HET LALL Vs. UPENDRA NATH BASU

JUDGEMENT

(1.) This is an appeal by the plaintiff Babu Het Lall against an order of the Additional Subordinate Judge of Patna refusing to make a private award dated 1st October 1930, a rule of the Court and to pass a decree thereon. The relevant facts are that the plaintiff, defendant 2 and defendant 3 are the sons, and defendant 4 is the grandson of one Rai Sahib Ishwari Prasad, who was resident in Benares City where defendant 1, Babu Upendra Nath Basu, also lives. In the year 1908 defendant 1 bought at a Court sale the proprietary right in village Raitar which is in the Bihar Sub-division of the Patna District. The property was subject to heavy encumbrances, and in the year 1912 defendant 1 borrowed from Ishwari Prasad, who is said to have been his close friend, a sum of Rs. 50,000 for paying off part of the encumbrances. No document was executed in favour of Ishwari Prasad, but there was an oral agreement that if the money was not repaid, Ishwari Prasad should become a half-sharer in the property. In the year 1914 there was a further oral agreement, whereby Ishwari Prasad was recognized as half owner of the property which was valued at the sum of Rs. 1,34,000. The management remained with defendant 1, but thereafter Ishwari Prasad appeared as co-sharer in the zemindari papers first in his own name and then in that of Raghunathji, his family deity.

(2.) In the year 1924 Ishwari Prasad died, and a dispute arose between the plaintiff and defendants 2 to 4 over the division of his estate. The dispute was referred to the arbitration of Babu Chintamani Mukerji and Rai Sahib Jwala Prasad, and by their award, which is of February 1926, the arbitrators divided the property into four parts, and their award was made a decree of the Court. By this award Raitar was divided equally between the plaintiff and defendants 2 to 4. As they had no title deed in respect of this property, these persons approached defendant 1 who, on 25 April 1925, made a written declaration to the effect that he had purchased the property in the year 1908 while it was heavily encumbered, that Ishwari Prasad had lent him the sum of Rs. 50,000 at six per cent. interest with the option of taking over a half-share in the property, and that in the year 1924 the property had been divided accordingly. Defendant 1 expressed his willingness, after accounts had been made up, to execute such proper instrument as the plaintiff and defendants 2 to 4 might unanimously wish, or in the event of difference between them such as might be reasonably required by an arbitrator appointed by them. Meanwhile the property was to remain with defendant 1. On 28 December 1927, defendant 1 executed a draft sale deed in respect of one- quarter of the half, share in favour of the plaintiff alone. It was recited therein that the annual income of the half-share was Rs. 3,000 and that the plaintiff had agreed to accept a portion yielding an income of Rs. 750 as his own share together with the sum of Rs. 2,000 paid in cash. This sale deed, however, was never formally executed probably because of further differences that arose between the heirs. The result of these differences was that on 3 April 1928, there was an agreement between the parties to refer the matter to the same arbitrators who had decided the former dispute. The reference was in the following terms: Whereas differences have arisen between us and the two parts aforenamed regarding the accounts and transfer of Raitar property in the District of Patna by Babu Upendra Nath Basu of the first part, we hereby of both the parties of our free will and accord refer our dispute to the arbitration of Rai Sahib Jwala Prasad, Chief Engineer, Irrigation, U.P., and Shrijut Babu Chintamani Mukerjee, Sonarpura, Benares, and faithfully promise and bind ourselves hereby to abide by any award they may make in respect of the said dispute and to abide by their decisions; and we further authorize them to adopt whatever procedure they may deem fit and proper in order to settle our dispute.

(3.) On 1 August 1930, the arbitrators submitted their award which was registered before the Sub-Registrar of Benares, and, as the terms of this award have given rise to the present controversy, I quote them in full: Know all men to whom it may concern that we ... give our award as follows: (1) That the amounts specified in the statement of accounts passed by us attached hereto and marked as Ex. B should be paid with interest at eight annas per cent, per month within three months of to-day after which period the rate of interest shall be ten annas per cent, per month on any balance unpaid till the amounts are fully paid up. (2) That Babu Upendra Nath Basu requested us that in respect of transferring the above said Raitar property to the second party he may be allowed to pay any sum fixed by us in lieu thereof so as to save the property from being ruined, and we were asked by the party to fix the sum to be so paid by the first party to the second party. We accordingly directed that the said Babu Upendra Nath Basu do pay Rs. 15, 350 to each of the four gentlemen of the second party, that is to say, a total sum of Rs. 61,400 as the equivalent of the share of the second party in the said property with interest at six per cent, par annum accruing from 1 October 1930. If the said amount is not paid by 1 October 1931, the rate of interest thereafter shall be 7 per cent, per annum on the whole or any balance left unpaid. The ownership of the second party in one-half of Raitar property shall not cease till after the above sum of Rs. 61,400 as well as the amounts mentioned in the statement Ex. B, together with interest specified in respect of both be fully paid up.