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Binayakdas Acharjee Choudhuri and ors. Vs. Nalini Kumar Chakrovarty and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in70Ind.Cas.459
AppellantBinayakdas Acharjee Choudhuri and ors.
RespondentNalini Kumar Chakrovarty and ors.
Cases ReferredManindra Nath Mandal v. Mohanunda Roy
arbitration - defect in procedure--substantial justice--death of party making reference--representatives not brought on record--guardian for minor heir not appointed--award, if nullity. - .....nil mani mukherjee of the 2nd party had died in july or august and on the application of the 2nd party the arbitrators gave time till the 8th november 1918, for filing fresh achalnamahs on behalf, of the representatives of nilmony and for appointment of guardian for the minor. it appears that nilmony left three minor sons, one of whom nirode kumar mukheljee is said to have now attained majority. no fresh achalnamah, however, was filed nor was any guardian for the minor debendra appointed. the arbitrators made the award on the 22nd of december 1918. application for filing the award was made in court an 20th march 1919, and the learned subordinate judge made his order from which this appeal is brought on 22nd september 1919.2. the 3rd, 5th and 6th party applied for an order for filing.....

1. This appeal is against an order made by the Subordinate Judge under paragraph 21 of Schedule II of the Civil Procedure Code for filing an award. The parties to the reference to arbitration were in different groups. They are owners in different rights of contiguous properties which for convenience have been described in the proceedings below as Patpasha Estate and Ujanchak Estate. The first party are owners of 6 annas share in the Zemidari of Patpasha Estate. The 2nd party known as Ula Babus are owners of another share of the same Zemiadari. Their entire share was let out in patni to the 4th party; The 3rd party, called the Sahcbanpur Babus, are owners of 6 annas share of Patpasha in, Zemindari and Patni right and 2 annas share in ijura right and they are also owners of 8 annas share in the Zemindari of estate Ujanchak. The 4th party, as already stated, are patnidars of the share of the 2nd party hi Patpasha, and the 4th ka party are jotedars of Patpasha under the 4th party. The 5th party and 6th party are owners of remaining shares in the Zemindin of Ujanchak. It appears that there were long standing disputes between the parties about the boundary between the two estates with regard to certain churlands alleged to be re-formations in suit, It should be stated at the outset that owners of the share of the Zemindary interest in Patpasha held by the 3rd party in patni and ijara right were no party to the reference to arbitration. The reference was made by documents called achalnamahs executed by the parties in favour of the arbitrators and filed before them on the 16th October 1916. At the time of the reference a proceeding under Section 145 of the Criminal Procedure Code was pending between the parties and there was further likelihood of other civil and criminal cases arising between them. The parties stipulated that they and their heirs and representatives would be bound by the award made by the arbitrators Bijoy Kumar Mukherjee of the 2nd party executed the achalnamah for himself and as guardian of two minor nephews. The arbitrators commenced their work in January 1917. During the continuance of the proceedings before the arbitrators Bejoy Gopal Mukherjee died. In May 1918 an ekramama was executed in favour of the arbitrators by Nagendra Kumar Mukherjee, son of Bejoy Gopal, on his own behalf and as guardian of his minor brother, Debendra Nath, stating that they would be bound by all the conditions in the reference executed by Bijoy Gopal. Nagendara Nath Mukherjee, who was an executant of the achalnamah at the 2nd party, also joined in this ekrarnamah as guardian of the minors on whose behalf Bijoy Gopal had executed the achatnamah as guardian. The arbitrators commenced to hear arguments on behalf of the parties in. June 1918. The 1st, 2nd, 4th, and 4th ka parties were represented by the same Pleader before the arbitrators. The hearing of arguments before the arbitrators was closed on the 29th of September 1918. Then on 5th October 1988 it was brought to the notice of the arbitrators that Nripendra Kumar and Nil Mani Mukherjee of the 2nd party had died in July or August and on the application of the 2nd party the arbitrators gave time till the 8th November 1918, for filing fresh achalnamahs on behalf, of the representatives of Nilmony and for appointment of guardian for the minor. It appears that Nilmony left three minor sons, one of whom Nirode Kumar Mukheljee is said to have now attained majority. No fresh achalnamah, however, was filed nor was any guardian for the minor Debendra appointed. The arbitrators made the award on the 22nd of December 1918. Application for filing the award was made in Court an 20th March 1919, and the learned Subordinate Judge made his order from which this appeal is brought on 22nd September 1919.

2. The 3rd, 5th and 6th party applied for an order for filing the award.

3. The 1st, 2nd and 4th party appeal against the order of the Court below. The, appeal is supported on the following grounds, (1) thef srbitrators were guilty of misconduct, (2) on the death of two of the 2nd party their representatives were not made parties and no new guardian was appointed for the minor Devendra and, therefore, the award is null and void, and (3), the award had determined a matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matter referred. The plea of misconduct is based upon two letters, Exhibits 12 and 13, which the arbitrators had placed on their record, and it is urged that they had communications about the case with some of the parties without the knowledge of the others. We agree with the learned Subordinate Judge that there is absolutely no ground for the allegation, and that there was no misconduct on the part of the arbitrators. With regard to the second, ground the fact is as has been already stated, that no new guardian was appointed for Debendra on the death of his brother, Nripendra, and the heirs of Nilmony, i.e., Nirode, Kalisadhan and Rabendra, were not substituted as parties before the arbitrators. Debendra was the heir of Nripendra. It is conceded on behalf of the appellants that, having regard to the subject-matter of the arbitration and the terms of the reference, the legal representatives of the deceased persons would be bound by the reference to arbitration made by their predecessors. But it is urged that when two of the 2nd party died during the period when arguments were being addressed to the arbitrators and the representatives of one of them were not brought on the record and no guardian was appointed for the minor who was already a party, the arbitrators could not proceed to make an award. Reliance is placed on the case of Rashid-un-nisa v. Mohammad Ismail Khan 3 Ind. Cas. 864 : 31 A. 572 : 13 C.W.N. 1182 : 10 C.L.J. 318 : 6 A.L.J. 822 : 11 Bom. L.R. 1225 : 6 M.L.T. 279 : 19 M.L.J. 631 : 36 I.A. 168 (P.C.). In our opinion that case has no bearing on the present suit. There a reference to arbitration was made on behalf of a minor by her sister who professed to act as guardian for the minor. In the award her sister was described as acting for herself and guardian for the minor, but at the date of the award an application was pending before the District Judge for her appointment as guardian which was subsequently rejected. Their Lordships of the Privy Councill held that the statement in the award was unjustified and the award was a nullity so for as the minor was concerned. The minor's share in the property was in that case reduced by the award and her interest in the proceedings was adverse to that of another minor for whom also the alleged guardian purported to act. It should also be observed that it was on those grounds that it was not seriously contended before their Lordships that the arbitration proceedings, so far as the interest of the appellant before them was concerned, could be supported. The appellants also rely on the case of Manindra Nath Mandal v. Mohanunda Roy 13 Ind. Cas. 161 : 15 C.L.J. 365 The decision in that case doe not support the appellants. But the rely on a passage in the report that as the hearing before the arbitrators had not been completed before the death of the person referred to, it was necessary to bring their representatives on the record and to make them parties and as this was not done the award is a nullity. It is true as a general principle that a person who is not a party to or properly represented in any proceedings should not be bound by those proceedings. But proceedings before arbitrators are not intended to be carried or according to the rules of procedure contained in the Civil Procedure Code, If there is a binding reference to arbitration all that it is necessary to be seen is that there is a substantial representation of the different interests before the arbitrators. In this case the reference was binding on the representatives of Nilmony. There is no rule of procedure by which the arbitrators could substitute those representatives or appoint guardians ad litem for infants. If we were to hold that the, arbitrators could not go on with the arbitration, as the representatives or some persons on their behalf did not choose to come before the arbitrators, the result would be that, although the reference would not abate on the death of a party under the law the arbitrators would in fact be unable to make an award and the arbitration, would come to an end. We are, therefore, of opinion that the proposition urged by the appellant cannot be of universal application. The question whether the award would: be binding or not must depend upon the circumstances of each case. Here all the investigations had been finished and all documents had been produced before the arbitrators when the parties were, alive. The arguments for the 2nd party were addressed by the Pleader who also represented the first and 4th parties as their interest was the same. Nagendra of the 2nd party was there and he represented all the minors in the proceedings in the Court below as their, guardian and is also now appearing as there guardian in this Court. There were also other adult persons of the second party. Then, it must also be borne in mind that the whole interest of the second party including that of the minors, in the property had been let out in patni to the 4th party, and the first and the 4th party are really the persons who are directly interested in the matter of arbitration, and the second party who are entitled to receive a fixed rent for their share of the property from the 4th party, have only a remote interest in the controversy. No question as to the rights of the minors as between the other members of the second party was involved in the arbitration, and whatever concern the family had in it was properly looked after by the adult members who were persent. Nothing was stated to us as having prejudicially affected the interest of the minors, in particular apart from other members of the 2nd party. It has been pointed out to us that none of the adult members of the 2nd party brought the fact of the death of two of their party during the course of their argument before the arbitrators. It was several days after the arguments, had been finished that this was done. It is stated in the award that the 2nd party asked for time to take the necessary steps and time was given to them but nothing was done. Nagendra did not come forward with any fresh ekramamah as he had done along with Nripendra on the death of Bijoy Gopal. If it is urged by the respondents, not without good reason, that where the persons who now purpart to take up the cause of the minors anticipated that the decision of the arbitrators would not be quite favourable to them they acted in this way with the evident object of finding a loophole to attach the award in subsequent proceedings. To give effect to the contention of the appellants would be, in our opinion, to declare the award a nullity on mere technical grounds, although it seems to have been made after a long and protracted investigation with regard to long standing disputes in which a large number of persons were concerned. We think that an award made on proper reference ought not to be set aside on the ground of the alleged defect in procedure not affecting the merits where substantial justice has been done. The respondents also contend that even assuming that the interest of the minors, cannot be affected by the award, the award cannot held to be a nullity. The reference would have be n good as regards the other parties without joining the predecessors of the minors, as some of thier co-sharers in the Zemindari of Patpasha, under whom the 3rd party hold, did not join in the reference. The appellants reply that the others agreed to the reference, because they knew that the second party was also prepared to execute an achalnama, and if some s of the 2nd party are not bound by the award the others are also not bound. It appears to us that there is no substance in this, because the 2nd party did as a matter of fact execute an achalnama in the same terms as others, and if on account of death some of the 2nd party cannot be bound by the award that would not affect the validity of the award as regards all. We are, therefore, of opinion that the award is not a nullity.

4. The third ground of the appellants is formulated thus: The disputed lands as pointed out by the parties to the Commissioner were comprised in Circuit No. 1 and Circuit No. 3 as depicted in the map of the Commissioner and, therefore, the arbitrators ought to have fixed the boundary line with regard to those two plots only and thier award ought to have been confined to this. Instead' of doing so they have declared that the land to the North of the district Survey and settlement line from points A to B marked, in the Commissioner's map appertain to Ujanchak and so on. The result is, that they have settled boundaries of lands which lie outside Circuit No. X and Circuit No. 3 of the Commissioner's map. It seems to us there is no substance in this objection. The reference was for fixing boundaries between two estates. The reference and the award show that the question for decision before the arbitrators was the ascertainment of boundaries between the two estates and the directions given to the Commission' or was also for that purpose. The fact that the parties pointed out two plots of land as disputed plots would not confine the reference made and require the arbitrators to give an award only with regard to those two plots of land. We think that the arbitrators were quite right in not restricting their award to the two plots and in fixing the boundary lines between the two estates, and we agree with the learned Judge below in holding that the arbitrators have not exceeded their authority and determined matters not referred to arbitration.

5. The grounds urged in support of the appeal fail and the appeal must be dismissed with costs. Hearing fee we assess at 10 gold mohurs.

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