ORDER
Panckridge, J.
1. This is an application by the plaintiff asking the Court to set aside an award of two arbitrators made under the Schedule 2, Civil P.C. The facts are extremely simple. The two defendants are the brothers of the plaintiff, and the property with which I am concerned is 127, Lower Circular Road, which was bequeathed to the three brothers by their father in equal shares. In April of this year the plaintiff instituted this partition suit asking for the reliefs which are generally claimed in proceedings of that nature, that is, he asked for a declaration that he is entitled to a one-third share of his father’s estate : for possession; for administration, if necessary; for partition by metes and bounds and allotment of his share. A consent order was made on 11th June 1937, whereby the matters in dispute were referred to the arbitration of two members of the Bar. The actual terms of settlement constituted a schedule to the Court’s order, and I need only concern myself with paras. 1 to 3 of those terms. In para. 1 it was declared that the plaintiff and defendants were each entitled to a one-third share in the estate of their father as well as in premises 127, Lower Circular Road. In para. 2 all remaining matters in dispute between the parties including the question of accounts between the parties were referred to the arbitrators named in the Schedule. Para. 3 is as follows:
The arbitrators will in any event take accounts of premises 127, Lower Circular Road, Calcutta, will decide the mode of partition of the same and will partition the same with the assistance of Mr. C. K. Sircar (if necessary) on the basis that each party is entitled to a one-third share therein.
2. Mr. Sircar is a Consulting Engineer and Valuer, whose name is well known to every body connected with the Court as his assistance is frequently obtained in matters of this sort. The arbitrators made their award on 26th August 1937. After reciting the consent order they set out the substantive portion of the award, and the third paragraph of it is in the following terms:
Premises 127, Lower Circular Road, be partitioned by sale, namely, the said premises be sold and the sale proceeds after deduction of the costs of sale and of the costs payable in a partition suit after the preliminary decree, be divided into three equal parts between the plaintiff and defendant 1 and defendant 2.
3. The award is attacked on two grounds: the first is that the arbitrators were guilty of technical misconduct within the meaning of Para. 15 (a) of Schedule 2, because after the final sitting they consulted Mr. C. K. Sircar as to the desirability of selling the property instead of partitioning it by metes and bounds, without informing the parties either of their intention to take Mr. Sircar’s opinion, or of the substance of that opinion when Mr. Sircar had given it. The other ground of attack is that the award goes beyond the scope of the reference because the terms of the order of reference limited the powers of the arbitrators as far as 127, Lower Circular Road is concerned to partitioning it physically, and did not confer upon them the power to direct a sale and divide the proceeds of the sale in accordance with the shares of the parties. The learned Standing Counsel for the defendants concedes that if the award is beyond the scope of the order of reference, it is “otherwise invalid” within the meaning of Para. 15 (a).
4. With regard to the first point, it appears that on 3rd August 1937, the arbitrators wrote to Mr. Sircar asking whether the premises could be partitioned into three equal parts, and also which course would be the more advantageous to the parties; partition by metes and bounds or sale. A copy of their letter was sent to all parties and the minutes show that the defendants agreed that Mr. Sircar should be asked to report as requested by the arbitrators, but there is certainly nothing in the minutes that can be construed as consent on the part of the defendants that the property should be sold instead of partitioned, if Mr. Sircar so recommended.
5. Mr. Sircar wrote to the arbitrators on 7th August 1937, giving his reasons for advising sale as against partition, and these were communicated to the defendants. On 25th August 1937, Mr. Sircar wrote again to the arbitrators in response to a request on their part for further particulars, and he gave as his opinion that whereas the value of the aggregate lots in the event of physical partition would be Its. 1,20,000 the property, if sold as an entirety, might be expected to fetch Rs. 1,32,700. This further reference to Mr. Sircar was made without informing the parties, nor were they apprised of Mr. Sircar’s estimate before the award was made. It is conceded that it is misconduct on the part of an arbitrator to take the evidence of a witness except in the presence of the parties to the arbitration, and for this proposition I have been referred to the cases collected in Ganesh Narain Singh v. Malida Koer (1911) 13 CLJ 399 at p. 402. Mr. Bose says however that Mr. Sircar was not a witness, but a {professional adviser, and he has referred to;a passage in Russel on Arbitration where it is stated that arbitrators are entitled to fortify themselves by technical advice without reference to the parties.
6. I think this is a matter where it is impossible to lay down a definite rule, and each case must be decided according to its special circumstances. I am inclined to think here that the difference which Mr. Sircar estimated in the amounts which the property would realize if sold in lots and if sold in its entirety, was so great that it must have weighed very considerably with the arbitrators, and that being so, I think the parties should have had notice as to Mr. Sircar’s figures so that they might, if they thought fit, communicate their criticisms to the arbitrators. However, the other ground urged by the plaintiff for setting aside the award is the really important matter. I think it is clear that arbitrators conceived that they had the same power which a Court would have in a suit. In my opinion however this was not so. Nothing is said in the terms of settlement about sale, and in my judgment the general terms of reference in para. 2 of the terms of settlement must be limited by the succeeding terms. Under term 3 the arbitrators are directed to decide on the mode of partition of the premises, and to partition the premises, with the assistance of Mr. C. K. Sircar if necessary, on the basis that each party is entitled to one-third share therein. Those words prima facie limit the jurisdiction of the arbitrators to effecting a physical partition.
7. The only words which cause any difficulty are the words “will decide the mode of partition for sale,” because they seem superfluous in view of the explicit direction to partition. Whatever was in the minds of the parties when they decided to include those words in the terms of settlement, an order for sale cannot, in my opinion, be described from any point of view as a “mode of partitioning property.” It may be that Mr. Page’s suggestion is the correct one, namely that the parties were contemplating the possibility of it not being convenient to partition the property in mathematically equal thirds, in which case the arbitrators could allot unequal shares to the parties and adjust the difference by awarding owelty money. Whatever the meaning of the words to which I have referred, I am compelled to construe Clause 3 as directing physical partition leaving no discretion to the arbitrators to order a sale and divide the sale proceeds. In these circumstances I make an order setting aside the award and superseding the arbitration. Mr. Page’s client will have the costs of this application. The costs of the infructuous arbitration will come out of the estate.
