the plaintiff could not give any evidence where the articles were or are in existence. A Commissioner was appointed by the Court end found certain gold and silver articles which he has kept in the Imperial Bank, Asansol. Except the articles kept in the Bunk we do not find existence of any gold and silver articles as mentioned in Schedules C and D. We find that the articles and cash, deposited in the Bank belong to the defendants and the plaintiff has no right over these. Regarding articles mentioned in Schedule E from the evidences it appears that plaintiff is in possession of some of them and defendants are similarly in possession of the remaining. We hold the plaintiff is the owner of the articles in her possession and has no right or claim to the articles in possession of the defendants who become owners of the articles in their possession.
Regarding the grocery shop and oilman store and articles and utensils with assets and credits of the business styled as Nathus Sao Karolal and the money-lending business belonged to the joint family of the parties.
Regarding Schedule F and item No. 7: We already found there is no existence of these articles. Whatever stridhan the plaintiff had is in her possession. We enquired whether the plaintiff gave any ornaments to her daughter but parties could not produce any evidence on the point.'
* * *'9. We hold that the plaintiff was in custody and in charge of some of the movable valuables while the remaining movables and grocery shop and oilman stores were in charge of defendants Nos. 1, 2 and 3. We hold that no party is liable to render accounts to any other party.'
* * *'6. (sic) We found the plaintiff has no share in the property in item No. 1 of Schedule A which belongs to the grand-mother of defendants Nos. 1, 2 and 3.
12. We find that plaintiff is not entitled to any maintenance allowance during the pendency of the suit.
4 (sic). We find that the plaintiff has got one-fifth of the property already found above by us is joint but we found that in lieu of the said share of the plaintiff being allotted to her by partition we find that she is entitled to a monthly sum of Rs. 85/- (Rupees eighty five) only during her life-time and she will also get Rs. 25/- per month for her second daughter till her marriage. The plaintiff will marry her second daughter at her own cost and will have no claim upon the defendants for marriage expenses. The plaintiff will realise the amount of maintenance given above to the plaintiff including that of her daughter from the premises mentioned in item No. 4 of Schedule A to the plaint and being holding No. 49 Dr. Nichols Road, Ward No. III, a two-storied pucca house bounded on the east by a lane, on the west by the house of Sk. Rahimuddin, on the north Dr. Nichols Road, on the south by the house of Ramdhari Sao. The plaintiff will remain in possession of the said premises during her life-rime and will be entitled to realise rent from the tenants, if any, by suit or amicably and the defendants will have no claim or right to realise any portion of rent during the life-time of the plaintiff.
The plaintiff will pay municipal taxes and make necessary repairs out of the rent realised. The plaintiff will also pay to the defendants the sum of Rs. 25/- per month out of the rent thus realised and will appropriate the balance for maintenance of herself and her unmarried daughter and will pay the sum of Rs. 50/- per month to the defendants after the second daughter of the plaintiff is married. The plaintiff will also bear all costs of realisation of rent. The defendants will be entitled to realise the same from the plaintiff by suit or amicably.'
12. The plaintiff objected to the award, inter alia, on the ground that 'some portions of the award being outside the terms of reference, they should be thrown out as a whole'. She, therefore, prayed that the award be modified according to the terms of the reference or be remitted to the arbitrators for acting in accordance with the said terms. On August 27, 1953 the learned Subordinate Judge passed the following two orders by way of judgment in terms of the award:--
'(Order No. 86 dated 27-8-53)
* * * * *The learned lawyer for the plaintiff argued that the arbitrators went beyond their term of reference and beyond the scope of the disputes in the present suit which were referred to them, when they directed that plaintiff should not get l/5th share of the properties but in lieu thereof she was to get some money only per month. This contention appears to be perfectly sound. In the pleadings there is no dispute about the fact that the plaintiff is entitled to a share in the joint family properties, although there was dispute regarding the extent of her share and regarding the question as to which properties constitute joint family properties. In the term of reference also the arbitrators were asked to give their award regarding plaintiffs share, regarding properties which are to be considered joint family properties, regarding accounts etc. But the arbitrators were not asked to give any opinion as to whether or not plaintiff should get such share as would be found by the arbitrators themselves or whether she should get a monthly income in lieu thereof. In my opinion, therefore, that part of the award which directs giving money to the plaintiff in lieu of hershare cannot be accepted. I however accept the award on other points,'
'(Order No. 87 dated 27-8-53).
In terms of the award of the arbitrators, as accepted by me, it is ordered that the suit be, and the same is hereby decreed in preliminary form without costs. It is found that the plaintiff has 1/5th share in the immovable properties described in items 2 to 7 of Schedule A of the plaint as also in the business described in Schedule E of the plaint. The plaintiff do get a partition by metes and bounds in respect of the joint family properties as found above. Plaintiff's prayer for getting partition of the other properties mentioned in the schedules of the plaint is rejected. Plaintiff's prayer for getting accounts from any of the defendants as also plaintiff's prayer for getting expenses of marriage of her daughter Bimala from the defendants are also rejected.
The plaintiff is directed to deposit Rs. 200/-towards the costs of a pleader commissioner. Onsuch deposit being made a commissioner will be appointed to partition the joint family properties found as above by metes and Bounds. Parties to bear their own costs upto this stage.'
13. A decree in terms of the judgment was passed and the material portion thereof is hereinbelowquoted:--
'It is ordered and decreed that the suit be and the same is hereby decreed in preliminary form without costs. It is found that the plaintiff has 1/5th share in the immovable properties described in items Nos. 2 to 7 of the Schedule A of the plaint as also in the business described in Schedule E of the plaint. Plaintiff to get a partition by metes and bounds in respect of the joint family properties. Plaintiffs prayer for getting partition of the other properties mentioned in the Schedules of the plaint is rejected. Plaintiffs prayer for getting accounts from any of the defendants as also plaintiffs prayer for getting expenses of marriage of her daughter Bimala from the defendants are also rejected. The plaintiff is directed to deposit Rs. 200/- towards the cost of a pleader commissioner. On such deposit being made a commissioner will be appointed to partition the joint family properties by metes and bounds. Parties to bear their own costs up to this stage.'
The decree was signed by the learned Subordinate Judge on November 11, 1953.
14. The defendants presented this appeal on December 18, 1953, inter alia, disputing so much of the decree as was at variance with the award.
15. Mr. Hariprosanna Mukherjee, learned Advocate for the plaintiff-respondent, contended, as a point of preliminary objection, that the learned Subordinate Judge had only modified or corrected the award by his order, dated August 27, 1953. The defendants were at liberty to appeal against the said order under Section 39(1)(iii) of the Arbitration Act. But they did not do so in time. Therefore, the appeal was barred by limitation.
16. In repelling the argument advanced by Mr. Mukherjee, Mr. Prafulla Kumar Roy, learned Advocate for the defendants-appellants, drew our attention to sec. 17 of the Arbitration Act which was to the following effect:--
'Where the court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award the court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the groundl that it is ill excess of, or not otherwise in accordance with the award.'
17. Mr. Roy contended that this appeal was confined to that portion of the decree which was in excess of or not in accordance with, the award, namely, the portion of the decree by which the learned. Subordinate Judge passed a preliminary decree for partition, by metes and bounds, in favour of the plaintiff. Counting from the date of the decree, that is to say the date on which the learned Subordinate Judge put his signature on the decree, the appeal was filed within time.
18. In our opinion Mr. Roy is right in his contention and we hold that the appeal, in so far as it challenges the decree as not in accordance with or in excess of the award, is not barred by time.
19. Under the provisions of the Arbitration Act, after a reference to arbitration has been made, the court has the following powers, regarding an award made. It can set aside the award, say for example, On proved misconduct on the part of the arbitrators or if the award has dealt with matters not included in the submission, without the consent of the parties; it can modify or correct the award where a part of the award is upon a matter; not referred to arbitration and such part can be separated from the other part and does not affect the decision on the matters referred to or where the award is imperfect in form, or contains only obvious errors which can be amended without affecting such, decision or where the award contains a clerical mistake or an error arising from an accidental slip or omission; it can remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred to or where the award is so indefinite as to be incapable of execution or where an objection to the legality of the award is apparent upon the face of it. But where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow.
20. Mr. Roy contended that the judgment and the decree passed by the learned Subordinate Judge were completely at variance with the award made. The arbitrators had refused the plaintiff's claim for a partition by metes and bounds, but gave her relief by granting her a right of residence in one of the houses belonging to the joint estate and by giving to her and to her unmarried daughter a specified sum as monthly maintenance. The learned Subordinate Judge, without setting aside the award overruled the award and directed partition of the joint properties described in items Nos. 1 to 7 of Schedule 'A' to the plaint by metes and bounds and a separate allotment thereof equal to the plaintiff's one-fifth share therein. This portion of the judgment and decree, Mr. Roy contended, was not in accordance with the award and deserved to be set aside. Mr. Roy further contended that the learned Subordinate Judge was bound to pass the judgment and the decree to terms of the award.
21. Mr. Hariprosanna Mukherjee, learned Advocate for the respondent, in trying to repel the argument of Mr. Roy, contended that the arbitrators had. found that the plaintiff was entitled to a fifth share in the joint properties. After having so found they had no jurisdiction not to allot to her a separate portion, commensurate with her share in the property but to give her and to her unmarried daughter two sums- of money as monthly maintenance. In support of this proposition Mr. Mukherjee strongly reled on the- case of Jafri Begam v. Syed Ali Baza; 25 Ind App 111. He placed particular reliance on the following observation by Lord Lindley in the aforesaid judgment (at page 118):--
'The arbitrator had no power to alter the course of legal devolution in a mode at variance with the ordinary principles of Mahomedan law in the absence of a special custom prevailing in the family. He had no power to make property which was divisible by law indivisible for ever.'
22. The case relied upon by Mr. Mukherjee is clearly distinguishable. In that case the mother of one Syed Ali Raza sued for separate possession of one-half share of the estate of her father Saiyed Ashik Ali, deceased, with mesne profits. The defendants were her sister and her sister's husband. The disputes between the parties had at one stage been referred to arbitration by a friend of the family. The award made directed that the two daughters of Saiyed Ashik Ali should be absolute owners of the whole estate but that neither should have the right to partition and that Tassaduk Hussain, husband of Jafri Begum' (one of the daughters of Saiyed Ashik Ali) should be the manager of the entire property and render half yearly accounts to each of the daughters. In disregard of the provision in the award that the estate must never be partitioned, the plaintiff instituted a suit for partition. One of the defences raised in the suit was that the plaintiff could not get any title under the award which would give her a right to partition and be independent of the retention of Tassaduk Hossain as Manager. It was in the aforesaid context that Lord Lindley made the observations hereinbefore quoted.
23. In the present case the arbitrators did not wholly deny the plaintiff her right to partition. What they did was to ascertain the share of the plaintiff-respondent in the joint estate and then, instead of allotting to her a share in the joint estate in specie, according to her share, give her relief in the shape of monthly maintenance both to herself and to her unmarried daughter. This was not doing the same thing as was done in the case reported in 28 Ind App. 111.
24. What the Arbitrators did may have been erroneous, the partition effected by them may not have been equitable, they may have erred in effecting a partition of the joint estate in the manner done, but they certainly did not act without jurisdiction or in excess of their jurisdiction.
25. A point, similar to that contended by Mr. Mukherjee, came up for decision before the Lahore High Court in the case reported in AIR 1940 Lah 186, Raminder Singh v. Mohinder Singh. Young C.J. and Tek Chand J. answered a contention similar to the contention made by Mr. Mukherjee in the negative and observed:
'The next contention of Mr. Mehr Chand was that the award went beyond the scope of the suit. He pointed out that in the plaint the plaintiff had claimed that he was the real owner of the property in dispute and had prayed that a decree be passed directing the defendant to surrender possession to him. The defendant, on the other hand, denied the plaintiffs ownership and pleaded that the land belonged to himself and, therefore, he was entitled to retain possession. Mr. Mehr Chand urged that the arbitrator should have either decreed the suit as prayed or dismissed it; he could not pass a money decree in favour of the defendant. But that is an entirely erroneous view of the matter. In the award the arbitrator has rejected the plaintiff's claim for possession and has upheld the defendant's right to retain possession of the disputed property, on the condition that he shall pay the sum of Rs. 15,000/- to the plaintiff. In other words, he has merely put the defendant on terms, and in doing so he can by no means be said to have gone beyond the scope of the suit. The award clearly deals with the subject-matter of the suit. and nothing else. If is only the relief given which is different from what either party claimed.'
26. There was an appeal taken to the Privy Council against the decision reported in AIR 1940 Lah 186. The Privy Council upheld the judgment as will appear from the decision reported in , Mohinder Singh v. Raminder Singh.
27. It is no proposition of law, that if a suit is brought for partition and severance of the joint estate, properties included in the joint estate must be partitioned by metes and bounds. The point was dealt with in the following language in the Full Bench decision of this Court reported in 1 Cal. W.N. 406, Hernadri Nath Khan v. Ramani Kanta Roy and we quote below an extract from the judgment delivered by Gurudas Banerjee, J. :
'As a general rule, every joint owner of property should be held entitled to obtain partition, or, in other words, 'to be placed in a position to enjoy his own right separately and without interruption or interference', by his co-sharers : See Shama Sundari Debi v. Jardine Skinner and Co., 12 Suth W.R. 160, Story's Equity Jurisprudence, Section 648. It is against good sense, if not also against good morals as the Roman Law viewed it, to compel joint owners to hold a thing in common, 'since it could not fail to occasion strife and disagreement among them'. But if partition has the advantage of placing each co-sharer in a position to enjoy his own property without interference by others, it has the disadvantage of subjecting him to expense, and of impairing more or less the value of the joint property by dividing it into comparatively small parts; and where partition is sought by a co-owner whose interest in the property is limited in point of time, the question may arise whether the temporary advantage to be secured to him is sufficient to outweigh the disadvantage of subjecting the other co-owners to expense and trouble, which may, in the end, lead to no permanent division, the successors of the applicant not being bound by anything done at his instance. The general rule must, therefore, be taken subject to many exceptions and qualifications depending upon the nature of the thing owned jointly, the nature of the interest or the party claiming partition, the nature of the terms and conditions on which the different joint owners hold their respective interests, and various other matters.'
28. In the instant case there were special reasons which may have induced the arbitrators not to direct a partition of the joint property and allotment of a share to the plaintiff in specie. At the time when the award was made the Hindu Succession Act had not come into operation. The plaintiff had invoked the provisions of the Hindu Women's. Right to Property Act in her favour. Under the provisions of that Act the plaintiff would have been entitled only to a widow's life-interest on partition. Then again Motilal Shau, who was said to be a stranger partner taken in the business 'Nathun Sao-Karulal', was no party to the partition suit. He would not have been bound by any decree for partition of the business and allotment of a share in the business separately to the plaintiff. These may have been the reasons which induced the arbitrators to give relief to the plaintiff only in the form of a monthly grant of maintenance to herself and to her minor daughter, in lieu of partition by metes and bounds and allotment of a portion to the plaintiff, commensurate with her share.
The propriety of such a partition, as awarded by the arbitrators may be open to question. But that does not make the award without jurisdiction or liable to be set aside, modified or corrected or remitted to the arbitrators for reconsideration. The Court below was therefore, bound to pass a judgment and decree in terms of the award.
29. The plaintiff had filed her suit in a Civil Court. But later on appealed to the wisdom of a private forum and submitted to an arbitration on all points of dispute between parties. If she now finds the award made not to her liking, she is not entitled to question the wisdom of the forum of her choice.
30. We, therefore, uphold the contention of Mr. Roy and hold that the judgment and the decree passed by the Court below, in so far as it is not in accordance with the award, must be set aside.
31. We, therefore, allow this appeal and remand this matter to the Court below with direction to that court now to pass a judgment and decree in terms of the award. The Court below must do that by 30th of April, 1960.
32. In view of the fact that the plaintiff may not have disliked the award without just cause, we do not make any order as to costs in the appeal.
33. In view of our judgment passed in the appeal, no separate order need be passed on the application under Section 115 of the Code of Civil Procedure.
34. Let the records be sent to the Court below as early as possible.
35. I agree.