Broomfield, J. - (1.)In a suit for partition of joint family property filed by the plaintiff, the opponent in this application, against four defendants, the present applicants, of whom defendants Nos. 2 to 4 were the minor sons of defendant No. 1, an application was made by the plaintiff and assented to by defendant No. 1 for the reference of the matters in dispute in the suit to arbitration. The Court allowed the application and appointed the arbitrators suggested by the parties, two pleaders. In course of time, after nearly three years in fact, the arbitrators gave an award. The defendants then applied under paragraph 15 of Sch. II of the Code to set aside the award on various grounds, the principal of which were that the arbitrators have been guilty of misconduct, that they had without any justification held the defendants liable to account for a sum of Rs. 21,000.00 and that the award was illegal and invalid on the face of it. This last objection was mainly based on a ground not mentioned in the application itself but developed in the arguments, viz. that though defendants Nos. 2 to 4 were minors and defendant No. 1 had been appointed their guardian ad litem, the leave of the Court had not been obtained for the reference to arbitration as required by Order XXXII, Rule 7.' The Subordinate Judge heard arguments on these and the other objections, and holding that there was no substance in them, dismissed the application and ordered a decree to be drawn up in terms of the award. The defendants now apply for revision of this order under Sec. 115 of the Civil Procedure Code.
(2.)A preliminary objection has been taken by Mr. Thakor who appears for the opponent that no application in revision lies against an order made under these provisions of the Code. The same objection was taken in Khandubhai Lallubhai Desai Vs. Morarji IMlubhai Desai (1932) C.R.A. No. 69 of 1931 and I overruled it though with some hesitation. I pointed out in my judgment in that case that the Privy Council decision in Gkulam Jilani Vs. Muhammad Hassan (1901) L.R. 29 I.A. 51 : S.C. 4 Bom. L.R. 161 , as interpreted by this Court in Bhikhalal Vs. Acharatlal (1924) I.L.R. 49 Bom. 535 : S.C. 27 Bom. L.R. 423 , does not preclude interference in revision, in such cases provided that the requirements of Sec. 115 are satisfied, i.e. when it can be shown that a Court has exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction go vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. Mr. Coyajee who appears for the applicants has pointed out that the same construction has been placed on this Privy Council case by a full bench of the Allahabad High Court in Mariam Bibi Vs. Amna Bibi [1937] All. 317 F.B. . I have accordingly heard the application argued.
(3.)The first and in my opinion the only really substantial ground on which this Court is asked to interfere is the failure to comply with the provisions of Order XXXII, Rule 7. Although, as I have said, defendants Nos. 2, 3 and 4 were minors and defendant No. 1 was their guardian ad titem, there is nothing to show that the leave of the Court was obtained for the reference of the disputes to arbitration, and certainly the leave of the Court was not expressly recorded in the proceedings as required by the rule. The learned trial Judge thought that this difficulty could be got over because defendant No. 1 was the manager of the family and entitled as such to get the family disputes settled by arbitration so as to bind minor members of the family. He referred to several cases but in none of these was there any question of the operation of Order XXXII, Rule 7. When the manager of a Hindu family is the next friend or guardian of a minor in a suit, his powers qua manager do not absolve him from the obligations imposed by the Civil Procedure Code. It was so held by the Privy Council in Ganesha Row Vs. Tuljaram Row (1913) L.R. 40 I.A. 132 : S.C. 15 Bom. L.R. 626 . The learned Judge was quite clearly wrong on this point.
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