Das, J. - (1.) The material facts leading up to the present application may be shortly stated as follows: One Kumar Jamini Ballav Sen, a wealthy zamindar and proprietor of what is commonly known as the Dimla Raj Estate, died an or about the 19th July 1929 leaving him surviving his widow Sm Provabati (Deft. No. 4) 4 sons Gopee Ballav (Deft. No. 1), Jyotish (Deft. No. 2), Rukmini (Deft. No. 3) and the plaintiff Manmatha and a daughter Sm. Sushilabala (Deft. No. 5). On the 18th October 1934, Manmatha the youngest son filed a suit in the Alipore Court, against his mother and three brothers for partition of the properties left by his father. By an order made by this Court on the 20th January 1935 that Alipore suit was, with the consent of all parties transferred to this Court. The petition for transfer was "intituled in the matter of the Alipore suit and in the matter of clause 13 of the Letters Patent" The transferred suit has since been mark-ed as extra-ordinary Suit No. 4 of 1936, The late Mr. S. N. Banerjee was by an order made on the same day in the transferred suit appointed as the receiver of the properties in suit and the sole arbitrator to decide all matters in question in the suit including the partition of the joint properties with power to make one or more awards from time to time as he might think fit.
(2.) On the 1st February 1936 Mr. S. N. Banerjee made an award of and concerning the Ariadah Garden House and the Calcutta properties. By Clause 1 of the award the Ariadah Garden House was declared to belong to the plaintiff and his 9 brothers (Defendants Nos. 1, 2 and 3) absolutely in equal shares to be possessed by them jointly until the same was partitioned. The Calcutta properties valued at Rs. 1 36,757 were partitioned and divided in the manner specified in Clauses 3, 4, 5 and 6 of the award and as shown in the plan thereto annexed and marked "B". Clause 3 of the award was expressed in the terms following : "3. That the premises No. 8/1, Duff Street measuring 2 cottahs 4 chittacks and 24 sq. ft. and the premises No. 9 Duff Street measuring I cottah 8 chittacks and 20 sq. ft. and portion of No. 33 Ram Mohan Shah Lane measuring 4 cottahs 3 chittacks and 18 sq. ft. of the total value of Rs. 21.813 and narked as lot 1 in the said plan marked "B" and being enclosed in blue borders together with all structures standing thereon is allotted to the plaintiff Manmatna Nath Sen." It appears from the plan annexed to the award that all the Calcutta properties so partitioned were contiguous and formed one compact black. Clause 7 of the award which is material for the purposes of the present application was as follows : "7 That in order to equalise the partition of the said premises I declare and award as follows : (a) That the defendant Jyotish Chandra Sen do pay to the plaintiff Manmatha Nath Sen the sum of Rs. 6372-4-0 and to the defendant Gopee Ballav Sen the sum of Rs. 214-8-0. (b) That the defendant Rukmini Ballav Sen do pay to the defendant Gopee Ballav Sen the sum of Rs. 3569-12-0. (c) That the owelty money shall be paid by such of the parties as are liable to pay the same to the respective payees within six months from the date of the decree to be made hereon. The respective allotments of the allottees who are liable to pay such owelty moneys shall stand charged with the payment of such owelty money and payment of such owelty can be enforced at the end of the said period of six months by execution of the decree to be made hereon without it being necessary to file a separate suit for the said purpose." Clause 8 dealt with a common passage and the respective rights and obligations of the parties in respect thereof. Clause 9 directed that each of the allotments should be made within a year from the date of the decree to be made on the award and should remain completely independent of each other without any right of support or easement against each other. Clause 10 provided as follows "10. That I further award and direct that each of the said four allottees of the Calcutta properties shall not keep any doors and windows immediately abutting on any other part of the allotments and each of such allottees shall close the existing doors and windows so abutting upon the allotment of any other allottee." Clause 11 gave a right of pre-emption in case of sale or lease by any allottee and Clauses 12, 13 and 14 dealt wish the question of the custody of title deeds. It will be noticed that while Clause 7 directed payment of owelty by a named allottee to other named allottee or allottees and Clause 10 directed each allottee to close existing doors and windows abutting upon the allotment of any other allottee there was no direction in Clauses 3, 4, 5 and 6 or any where else in the award directing any allottee to deliver possession to any other allottee of the different allotments made by the award.
(3.) The award was duly filed in Court and on the 19th March 1936 judgment was pronounced on the award.;