Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Jnanendra Mohan Bhaduri And Anr. vs Sm. Annapurna Debi And Anr. on 1 February, 1927
Equivalent citations: AIR 1927 Cal 562
Author: Rankin


Rankin, C.J.

1. This is an appeal from an order male by Mr. Justice Greaves upon a motion on notice, dated the 12th of July 1926 headed. “In the matter of an arbitration and in the matter of the state of Babu Eajendra Lal Goswami.” It appears that Rajendra Lal Goswami died in August 1917 and that he left a Will which was proved on the 19fch of December of that year. By that Will be left various items of immovable property to various persons and made very complicated provision for the discharge of certain monies which were owing by him more particularly to persons who had money with him on deposit. Disputes and complications having arisen, there was an arbitration under the Indian Arbitration Act by Mr. Byomkesh Chakravarti. He filed, his award which is dated the 29th of July 1918.

2. Now, according to the procedure provided under the Indian Arbitration Act that award when filed could be challenged under the Act on various grounds, but if it was upheld by the Court as a good award, the position was that the award would remain filed in Court, and, by the terms of the fifteenth section of the Indian Arbitration Act, it would be enforceable as if it were a decree of the Court; in other words, although it was not a decree and not a judgment of the Court, execution could be taken out on it in the same manner as though it were a decree. What happened, in fact, was that that procedure was ignored entirely and a decree was pronounced by Mr. Justice Chaudhuri to the effect that
this Court being of opinion that it would be for the benefit of the said infant respondent Rabindra Nath Chakravarti the following decree should be made : And the adult parties having agreed to the terms of settlement set forth in Schedules B and C it is declared by consent that the said award as modified by the said terms of settlement ought to be carried into effect and the same is ordered and decreed accordingly.

3. It may perhaps be desirable to explain that the award was attacked as invalid before the learned Judge. That was a matter over which the learned Judge had jurisdiction. It was within his power to decide whether the award was a good award or a bad award. That controversy was settled by agreement, and with certain modifications agreed upon, the parties were prepared to treat the award, as a good one. I will assume, therefore, that it was possible and reasonable for the learned Judge acting under the Indian Arbitration Act to say that the award being modified by consent of the parties should stand as a good award : and if he had done that and filed it with the modifications I will assume that execution upon the award with the modifications would have been quite in order.

4. The learned Judge, and I think the arbitrator too, appears to have had in mind a procedure which is entirely unknown to the Indian Arbitration Act. They both proceeded on the analogy of the second schedule of the Civil Procedure Code, under which by Rule 20 in the case of an award without the intervention of a Court, the Court shall, if it deems the award to be valid, order it to be filed, and having done that it has power to proceed to pronounce judgment upon the award. Whether that was the kind of confusion in the mind of the persons concerned or not, however, must be a matter of speculation. That award contained at its close a clause to the following effect:

I further declare that the matters decided by me are matters of administration of the estate of the testator.

5. Pausing, there, for a moment, the matters were matters of administration of the estate of the testator. If they had not been, this declaration would have been of no effect at all so far as I can see; but they ware matters of administration of the estate of the testator.

Any of the parties hereto as also a member or members of the Managing Committee will be entitled and be at liberty to apply upon notice to all other parties interested from time to time to the Court for its direction as occasion arises and in particular for the appointment of a Receiver with necessary directions.

6. Well, there is no particular object to say in an award that nothing on it shall prevent parties from applying to the Court if they win to apply to the Court. But I may point out that no arbitration can give to anybody any right to appeal to the Court for any direction; and as far as I can make out, that paragraph has been a source of a good deal of confusion in the minds of the parties to this litigation.

7. The award of the arbitrator did direct that certain sums of money were to be charged upon certain properties which were to go to the different beneficiaries, and we are at the moment concerned with the rights of Rabindra Nath Chakravarti who, at the time of the award, was an infant. So far as he is concerned, the award declared that the properties to go to him should be such and such and they were to stand charged with a sum of Rs. 13,063. The award provided that when that had been paid off the properties should be handed over by the executors either to Rabindra Nath or to his natural guardian, as the case might be, as provided In the award.

8. The controversy which had arisen prior to the application to Mr. Justice Greaves was shortly this : Rabindra Nath wanted to be put in possession of his proparty by the executors. He wanted also an account of their dealings with his property for some ten years. The executors in the end said that they had no objection to handing over the property, but that in respect of the expenses of probate, the Gaya sradh of the testator and the first sradh of his widow they had been put to expenses, the share of Rabindra Nath in which amounted to over Rs. 3,000. They said Rabindra Nath ought to pay that money. The second matter of contest was over the account. The executors said that they kept books properly as the testator had done in his own lifetime; and that they offered inspection of them and gave all facilities to Rabindra Nath’s accountant.

9. On the other hand, Rabindra Nath said that they did not keep proper books, they had not given proper materials to his accountant, and, as a matter of fact, he claimed that they did not discharge themselves of a considerable sum of money, amounting to some Rs. 10,000, as he guessed, which they ought to pay to him. In that state of things what Rabindra Nath did was that he launched a notice of motion under the Indian Arbitration Act and the matter has been dealt with upon affidavits by Mr. Justice Greaves. The learned Judge has directed that the properties which by the award were to go to Rabindra Nath shall be handed over to him. It turns out that all those properties are properties outside the original jurisdiction of this Court although belonging to the estate, but there is one property in the estate which is within the jurisdiction. The learned Judge has directed the executors to make over to Rabindra Nath all papers and documents and all moneys standing to the credit of Rabindra Nath’s separate account and to furnish accounts and ha-has held that Rabindra Nath would be at liberty for the appointment of a Receiver.

10. The first thing that has to be examined is whether this procedure is one which can be countenanced and whether it is open to the applicant in such a manner to litigate the question which he seeks to litigate. I am of opinion that the procedure is entirely wrong and that this Court ought to refuse any order on any of the matters which have been dealt with by Mr. Justice Greaves, The award of the arbitrator having been filed, it was open to the Court to declares as to its validity and to put that award in the position of an award as to which the parties interested could ask for execution – execution in the ordinary way upon a tabular statement by transfer to any other Court or in any other manner known to law. But it is not the case that this Court has. ever had brought before it an administration suit for the whole of the affair of this testator Rajendra Lal Goswami. This Court has never at any time entertained an administration suit of his estate. It has no responsibility whatever for administering his estate and the idea that, because a wrong form of order was made at the time this award was dealt with under the Indian Arbitration Act or because of what the arbitrator had put in about the parties being at liberty to apply to the. Court, therefore any party interested now has only got to launch a motion under the Indian Arbitration Act to get a partial administration of this-gentleman’s estate, is, I, think entirely erroneous. If persons want to administrator this estate, they can bring an administration suit, or if they want a partial administration in certain circumstances, they can do so by originating summons. When they do that it is not to be doubted that this decree of Mr. Justice Chaudhuri will be perfectly good for the purpose of showing and establishing that the arbitrator’s award, subject to the modifications, is a valid and binding arrangement. What is wanted is not a, mere execution of that award as though it were a judgment. If what is wanted is an administration of the estate on the basis of that award then the Court must be approached properly. It has no right to do it on a motion under the Indian Arbitration Act or do it without properly bringing in the parties either by a suit or by an originating summons. I think it may very well be that persons might want to bring an administration suit about this estate in a Court other than the High Court. It would be competent for them to bring it to the High Court; but no person will be obliged to bring it to the High Court. Whatever Court it is brought in, the award would be just as valid or as invalid as if he had brought his suit in the High Court. We are dealing with a highly complicated Will, and a great deal of the property is scattered over different parts of the province. It is highly inadvisable to make orders as to immovable property where the very basis of our jurisdiction is open to challenge. We cannot undertake to administer this estate upon notices of motion brought under the Indian Arbitration Act, though of course under that Act execution can be had.

11. I do not propose to pronounce upon any one of the questions which have been agitated in Court. I have done my best in this family dispute to induce the parties to try to come to some arrangement and I am quite satisfied that learned Counsel on both sides have done their best in that matter to assist the Court. It appears that their endeavour in that respect is entirely without any result. My conclusion is that if the parties want this matter to be fought out they must begin and fight out in the manner provided by law.

12. In my opinion, this appeal must be allowed and the order of Mr. Justice Greaves must be set aside. We do not propose to give any costs to either party either here or in the proceedings before Mr. Justice Greaves.

C.C. Ghose, J.

13. I agree.

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