Decided on December 17,1900



- (1.) It was urged on behalf of the appellants that there was in truth no submission to arbitration, but only an understanding that the dispute was to be settled by certain persona acting as friendly mediators. Although the petitions to the Court may leave the matter in doubt, yet the clear language in exhibit A, in which the first appellant states that the division of the properties had been referred for the decision of the therein-mentioned arbitrators, supported by the evidence of one of the said arbitrators puts the question beyond dispute. We are therefore satisfied that there was a reference to arbitration by agreement of parties to the suit. This reference, however, not having been by submission through the Court, the question is whether the award which deals with the subject-matter of the suit can be given effect to in the suit, and if so how. In Ghellabhai V/s. Nandubai I.L.R. 21 Bom. 335 at p. 341, it was considered by Farran, C.J., that a submission and award under such circumstances can only be taken cognizance of in the suit or an adjustment of it under Section 375 of the Code of Civil Procedure, The correctness of this view was somewhat doubted by O Kinealy, J., in Brojodurlabh Sinha V/s. Ramannth Ghose I.L.R. 24 Calc. 908 at p. 928.
(2.) Assuming, however, that the award is but the completion of the agreement of the parties, and that such agreement plus the award affects the rights of the parties in the pending suit, it can only be as an agreement adjusting the suit, and as such could be recorded and acted upon under Section 375 of the Civil P. C., of course provided it was a lawful agreement. We are compelled in this case to hold that the agreement was not lawful inasmuch as the submission related to the rights not only of the adult parties but of minors who were also parties to the suit. Leave of the Court was not obtained under Section 462 of the Civil P. C., either before the submission to arbitration or after the award, and the adjustment was therefore not binding on the minors. The effect of the submission was to take away from the Court the power of adjudicating upon the rights of the minors, and to leave such adjudication to a private tribunal. Such an agreement seems to us to be clearly one falling within Section 462 of the Civil P. C., It is not analogous to the cases that arose under the Oaths Act Chengal Reddi V/s. Venkata Reddi I.L.R. 12 Mad. 483 and Sheo Nath Saran V/s. Sukh Lal Singh I.L.R. 27 Calc. 229 which were oases relating to proof, and subject be the discretionary power of the Court to allow such proof. It was then urged for the plaintiffs that the adjustment should at all events be held binding upon the parties thereto who were not minors. But the suit was a suit for partition among the members of an undivided Hindu family, and a partial adjudication in such a suit is impossible. In these circumstances the agreement must be held to be altogether incapable of being acted upon under Section 375 of the Civil P. C..
(3.) It was then further urged on behalf of the plaintiffs that the award should be taken as an award tiled under Section 525 of the Civil P. C.. As a matter of fact proceedings wore not taken under that section, and it is therefore unnecessary for us to say whether the award, if filed under that section, would not in the pending suit be open to the same objections as those upon which we have rejected it as an adjustment of the suit. In the view we have taken it is not necessary be consider whether the objections to the award itself on the ground of want of notice, etc., are well founded. We must reverse the decree of the District Judge, and remand the suit for disposal according to law. The parties will bear their own costs of this appeal without prejudice. be the appellant's right to refund of stamp duty under action. 13 of the Court Fees Act.;

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