Decided on September 26,1957



- (1.) THIS petition under Section 115 of the Code of Civil Procedure raises the question whether it is within the competence of a trustee to refer a matter in which the trust is interested to the arbitration of two or more arbitrators without obtaining the concurrence of the co-trustees.
(2.) IT is alleged in the plaint that one Dayal Singh created a trust in a plot of land measuring 28 kanals 1 marla and appointed his grandson Harbhajan Singh plaintiff and two other persons, namely Radha Singh and Sohan Lal, as trustees. On 7th april, 1952 Harbhajan Singh brought a suit against Lakha Singh defendant No. 1 and impleaded Radha Singh and Sohan Lal his co-trustees as defendants Nos. 2 and 3. On 26th June 1952 the co-trustees admitted the plaintiff's claim and took no further interest in the proceedings. On 3rd July, 1952 Lakha Singh defendant No. 1 filed a written statement in which he claimed ownership in the entire property which was the subject matter of the dispute. On 4th August 1952 both the plaintiff and defendant No. 1 submitted an application to the Court requesting the Court to refer the matters in controversy between the parties to the arbitration of Dev Raj and Amri Singh who happened to be present in Court. The arbitrators entered upon the arbitration and gave their award on 14th september 1952. They held that the plaintiff was full owner of 12 kanals 16 marlas of the land, that Lakha Singh was the owner of the remaining 15 kanals 5 marlas of the land and that Lakha Singh was not at liberty to claim a partition of the proper. This award was filed in Court on 29th September, 1952. Lakha Singh raised a number of objections to the award and the Court accordingly framed an issue with the object of determining whether the reference was beyond the jurisdiction of the trial Court. The trial Court came to the conclusion that it had jurisdiction to deal with the matter and made the award the rule of the Court. On appeal however the lower appellate authority came to a contrary conclusion and remanded the case for fresh decision in accordance with law. On remand the trial Court set aside the award, but the Senior Sub-Judge, to whom an appeal was preferred, allowed the appeal and upheld the award. It is against this decision that Lakha Singh defendant No. 1 has presented a petition under Section 115 of the Code of Civil Procedure.
(3.) SECTION 43 of the Trusts Act is in the following terms : "43. Two or more trustees acting together may if and as they think fit. (a ). . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . (c) compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim or thing whatever relating to the trust; and (d ). . . . . . . . . . . . . . . The powers conferred by this section on two or more trustees acting together may be exercised by a sole acting trustee when by the instrument of trust, if any, a sole trustee is authorised to execute the trusts and powers thereof. " Mr. F. C. Mital, who appears for the plaintiff, contends that the suit in the present case was properly presented inasmuch as it was brought by Harbhajan Singh who was one of the trustees and inasmuch as Radha Singh and Sohan Lal the other two trustees were impleaded as defendants. Radha Singh and Sohan Lal admitted the claim of the plaintiff and the only parties which were at variance were harbhajan Singh plaintiff on the one hand and Lakha Singh defendant on the other. As Radha Singh and Sohan Lal physically and metaphorically walked out of the litigation, it was within the competence of Harbhajan Singh plaintiff and Lakha singh defendant to refer the matters in controversy between them to the arbitration of Dev Raj and Amir Singh. They were empowered to refer this dispute to arbitration and if they did so their action cannot be said to have been in contravention of the provisions of law.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.