Sabitri Debi v. Gaitri Debi — 1961 DIGILAW 134 (PAT)

Judgment 1. In this case defendant No. 1 has obtained a rule from the High Court against the order of the Additional Subordinate Judge of Bhagalpur, dated the 23rd September, 1958, rejecting an objection made by defendant No. 1 to the award of the arbitrators dated the 16th December, 1953, in Title Suit No. 55/41 of 1950/51 praying that the award may be amended under Sec.15 of the Arbitration Act. 2. The suit was brought by the plaintiff for partition of 8 annas share of the properties belonging to Musammat Radha Kuer, the mother of the plaintiff and defendant No. 1. Defendant No. 1 appeared in Court and filed a written statement challenging the allegation of the plaintiff. In the course of the suit there was an agreement for reference of the dispute to three arbitrator. Paragraph 2 of the agreement states as follows:- "2. That the parties have agreed that the aforesaid arbitration be superseded. The parties have further agreed that the suit be now referred to the Arbitration of (1) Rai Bahadur Kamleswari Sahai of Shiva Bhawan, Bhagalpur, (2) Rat Bahadur Mukteswar Prasad, Advocate, Khanjarpur, Bhagalpur, and (3) Sri Bipin Behari Saran, Advocate, Kadamkuan, Patna, who are friends and well wishers of the parties." Paragraph 5 states that "the arbitrators shall divide the Lal Kothi house and grounds by metes and bounds equally and the cost of further surveying and measurement of the house will be borne by both the plaintiff and defendant No. 1 equally." After the reference was made to the arbitrators there was an application made by the plaintiff for amending the plaint. In the amendment petition the plaintiff prayed that "in paragraph (12) of the plaint the following may be added at the end of the paragraph:- "The constructions and buildings made therein by the plaintiff per plan attached has been made by her at her own cost amounting to about Rs. 28,000.00 between the years October, 1928 to 1938 when market was very cheap, and equitable adjustment in effecting partition may be made. The map may be treated as part of this." Defendant No. 1 objected to the amendment of the plaint and in paragraph 9 of the additional written statement defendant No. 1 said that "the constructions and buildings alleged to have been made by the plaintiff in paragraph 9 of her petition at her own cost amounting to Rs. The map may be treated as part of this." Defendant No. 1 objected to the amendment of the plaint and in paragraph 9 of the additional written statement defendant No. 1 said that "the constructions and buildings alleged to have been made by the plaintiff in paragraph 9 of her petition at her own cost amounting to Rs. 28,000/-is denied by the defendant" and "whatever improvement or construction was made, was made by Musammat Radha Kuari while she was in possession of Lal Kothi". The amendment of the plaint was allowed by the arbitrators, and on the 16th December, 1953, the arbitrators gave their award. Paragraphs 5, 6 and 7 of the award are to the following effect:- "5. We find and award that the plaintiff be given Rs. 15,000.00 for the improvements made by her in the Lal Kothi at her own cost; but if the defendant No. 1 does not pay this amount Within six months from the date of the decree, land measuring 2 acres marked A, B, C, D shall go to the share of the plaintiff in lieu of the cash. 6. The Lal Kothi and the lands appertaining thereto have been divided between the parties as per plan attached hereto, i. e., the portion coloured red to the plaintiff and the portion coloured yellow to the defendant. 7. Furniture and silver ornaments found in the Lal Kothi belonging to Musammat Radha Kuer have been divided equally between the parties and possession made over to them." 3. After the award was given, defendant No. 1 filed an objection in the lower court under Sec.15 of the Arbitration Act. The objection was overruled by the lower court by its order dated the 23rd September, 1958, which is the subject-matter of the present revision application. 4. On behalf of the petitioner the submission made by learned Counsel is that the arbitrators had no jurisdiction to allow any amendment of the plaint after the reference was made, and that portion of the award of the arbitrators which dealt with the adjustment of the amount of Rs. 28,000.00 alleged to have been spent by the plaintiff for constructing the additions to the Lal Kothi house was without jurisdiction and must be deleted from the award. In our opinion the argument put forward by learned Counsel for the petitioner is well founded and must be accepted as correct. 28,000.00 alleged to have been spent by the plaintiff for constructing the additions to the Lal Kothi house was without jurisdiction and must be deleted from the award. In our opinion the argument put forward by learned Counsel for the petitioner is well founded and must be accepted as correct. The question presented for determination in this case is whether the parties intended in the agreement for reference to refer the dispute with regard to the expenditure of Rs. 28,000/-over the construction of additions to the Lal Kothi house for the decision of the arbitrators. Having examined the various clauses of the agreement for reference and having also perused the petition for amendment we are of opinion that the parties did not intend in the original application for reference to refer the dispute with regard to the expenditure of Rs. 28,000.00 over the Lal Kothi house also for the decision of the arbitrators. It follows, therefore, that the arbitrators had no jurisdiction to allow the amendment of the plaint and to decide the dispute with regard to the expenditure of Rs. 28,000.00 over the construction, of the additions to the Lal Kothi house. We hold, therefore, that so tar as the decision of the arbitrators with regard to the adjustment of the amount of Rs. 28,000.00 contained in paragraph 5 of the award is concerned, it is ultra vires and without jurisdiction. The view that we have expressed is borne out by the decision of the Bombay High Court in Sherbanubai Jafferbhoy V/s. Hooseinbhoy Abdoolabhoy, AIR 1948 Bom 292. 28,000.00 contained in paragraph 5 of the award is concerned, it is ultra vires and without jurisdiction. The view that we have expressed is borne out by the decision of the Bombay High Court in Sherbanubai Jafferbhoy V/s. Hooseinbhoy Abdoolabhoy, AIR 1948 Bom 292. It was pointed out in that case by Chagla, A. C. J. and Bhagwati J. that after a reference was made by the Court, tile parties cannot make a new submission before the arbitrators without an order of the Court and if the parties desire that an arbitrator should have wider powers or different powers from those originally conferred upon him by the order of the Court, the proper procedure for the parties to follow is to go back to the Court and get a fresh order of reference or get the original order of reference amended or altered, but parties cannot by their mere consent confer upon the arbitrator powers different from those which the Court had originally conferred, because the principle is that the Court has a duty to discharge in supervising the proceedings of the arbitrator and in seeing that the arbitrator is acting under the order made by it. It was also pointed out by the Bombay High Court in that case that the Court in making an order of reference to arbitration under Sec.23 of the Arbitration Act substitutes a domestic forum in its own place, but it does not give up its supervision over the conduct of the reference, and it is, therefore, incumbent upon the arbitrator acting under such an order strictly to comply with its terms and make an award which is in obedience to the order of reference. The same view has been expressed by the Judicial Committee in Ram Protap Chamria v. Durga Prosad Chamria, ILR 53 Cal 258 : (AIR 1925 PC 293) where a suit had been filed for dissolution of a family partnership and accounts, and while the suit was pending members of the family referred to arbitration all matters in difference between them. Some of the differences so referred were not the subject-matter of the suit, and a member of the family who Was not a party to the suit, was interested in some of those differences. The Court made an order referring to the agreed arbitrators all matters in difference in the suit between the parties to the suit. Some of the differences so referred were not the subject-matter of the suit, and a member of the family who Was not a party to the suit, was interested in some of those differences. The Court made an order referring to the agreed arbitrators all matters in difference in the suit between the parties to the suit. The arbitrators made an award as to all the matters in dispute without discriminating between those which were the subject-matter of the suit and those which were not the subject-matter of the suit. In these circumstances it was held by the Judicial Committee that the award so far as it dealt with matters in difference in the suit was rightly set aside, as it was one which was "otherwise in- valid" within the, meaning of Sec.15, Schedule II, of the Code of Civil Procedure. It was observed by Lord Blanesburgh at page 266 of the report (ILR Cal) : (at p. 296 of AIR) as follows : "In their Lordships judgment the decision of the appeal really turms upon the effect of that order properly interpreted. It was an order made in pursuance of paragraphs 1 and 2 of the Second Schedule to the Code of Civil Procedure, and in the exercise of a power thereby given to the Court to refer to arbitration matters in difference in a suit defined by itself in the order of reference. It is incumbent upon arbitrators acting under such an order strictly to comply with its terms. The Court does not thereby part with its duty to supervise the proceedings of the arbitrators, acting under the order. An award made otherwise than in accordance with the authority by the order conferred upon them is, their Lordships cannot doubt, an award which is otherwise invalid and which may accordingly be set aside by the Court under paragraph 15 of the same schedule." 5. The question then arises whether the decision of the arbitrators on the question of the amount of Rs. 28,000.00 spent over additions to the Lal Kothi house is inseparable from the other terms of the award given by the arbitrators or whether this portion of the award, namely, paragraph 5 of the award, is separable from the rest of the award. 28,000.00 spent over additions to the Lal Kothi house is inseparable from the other terms of the award given by the arbitrators or whether this portion of the award, namely, paragraph 5 of the award, is separable from the rest of the award. It was submitted by learned Counsel for the opposite party that paragraph 5 of the award is separable from the rest of the award. On behalf of the petitioner also this position was conceded. Of course the legal position is that if it is difficult to disentangle the valid portion of the award from an invalid portion then the award has to be set aside in toto, but if it is possible to separate the valid portion of the award from the invalid portion of it, then there is no reason why the Court should not act under the provision of Sec.15 (a) of the Arbitration Act and order that the invalid portion should be cancelled from the award. The view of law that we have expressed on this point is borne out by a decision of a Division Bench of the Madras High Court consisting of Rajamannar, C. J. and Venkataram Aiyar, J. in Chidambaram Chettiar V/s. Subramanian Chettiar, AIR 1953 Mad 492 at p. 497. As we have already said, it was conceded by learned Counsel for both the parties in this case that the invalid portion of the award is separable from the rest of the award. We are, therefore, of opinion that the invalid portion of the award, namely, paragraph 5 of the award, be deleted under the provision of Sec.15(a) of the Arbitration Act, and the rest of the award should be upheld as valid and intra vires. 6. For these, reasons we hold that the award given by the arbitrators in this case, dated the 16th December, 1953, should be modified to the extent indicated above under Sec.15 (a) of the Arbitration Act. We accordingly allow this application to the extent indicated above. There will, be no Order as to costs.