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TMI Blog1914 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... n of reference in the following form :- Whereas there exists a dispute amongst us, the executants, regarding the estate of Khwaja Farid-ul-din, deceased, and the deed of will dated the 30th April :1909, we, the executants, have, of our own accord, appointed Munshi Sakhawat Ali as a referee for the purpose of settling the matters in dispute. We agree and record that the said referee may decide it in whatever way he may deem proper. We, the executants, shall remain bound by the award. Therefore we have executed these few presents by way of a deed of agreement so that they may serve as an authority. 3. The arbitrator entered upon the reference and published his award on the 16th July 1910. He confirmed the appointment of respondent I as executor, and gave him one-third of the property. The remaining property fell to be divided according to Mahommedan law. The parties were-entitled in the following shares :- 4. The appellant to a third share, the respondents 1 and 6 jointly to a moiety, the respondents 2 and 5 to a sixth share. The arbitrator then proceeded to distribute the property in proportion to the shares to which the respective parties were entitled and for this purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect their Lordships agree with the judgment of the Court of the Judicial Commissioner of Oudh, and it became necessary to consider the grounds on which the remainder of the award has been attacked. 6. On the 10th June 1910 respondent I made an application to the Court of the Subordinate Judge of Luckuow to file the award in Court under paragraph 20 of the second Schedule of the Code of Civil Procedure, 1908. On such an application the Court, if satisfied that the matter has been referred to arbitration and that an award has been made thereon, and that no ground such as is mentioned or referred. to in paragraphs 14 and 15 is proved, shall order the award to be filed and shall proceed to pronounce judgment according to the award. Paragraph 14 states the grounds on which the Court may remit the award to the reconsideration of the same arbitrator or umpire. Paragraph 15 states the grounds on which alone an award shall be set aside. The first of these grounds is corruption or misconduct of the arbitrator or umpire. It was on this ground that the Subordinate Judge refused to order the riling of the award and disallowed the application of the respondent I, who had been treated as plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was made that the arbitrator did not make and retain any adequate notes of the proceedings. No doubt it is generally desirable that an arbitrator should make and retain for subsequent use, if necessary, notes of the proceedings before him; but there is no warrant for holding that in the absence of such notes an award should be set aside at the instance of one of the parties, who must be held to have known the general course of procedure, and who did not make any protest until after the making of the award with the terms of which she was not satisfied. 11. The last point, and the most important, is the grave charge that the arbitrator acted dishonestly and with partiality in conducting the inquiry and making his award. This charge was found to be established by the Subordinate Judge. The main evidence relied upon to support this conclusion was that given by the arbitrator himself in cross-examination. An arbitrator, selected by the parties, comes within the general obligation of being bound to give evidence, and where a charge of dishonesty or partiality is made, any relevant evidence which he can give is without doubt properly admissible. It is, however, necessary to take c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation is in itself reasonable and effectively answers the charge. 14. The second allegation is of undervaluation. The arbitrator is said to have dishonestly assessed this property at a low valuation intending to give an unfair preference to respondent 1. The evidence adduced in support of this charge is that the valuation was made on the Patwari's figures to the rejection of those appearing in the accounts of the testator, the former figures giving a lower rate of profit income, and thereby diminishing the capitalised value. Their Lordships can see no reason for not accepting the arbitrator's explanation given in cross-examination. He considered the Patwari's figures more likely to form an accurate basis for valuation than those in the private accounts, and stated that there were reasons which made him think that the private accounts were not satisfactory. This is just one of the matters on which an arbitrator is bound to exercise his discretion in estimating value, and the evidence is quite insufficient to prove that the arbitrator's choice of materials was influenced by a corrupt motive. Apart from the charge of corruption, it was beyond the competency o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the house as his own and mentioning it in his will as a portion of his estate. He came to the conclusion that the testator, notwithstanding the deed of compromise, had a good title by adverse possession, and that the appellant's claim could not be sustained. He may have been right or wrong in the conclusion he arrived at, but their Lordships find no warrant for the inference that he was in any way actuated by a dishonest motive. If he was wrong and the house was not the property of the testator, its inclusion in the award might be detrimental to respondent 1, but could have no effect whatever in defeating the title of the true owner. In addition to Hajiganj and the house property the arbitrator allotted to respondent 1 certain properties of comparatively small importance. Having regard to the decision at which their Lordships have arrived on the more important portions of the property allotted to respondent 1, it is unnecessary to follow under these heads the criticisms of the Subordinate Judge, which denote no more than a difference of opinion from the arbitrator on questions not within the jurisdiction of the Subordinate Judge to determine. No attack was made on the allocatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in his opinion appeared to be the best remedy. Under these circumstances their Lordships can find no evidence for the alleged dishonesty in the allotment of a share of the mortgaged property to the appellant, and agree in the decision of the Court of the Judicial Commissioner. 19. Their Lordships have found some difficulty in understanding on what ground the Subordinate Judge has based his finding that the Rasulabad property was dishonestly over-valued. In his criticism on the valuation he states that the referee has valued the entire estate of the deceased at ₹ 95,042, but this in itself is an error, since it is clear on the face of the award that the estate was valued for distribution at ₹ 91,042 and that the additional sum of ₹ 4,000 was only thrown in as an item which might possibly be recovered on a claim for a rendition of accounts from Ahmad Khan. This initial mistake affects the subsequent inference and their Lordships can find no evidence of dishonesty in the detailed criticism of the arbitrator's figures. The Subordinate Judge places considerable weight on the allotment of ₹ 4,000 to the appellant as an element of misconduct in the arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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