1. This appeal arises out of a suit brought to recover a certain parcel of land on establishment of the plaintiffs' title. The plaintiffs' case was that when the plaintiffs' father and the father of the defendant separated in 1281, the parcel of land now in question fell to their father's share on partition
2. The decisions of the Courts below proceed largely on what is described as an award made by certain arbitrators on the 21st Chait 1281.
3. The objections taken to this award before us are that out of 9 arbitrators who were appointed by the parties only 8 have signed the award; secondly, that they did not exercise their judgment as arbitrator! but merely recorded an arrangement amicably arrived at between the parties; thirdly, that it is thus a deed of partition the registration of which is compulsory; and lastly it is contended that a certain mortgage bond has been improperly admitted in evidence.
4. It would seem to be the case that 9 arbitrators were appointed to settle the dispute between the parties and to make a partition of their properties; and it would also seem from the document containing the award that has been put in evidence that only 8 of these 9 arbitrators signed the award; but the document itself shows that though only 8 signed, the proceedings were taken in the presence of all 9. That being so, we think that the omission of one of the arbitrators to sign does not vitiate the award.
5. With regard to the second contention, it appears that when the arbitrators proceeded to the spot, they took down the depositions of both the brothers and called upon them to produce evidence, but finally approved an arrangement put forward by the then plaintiff Chaterbhuj and agreed to by the defendant. It is said that this shows that the arbitrators did not in fact exercise their judgment in this matter; and the so called award was not an award. We are not prepared to accede to this contention. It is true that the decision of the arbitrators is in accordance with the wishes of the parties, bat it is also the case that they had taken evidence and having taken evidence, it may well be that in their judgment the proposals put forward by the plaintiffs and ultimately agreed to by the defendant were the most fitting and appropriate arrangement to make. Their decision purports to be in fact an award and a decision; and we do not think that we should look upon it as anything else. That being so, the third contention before ua need not be further considered.
6. With regard to the mortgage bond which was admitted in evidence, the objection now taken is that it has not been shown that this mortgage bond was duly attested. But the objection taken in the Court of the Subordinate Judge was that the mortgage bond was improperly admitted in evidence, inasmuch as no attesting witness bad been sailed. The objection taken in its present form is one of mixed law and fact, and as it was not taken in the Court of the Subordinate Judge, when, if necessary, additional evidence could have been taken, we do not think that we should accede to it now.
7. In this view this appeal is dismissed with costs.
8. I agree.