Piggott, J - (1.)This appeal arises out of an application made under paragraph 20 of the Second Schedule to the Code of Civil Procedure to have an award made in an arbitration conducted without the intervene lion of the Court filed. The party contesting the award put in what we may call a written statement, in which they contested the award on a great variety of grounds. They went go far as to contend that the award sought to be filed had never been made by the gentleman to whose arbitration the matters in dispute between the parties had been referred, but was a forgery connected after that gentleman s death. On the pleadings of the parties a number of issues were fixed, ten in all, and the case was set down for hearing. The objector moved the Court to decide first of all two issues only, in respect of which it was represented to the Court that it would not be necessary to take any evidence. The issues as framed ran as follows:-- Issue No. 2. "Has the arbitrator determined any matter not referred to arbitration under the agreement dated the 6th April 1918?"
(2.)Issue No. 4. "Is an objection to the legality of the award apparent on the fact of it?"
(3.)On each of these issues the Court below, after hearing arguments, found in the affirmative, and on these findings alone, and Without any enquiry into the matters of fact raised by the pleadings, it has dismissed the application to have the award filed. The appeal before us is against the order refusing to file the award, and we have to consider whether that order is justified upon the only findings which have been recorded. The first finding is that the arbitrator has determined two matters not referred to arbitration under the agreement. The first of these matters relates to a sum of Rs. 2,000 which the arbitrator has held in effect to be a debt due from the joint family business, the assets of which it was his duty to apportion between the parties to the arbitration, and due from them to a connection of the family named Baijnath Prasad. Now it is quite true that Baijnath Prasad was no party to the reference, that there is no mention of Baijnath Prasad in the agreement of reference and that the arbitrator had no authority to make an award of Rs. 2,000, or of any other sum, in favour of Baijnath Prasad. The arbitrator, however, was bound to distribute between the parties the assets of the joint family business, and in to doing he recorded a finding that those assets were subject to a liability of Rs. 2,000 in favour of Baijnath Prasad. It is only incidentally relevant to note that, he purports to do this with the full consent of the parties to the agreement; but in any case he had authority to determine what were the divisible assets of the business before he proceeded to divide them. Looking at the matter from another point of view, it may be that, in so far as the award purports to operate in favour of Baijnath Prasad to the extent of Rs. 2,000, it is a matter which can be separated from the rest of the award without affecting the determination of the matter really referred to the arbitrator, namely, the division of the assets of the joint family business. This is, of course, subject to what has already been remarked, namely, that for the purpose of determining the divisible assets the arbitrator had authority to find that the assets of the firm were less by Rs. 2,000 in consequence of a debt due to Baijnath Prasad. This portion of the award is within the powers of the arbitrator. The award cannot operate as a decree in favour of Baij Nath Parsad who was not a party to the reference but if, and in so far as, it purports to do so, that portion of the award is obviously separable from the rest. The same remarks apply in substance to the other portion of the award in which the arbitrator finds that certain money and jewellery must be taken out of the divisible assets of the joint family and left with one Musammat Tara Devi, a member of the family. I bold, therefore, that the finding of the Court below on the Second issue fixed by it is incorrect and that the award is not open to any valid objection on the ground of the arbitrator s having determined a matter not covered by the agreement of reference.