N.H. Bhagwati, J. - (1.) These two appeals by special leave arise out of two separate proceedings, one under the U. P. Encumbered Estates Act, E. E. Act Case No. 11 of 1936 and the other a title suit, being Regular Suit No. 71 of 1938 in the Court of the Civil Judge, Gonda in relation to a 10 annas share in the property left by one Bhaiya Baleshwar Datt Singh hereinafter referred to as the deceased.
(2.) The deceased died on 15-5-1933 leaving him surviving Bhaiya Girja Datt Singh, hereinafter referred to as Girja, the original Appellant, as his nearest collateral and heir. Bhaiya Gangotri Datt Singh, hereinafter referred to as Gangotri, was a remoter heir but claimed to succeed to the estate of the deceased under the terms of a will alleged to have been made and published by the deceased on 17-3-1928. Girja filed 29 applications for mutation of his name in place of that of the deceased in the Revenue Courts in respect of the properties left by the deceased. Gangotri contested these applications on the basis of the said alleged will. All these cases were consolidated and the case with respect to the village Nagwa was treated as the main case. On 14-11-1933 three applications were made to the Revenue Court for reference to arbitration of the disputes between Girja and Gangotri: (1) Application Ex. 58 by Gangotri under S. 203, U. P. Land Revenue Act (2) Application Ex. 57 by Girja under S. 203 of the U. P. Land Revenue Act and (3) Joint application Ex. 59 by Girja and Gangotri. stating that they had appointed Bhaiya Raghuraj Singh and Bhaiya Lot Baksh Singh, Taluqdars of Majhgawan as arbitrators and that whatever award would be given by the said arbitrators in respect of the property left by the deceased would be accepted by the parties and both the parties would abide by the same and that mutation might also be made according to the award. By an order dated 15-11-1933 the Revenue Court referred the matters to the arbitration of the said arbitrators. Gangotri tried to resile from the reference but ultimately the Board of Revenue held him bound by the reference. The arbitrators published their award on 17-1-1934 in the terms following: "We decide that out of the entire property of Baleshwar Datt Singh, only ten annas share out of the entire villages be given to Bhaiya Girja Datt Singh and six annas to Bhaiya Gangotri Datt Singh. The waqf property shall remain as such and Bhaiya Girja Datt Singh shall continue to be its mutwalli. The parties, their heirs and representatives shall be bound by the award generation after generation. The said award shall be binding on the parties in the revenue and civil courts." Gangotri filed objections to the said award contending that the reference was not made by him by free consent, that the arbitrators had exceeded their powers and that the arbitrators were guilty of misconduct. By its judgment dated 18-1-1935 the Revenue Court rejected the objections and ordered mutations in terms of the award. An appeal by Gangotri against this order and judgment was dismissed on 14-5-1935.
(3.) On 11-4-1936 Girja filed an application under S. 4, U. P. Encumbered Estates Act, E. E. Act case No. 11 of 1936 for the liquidation of his debts. In the written statement dated 21-5-1936 filed under S. 8 of the Act the ten annas share in the properties left by the deceased was shown as belonging to Girja and as liable for the satisfaction of his debts. On 22-5-1937 Gangotri filed objections under S. 11 of the Act claiming the said properties as his own under the will dated 17-3-1928, alleged to have been executed by the deceased in his favour. On 18-5-1937 Gangotri filed Regular Suit No. 71 of 1938 in the Court of the Civil Judge, Gonda against Girja for recovery of possession of the 10 annas share of the properties left by the deceased and held by Girja under the terms of the award. Gangotri based his claim on the terms of the said will and contended that he was entitled to all the properties left by the deceased as the sole legatee. Girja resisted the suit mainly on two grounds, viz., (1) that the will Ex. A- 36 was not duly executed and attested, and (2) that the award which amounted to a family settlement was binding upon the parties.;