1. The suit out of which this appeal arises was instituted on the 29th March 1911 and judgment was pronounced by the Subordinate Judge of Faridpur on the 21st June 1915. The appellant before us is Mr. T.C. Tweedie, who was brought on the record as defendant No. 22 in his capacity of Receiver of an estate known as the Haturia Estate, in which capacity be represents in this suit the interests of a Mohammadan family, members of which were originally impleaded as defendants Nos. 1 to 19. The Haturia Estate is the collective name of a number of properties in the districts, of Faridpur and Backergunge inherited by this family from Golam Ali, a wealthy Zemindar (of Hataria in Faridpur) who died in the year 1295.
2. The plaintiffs are members of a joint Hindu family owning land in Faridpur. The most influential of them is Babu Jogesh Chandra Roy Chowdhury or Jogesh Babu, plaintiff No. 1. The transactions to which the suit relates were carried out in the name of his cousin, Bhupesh Babu, plaintiff No. 3.
3. The main purpose of the suit is to enforce an award of arbitrators dated the 13th May 1905, so far as effect has not already been given to it. There is, however, an alternative prayer in the plaint for the recovery of possession with mesne profits of certain properties. The circumstances which led to the award must be briefly narrated.
4. Golam Ali had three wives and left him surviving three sons and many daughters. The three sons all died, Amjad Ali soon after his father, Ali Ahmad in 1301 and Kuti Mia or Tazammal a little later. Ali Ahmad's mother Aijennessa and one of his widows Bafatanessa as security for a loan of Rs. 4,000 mortgaged their shares in 48 properties derived from Golam Ali. The mortgagee brought a suit on his mortgage and obtained a decree in 1897 for Rs. 6,827. In execution he purchased the mortgaged properties for a sum of Rs. 66. Then in September 1902 he conveyed these properties to Bhupesh Babu, acting for the plaintiffs, for a sum of Rs. 1,000 and he also conveyed to Bhupesh Babu the still unsatisfied decree for a sum of Rs. 6,000.
5. Tazammal Ali before his death had with certain other heirs of Golam Ali embarked on a still larger transaction. They mortgaged their shares to the Eastern Mortgage and Agency Company, Limited, to secure a loan of Rs. 4,50,000 and under the terms of the bond appointed Messrs, Garth and Weatherall as their Managers. Quarrels, however, arose among the co-sharers and in 1902 the District Judge of Backergange under Section 95 (b) of the Bengal Tenancy Act appointed a Common Manager to take charge of the Haturia Estate. After one common Manager had been removed and a second appointed, the District Judge by a formal order, dated the 10th September 1903, directed under Section 95 (a) of the Act, with the consent of the Court of Wards, that the Haturia Estate should be managed by the Court. The order was made at the instance of Messrs. Garth and Weatherall, the Eastern Mortgage and Agency Company having agreed to reduce their claim by Rs. 1,50,000 and also to reduce the rate of interest on the loan from 7 1/2 to 5 par cent. per annum.
6. The Court, therefore, took the place of the Common Manager.
7. The legality of these orders under the Tenancy Act has not been questioned before us. When the Manager appointed by the Court, Babu Atul Krishna Dutta, applied for registration in the Collectorate under the Land Registration Act, his application was opposed by Bhupesh Babu, who had already obtained registration in respect of the share of the revenue-paying properties purchased in his name. The Manager had previously complained that the shares claimed by Bhupesh Babu were in excess of those to which he was entitled (see his report of 10th September 1904, Exhibit 2),
8. The authorities responsible under the Court of Wards were confronted with this difficulty with Bhupesh Babu. They were also anxious that Golam Ali's heirs should come to an arrangement about their respective shares and execute an ekrar or formal deed of agreement. For this purpose it seems to have been thought necessary that Bhupesh Babu should reconvey the shares purchased by him.
9. In that state of things Jogesh Babu was approached by the Collector of Backer-gunge, Mr. Streatfield. Arbitration was proposed on the ore side on behalf of the Court of Wards and accepted on the other. No submission in writing was drawn up but two respectable gentlemen were appointed arbitrators, Mr N. Gupta, the Government Advocate, and Babu Hara Nath Ghose, a leading Pleader of Barisal. In their award dated the 18th May 1905 they state that a dispute having arisen, they had been 'asked by the Collector of Backergunge and Babu Jogesh Chandra Roy to settle this and other connected matters by arbitration.'
10. The principal conclusions of the arbitrators are set out in the Subordinate Judge's judgment. Shortly, the precise share in the properties to which Jogesh Babu or Bhupesh Babu was entitled under the conveyance of 1902 was determined, the share allotted being smaller than that claimed by Bhupesh Babu. Jogesh Babu or Bhupesh Babu was to receive Rs. 500 for small shares in the properties which had some to Aijennessa and Bafatanessa, on its being held by this Court that Karimannessa, one of Golam Ali's daughters, was illegitimate. He was to receive Rs. 7,500 for the unsatisfied decree and the rest of the share purchased in all the properties except six, bat his interest in these six properties was to be placed along with his interest in the other properties under the management of the Court of Wards.
11. As regards the properties to be re-conveyed, the payment of the sum of Rs. 7,500 and the profits to be paid to the plaintiffs pending re conveyance, the arbitrators say this:
The Manager of the Court of Wards is unable to pay up this amount at once; the parties have, therefore, come to this arrangement that a deed of agreement should, with the permission of the District Judge, be executed by both the parties, whereby the Manager would be entitled at any time within the period of four years from the date hereof to get a conveyance of all the mortgaged properties save and except properties Nos. 9, 11, 16, 17, 27 and 31 and the decree for the sum of Rs. 7,500 and that Babu Jogesh (or Gopesh) Chandra Roy would be entitled to the profits of three properties (from the date of confirmation of sale of such of these properties as have been sold) less ten per cent, collection charge, until such time as the conveyance may be duly executed.
12. The permission of the District Judge was not obtained. The Collector thought it was unnecessary and in view of Section 97 of the Tenancy Act his view may be accepted. Jogesh Babu on his side never demanded a reference to the Judge. It may be taken, therefore, that the term of the subsidiary arrangement incorporate ed in the award was waived by consent of parties.
13. No formal deed of agreement was ever executed. There can, however, be no question that the award was carried out in three respects:
(1) Consent petitions were filed in the Collectorate of Faridpur and registration of shares was effected according to the decision of the arbitrators.
(2) An application for the execution of the decrees of 1897 was dismissed for want of prosecution on the 13th September 1904. No further steps were subsequently taken to realize the decree and execution is now barred by limitation. It was never intended by anyone that the decree should be executed and the defendants cannot, therefore, complain because the decree was not kept alive. This distinguishes the present case from that of Jatindra Nath Basu v. Peyer Deye Bebi 34 Ind. Cas. 69 ; 20 C.W.N. 866 ; 14 A.L.J. 527 ; (1916) 1 M.W.N. 403 ; 18 Bom. L.R. 509 ; 24 C.L.J. 67 ; 20 M.L.T. 25 ; 3 L.W. 553 ; 31 M.L.J. 248 ; 43 C. 990 ; 43 I.A. 108 (P.C.).
(3) The properties in which Jogesh Babu or the plaintiffs were interested came into the undisputed possession of the Court of Wards. This, no doubt, facilitated management and benefited the Haturia Estate as a whole.
14. The Court of Wards was in charge of the Estate for some years and only withdrew the management in May 1912, more than a year after the institution of this suit. One of the original defendants was Babu Jnan Ranjan Goswami, Manager under the Court of Wards. He was impeached apparently as defendant No. 20 and also with the added description of Manager as defendant No. 21. Mr. Tweedie, as Receiver, was added by an order of 23rd November 1912. A further order of 30th August 1913 says this: 'On the application of the plaintiffs Mr. Tweedie, Receiver, Haturia Estate, is made a party representing all the defendants.' It appears that Babu Jnan Ranjan Goswami was struck off the list of defendants and that in addition to Mr. Tweedie one Debendra Nath Dutt, the last Manager or Common Manager of the Haturia Estate, was made a party as defendant No. 23. The latter, however, the Estate being no longer under common management under the Bengal Tenancy Act, has not appeared.
15. Mr. Tweedie was appointed Receiver in a suit for partition brought by Majidunnessa, one of Golam Ali's daughters, in which suit, we are informed, the share of the plaintiffs was taken as the share fixed by the arbitrators. The Subordinate Judge says that in his capacity as Receiver Mr. Tweedie is in sole possession of the Estate including the plaintiffs' share, and the statement is not disputed. It is clear, however, that in the present suit with the consent and at the instance of the plaintiffs he represents the interests of all the original defendants Nos. 1 to 19 who have survived and the personal representatives on the record of any who have died since the suit begun. The added defendants Nos. 20 and 21 are included in this last category. In the present suit neither party can repudiate their representative character which Mr. Tweedie bears.
16. The Subordinate Judge has discussed the question whether Mr. Tweedie was at liberty to file a written statement raising defences not raised in the written statement of the original defendants Nos, 1 to 21 filed by Jnan Ranjan Goswami as Manager under the Court of Wards. It is not necessary to express an opinion on that question, partly because the respondents did not press their contention on this point before us and partly because Mr. Tweedie's new case depends on the success or otherwise of his attack on the validity of the award of 18th May 1905, and there be fails on the merits. The two relevant issues are Nos. 5 and 6 in the following terms:
5. Was the arbitration made by Messrs. Gupta and Ghose informal and illegal and is the award made by them invalid and not binding upon the parties?
'6. Was the said award acted upon and ratified by the parties and are the defendants entitled to recede from it?
17. As to issue No. 5, in the Court below the award was assailed on five grounds. The only contentions seriously pressed before us were, firstly, that the award was invalid because it did not receive the sanction or the sanction in writing of the Court of Wards and secondly, that the award was incomplete.
18. As to the first point we were not referred to any statutory provision or statutory rule, in force at the time, which required that the approval of the Court should be signified in writing. But if a writing is necessary, there is a writing which will answer the purpose.
19. Provisions as to the general powers of the Court and their exercise are contained in Sections 14 and 15 of the Court of Wards Act (Bengal Act IX of 1879), while Sections 39 and 40 of the Act relate to the powers and general duties of a Manager. It was not disputed that it was within the power of the Court to submit the dispute with Jogesh Babu to arbitration and if the submission was a good submission, the Court, apart from special circumstances, would be bound by the result. It may, however, be that the previous sanction of the Court was not obtained. The question would then be whether the Court subsequently approved and ratified the action of the circle office's [Saturjit Pertap Bdhadoor Sahi v. Dulhin Gulab Koer 24 C. 469 ; 12 Ind. Dec. (N.S.) 980.
20. The award itself was certainly approved by the Collector, who in a minute of the same date describes it as 'extremely satisfactory.' The Manager in a letter of 7th July 1905 formally reported to the Collector the completion of the award and summarized its effect. In concluding he begged that 'the sanction of the higher authorities to the present settlement might be procured.' The Collector submitted the report to the Commissioner 'for approval' stating reasons, particularly requesting that this agreement may be sanctioned.'
21. From some further papers which we obtained from the Board of Revenue during the hearing of the appeal, it appears that the Commissioner forwarded the Manager's report with a copy of the Collector's memorandum to the Board of Revenue or Court of Wards and in his turn requested that the agreement might be approved. The Commissioner's memorandum is No. 820 M.P., dated the 26th July 1905, to which reference is made in paragraph 7 of the Court's letter No. 503 W.T. dated October 1905. That paragraph seems to refer to the Manager's report of 7th July 1905. The Collector is instructed to issue orders directing that the 'Ekrarnama be executed and the sum paid over out of the surplus of the estate.' It is not clear why the Court spoke of the 'Ekrarnama' and not of the award or the deed of agreement contemplated in the award. But there is little doubt that the award was intended. This view is confirmed by paragraph 9 of Mr Savage's note of 16th March 1916, Mr. Savage being at the time member of the Board (see also paragraph 8 of the Collector's letter to the Commissioner, dated 16th February 1910). The conclusion is that the Board not only accepted the award but directed that it should be carried into execution.
22. Some stress was laid on the notice of 1st November 1905, but that notice had no particular reference to the plaintiffs. It was a general notice issued to all the co-sharers and seems to have referred more especially to the quarrels among the original co sharers and the Ekrarnama by which the authorities contemplated that these quarrels should be composed.
23. As to the contention that the award was not complete, I have already adverted to the opinion to obtain the sanction of the District Judge. But the principal argument in this connection was that the formal deed of agreement which the award contemplated was not executed. This was not the fault of Jogesh Babu (see his letter of 18th July 1906 and his Pleader's letter of 21st September 1909). The conclusions of the award were final and were intended to be final. They were accepted as final by the responsible parties and, in my opinion, the parties cannot now go behind them. It is immaterial that one part of the award was of a somewhat complicated nature and the arbitrators considered it desirable that it should be embodied in a deed. The terms of the arrangement were prescribed by the award and in the circumstances, no further instrument was essential as between the parties to make, the award binding.
24. What I have said really disposes of both issues Nos. 5 and 6. I will only add this that it seems to me that the award must stand or fall as a whole. As I have shown, the award has been carried out in p Article But the part which has been carried out is not independent of the part which has not been carried out. If the award be regarded for the moment as an agreement, the lump sum settled for the decree and the properties to be re conveyed was also the consideration for the reduction of Jogesh Baba's shares and the management of the whole by the Court of Wards. At this stage it is not seriously suggested that the award was in excess of the reference. It would, therefore, seem to follow from the award having been performed in part that the plaintiffs are entitled to performance of the remainder Brij Mohan Lal v. Shiam Singh 24 A. 164 ; A.W.N. (1901) 208).
25. Issue No. 7 relates to a defence common to both the written statements. It is as follows:
7. Was the said award Superseded by another agreement, as mentioned in paragraph 16 of the written statement of the Receiver defendant No. 22 and paragraphs 5 and 6 of the written statement of the Court of Wards.
26. No doubt, proposals for a second arbitration were mooted. The difficulties which arose are explained in the Manager's letter to the Collector dated the 11th November 1907. It appears to have been discovered that Jogesh Babu had not a clear title to six of the properties which he was to reconvey. It also appears that the member of the Board in charge had come to be of opinion that the lump payment settled by the arbitrators was too high. The latter in my view was a question which it was not fair to raise as a general one. If the Court of Wards had contented itself with a claim for compensation in respect of the six properties and if the matter had been promptly and considerately handled, it seems probable that an agreement might have been arrived at. But the discussion was allowed to drag on. It was not till the 16th February 1910 that the Collector addressed the letter to the Commissioner to which reference has already been made, detailing all the circumstances and asking that the sanction of the Court might be obtained to a second arbitration. Sanction was given by the Court's letter of 2nd April 1910 to the Commissioner, a copy of which the latter forwarded to the Collector under an endorsement dated 9th April. What followed turns largely on the oral evidence. On this occasion the sub mission to arbitration was to be in writing and a draft agreement was drawn up. Babu Jnan Ranjan Goswami says that the draft produced is not the original draft but a copy of it. Even if this draft agreement was expressed on stamped paper, it is quite clear that it was never executed by the plaintiffs or any of them. It appears unlikely that Jogesh Babu would ever have accepted the last sentence of the draft, declaring that the parties were not bound by the terms of the previous award relating to the lump payment. On the whole I see no reason to differ from the Subordinate Judge and hold that no concluded agreement for second arbitration was ever arrived at. The negotiations failed as negotiations sometimes do.
27. Then comes the question raised by the 8th issue, whether the title of the plaintiffs to the six properties is defective. The Subordinate Judge has dealt with this matter very cursorily, and I do not enter into details because the question to my mind is immaterial so far as the lump payment is concerned. If it be assumed that the alleged defects exist, what is the result? In argument reference was made to Sections 25 and 30 in Chapter II of the Specific Relief Act. Section 30 enacts generally that the provisions of the chapter as to contracts are to apply mutatis mutandis to awards. In view of the principle so laid down Section 25 is, in my opinion, inapplicable in the circumstances of the present ease. If the defects exist and the section was applied, it would seem that the award could not be enforced at all. Such a result would be obviously inequitable. The section is inapplicable for reasons already indicated, namely, because the lump payment cannot be allocated entirely to the properties to be re conveyed and the decree and because the award has been in part performed. Similarly the defendants are not entitled on the ground of defect of title to compensation.
28. Something but not very much was said on the question raised by issue No. 12. Have the plaintiffs any cause of action against any defendants other than the heirs of Aijennessa and Bafatanessa? The finding of the Subordinate Judge, which is in effect that the cause of action is against defendants Nos. 1 to 21 and Mr. Tweedie as representing the interest of those defendants as a body in the Hathuria Estate, must be accepted. Prom the time of the award onwards, the position has always been that the plaintiffs were to be bought out in the interests of the original co-sharers in the Hathuria Estate as a body.
29. As to issue No. 11, 'what damages and mesne profits, if any, are the plaintiffs entitled to get and from whom?' the Subordinate Judge is quite right in saying that the possession of the Court of Wards and the Receiver has been from the date of the award the possession of the plaintiffs, so far as their properties are concerned. The plaintiffs are, therefore, not entitled to mesne profits, but they are entitled to have an account taken of the income from their properties and under the award to have that income less ten per cent. for collection charges paid over to them. The statements, however, on which the Subordinate Judge has relied in finding the annual income at Rs. 593-10-0 can only be regarded as estimates. What the plaintiffs are entitled to is, as I have said, an account of the profits. Moreover, the question of the title of the plaintiffs to the six properties becomes in this connection of importance. Reasonably construed, the award only entitles the plaintiffs to those profits to which they can show a good title. Something was also said as to the period for which the award should be taken. This must be according to the award the period for which profits have been allowed by the Subordinate Judge.
30. The decree of the Subordinate Judge must also be amended so far as it makes Mr, Tweedie personally responsible for costs.
31. As to the plaintiffs' cross-objections they appear to be entitled to interest on the sum due to them under the head of profits.
32. The question of limitation was not argued before us. There is an authority in this Court for the view that the word 'contact' in Article 113 of the Schedule to the Limitation Act cannot be interpreted as including an award Bhajahari Saha Banikya v. Behary Lal Basak (4 C.L.J. 162 ; 33 C. 881) and even if the present suit as a suit to enforce the award of 1905 is governed by Article 120, the suit was instituted within six years of the date of the award and it is unnecessary to consider whether the cause of action in part arose at some later date.
33. The result is that the decree of the Subordinate Judge will be confirmed so far as it relates to the payment by the defendants of the lump sum of Rs. 8,000 and the execution of a conveyance by the plaintiffs.
34. For the rest the decree will be modified as follows:
35. There will be a preliminary decree for an account of the profits of the properties purchased in the name of Bhupesh Babu for the period specified by the Subordinate Judge, 1306--1317, and in this connection a further enquiry will be made as regards the six properties of which the title is now in dispute. The right of plaintiffs to the profits of these six properties to depend on the result of such further enquiry. Subject thereto the plaintiffs to be entitled to the profits of all the properties during the said period less ten per cent, for collection charges. Interest to run at the rate of six per cent per annum to the date of realization.
36. The lump sum of Rs. 8,000 and the profits found due to the plaintiffs to be paid out of the interest in the Hathuria Estate of the defendants Nos. 1 to 21, without prejudice to any adjustment of their relative liabilities which may be made as between those defendants either by agreement or otherwise.
37. As to costs, neither party has been wholly successful; the costs should be divided. Toe plaintiffs will receive from the defendants two-thirds of their (the plaintiffs') costs in this Court and the Court below. The plaintiffs will pay the defendants one-third of the defendants' costs in this Court and the Court below. The plaintiffs and defendants to be jointly and severally liable for the costs respectively payable by them; the liability for costs to be a personal liability but no personal liability to attach to any minor or to Mr. Tweedie. Mr. Tweedie to be liable for the costs payable by defendants in his representative character, in which character he will be entitled to pay costs out of the interest of the other defendants in the Hathuria Estate.
38. I agree but in the 8th issue I desire to note further that against property No. 29 of schedule Ka to the plaint, which had been sold away in execution of a rent-decree, no income was shown in the list of properties which was before the arbitrators. Properties Nos. 1, 2 and 6 of schedule Kha were purchased by Akbar Ali in execution of a money decree and were subject to the mortgage of Balaram Guha. Properties Nos. 3 and 4 of schedule (Kha) were apparently purchased by Tazammal Ali alias Kuti Mea in execution of a decree obtained on a prior mortgage after the mortgage in favour of Balaram Guha, Thus the plaintiffs had the right to redeem. Moreover, Akbar Ali and Tazammal were both co-sharers in the estate taken possession of by the Court of Wards under the District Judge's order of 10th September 1903 and before 1905 the officers of the Court of Wards should have been aware of the true fact. It is not pleaded, far less proved, that in the submission to or in the proceedings before the arbitrators the plaintiffs practised any fraud. Further, it does not appear that the contention that the appellants were entitled to resile from the whole award on three grounds was taken before October 1907 (if then), by which time the decree of Balaram Guha had become barred by limitation.
39. In this state of facts I agree that the award is not vitiated by any defect in the title of the plaintiffs to these six properties.