Patna High Court
Muhammad Sayed Khan And Anr. vs Abdul Gafoor And Ors. on 14 June, 1928
Equivalent citations: 115IND. CAS.680
JUDGMENT Kulwant Sahay, J.
1. These appeals arise out of the same suit which was a suit for partition of a house. One Moula Bakhsh was admittedly the owner of the house. He had two wives, Musammat Sabratan and Musammat Walijan. Musammat Sabratan pre-deceassd Moula Bakhsh and left two daughters, Mummmat Rafiqan and Musammat Saira and two sons Suleman and Sayeed Khan, the latter being the defendant No. 15 in the present suit. Defendants Nos. 3-14 are the children of Musammat Saira. The second wife, Musammat Walijan, survived Moula Bakhsh and she had three daughters, Musammat Kamran, Musammat Raboo and Musammat Rabaida. The plaintiff was the husband of Musammat Raboo and by her he had a son named Shakoor, After the death of Musammat Raboo, the plaintiff married the elder sister Musammat Kamran who had a daughter Musammat Zobaida by her first husband. The plaintiff's case is that he had a son Zahoor by Musammat Kamran but the finding is that it has not been proved that he had a son by Musammat Kamran. Musammat Rabaida, the third daughter of the second wife of Moula Bakhsh, was married to Abdul Razak and had a son Abdul Barkat.
2. On the death of Moula Bakhsh his heirs were his second wife Musammat Walijan and the children by his first wife and by his second wife. The plaintiffs case is that by inheritance and by purchase he has acquired the entire share of all the heirs of Moula Bakhsh coming from Walijan's branch of the family and that the total of his share belonging to this branch of the family, which was acquired by him, amounted to 6 annas 13 1/2 dams; and he instituted the present suit for partition of the house claiming the said share as belonging to him. The suit was contested by the defendant No. 1, who is the purchaser of the interest of Sayeed Khan, the defendant No. 15, and by the defendant No. 15. Their case was that after the death of Moula Bakhsh there was a private partition and arrangement between his heirs, and that by such partition the house in dispute was allotted exclusively to the branch of the family represented by the children by the first wife and, that, even, if such partition and arrangement be not proved, the share of the plaintiff was not 6 annas 13 1/2 dams as claimed but 6 annas 2 dams and odd; that there was a dispute between the parties regarding the share and claim to the house which was ultimately referred to the arbitration of certain arbitrators under a registered ekrarnama, dated the 27th January, 1922, and that the arbitrators had partitioned the house and had given their award which could not be disturbed.
3. The learned Munsif found for the plaintiff on the question of his right to partition the house; but he held that the share of the plaintiff was only 6 annas 2 dams and that the remaining share belonged to the defendant No. 1, and he made a preliminary decree for partition in proportion to the shares as found by him. Two appeals were preferred against the decree of the Munsif before the District Judge, one by the defendant No. 1 and the other by the defendant No. 15. The learned District Judge dismissed the appeals and affirmed the decree of the Munsif. . The defendant No. 1 and the defendant No. 15 have preferred the present appeals. Appeal No. 1123 is by the defendant No. 15 and Appeal No. 1337 by the defendant No. 1.
4. The only point argued by the defendant No. 15 was a question of limitation. It was argued that the plaintiff had not proved possession of any portion of the house in dispute within twelve years of the suit and the suit was barred by limitation. This point does not appear to have been taken before the learned District Judge. An issue was raised in the trial Court on the point of limitation, being issue No. 7 in the case, and the Munsif found that the plaintiff had possession over the house and the suit was not barred by limitation, The finding on the question of limitation depends upon the finding of fact relating to the possession of the plaintiff. As the point was not raised before the District Judge, it is not open to the appellant to raise it in second. appeal. There is, therefore, no substance in the point raised by the defendant No. 15.
5. The point taken by the defendant No, 1, however, relates to a question of law. It is contended on his behalf that the present suit for partition cannot be maintained in view of the award made by the arbitrators on the reference under the agreement of the 27th of January, 1922. On reference to that agreement, which is Ex. A in the case, it appears that the parties to the reference to arbitration were Sayeed Khan, the defendant No. 15, Abdul Gafoor, the plaintiff, and Abdul Shakoor, the son of the plaintiff by his first wife Musammat Raboo. The agreement recited the existence of the dispute in respect of the partition of the house and appointed certain arbitrators to whom the decision of the dispute was referred. It is contended on behalf of the plaintiff that this reference was invalid inasmuch as all the persons having interest in the house did not join in making the reference to arbitration. It is also contended that the award made was illegal inasmuch as it purported to decide matters beyond the scope of the reference. The learned District Judge has noticed the objection as regards the award being invalid because it purported to decide questions which admittedly were not referred to arbitration and he observed that the question as regards the validity of the award was not free from doubt. He found that the matters not referred to arbitration were separable from matters that were referred to arbitration. He was of opinion that the law was in an unsettled state in connection with private arbitration and he was not sure whether the award could be held to be valid in so far as it dealt with matters referred to arbitration and which could be separated from matters dealt with in the award and which were not referred to arbitration. The point, however, was considered by this Court in Muhammad Khalil v. Abdul Rahim 93 Ind. Cas. 261 : 17 P.L.T. 644 : 4 Pat. 670 : A.I.R. 1925 Pat. 810 and it was held that in the case of a reference to arbitration without the intervention of the Court the award, if it deals with matters beyond the scope of the reference, is not invalid and the portion of the award dealing with the matter referred to arbitration is valid and the award can be accepted to that extent, provided the portion of the award dealing with such matters can be separated from the rest of the award and reference was made to the decision of the Privy Council in Amir Begam v. Badarud-din Husain 23 Ind. Cas. 625 : 36 A. 336: 18 C.W.N. 755 : 1 C.L.J. 249 : 12 A.L.J. 587 : 17 O.C. 120 : 16 Bom. L.R. 413 : (1914) M.W.N. 472 : 36 M.L.T. 35 : 27 M.L.J. 181 : 19 C.L.J. 494 (P.C) and Buta v. Municipal Committee of Lahore 29 C. 854 : 28 I.A. 168 : 7 C.W.N. 82 : 4. Bom. L.R. 673 : 87 P.R. 1903 : 8 Sar P.C.J. 327 (P.C.). It is, therefore, clear that the award in so far as it partitioned the house between the plaintiff and Sayeed Khan, the predecessor-in-interest of the defendant No. 1 is binding between the parties. By this award a portion of the house was allotted to the plaintiff. The plaintiff, therefore, must be confined to the share of the house allotted to him by the arbitrators.
6. The next question is whether the award was invalid inasmuch as all persons interested in the house were not parties to the reference. The only person about whom the question has been raised in the present case is Musammat Zobaida, the daughter of Musammat Kamran. It appears that at the time the plaintiff joined in the reference to arbitration, namely on the 27th of January, 1922, his share in the house was five annas and odd. The award was made on the 5th of April, 1922, and subsequently thereto the plaintiff purchased the interest of Musammat Zobaida by a deed of sale dated the 30th of May, 1923. The question is whether the whole award should be held to be invalid on account of Zobaida not joining in the arbitration, It appears that the arbitrators were aware of the fact that there were other persons interested in the house and one of the arbitrators has been examined as a witness in this case and he states that the task of the arbitrators was not to determine the share of all the sharers in the house but to determine the share of Gafoor and of Shakoor and to separate their share from the shares of the other sharers and that their task was only to determine the share of Gafoor and Shakoor and to separately allot their shares by partition and to keep the remaining share ijmal. It is thus clear that what was done by the arbitrators was to separate the share which the plaintiff then had in the house and to leave the shares of the rest of the sharers joint. Abdul Gafoor, the plaintiff, being a party to the reference is bound by the award. It is not open to him to say that the award was invalid and cannot be acted upon because Zobaida was not a party to the reference. He knew that Zobaida had an interest in the house and he asked the arbitrators to separate his share from the share of the rest of the sharers. In Muhammad Khalil v. Abdul Rahim 93 Ind. Cas. 261 : 17 P.L.T. 644 : 4 Pat. 670 : A.I.R. 1925 Pat. 810 referred to above one of the questions raised was whether the award was bad because the arbitrators professed to deal with the interest of persons who were not parties to the reference and it was held that if, as a matter of fact, third persons had any interest in the properties dealt with by the award and the parties agreed to have such properties partitioned between them by the arbitrators it was not open to any one of them to contest the validity of the award on the ground that it dealt with matters in which third parties were interested. As was held in Jadunath Chowdhury v. Kailash Chandra Battacharya 2 Ind. Cas. 414 : 14 C.W.T. 75 : 10 C.L.J. 41 : 37 C. 63 the award is binding as between the parties to the reference even if some of the parties interested were not parties thereto. It is thus clear that the absence of Zobaida from the arbitration proceedings will not invalidate the partition affected by arbitrators in so far as the share of the plaintiff which he then had was concerned. Zobaida, however, was not bound by that partition and the plaintiff has acquired her interest subsequent to the award. Under the circumstances, all that the plaintiff could urge is that he is entitled to have a share of the house representing the share of Zobaida purchased by him, separated from the portion left undivided by the arbitrators. The arbitrators had allotted 11 feet of land towards the east of the house to the plaintiff Abdul Gafoor and they left 31 feet towards the west in the possession of Sayeed Khan, the defendant No. 15. This 31 feet represented not only the share of Sayeed Khan but also the share of Zobaida. The plaiatiff will, therefore, be entitled to have a portion of the house allotted to Sayeed Khan by the arbitrators partitioned as representing the share of Zobaida purchased by him. The parties are not agreed as regards the exact share of Zobaida purchased by the plaintiff and the Munsif will determine this share before making the preliminary decree. The decree of the District Judge will, therefore, be varied and a preliminary decree will be made for partition of the share allotted to Sayeed Khan by the award by separating a portion therefrom representing Zobaida's share therein and allotting the same to the plaintiff as representing the interest of Zobaida purchased by him. The case will go back to the Munsif for making the preliminary decree.
7. As both parties have succeeded partially each party will bear his own costs in this Court. The order for costs made by the Court below will stand.
Macpherson, J.
8. I agree.