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TMI Blog1949 (5) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... three brothers intimation or notice. 2. The family owned lands in different districts in Bengal, a residential house and certain shares in joint stock companies. On 3rd September 1938, the arbitrator asked the co-sharers to furnish to him, within three months, their individual estimates of the valuation of all the buildings and lands and the dwelling house. They were also asked to supply within the same period their suggestions regarding the allotments of the dwelling house and the contiguous lands. The three brothers complied with this direction and furnished their suggestions in writing to the arbitrator. From the record it appears that the suggestion of each brother was not communicated to the others and the views of one were not discussed also with the others. In effect, therefore, each party was heard on this point in the absence of the others. These written documents have been destroyed by the arbitrator, In the course of a year some meetings were held, but barring receipts of lists and estimates, no progress was made towards making the award. 3. Kunjlal died on 3rd October 1939 leaving him surviving five sons and a widow. Under the Hindu Women's Right to Property Act, 193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 1940, the arbitrator published this partial award regarding the residential house. He apportioned it in three lots, as indicated in the plan annexed to the award. It was registered on 2nd October and became known to Tirthalal and Nanilal shortly there-after. The award, inter alia, contains the following statement: I have heard all the owners about what they had to say and have carefully studied the requirements and having regard to all their points of view and to their suitability of accommodation in keeping with their rank and status, I have, so far as I have considered best, divided the property. Having regard to the persons who had appeared before the arbitrator, it is obvious that the word "owners" only includes the two brothers and the five nephews. 6. The time to make the award being about to expire on 15th October a notice of a further extension of time for six months was given on 6th October 1940, as noted in the minutes book of that day. That book was signed by the five sons of Kunjlal on 7th October and by the two brothers. It also bears the thumb impression of the widow Bhusan Moyee Dasi. Nothing further has been done in the matter of this arbitration. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Both the suits were decided by one judgment. In effect, the trial Judge rejected the widow's contentions and ordered a decree to be passed in terms of the award. Against that decision three appeals were taken to the High Court -- two by the widow and one by the sons. The High Court in disposing of these appeals by one judgment in effect allowed the widow's contention about notice not having been given to the parties, as provided in the reference paper. The learned Judges held that there was therefore no valid extension of time and the award being made beyond the time permitted by the reference paper was void. As regards the widow's knowledge of the proceedings they held that she was aware of the proceedings before the death of her husband and also after his death. Against this decision leave was granted to appeal to the Judicial Committee of the Privy Council. Appeals XXXII and XXXIII of 1948 were thus admitted in the High Court and consolidated. They have come before us under the extended jurisdiction of this Court. 8. On behalf of the appellant, it was first contended that the view of the High Court about the award being void, as time was not extended in accordance with the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was given to the two brothers and five nephews was given to her. She could be considered to have been given notice in accordance with the terms of. the reference only if her sons could be treated as representing her before the arbitrator. This contention of the appellant must be rejected because it is common ground that the fact that she was an heir was not known to the arbitrator or the parties till the last meeting was held before 2nd October 1940. If she was not known to be an heir, she could not be represented by her sons. In the absence of such knowledge this argument loses all force. It is, therefore, clear that no notice of the extension of time was given to her and there was no valid extension of time to make the award, so far she was concerned. 10. It was argued that without the widow being in fact represented, the five sons substantially represented the interest of Kunjlal's branch and, therefore, the widow was bound by the award. I am unable to accept this contention because in respect of the allotment of a portion of the residential house she was entitled to be heard about her own convenience also. Indeed on this point her interest may be in conflict with the wishes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity to appear before the arbitrator. She had the absolute right to be given notice of the extension of time and an opportunity to be heard before the arbitrator. 11. The contention that Sudhir was the karta of the Dayabhaga joint Hindu family of the sons of Kunjlal and, therefore, sufficiently represented his estate has not been pleaded nor put in the issues. The point does not appear to have been argued before the lower Courts and from stray statements in the evidence a new case cannot be permitted to be made out in this Court. It is evident that Sudhir never put forward himself as the karta, otherwise the presence of the five sons before the arbitrator was not necessary. 12. The further contention based on the thumb impression of the widow on the minutes book put on 7th October 1940 must also be rejected. That thumb impression, to put it at its highest, can only fasten knowledge to the widow of what is contained in that document. The thumb impression cannot amount to a ratification of all that had been done before that day, as contended on behalf of the appellant. I am unable to consider that by putting that thumb impression she accepted the award or ratified the award which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... future." The immovable properties consisted of lands in different districts in Bengal and of a residential house and some sites in Serampore. There were certain shares in joint stock limited companies, belonging to the family, and they were also included in the schedule of divisible properties. The arbitrator, it seems, was not conversant with such work, and it appears from the record that he proceeded in this matter in an extremely unbusinesslike and slovenly manner. 16. On 3rd September 1938, shares belonging to the family were distributed amongst the three brothers but no formal award of this allotment has so far been made and even when a partial award was delivered later on as regards the ancestral house, this allotment of shares was not included therein. On the same day, the arbitrator asked the co-sharers to furnish within three months their individual estimates of the valuation of all the buildings and lands comprised in the dwelling house. They were also asked to supply within the same period their suggestions regarding the allotments of the dwelling house and the contiguous lands. The brothers complied with this direction and furnished their suggestions in writing to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference in order to make a binding award regarding this one-third share. The widow admittedly is an illiterate pardanashin lady and lives jointly with her son. Tirtha Lal Dey, the appellant, when examined as a witness, aptly describes the conditions of life of the ladies of his family in the following words: The female members of the house are illiterate and pardanashin and my Boudidi Bhushanmcyee (Kunja Lal's widow) is also illiterate. They do not appear before the public and they also do not take any interest regarding property matter. We do not also consult with the female members regarding the property matter. Such women, when they have legal rights in property, obviously need protection even against their sons and co-owners. l. It appears that a meeting was held by the arbitrator on the New Year's day of 1940. In the minutes book it is noted that Kunjalal has died and that his sons and heirs, Babus Sudhir Kumar Dey, Surath Kumar Dey, Sud-hansu Kumar Dey, Subodh Kumar Dey, Sukriti Kumar Dey, all of whom are majors expressed their willingness to abide by the terms contained in the agreement of reference to arbitration executed by their late father. It was not mentioned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kishore Baba-with two copies of the typed award a month before it, was registered. One typed copy was made over to Kishore Babu. He wrote in that copy and at his dictation I also wrote in the typed copy which was in my house. If I had not gone to Kishore Babu on that day, I would have published that award which was typed and according to me that was the correct award and that was my decision. It must, therefore, be taken as established that the arbitrator had completed his award about the allotment of the ancestral residential house by the beginning of August 1940 and the widow of the deceased was not in the picture before him at that stage as one of the heirs and legal' representatives of Kunjalal and as such entitled to a sixth share in his estate. 25. On 2nd October 1940, the arbitrator published his partial award regarding the residential house. He apportioned it in three lots, as indicated on the plan annexed to it. The award was registered on 2nd October 1940 and a gist of it was made known to Tirtha Babu that night and to Sudhir Babu on 4th October 1940. The award contains the following assertions: (1) Sj. Kunjalal Dey having died since, his heirs have ratified the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to put her thumb impression upon the proceedings book. At that time the Durga Puja was being performed in the house. By reason of the existence of the thumb impression of the lady on the proceedings book on 7th October 1940 it is difficult to say that she became a party to the proceedings and ratified everything that had passed before and also agreed to the extension of time for pronouncing the final award. 27. As soon as the sons of Kunjalal Dey were apprised of the allotment of the house they felt that they had got a bad deal. Legal advice seems to have been immediately taken and all possible devices to get out of the unfavourable award were thought of. Apart from other lines of attacks on the award, their mother, an illiterate purdanashin woman, was a very good tool in their hands. They, and the arbitrator had so far ignored her, and no one was keen to recognise that she bad a one-sixth share in her husband's estate. The arbitrator had arrived at his decision two months before the registration of the award, and had allotted the one-third share of Kunjalal to his five sons. What belonged to six persons had been allotted to five in the following terms: I do hereby award and dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to her, they live in joint mess with her and one of them is an advocate of the High Court, that the plaintiff has been aware of everything from the very lifetime of her husband and throughout has expressed her views before the arbitrator through her sons, that none of the plaintiff's sons had any reason or motive to conceal the matter from her, that plaintiff, like their father, expressed their desire to continue the said arbitration work on behalf of their mother and on behalf of themselves and this was done with the knowledge and consent of the plaintiff and that the sons attended to the arbitration proceedings on their own behalf and on behalf of their mother and did all they could do and submitted what they had to say. It was said that the plaintiff submitted what she had to say to the arbitrator through her sons and she got ample opportunity and facility to submit the 3ame herself. It was not pleaded that even if the widow was completely ignored by the arbitrator and sons, still the award was binding on her as she had common interests with the sons and even if she were before the arbitrator, she would have left the conduct of the proceedings to her sons and would have been mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrator could take more than one extension of time and could deliver his award in instalments. (5) The award was not that of Kishori Babu but was the decision of the arbitrator himself. (6) No doubt, the building in lot No. 1 is the oldest one but it must be allotted to some party and considering the fact that the arbitrator had in view the existing possession of the parties and about the compactness of the allotment, the allotments do not appear to be unfair or inequitable. (7) No judicial misconduct or partiality is proved on the part of the arbitrator. (8) The arbitrator did not keep a record of his proceedings nor did he examine the valuer or get his valuation report checked but Dr. Nanilal is a medical practitioner and a private arbitrator and is not bound by the strict rules of evidence or procedure. 32. Against this decision three appeals were taken to the High Court, two by the widow and one by the sons. They were all disposed of by one judgment in the High Court. The appeals were allowed, suit No. 34 of 1940 was decreed and suit No. 4 of 1941 dismissed. The arguments in the appeal were limited to three parts and on these the High Court arrived at the following decision: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther urged that the arbitrator had absolute discretion to enlarge the time and the consent of the parties and their view points did not affect his authority to do so. All that the arbitrator was told to do was that after having enlarged the time he was to inform the parties about this extension and if he failed to give such intimation, it was a mere irregularity on his part and did not go to the root of his jurisdiction and affect the validity of the award in any manner whatsoever. It was argued that the High Court was in error when it held that the giving of the notices was a condition precedent to the enlargement of the time and that the decision that the notice was not given in the prescribed manner could not be sustained. It was said that as a matter of fact all the parties that were before the arbitrator had been given notice, that the expression "all parties" used by the arbitrator included all the heirs of Kunjalal Dey, that the sons of Kunjalal represented their mother and notice to them was sufficient notice to the mother and that in any case she had by putting her thumb impression on the minutes book on 7th October accepted and ratified what had taken place previous to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was any breach of the clause relating to it or that the award is void because it was pronounced after the expiry of the time fixed for delivering it. As regards the widow, she was no party to the proceedings of the arbitrator and was not even in his contemplation as an heir and hence no notice could be given to her. The real and substantial point for decision under the circumstances is whether in the absence of the widow the arbitrator could function and give an award so as to bind her. If the widow was represented in fact or in law by the sons, then the award would bind her. If, on the other hand, she was not so represented, then the award will not bind her. 38. It is axiomatic that if a person is not a party to, or properly represented in any proceedings, he cannot be bound by those proceedings. The ordinary rule of law is that in case of death of a party a valid award cannot be given which will bind the estate unless the legal representatives of the deceased are made parties to the reference. This can be done by giving notice to them where the reference is not through Court and where proceeding for substitution of the legal representatives is not necessary. As pointed out by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as decided to belong to the sons. Even after the error was corrected, the arbitrator did not change his mentality because after the discovery of the mistake he gave no notice to the widow though he delayed announcing the award by a month. Even after announcing the award he did not notify it to her. 39. The primary question for consideration is whether the one-third share of Kunjalal was sufficiently represented before the arbitrator by the five sons in the absence of the sixth co-sharer. Ordinarily if there are two or more legal representatives of a deceased person, all must be impleaded to make the representation of the estate complete, otherwise, the suit or appeal abates. The expression "legal representatives" must when there are two or more legal representatives be read in the plural. All legal representatives must be brought on the record and if some one refuses to join as plaintiff, he should be joined as a defendant. As pointed out by Sir Shadi Lal, C.J. in Md. Hassan v. Inayat Hussain A.I.R. (14) 1927 Lah. 94: Those words mean the representation before the Court of the plenary interest of the deceased party. Sometimes that interest may be represented by a single individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may not be bound to follow the strict procedure of law required for substitution of parties under Order 22, Civil P.C. 41. As I have said already, the learned Counsel for the appellant wants to get round the difficulty in his way by contending inter alia that the estate of Kunjalal was sufficiently and substantially represented by his five sons, and as the widow was aware of the arbitration proceedings as has been held by both the Courts below and left the conduct of the same to her aons she would be bound by the award particularly in view of the fact that Sudhir, her eldest son and karta of the family representing the heirs of Kunjalal, did take part in the proceedings on behalf of the whole family and she herself by putting her thumb impression on the minutes book of the arbitration waived all objections to the irregularities, if any. 42. In my view, these contentions are of no validity whatsoever in the circumstances of the case and have no relevancy in a situation where the very existence of the widow as one of the heirs of the deceased is not recognized and the arbitrator arrives at his final decision in ignorance of her rights and makes an allotment of her share to the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also now appearing as their guardian in this Court. There were also other adult persons of the 2nd party. Then it must also be borne in mind that the whole interest of the 2nd party, including that of the minors in the property had been let out in patni to the 4th party, and the 1st and the 4th party are really the persons who are directly interested in the matter of arbitration and the 2nd party who are entitled to receive a fixed rent for their share of the property from the 4th party have only a remote interest in the controversy. This decision has apparently no application to the facts of this case. As pointed out in the above quotation, the investigation had all been finished and the death of the party took place at the argument stage. Moreover, the persons really interested in the controversy were already before the arbitrator. This case therefore does not touch the point that arises in the present case. Reference was also made to decisions of certain High Courts in India which have expressed the view that in cases where some legal representatives are unwilling to join as parties or one or more of them are unknown, a bona fide application by those who are willing to joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later they agreed to extension of time. The widow must be in mourning and it is in evidence that even the sons when they appeared before the arbitrator on 1st January 1940 had not fully recovered from the shock caused to them by their father's death. Whatever knowledge therefore the lady had of the proceedings cannot lead to the conclusion that she had notice of the extension of time granted by the arbitrator, and was a party to the reference and had permitted her sons to represent her. She was certainly entitled to an opportunity to say what allotment should be. made of the residential house towards her husband's one-third share. She might well have a different point of view than that of her sons. The sons may be interested in taking allotment in consideration of its value, while she may be inter-rested in an allotment which may give her a comfortable living, Whether she could by appearing before the arbitrator achieve something substantial or not is not relevant. She had a right to that opportunity and no decision can be made binding on her until she was given that opportunity. As already pointed out, she was completely out of the picture in those proceedings and no question ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the lapse of so much time after award it is rather late to ask for the exercise of the discretionary powers of this Court. 48. In deciding this case I am fully conscious of the proposition that when an arbitrator has acted within the terms of his submission and ha3 not violated any rules of what is so often called natural justice the Courts should be slow indeed to set aside his award. But when an arbitrator ignores the existence of an interested party and goes to the length of awarding her share to others and then corrects his error and allots to her along with others a share but without notice to her, this conduct is not such as is in accordance with the rules of natural justice. The rule that in certain circumstances omission to implead some heirs may not vitiate a decree and it may be held binding on the whole estate while represented by some of them, cannot be applied on logical grounds in each case. Every proposition, however, general in in form, must in law be viewed in the light of its pattern of circumstances. In law, as in real life, there is always an element of choice and in this case my choice is against the application of the doctrine of representation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the arbitrator and expressed their willingness to a bide by the terms of the agreement or reference, and a memorandum to that effect was recorded by the arbitrator in his "proceedings book" and signed by the parties aforesaid. But here the arbitrator was running; against an unsuspected snag which has given rise to certain difficulties to be presently noticed. Under the Hindu Women's Right to Property Act, 1937, then recently passed, the widow of Kunjalal became entitled on his death to the same share as a son in his properties other than agricultural lands, and she was thus a co-heir with her sons entitled to 1/6th of Kunjalal's share in the family properties. This statutory change in the Hindu law was overlooked by the arbitrator as well as by all the parties concerned although some of them were professional lawyers, and the arbitration was proceeded with as if the sons were, as they undoubtedly would be but for the statute, the only heirs and representatives of Kunjlal to the exclusion of his widow until the mistake was discovered shortly before the award in question was made. 54. As the partition could not be completed within 15th February 1940, the arbitrator again extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out giving her an opportunity to express her views before the arbitrator" was void and not binding on her. She also impeached the award as being unjust, inequitable and tainted with partiality. She impleaded Nanilal and Tirathalal as defendants 1 and 2, her five sons as defendants 3 to 7 and the arbitrator as defendant 8 pro forma, and prayed for a declaration that the award of 2nd October 1940 was void, inoperative and not binding on her and, in the alternative, for setting aside that award. 57. The suit was contested by Tirthalal, the appellant in these appeals, who traversed the allegations in the plaint and averred that Bhusan Moyee had full knowledge of the arbitration proceedings and had every opportunity of expressing her views through her sons who fully represented her in the proceedings and that she accepted and ratified the award which was valid and binding on all the parties concerned. On substantially the same averments he applied on 10th February 1941 in the same Court under the Indian Arbitration Act and Para. 20 of Schedule 2, Civil P.C., 1908, for filing the award in Court and pronouncing judgment according to it. The application was registered as a suit and all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1940 and 14th August 1940 were not strictly in terms of the submission there was no valid extension of time and, therefore, the award which was published by the arbitrator on 2nd October 1940 must be taken to be an award made beyond time. It was accordingly not a good award. On this ground we allow the appeal and set aside the award of 2nd October 1940." The reason for holding that the two extensions of time referred to were not strictly in terms of the submission was thus explained: The object (of the provision relating to extension of time) is plain;' that before extending the period of arbitration the arbitrator was required to have the view point of the parties to the submission before he could extend the period of arbitration. That is the interpretation we give to this clause. As the arbitrator did not, before extending the time, give intimation to the parties that be proposed to do so, he was held to have acted in contravention of the terms in the clause of the Ekrarnama. The learned Judges also pointed out that no intimation regarding the extension of time having been given to Bhusan Moyee before 6th October 1940, the award could not bind her. It may be observed at this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding was not challenged before the High Court. Mr. Bose, therefore, objected that the respondent should not be allowed to raise the question in this Court. As Mr. Sen, however, proposed to argue the question as one of pure law on the findings of fact made by the Courts below, he was allowed to do so. 62. While it is no doubt desirable that the enquiry in a private arbitration should conform generally to proceedings in a Court of law, the arbitrator is not bound to observe the strict rules of procedure laid down in the Code of Civil Procedure. He is not bound to make and retain notice of the proceedings, before him--see Amir Begam v. Badr-ud-Din Husain A.I.R. (1) 1914 P.C. 105. Nor is he bound to effect a formal substitution of parties in case of death or devolution of interest pending the enquiry. Subject of course to any instructions contained in the agreement to refer which he must strictly follow and to any statutory directions which he must observe, he has greater freedom of action in conducting his proceedings, and any mere irregularity in procedure not amounting to a denial of a proper hearing or a deviation from the principles of natural justice cannot vitiate his award. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of her lengthy examination that she had any particular representation to make apart from her sons or any view-point of her own to present to the arbitrator or any interest in conflict with their in the matter of dividing the dwelling house into three shares and allotting one of them to her branch. In such circumstances, I am convinced that the learned Subordinate Judge is right in holding that Kunjalal's estate including the interest of Bhusan Moyee as one of his heirs was substantially represented by his sons and that she was not in any way prejudiced by the arbitrator's failure to give her formal notice of his proceeding of which she was aware all along, or to record her willingness to abide by the agreement to refer which was already binding on her as he did in the case of her sons and doubtless would have done in her case too, had he known that she was a co-heir with them in her husband's estate. It was said that the sons could not have represented their mother as the latter's interest in her husband's estate was unknown to them. This is a misconception. The relevant representation was of deceased Kunjalal's estate by his sons as against the claims of her survivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stricter and more rigorous rule to be enforced regarding representation of a deceased party to a private arbitration ? Furthermore, Kunjalal's sons along with their mother formed a Hindu joint family of which Sudir Kumar, the second respondent, is admittedly the Karta competent, under the Hindu law, to represent all the members of the family in a transaction concerning the family estate such as the arbitration in question undoubtedly was. He had an existing interest, the same as the others, to defend the estate, and there was no fraud or collusion in the proceedings. He must therefore be taken to have fully represented the family including his mother Bhusan Moyee, none the less so because his brother also appeared before the arbitrator and took part in the proceedings. The principle was rightly applied by the Calcutta High Court in Binayakdas Acharjee v. Sasi Bhusan A.I.R. (9) 1922 Cal. 226, in upholding an award on facts more or less similar in essential particulars to those of the present case. 66. It was next argued that the award could not stand as the arbitrator decided to give to the sons the entire share of Kunjalal in the property to the exclusion of his widow and the latt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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