In No 330 of 1914.
1. This is an appeal by the defendant No. 1 against the judgment of the learned Subordinate Judge of the 1st Court at Midnapur. The plaintiff brought the suit for partition of properties alleged to be joint family properties.
2. Eight issues were framed in the lower Court, all of which except as to a property in the Sunderbans to which appeal No. 216 of 1914 relates the learned Judge decided in favour of the plaintiffs.
3. On the hearing of the present appeal the first point argued was that raised by issue No. 7 in the Court below.
4. It appears that two days before the institution of the suit the parties entered into an agreement to refer the matter to arbitration. The appellant, therefore, alleges that the suit is barred under the provisions of Section 21 of the Specific Relief Act. There is no allegation in the written statement that the plaintiff refused to perform the contract to refer to arbitration, nor was any evidence given to prove such a refusal.
5. The question is, therefore, whether the filing of the suit amounts to a refusal within the meaning of Section 21 of the Specific Relief Act. The authorities in this Court appear to me to be quite clear that the filing of a suit is not a refusal within the meaning of Section 21. The first decision I would refer to is the case of Koomud Chunder Dass v. Chunder Kant Mookerjee 5 C. 498 : 5 C.L.R. 284 : 2 Ind. Dec. (N.S.) 925 which is exactly in point. No doubt that case was a decision of a single Judge sitting on the original side but the decision which was given in the year 1879 has never been questioned.
6. The next decision I would refer to is that of Crisp v. Adlard 23 C. 956 : 12 Ind. Dec. (N.S.) 635 which was an appeal from the Recorder of Rangoon. Against these decisions of the Court which have stood for many years the appellant relies on the decision in Ram Chandra Pal v. Krishna Lal Pal 17 Ind. Cas. 600 : 17 C.W.N. 351.
7. That decision can be supported on the ground that the learned Judges held that the suit was not cognisable by a Court of Small Causes.
8. But in so far as it held that the mere filing of a suit was a refusal within Section 21 of the Specific Relief Act, I must respectfully dissent from that decision. Such a view, having regard to the fact that the learned Judges held that the suit was not cognisable by a Court of Small Causes, was unnecessary for their decision. Moreover, the learned Judges do not consider the terras of Section 21 or the earlier decisions of this Court which apparently were not cited to them. I agree with the learned Subordinate Judge that it is not shown that the plaintiff has refused to perform the agreement to refer to arbitration and that Section 21 of the Specific Relief Act is not a bar to the present suit.
9. I regret that my learned brother is of a different opinion on this issue.
10. The only other point argued in this appeal is the question raised by issue No. 4. This matter can be dealt with shortly.
11. The defendants set up a false case of an earlier separation between the parties, which the learned Judge found against them in the Court below and which they have not attempted to support in this Court. The appellant has also in this Court not challenged the finding of the learned Judge that the pucca house is joint family property.
12. Nor is it challenged in this appeal that on the death of Narahari, the grandfather of the parties, certain properties passed to them as joint. There is also the admitted fact that after the death of Narabari certain lands were purchased on behalf of the family although the defendants have tried to explain away this purchase. I agree with the learned Judge that there was a nucleus of joint family property out of which other properties could be acquired.
13. Moreover the harbors appear to have been carried on in the joint house of the parties and no reliable books of account have been produced to show that they were the property of the defendants.
14. The evidence establishes that either the properties in question were acquired out of the joint family properties or were brought into the common stock by the parties. It is much too late now for any of the parties to attempt to get back portions of the property as his self-acquired property. I agree with the conclusion of the learned Subordinate Judge.
15. But as I have already stated my learned brother and I are not agreed as to whether Section 21 of the Specific Relief Act is a bar to the suit.
16. Accordingly under the provisions of Section 98 of the Code of Civil Procedure the present appeal is dismissed with costs, three hundred rupees.
In No. 216 of 1914.
17. This is an appeal by the plaintiff against the finding of the learned Judge that a property in the Sunderbans did not form a portion of the joint family property. Part of the property was transferred by deed of gift by Prasanna Kumar Jana to the son of the defendant No. 2.
18. The plaintiff's case was that the transfer was really one in favour of the family in consideration of debts due by Prasanna to the family. But there is no reliable evidence that such debts were in fact due. There is no reason to dissent from the finding of the learned Judge in this respect. As regards the Sunderbans Lot No. 153, which was acquired in the name of the defendant No. 2, there is nothing to support the plaintiff's case with regard to this. On the other hand the mortgage to Ram Prasad Bera on the 28th of February 1911 appears to support the case of the defendant No. 2.
19. I am not disposed to differ from the learned Judge on his findings as to the Sunderbans properties.
20. The appeal of the plaintiff must accordingly be dismissed with costs, three hundred-rupees.
In Nos. 830 and 216 of 1914.
Shamsul Huda, J.
21. I regret I am unable to agree with my learned brother in the construction he has placed on Section 21 of the Specific Relief Act. It may be convenient before going farther shortly to state the facts so far as they bear on this question.
22. Plaintiff and the defendants are brothers. A dispute seems to have arisen between them regarding the partition of their ancestral properties and properties subsequently acquired Matters seem to have reached a climax seven or eight days before the 5th of August 1911, when plaintiff sent his son to Midnapur to institute a suit against the defendants. However, on the 3rd of August they entered into an agreement called the Salisnamah, whereby to avoid litigation they agreed to refer their dispute to the arbitration of Babu Shib Prasad Jana and two others and to be bound by the decision of the arbitrators. The document was registered on the same day and remained in the Sub Registry Office at least until the 9th of August. It appears that the plaintiff changed his mind almost immediately after the execution of the document and we have it on the record that the very next day, i.e., on Friday at 11 o'clock he sent a telegram to his son to file the suit and the suit was accordingly filed on -Saturday the 5th of August. There is no doubt that the suit and the agreement cover the same ground.
23. Upon these facts the question arises whether the institution of the suit amounted to a refusal on the part of the plaintiff to perform the contract he had entered into to have the dispute settled by arbitration instead of by suit. I think it did.
24. It is, however, urged that a refusal presupposes a demand and as in the present case defendants did not call upon the plaintiff to go to arbitration, the institution of the suit cannot amount to a refusal. I cannot accede to this contention. In the first place, neither the demand, nor the refusal need be express and they may both be implied. It is true the defendants did not expressly call upon the plaintiff to perform his part of the contract but it may safely be inferred, and there are no circumstances leading to a contrary conclusion, that the defendants were insisting on the plaintiff to go to arbitration and would have made an express demand upon him if only they had the opportunity of making one. The time for submitting the case to the arbitrators had not come, for it would have been necessary for the arbitrators to refer to the terms of the agreement and as I have said the document was still in the Sub-Registry Office. In the second place, it seems to me that there may be a refusal in anticipation of a demand. If, for instance, a contractor builds a house for me and before he has made the necessary measurements to prepare his bill and submit it for payment I write to him saying that he has done the work so badly that I refuse to pay him anything, I do not think I would be using inaccurate or inappropriate language. The institution of the suit in the present case conclusively showed that plaintiff was determined not to go to arbitration. This is also apparent from his subsequent conduct. When the defendant No. 1 pleaded in the written statement that Section 21 of the Specific Relief Act was a bar to the suit, plaintiff tried to meet the objection by stating that he had executed the agreement on blank paper, had registered it without understanding its contents and that he had agreed to the arbitration of seven persons and not of three. He also pleaded that one of the arbitrators had refused to arbitrate. The learned Subordinate Judge, whilst holding that the institution of the suit did not amount to a refusal, has not accepted this story of the plaintiff and I agree in thinking that it is untrue. Its inherent improbability makes it unnecessary for me to enter into a detailed examination of the evidence bearing on the point and I hold that plaintiff's conduct in asking his son to institute the suit and its subsequent institution and plaintiff's attempt to repudiate the agreement are susceptible of one explanation only, namely, that plaintiff had made up his mind not to abide by his agreement and such determination on his part coupled with the institution of the suit, in my opinion, amounted to a refusal to perform the contract embodied in the salisnamah.
25. I am fortified in this view by the decision of two learned Judges of this Court in the case of Ram Chandra Pal v. Krishna Lal Pal 17 Ind. Cas. 600 : 17 C.W.N. 351. In that case Brett and Richardson, JJ., held that where a person has agreed with another that all matters in controversy between them should be referred to arbitration, it is not open to that person to resile from the agreement unless for good and sufficient cause. It has been urged, however, that this decision is an obiter dictum. What happened was this. The defendant in a suit instituted in the Court of Small Causes pleaded that the suit could not proceed, as there was a subsisting agreement to refer the dispute to arbitration. The plea was overruled and a decree passed in favour of the plaintiff. Defendant then moved the High Court under Section 25 of ' the Mofussil Small Causes Courts Act and obtained a Rule upon the plaintiff to show cause why the decree should not be set aside on the ground that it was barred by Section 21 of the Specific Relief Act. The learned Judges made the Rule absolute and they expressly stated to have done so on the ground on which it was issued. Then they apparently proceeded to strengthen their position by an expression of opinion that the suit was not cognisable by the Court of Small Causes at all. But the principal basis of the decision was the construction which the learned Judges placed on Section 21 of the Specific Relief Act. It cannot, therefore, be said that the decision is an obiter dictum so far as it concerns the present question. In support of the opposite view reliance has been placed on the decision of Wilson, J., in the case of Koomud Chunder Dass v. Chunder Kant Mookerjee 5 C. 498 : 5 C.L.R. 284 : 2 Ind. Dec. (N.S.) 925. In my opinion the law laid down in that case has reference to its particular facts. In that case defendant not only had opportunities for calling upon the plaintiff to submit to arbitration but as observed by the learned Judge in the course of argument, an occasion arose before the institution of the suit when, if the defendant wanted to insist on arbitration, he ought to have made a demand, but he omitted to do so. That is a fact which seems to distinguish that case from the present. I do not think that the decision was intended to lay down an abstract proposition of law without reference to the facts. In view, however, of the seeming conflict between this decision and the decision of Brett and Richardson, JJ., referred to above I would have been glad if my learned brother had agreed to refer the case to a Full Bench, but if I have to follow one or other of these two decisions I prefer to follow the decision of the two learned Judges of this Court. Any other view of law will have the effect of unduly narrowing the scope of Section 21 of the Specific Relief Act and making the provisions of that section practically nugatory.
26. On behalf of the plaintiff reliance has also been placed on the case of Tahal v. Bisheshar 8 A. 57 : A.W.N. (1885) 331 : 4 Ind. Dec. (N.S.) 1063. In this case plaintiff's suit was instituted more than a year after the agreement to refer to arbitration. The learned Judges found that the arbitrators did not decide the case because the parties ' were contentious among themselves', and they expressed the opinion that the contract the existence of which would bar a suit under the circumstances contemplated by Section 21 must be an operative contract and not a contract broken up by the conduct of all the parties to it. I think the words underlined (italicised) by me lay down the true test to be applied to all such cases. It has also been urged that the refusal must be antecedent to the suit and reliance has been placed on the case of Crisp v. Adlard 23 C. 956 : 12 Ind. Dec. (N.S.) 635. In that case after the institution of the suit the defendant had called upon the plaintiff to go to arbitration in accordance with a previous agreement and this the plaintiff refused to do, and the learned Judges held that this refusal could not bar a suit previously instituted. In that case the question was not raised and perhaps having regard to the facts of the case it could not be said that the institution of the suit itself amounted to a refusal, and the learned Judges were not called upon to express an opinion on that point nor did they express any.
27. It has also been urged that it is in- expedient to refer the parties to arbitration after the case has been fully gone into and a decision obtained on the merits. The words of the section are, however, peremptory and leave no room for exercise of any discretion.
28. In the view that I take Appeal No. 330 of 1914 should be decreed with costs and the decree of the Subordinate Judge reversed.
29. I agree with my learned brother on the other points discussed by him in his judgment and also in' dismissing Appeal No. 216 of 1914 with costs.