1. The facts of this matter are set out very fully in the judgment which is appealed from. At one time it appeared that there were difficulties in this case, but that was before our attention had been drawn 'to the fact that the sub-mission to arbitration here was made under Para. 17(1), Schedule 2, Civil P.C. When that was realized it became clear - and indeed the learned advocate for the appellants did not contend otherwise - that the guardian mother of the minor appellant in this case had authority to agree to refer the disputes that had arisen inside the family to the decision of arbitrators under Para. 17(1). Those arbitrators who were a barrister and a pleader had made their award. It was contended first that the award was invalid because the guardian mother had no authority to agree to refer the disputes to arbitration. That contention has gone and with it the argument that the submission and the award were both invalid.
2. Next it was contended that the award was not in accordance with law. Now, the award itself in its operative parts is a simple and straightforward award which gives certain items of property and money to different people. On the face of the award there is no error in law. But it is said by the appellants that the arbitrators have acted on wrong legal principles in making those various items of award. It is not clear that they have: they may or may not have taken an erroneous view of the law on some of the items, it is impossible for us to say, although we may surmise. But if they have taken erroneous views of the law in certain parts of the case, it must be remembered that they were requested by all the parties to deal with the matters in dispute and decide them. In this particular instance they were both lawyers - one was a barrister and the other was a pleader - and so had a know, ledge of the law which doubtless the parties intended that they should use. Doubtless the parties considered that their knowledge of law was sound and having chosen their tribunal to decide these matters outside the Courts, the Courts are very reluctant to interfere with the decision of the tribunal and will only do so in cases mentioned in Schedule 2, Paras. 14, 15 and 16 of the Code. It is not contended that there has been corruption or misconduct of the arbitrators, or fraudulent concealment, or wilful misleading of the arbitrators, or that the award was made at a time when the tribunal had no jurisdiction. It is simply said that the tribunal has erred in law. I would recite here a passage from the judgment of Lord Macnaghten in Ghulam Jilani v. Muhammad Hussain (1901) 29 Cal. 167 at page 58 which deals with the position under an award made pursuant to the Code.
The principle of finality which finds expression in the Code is quite in accordance with the tendency of modern decisions in this country. The time has long gone by since the Courts of this country shewed any disposition to sit as a Court of Appeal on award in respect of matters of fact or in respect of matters of law.
3. Whether there has been any error of law made by the arbitrators in coming to their decision, we cannot say. There is nothing apparent on the face of it, but in accordance with the principle of law enunciated we do not see our way to interfere. The result is that in my view the judgment of the District Judge appealed from must stand and this appeal must be dismissed with costs, the hearing fee in this Court being assessed at three gold mohurs. For the said reasons which Lord Macnaghten gave in the case cited above where there was an application in revision we refuse the application as made in the present case.
Nasim Ali, J.
4. I agree with my Lord the Chief Justice, that the appeal should be dismissed and the application in revision under Section 115, Civil P.C., should also be dismissed. The learned advocate appearing for the appellants attacked the award of the arbitrators on two grounds: (1) that the submission to arbitration was invalid in law, and (2) that the decision of the arbitrators was 'otherwise invalid' within the meaning of Para. 15(c) of Schedule 2, Civil P.C. As regards the first objection it appears that the reference in this case was made under Para. (17)of Schedule 2 and not under Para, (1) of Schedule 2. The natural guardian of the minors was under the law jentitled to enter into an agreement to refer 'the matters in dispute to arbitration if she found that it was for the benefit of the minors. There was no suggestion in this case that the settlement of the disputes by arbitration was not for the benefit of the minors.
5. It was contended on behalf of the appellants that the submission was bad inasmuch as it included matters which were not the subject-matter of the proceedings for letters of administration de bonis non under the Succession Act. It has been already pointed out that this reference was under Para. (17) of the Code and not in any suit or proceedings under Para, (1) of the Code. It was also argued on behalf of the appellants that the District Judge had no jurisdiction over the subject-matter of the agreement as only the Subordinate Judge in view of Section 15, Civil P.C., would have jurisdiction over the subject-matter. It appears however from Section 18, Bengal Civil Courts Act, that the District Judge as well as the Subordinate Judge are Courts of ordinary original civil jurisdiction. It is true that the Subordinate Judge would ordinarily have jurisdiction to entertain suits relating to the disputes referred to arbitration, but as the value of the subject-matter referred to arbitration was over Rs. 5000 there could have been no prejudice to any of the parties as the appeal would not lie to the District Judge but to this Court. The reference to arbitration by the District Judge even if it was not in accordance with the provisions of Section 15, Civil P.C., would be mere irregularity and it could be cured by Section 99, Civil P.C. The submission in this case was therefore perfectly legal and valid.
6. As regards the second contention the argument of the appellants is that the decision of the arbitrators was not in accordance with the reference. The learned advocate for the appellants said that in the agreement the arbitrators were asked to divide the properties according to the terms of the will but they have not done so. Now from the agreement it appears that the dispute between the parties was about the partition of the properties according to the provisions of the will but in the operative portion of the document it is not stated that the arbitrators were to divide the properties according to the provisions of the will. Even if it be assumed that the agreement taken as a whole was that the arbitrators were required to divide the properties according to the terms of the will the award of the arbitrators cannot be said to be invalid inasmuch as it appears from the award that they have considered the terms of the will and have put their own interpretation upon the will. If the arbitrators have made any mistake in construing the will the parties are bound by the decision of the arbitrators as the latter are not only judges of fact but also judges of law.