THAKUR SHALIGRAM SINGH Vs. SHEOSATI PRASAD

JUDGEMENT

(1.) THESE two appeals are presented on behalf of two sets of defendants against the order of the second Additional Subordinate Judge, Muzaffarpur, dated the 3rd January, 1958, setting aside the award of the arbitrator dated the 3rd August, 1953 with regard to partition of certain properties and dismissing the suit on the ground that it has become infructuous because of the vesting of the milkiat properties by a notification issued under Section 3 of the Bihar Land Reforms Act after the award had been made.

(2.) IT appears that there was a registered deed of agreement between the parties dated the 4th April, 1953, appointing Shri Shivasati Prasad, a lawyer practising at Muzaffarpur, as an arbitrator for partitioning the joint family properties. The arbitrator made the award on 3rd August, 1953, and it was registered on the next day. IT appears from the award that the arbitrator partitioned all the moveables, cash, rehan bonds, hand-notes and immoveables including the kast, bakasht, zirat, gairmazura lands and the proprietary interests of the joint family. On the 9th of November, 1953, the arbitrator filed the award in Court and made a prayer for passing a decree in terms of the award. Objection was filed by defendants second party on the 24th July, 1954 praying that the award should be set aside on the ground that there was misconduct on the part of the arbitrator who had shown partiality and bias in making division of the properties. On the 1st of January, 1956, the notification under Section 3 of the Bihar Land Reforms Act was issued vesting the milkiat interest mentioned in the award of the arbitrator in the State of Bihar. When the case was taken up for hearing before the lower Court, a preliminary issue was raised on behalf of defendants second party that the award had become infructuous on account of the notification under Section 3 of the Bihar Land Reforms Act and on this ground alone the award should be set aside. This preliminary issue has been decided by the lower court in favour of the defendants second party and it has been held that the award has become infructuous on account of the statutory notification under the Bihar Land Reforms Act and the suit should be dismissed. The lower court has not gone into the question with regard to the merit of the objection raised by defendants second party that the award should be set aside on account of misconduct of the arbitrator.

(3.) FOR these reasons we hold that this appeal should be allowed, the order of the learned Additional Subordinate Judge dated the 3rd January, 1958, should be set aside and the case should so back to the lower court for deciding in the first place the objection of the defendants second party that the award is fit to be set aside because of misconduct on the part of the arbitrator and there was bias and partiality shown by him in making division of the properties. After the case goes back on remand to the lower Court, it should hear the partial on the merit of the objections raised by the defendants second party according to Section 33 of the Arbitration Act and then decide whether the objections of the defendants second party are well-founded and whether the award should be set aside on the ground of misconduct under Section 30 of the Arbitration Act. If the tower court finds that the award is not fit to be set aside for the reasons given by the defendants second party, it should make an order remitting the award to the arbitrator for reconsidering the matter in the light of the situation brought about by the vesting of the milkiat interest in the State Government under Section 3 of the Bihar Land Reforms Act. The lower Court should fix a time within which the arbitrator should submit his decision after reconsideration of the matter.