P.N.MOOKERJEE, J. - (1.) THIS Rule arises out of a suit on an arbitrator's award. The award was filed by the arbitrators in Court under Section 14 of the Indian Arbitration Act and, eventually, a decree was made by the learned trial Judge on the said award under the relevant Section 17 of the Act. THIS decision, however, was eventually reversed by the learned Additional District Judge on appeal and the petitioner's suit was dismissed, primarily, upon the view that the award was invalid, as there was no proper reference to arbitration under the law, there not being, in the circumstances, the requisite agreement in writing for reference to arbitration.
(2.) FOR appreciating the real position, a reference to the material facts will be necessary. Those material facts lie within a short compass and may be set out as follows: One Haripada Bhowmick, who was the predecessor-in-interest of the parties and to whom the disputed properties belonged, executed a Will on May 25, 1953. The relevant provision in the said Will, so far as we are concerned, is as follows: "I hope that after my life time my son Birendra Kumar Bhowmick will live in peace and amity with my daughter-in-law Sovana Bhowmick, widow of my deceased son Prafulla Kumar Bhowmick, and that he will show her greatest consideration and tender her all possible assistance in her difficulties, if any. I also hope that there will be no cause of misunderstanding between them. If, however, unfortunately, for any reason, they are unable to live together in peace and harmony, then I direct, by this Will, that Sovana Bhowmick will have the right of maintenance, as Hindu widow, out of the income of my properties, and residence, during her life time, in one of the rooms of my two houses, commensurate with her status and dignity as the widow of my late son Prafulla Kumar Bhowmick, so long as no necessity arises to let out or otherwise to dispose of the houses. If it ever becomes absolutely necessary to let out or dispose of the houses, suitable accommodation should be arranged, by my son Birendra Kumar Bhowmick, for her, out of the income of my properties. All questions regarding the income to be set apart for her maintenance and the room she should be allowed to occupy will be settled by arbitration by my 5 sons-in-law viz., (1) Prafulla Chandra Mukherjee of the Indian Credit Department, (2) Dr. Prafulla Kumar Banerjee, M.B. D.Ph., (3) Sri Ram Ranjan Chatterjee, Textile Engineer, (4) Dr. Rabindra Nath Mukherjee, M.B. and (5) Sri Himangshu Kumar Banerjee, Advocate, High Court, Patna, and thohse, among them, who will be alive at the time, and their majority verdict will be binding on Birendra Kumar Bhowmick and Sovana Bhowmick. Any other dispute that may arise between them will be settled by arbitration as above."
(3.) HARIPADA Bhowmick died on April 28, 1959. On April 7, 1960, Birendra applied for probate of the above Will. On September 1, 1960, the probate appears to have been granted on consent. On November 7, 1962, Sovana Bhowmick made a reference for her monthly maintenance and for provision for her residence. The arbitrators, however, for reasons beyond their control, could not take any effective steps in the matter until May 7, 1964, when, on receipt of a further complaint from Sovana on or about May 6, 1964, they gave the effective notice, received by Birendra on or about May 7, 1964, fixing June 27, 1964, for hearing. On June 27, 1964, the arbitrators met at a meeting and, on August 23, 1964, the disputed award was made. On the same day, the arbitrators wrote to the parties, informing them that they had met and signed their award on August 23, 1964. A copy of the award appears to have been sent to Birendra on September 12, 1964. On September 15, 1964, Sovana applied for the filing of the award and for the passing of a decree thereon. On October 3, 1964, Birendra filed his petition of objection. On November 11, 1964, the award was sent for registration and, on December 11, 1964, the award was registered. Thereafter, there were certain interlocutory proceedings, in which, by consent, Birendra was appointed Receiver in respect of one of the properties with certain directions and eventually, on March 16, 1966, the learned Subordinate Judge, Second Court, Alipore, before whom the above proceeding was pending, directed the award to be filed and a decree to be made on the same.;