1. The plaintiff who is the appellant in this appeal and the defendant who is the respondent therein are two brothers. They had an 8 annas share and their cousin had the remaining 8 annas share in a residential house, which was joint, but for convenience of possession they were in separate possession thereof from their said cousin. Besides the dwelling house, the two brothers had various joint moveable properties, some moneys invested on interest, some G. P. notes, a Life Insurance' Policy, the worship of family deities, and also some joint debts. Disputes' having arisen between the two brothers, two proceedings under Section 107, Criminal P. C, were started against them in the Court of the Subdivisional Magistrate of Sadar (South) in Dacca. Upon that through the intervention of mutual friends and on the advice of well-wishers of them both, the two brothers voluntarily approached Mr. Sachindra Nath Chatterji, the said Magistrate, and prevailed upon him to act as arbitrator for effecting a settlement of their differences. On 25th September 1930 the arbitrator aforesaid completed and signed his award. On 30th November 1930 the plaintiff applied to him for delivery of the original-award to him. He got it on 1st December 1930 and on the same day filed it with the Collector to have it stamped.
2. On 23rd December 1930 it was stamped by the Collectorate and returned to the plaintiff. On 5th January 1931 the-plaintiff applied to the Court below for filing the award, and a suit being commenced on the application, was eventually dismissed. From the order thus passed, he has taken the present appeal. The defendant in the Court below challenged the award upon various grounds: invalidity of the reference, misconduct on the part of the arbitrator, incompleteness in the award, etc., etc. These gave rise to a number of issues. All these issues with the exception of one were decided against the defendant. The issue which was decided in his favour and against the plaintiff was issue 7: 'Does the award decide all matters of dispute between the parties. If not,, can any decree be passed on it?' The Court below found that certain debts which were designated in the proceedings as 'market-debts' were left undetermined by the arbitrator.
3. To understand the position some more facts require to be stated. On the Magistrate agreeing to arbitrate two petitions were filed before him, one by each of the parties, on 23rd December 1929. They were similarly worded, and in each it was stated that he was to act as arbitrator 'for the purpose of deciding all matters in dispute between us, both brothers.' On 25th December 1929 a statement:, representing the points in dispute between the parties, and consisting of eight paragraphs was filed on behalf of the plaintiff, each paragraph stating separately some item or items of joint property and the nature of the dispute relating thereto. A somewhat similar statement was on the same day filed on behalf of the defendant. The arbitrator noted against each paragraph in the plaintiff's statement how he proposed to proceed as regards each particular matter. Para. 3 of the plaintiff's statement is important. It ran in these words:
3. Both the brothers have some debts. Some of the bonds, handnotes or promissory notes are executed by both the brothers, some by Ashutosh (plaintiff) alone and some by Sudhangshu (defendant) alone. There are some howlats without any documents. When the two brothers separated in mess in June last, Babu Dhirendra Chandra Das Gupta, Pleader, Dacca, as arbitrator of both the brothers, made a division of those debts. Arbitrator will consider the question of confirming Debendra Babu's decision on the point, and he will make provisions as to how one brother will be liable to the other in case any creditor realizes any amount from one brother only,
4. The corresponding paragraph in the defendant's statement ran thus:
3. There is only one joint debt to the extent of Rs. 5,000 as principal and interest thereon due to the Gangasagar Saha Firm. I am liable for no other debt.
5. The note of the arbitrator against this item in the plaintiff's statement was:
The accounts are to be examined with a view to ascertain if the items were duly entered and the expenditure was incurred for the benefit of the estate of the family. Let a letter be addressed to the Luxmi Industrial Bank for the purpose of ascertaining what the actual liabilities are.
6. On 2nd April 1931 the arbitrator formulated the point of reference. The point relevant in this connexion was the fourth one and the following extract will show how the said point was formulated:
4. Arbitrator is to ascertain and decide as to which of the debts and howlats incurred by both the brothers or either of the brothers are ijmali between the two brothers and which are personal * * * *.
7. So far so, it would seem that the question of market-debts was not specifically raised by any of the parties but the question of debts generally speaking was raised. But there is little doubt that at some stage or other the question of market debts was raised and considered. And not merely so but that market debts were also decided upon would appear from the draft award that was eventually prepared and copies of which were made over to the parties. It is admitted that three typed copies of the draft award were made and the defendant who received one of the copies has produced the copy that was given to him. It is necessary to examine this copy with care. In the fourth paragraph of this copy it is said:
It may be mentioned here that there has been a separate reference to me by the two brothers for division of their ijmali documents, records, collection papers, etc., and other connected matters. The decision of the same will require more time and I will pass my award on that reference later on.
8. In that copy the fourth point of the reference begins at p. 9 and it is said there at the commencement of that page:
Arbitrator is to ascertain and decide as to which of the debts, howlats and market debts incurred by both the brothers or either of the brothers are ijmali between the two brothers and which are personal, etc., etc,
9. The decision on this point runs on to the end of p. 12. In p. 10 the heading is 'A'. Apportionment of debts, Howlats and market debts. From there up to the end of p. 11 five items are dealt with which are not strictly speaking market debts but loans due to a bank, a loan due to a firm on a Hatchitta and certain other loans taken from individuals. P. 12 opens with the words, 'Ashutosh Ghose and Sudhangsu-bhusan Ghose.' Then follows on that page a sixth item separately headed as '6. Market debts as published below:' liability will be joint, each brother bearing one-half of the following debts. 11 items of market debts are detailed, the aggregate coming up to Rs. 692.3-9. In the copy of the award which has been filed in this case and which was signed by the arbitrator on 25th September 1930, and on which the plaintiff's application was based, changes to the following effect appear: (1) In para. 4 from the beginning the words 'and also for appointment of the Ijmali market debts' were inserted by the arbitrator, thus stating that market debts too were included in 'the separate reference.' (2) When dealing with the fourth point for reference at the top of p. 9 the words 'market debts.' were struck out, and from the heading at the top of p. 10 also the said words were deleted. (3) The words 'Ashutosh Ghose and Sudhangshu Bhusan Ghose' which appeared at the top of p. 12 were inserted at the end of p. 11; and p. 12 in which the market debts were shown and dealt with was entirely removed. (4) Other corresponding changes, e.g., renumbering of the pages, etc., were made. The net result of the alteration was that market debts' were treated as a matter included in ' the separate reference' and the item was left over for consideration in future. It is to be observed here that the award as delivered contains the signatures of the defendant and of the plaintiff, the signatures being dated 25th September 1930 and under an endorsement made by the plaintiff in the following words:
We agree that the reference as enumerated in this award was made by us and we agree to abide by all the decisions of this award.
10. The Subordinate Judge quite correctly formulated the law to be applied to the case, saying that the arbitrator was at liberty to reserve some parts of a referance to be dealt with separately,
but unless these parts are decided the award cannot but be taken to be incomplete provided the parties themselves did not expressly agree that the arbitrator was to give his award on the other points separately and that the same award might be taken as an entirely valid award whilst the award on the parts yet undetermined subsequently made would be treated as another and independent and separate award,
11. On the question whether there was such an agreement between the parties the learned Judge has said,
that the arbitrator threw aside p. 12 of his award and made many additions and alterations seems to be founded on the impression that he was not called upon to decide the point of market debts then, and that his award on other points delivered without the point of the market debts etc., would be quite a valid award in accord with law.
12. The learned Judge was of opinion that though the arbitrator acted on such an impression, there was in point of fact, no such agreement between the parties and that though the parties did sign at the foot of the award in the manner indicated above, that did not preclude any of the parties from challenging its validity on the ground that a part of the reference was in fact left undetermined. In arriving at his conclusion that there was no such agreement between the parties the learned Judge felt very much pressed by the statement of the arbitrator in his evidence that by 'separate reference' he meant not exactly that there was a reference as to market debts etc., made by the parties separately but that he himself wanted to deal with matters separately. The learned Judge for reasons that he gave was not disposed to believe the plaintiff's own evidence that there was such an agreement. It is clear to our mind that if the decision as to market debts was ultimately excluded from the award, it was excluded because the arbitrator was not willing to saddle the defendant with a liability to pay a half of the debt as was bis decision embodied in the draft. The contest between the parties as regards market debts was that while the plaintiff said that these debts, amounting to only Rs. six hundred odd, were Ijmali debts and payable by the parties in proportion to their shares, the defendant's contention was that it was the plaintiff's personal debts for which the plaintiff alone was liable. The proposal to exclude this part of the decision could have either proceeded from the side of the defendant or emanated from the arbitrator himself, and in the latter case only because of the contention which the defendant had put forward. What exactly were the circumstances under which the exclusion was made is a matter upon which the arbitrator has not said anything. But it would appear that he was not given a chance of explaining the point. We think also that by reason of the manner in which the question was brought up by the defendant for the consideration of the Court, the plaintiff too was not in a position to make out that it was necessary for him after what was stated in the award itself to give any explanation on the point.
13. The plaintiff filed his application treating the award as a complete award. He might well do so in view of the reservation which was contained in para. 4 of the award itself as regards market debts, and also Ijmali documents, records, collection papers, etc., coupled with the statement contained in the endorsement over the signatures of the parties in which appeared the words 'the reference as enumerated in this award.' The defendant in para. 8 of his written statement pleaded quite generally that the arbitrator had not decided all matters in dispute. But in para. 14 of the written statement a specific item was mentioned, not relating however to market debts, which the arbitrator, it was alleged, had left undecided. Issue 7 was framed in quite general terms. When the arbitrator was in the witness box as witness 1 on behalf of the plaintiff he was not asked a single question on behalf of the defendant as to why market debts were left out, but only a few questions were put to him to show that there was no reference. Indeed from his cross-examination and from that of plaintiff's witness 3, Babu Birendra Nath Bose, the plaintiff's pleader, it would not seem that the defendant was making any grievance that the market debts though a part of the reference, had been left out. The whole of the cross-examination of the latter witness was directed to make out that the arbitrator fraudulently took off p. 12 of the award without the defendant's knowledge and that the endorsement was inserted after the defendant had put down his signature. Upon the defendant's case as subsequently presented, the real issue was whether the parties had agreed that the question of market debts would be left over for further consideration. Not one question as regards this agreement was put to any of these witnesses. That some matters though not market debts were so left over is not disputed on behalf of the defendant because the copy of the draft award which he has filed shows that the question of division of Ijmali documents, records and collection papers was to be considered afterwards. To this no objection was taken at the time, nor has any objection been taken now. So far as these items are concerned, such an agreement, though not expressly admitted, is more than probable. The whole question is whether that agreement embraced market debts as well. We are of opinion that the question should be answered in the affirmative. It should be noted that the defendant while deposing in his examination-in-chief at first said that the arbitrators did not decide points 6, 7, 8 and 9 of the defendant of points of difference, and then added that the arbitrator had decided about the market debts but had afterwards taken off the page containing it. He has made no complaint about the other items, namely the Ijmali documents, records, collection papers, etc. Before he came into the witness box the plaintiff in his examination-in-chief had definitely deposed:
The talk of market debts first arose after the points of difference were settled (three or four months after), The opposite party said that these debts were my personal debts whilst I said that they were Ijmali, at the time. At that the S. D. O. said that these were required to be decided on evidence and the matter might as such be postponed. We both parties agreed to such arrangement of postponement.
14. Not one question was put to the plaintiff in his cross-examination to suggest that the statement made by him as above was not true. The defendant has made various aspersions against the arbitrator but has not said a word in repudiation of the plaintiff's story as to the agreement. It has been argued before us that the plaintiff's statement quoted above cannot be true, because his statement, as it stands, would suggest that the agreement was reached a long time before the award, and if that was so, the decision of market debts as contained in the draft award would be impossible. We are not prepared to read the statement in that way. The plaintiff was only answering the questions that were being put to him. And the statement only shows the sequence of events as they have happened and not that the agreement was come to at any particular point of time. It has been also argued before us that the decision as to market debts having been there in the draft award, nothing could have happened between the evening of 24th September 1930 when the final discussion after the draft took place and the morning of 25th September 1930 when the award was signed which could justify the arbitrator changing his mind and excluding the decision as to market debts. It has been argued that the only talk that took place during those discussions related to the question of the stamping of the award. We do not think that the evidence established that that was the only item of discussion, for the pleader P. W. 3 has said that:
Pankaj Babu (meaning the defendant's pleader) objected as to the entries in the award at the time.
15. Some argument has been addressed to us to make out that the endorsement over the signatures of the parties was interpolated after the defendant had put down his signature. The Question is not of any importance because the endorsement or the signature would not bind a party to accept an award which is not a valid award. But on the question of fact as to whether the endorsement was there when the defendant signed, we think there is enough to show that the endorsement was not made after the defendant's signature. The result is that, in our opinion, this appeal should be allowed and the order of the Court below being set aside it should be ordered that the award be filed and a decree made on it. The appellant will have from the respondent his costs of this Court, hearing fee five gold mohurs, and of the Court below. The cross-objection is dismissed but without any order for costs.