- (1.) These appeals by certificate arise from the decision of the High court of orissa in Misc. Appeals Nos. 103 and 104 of 1962 on its file which were directed against the decision of the learned subordinate Judge of Cuttak in T. S. Nos. 36 and 50 of 1959 both of which were instituted with reference to the arbitration agreement executed by the members of the family of one Ghasi in favour of 9th defendant, on 3/01/1959. The 9th defendant gave his award (Ex. 1) on 28/04/1959, after duly notifying the parties about the making and signing of the. , award. The said award was registered on 29/04/1959. Defendants 1 to 3 and 7 challenged the award. Defendants 6 and 8 supported the award. Defendants 4 and 5 did not file any written statement challenging the award but supported it in appeal.
(2.) The validity of the award was challenged mainly on four grounds, viz. (1) that the arbitrator was partial to the branch of Gopiram, (2) that he failed to decide about the truth and the validity of the adoption of defendant No. 3, Debi Prasad, (3) that he failed to divide the properties amongst all the executants of the arbitration agreement and (4) that the properties allotted to the various branches were arbitrarily valued by him. The Trial court rejected all these contentions and made the award a decree of court. The High court in appeal rejected the contention that the arbitrator was partial to the branch family of Gopiram but accepted the other three contentions. It accordingly set aside the decree of the Trial court and dismissed the suits.
(3.) The arbitration agreement to the extent material for our present purpose reads as follows: "This agreement of reference is made on the 3rd day of January, ninteen hundred fifty-nine, between (1) Gopiram Moda, aged 52, alias gopilal, son of Bholanath Moda, deceased, (2) Durgadutt Moda, aged 44, and (3) Sibaprasad Moda, aged 38, sons of Rai Saheb Giridharilal moda, deceased, (4) Debiprasad Moda, aged 35, son of Raghunathrai moda) deceased, (5) Gokulchand Moda, aged 45, and (6) Satyanarayan moda, aged 41, and (7) Shyam Lal Moda, deceased, (8) Mohara Devi, aged 64, widow of Giridharilal Moda, deceased, and (9) Gobindi Devi, aged 40, widow of Radhakishan Moda, deceased, all by caste Agarwalla, residents of Choudhuri bazar, town Cuttack. Whereas the parties abovenamed were at one time inembers of a joint undivided family but separated their business, movables and mess in the year 1939, but their properties which were all originally the outcome of their old business concern started and carried on by the name and style of M/s. Ghasirarn Bholanath, since extinct, have undergone several transfers. Whereas the properties described in Schedule 'a' below were acquired out of the separate fund of Parties No. D-l, D-2 and D-3 and properties described in Schedule 'b' below were acquired out of the separate funds of the party No. 1 Gopiram and properties described in Schedule 'c' below though mortgaged to Banwarilal Moda deceased have been re-deemed and released by party No. 1 Gopiram alone and properties described in schedule 'd' below though sold to Gourishankarlal Moda for Rs. 20,000. 00 was subject to a contract for reconveyance and properties described in Schedule 'e' below were acquired by parties Nos. D-4, D-5 and D-6 out of their separate funds and the properties described in Schedule 'f' below stands in the name of Giridharilal Moda deceased. Whereas differences have arisen and disputes have cropped up between the parties abovenamed as to the share and the rights and possession and liabilities of each member in said properties. Whereas the parties are not agreed as to the share, rights, possessions and liabilities of each in these properties. Whereas the parties abovenamed have agreed to refer the disputes about the division of shares, rights, possession and liabilities of each to the sole arbitration of their common relation and well wisher Sri Balmukundji rateria of P. 11, Chitpurspur, Calcutta.;