- (1.) THE plaintiff-non-applicant Mohan instituted a suit in the trial Court against balaram, whose legal representatives on record now are applicants Nos. 1 (a) to (e), and the other three applicants Raspalsingh, Mansaram and Nanki. In the suit the plaintiff-non-applicant impleaded his sons Mahajanlal and Lilaprasad also as defendants. They are non-applicants 2 and 3. The plaintiff instituted the suit claiming general partition of the joint family property and separate possession thereof. The joint family property comprised of agricultural lands in seven villages including the village Jajang and five houses which are situate in two of these seven villages.
(2.) THE plaintiff's case was that the plaintiff and the first defendant Balaram constituted a joint Hindu coparcenary and held the properties which are described in paragraph 4 of the plaint as their joint family properties since the death of their father Sobharam; that the defendant Balaram was the manager of the joint family after the death of Sobharam and that he acquired lands and constructed two residential houses which are mentioned in schedule B attached to the plaint. It was urged that all these properties constituted joint family properties though the acquisitions thereof were made in the names of different members of the family. In para 7 of the plaint it was averred that the plaintiff orally demanded partition and separate possession of his share in April 1954. The matter was referred to panchas by the parties but the decision was not accepted by the defendant No. 1. The defendant No. 1 ultimately refused to give plaintiff's 1/8th share saying that the interest of the minor sons of the plaintiff will suffer adversely in the month of june 1956. Balaram denied the plaintiff's claim for partition and in reply to the above quoted allegations of para 7 of the plaint stated the following in para 7 of his written statement: "it is denied that the plaintiff ever demanded any partition. In fact he has no right, title or interest in the property of the defendants. The plaintiff raised disputes in the lands obtained by the defendant No. 1 under the will of his aunt Mst. Suhawan. The Gountia of Bakeli accepted the defendant as the exclusive owner of the said lands. The plaintiff demanded share in that land. The land 50. 54 acres at Jajang acquired in the names of 4 sons of the defendant 1 and 2 sons of mohan the plaintiff have not been partitioned into specific shares, although year after year the produce of those lands used to be divided among the sons of the plaintiff and those of the defendant No. 1. These disputes were referred to the arbitration of Balakram Gountia of Turekela and some more Panchas to be nominated by Balakram. At no time Balakram took down the statements of the parties or took the statements of other persons nor has he nominated any Panch so far. Under some pretext or the other he has obtained this defendant's signature on a stamp paper without disclosing its contents to him. The defendant No. 1 is an illiterate man. He knows only to sign his name. It is further submitted that in view of the plea in para 7 of the plaint, that reference had been made to an arbitration and some Award has been given, the plaintiff's suit is barred under Section 32 of the Indian Arbitration Act and therefore, it is not maintainable".
(3.) THE defendants 2, 3 and 4 (applicants 2, 3 and 4) raised the same contentions as Balakram. The non-applicants 2 and 3 supported the plaintiff's claim for partition in their written statements. The contention with which we are concerned in this revision is as to whether the lower appellate Court has rightly come to the conclusion that the plaintiff's suit is not hit under Section 32 of the Arbitration Act. The trial Court had dismissed the plaintiff's suit on the ground that Section 32 operated as a bar to the said suit. The other issue tried by the trial Court was whether a written submission was made to arbitrators. The trial Court held that there was a written submission made to the arbitrators regarding a part of the property in suit, i. e. with respect to the properties situate at village Jajang. The appellate Court came to the conclusion that it was not clear that any written submission to arbitration was made. Differing from the trial Court it held that the suit of the plaintiff was maintainable and Section 32 of the Arbitration Act did not constitute a bar to the tenability of the suit.;