Decided on September 04,1952



Reuben, J. - (1.) THIS appeal by the defendants is directed against a preliminary decree for partition. The appellant No. 1 Shiakishori Kuer is the widow of Lachminandan Sinha, one of Whose sons is Ratneshwarinandan, defendant No. 1, whose sons Parmeshwarinandan and Awadheshwarinandan are defendants Nos. 5 and 6. Lachminandan had another son Vindeshwarinandan, deceased, whose sons are Bisheshwarinandan, defendant No. 2, Ishwari-nandan, defendant No. 3 and Kameshwari-nandan, defendant No. 4. Bhairvinandan, plaintiff No. 1 and Kamleshwarinandan, plaintiff No. 2, are the sons of Kalikanandan, deceased, the brother of Lachminandan. Baidya-nathnandan, father of Lachminandan and Kalikanandan, had a brother Girjanandan, who died leaving no heirs.
(2.) THE family was formerly a joint Hindu family governed by the Mitakshara law. THEre was a severance of the joint status in 1939 when, by an unregistered 'ekrarnama', dated 28-10-1939, the bulk of the immovable property was partitioned between the different branches. According to the plaintiffs, from this time they and their father formed a joint Hindu family and the defendants 1 to 6 formed another joint Hindu family, and the undivided property specified in Schedules B and C to the plaint re- mained in the common possession of the two families. On 9-7-1940, the two families appoint- ed Rai Saheb Satruhan Prasad Sahi as sole arbitrator to decide certain disputes pending between them and to divide such of the movable and immovable properties that still remained common to them. THE arbitrator made an award on 23-5-1941. By this award he directed as regards the property in Schedule B, which is land and the house standing thereon at Sita- marhi, that if the plaintiffs paid to the defendants the sum of Rs. 2000/- within six months as compensation for expenditure incurred by the defendants in excess of their proper share for construction of the building after the earthquake of 1934 out of their own funds, the plaintiffs would be entitled to a hall-share in the property with the right of joint ownership and possession, failing which it would vest exclusively in the defendants. As regards the property in Schedule C which consists of a gold and silver 'tamjan' and a gold and silver 'houdah', he directed that they b'e kept between the parties, but the 'tarnjan' would remain in the custody of the defendants and the 'houdah' in the custody of the plaintiffs, each item of property to be made available to the other party when required by it. THE plaintiffs pleaded that within the time specified by the arbitrator they sent Rs. 2000/- by money order to the defendants, but the money was refused by them; also, that the defendants have not delivered the custody of the 'houdah' to the plain- tiffs. On these facts the plaintiffs prayed that "a decree for partition to the extent of the plaintiffs' half share in the properties as mentioned in Schedules B and C be passed in plaintiffs' favour against the defendants and the plaintiffs may be allowed to deposit Rs. 2000 in court according to the terms of the award to the credit of the defendants." Originally Siakishori Kuer defendant No. 7 was not impleaded. She was brought on the record in consequence of the defence taken that the property in Schedule B is really her property, having come to her from her father Nemdhari Singh as part of the Athari estate. They also pleaded that the movable property described in Schedule C had already been divided in 1939, the 'houdah' being allotted to the plaintiffs and the 'tamjan' to the defendants. They admitted the reference to, arbitration, but disputed its validity on the ground that some of the defendants, then majors, were treated as minors and were, therefore, not properly represented. They further contested the validity of the award asserting that the signature of the arbitrator had been obtained on it by fraud. They also pleaded that certain property, which should have been brought into the partition had been omitted, a defect which was removed by the plain-tiffs by a petition for amendment filed on the 24th July, 1946, and allowed by the Subordinate Judge by an order of the same date by which this property was added at the foot of the plaint in Schedule D. The deed of reference to arbitration and the award made by the arbitrator have not been put in evidence and the Subordinate Judge, observing that although the plaint was mainly based on the award the plaintiffs were not seeking relief on the basis of the award, refrained from investigating the validity of the reference and the award. He rejected the defence story as regards the house at Sitamarhi and the alleged division of the property in Schedule C and decreed the suit for partition accordingly,
(3.) THE decision of the Subordinate Judge covers the property in Schedule D. Owing to an omission of the office of the Subordinate Judge to amend the plaint in accordance with the order dated 24-7-1946, the decree has been wrongly drawn up and the property in Schedule D is omitted therefrom. THE necessary correction will now have to be made in both the plaint and the decree. Mr. Lalnarayan Sinha, who represented the appellants, made it clear that the appeal does not relate to the property in Sch, D. So far as that property is concerned, therefore, the decree is not challenged. Three grounds have urged before us : (1) that the suit as regards the properties in Schedules B and C is barred by reason of the award made by the arbitrator; (2) that the suit being based on an award which was not filed under the provisions of Section 14, Sub-section (2), Arbitration Act, 1940, is not maintainable; and (3) the findings of fact in relation to the properties in Schedules B and C are incorrect.;

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