Kalu vs Bhawanji

This miscellaneous appeal arises in a suit for partition filed by one Bhawanji against Kalu and Lalji i.e., his brother and his father for a partition of the joint family property and the Plaintiff claimed one third share in the suit property as being one of the three coparceners. The Defendants filed a joint written statement stating that the suit property was the self-acquisition and separate property of Lalji, and about eighteen years ago the Plaintiff was sent away from the family. After the written statement was filed, the suit was dismissed for default on 7th Dai, 1332 F., and it was restored on 5th Bahman 1332P. Some time after, Lalji died. The Plaintiff sought to amend the plaint by stating that by reason of the death of his father Lalji he had become entitled to half share instead of one third. This amended plaint was filed on 24th Ardibehist, 1332 P.

At this stage, the Plaintiff and the Defendant are said to have entered into an agreement on 29th Thir 1332 P., and both of them executed an agreement stating that in respect of the matters in dispute before the court they had agreed that Bhawanji the Plaintiff should be entitled to Rs. 0-6-6 share and Kalu alias Mavji should be entitled to Rs. 0-9-6 share. By this agreement, they referred the matter of the division of properties to certain arbitrators requesting'' them to divide the properties on the basis of the agreement arrived at by them. This document is Ex. 32. When the arbitrators to whom the duty of dividing the properties was entrusted could not divide the properties, it is stated that on 28th Amardad 1332 F. the parties signed another agreement, which is Ex. 33, by which they referred the matter to other arbitrators.

In the Court on 10th Shehrewar 1332 F., when both the advocates for the parties were present, it was stated by the Plaintiff''s advocate that the parties had settled their dispute with regard to immovable property by a compromise and now they had only to get the matter about the moveable property settled; therefore, they may be given an opportunity to settle the matter.

After this, the Defendant Kalu filed a written statement to the amended plaint filed by Bhawanji and while making all the allegations which he made in the previous written statement, he further raised a plea stating that the property was the self-acquisition of Lalji and that he had made a will whereby he had completely deprived Bhawanji of any share in that property.

On 18th Azur 1333 P., the Plaintiff filed an application stating that there had been a compromise between the parties and arbitrators had been appointed for dividing the properties as per the compromise but they failed to do so. He, therefore, prayed that a decree be passed in favour of the Plaintiff for division of the properties in the shares of Rs. 0-8-8 for the Plaintiff and Rs. 0-9-6 for the Defendant. When the Defendant received notice of this application, he filed a counter stating that the agreement of Tir 1332 P., was only a draft and he was asked to sign the agreement and he was made to believe that later on, the will executed by Lalji would be opened and the property divided as per the directions in the will. The Defendant further stated that at the time when the properties were put up for auction by the parties the Plaintiff published a notice stating that did not want the property to be auctioned and got the auction cancelled. Under those circum stances, the Plaintiff could not rely upon the agreement.

The Plaintiff filed a rejoinder to this counte on 1st Ardibehist 1333 F. After this stage, in addition to the issues which were already frame on 26th Isfandar 1327 F., and 12th Shehrews 1328 F., issue No. 7 was framed in the follow in terms:

Did the arbitrators divide the properties in the suit by lots in pursuance of the agreement arrived at between the parties on. 28th Amarda 1332 F., and what is the effect of such division on this suit?

On this date, the Defendant''s vakil made statement that no doubt there was an agreement between the parties, but the arbitrators did no arrive at any decision nor did they distribute the property.

The evidence in the case started on 20th Aban 1333 F., and evidence continued on 25th and 26th Aban 1333 F., and Ahmed Abdullah was examined on behalf of the Plaintiff and before even Ahmed Abdullah''s cross-examination could be completed, the file was called for by the High Come on account of a revision being filed by the Plaintiff against an order refusing to appoint a receive The High Court partially allowed the revision and remanded the case to the trial Court for further inquiry.

The file came to the trial court on 10th Isfandur, 1334 F. On 6th Meher 1334 F., the plain tiff examined witnesses to prove the agreement dated 29th Thir 1332F., Ex. 32. On 9th Aban 1334F., Abdul Rahim was examined as a witness on behalf of the Plaintiff to prove the agreement dated 28th Amardad 1332F., Ex. 33. On 2nd Ardibehist 1335F witnesses were examined with regard to the merits of the case itself.

On 18th Dai 1336F., on an application having been made by one of the parties for the transfer of the case, the High Court called for the filed of the lower Court, and the proceedings commenced from 6th Isfandar, 1336F., on the Origin Side of the High Court. On 22nd Meher 1338F the High Court passed an order stating that the parties should be asked to lead evidence only with regard to the compromise and no evidence need be taken with regard to the other issues in the case. The Plaintiff was asked to keep his evidence ready with regard to the compromise for the hearing on 18th Aban 1338 P.

The Defendant filed an appeal to the High Court on the Division Bench against the order calling upon him to furnish security when he was appointed receiver. On 15th Bahman 1339 P., the High Court dismissed this appeal. The file came back to the original side of the High Court, and the proceedings commenced on 10th Farwardi 1339P. The evidence continued to be recorded till 29th Meher 1342P. On this date, the suit was dismissed for default. An application for restoration was filed, and the suit was restored on 10th Forward 1343 F.

The court directed the Defendant to produce his evidence and posted the case for 26th Khurdad 1343P. The case was adjourned from time to time and on 28th Amardad 1346P., the Defendant vakil stated to the court that this was a case of Warangal and that therefore the case may be transferred to the Sadar Adalat, Warangal. The se was retransferred to the Sadar Adalat, and he first hearing in that court was fixed for 30th Amardad 1347 F. At this stage, the Defendanted a revision to the High Court against an intercutory order and on 4th Dai, 1349 P., the revision disposed of and the case came back to he trial Court.

On 30th Shehrewar 1349P., the court passed peremptory order calling upon both the parties keep their evidence ready on 2nd Azur, 1350F., he also stated that the case will go on from day-day. Against this order, a revision was filed by day the parties to the High Court. On 11th Amarad 1300 F., the High Court passed orders on this vision directing the trial court to take the evidence of the Defendant with regard to the question us to whether there was a compromise between he parties. It was stated that if it was found hat there was a compromise, then the case could be at an end, otherwise, the court might go on, on the merits of the case.

After the above order of the High Court, he case came to the trial Court on 28th Amardad 350F. On 29th shehrwar 1350 F. when the case that called on, the Defendant was absent. He was fact ex parte on that date and the case was posted or arguments. The Defendant put in an application for setting aside the ex parte order and the ex parte order was set aside on 12th Meher 1350 F., and he was directed to produce evidence and be ready for arguments. Finally on 2nd Dai 1351F., the court passed an order disallowing the right of the Defendant to summon his witnesses and directed that his witnesses would be examined if he brought them himself in court. Against this Harder, the Defendant filed a revision in the High Court.

It also appears from the record that the Defendant filed an application in the High Court praying for retransfer of the case from the file of the sadar Adalat, Warangal, and the High Court dismissed this application on 12th Azur, 1353F. The High Court allowed the revision filed against the order disallowing the right of the Defendant to summon his witnesses. The High Court directed tissue of warrant as against the witnesses who had been summoned.

After these proceedings, the case came back to the High Court on 8th Bahman 1353F., and 19th. Isfandar 1353F., was fixed for hearing. The summonses were not served upon the Defendant''s (witnesses, and therefore, the court posted the case I to 25th Meher 1353F., for arguments. On 25th Meher 1353 F., the court heard the arguments and passed the order which is now under appeal before us.

The Court after dealing with the evidence in the case held that Ex. 32 of 29th Thir 1332F. whereby the parties agreed that the Plaintiff would be entitled to Bs. 0-6-6 share in the suit properties and the Defendant to Rs. 0-9-6 was proved by the statements of Srirangam Rajaram and the panch Akarapu Chinniah, who were examined on behalf of the Plaintiff, and this document was filed by Akarapu Chinniah himself, who was panch in the se., It also held that Ex. 33, another agreement between the parties of the date 28th Amardad 1332 F., had also been proved by the statement of Hoshamji, a witness examined on behalf of the Plaintiff.

It may be noted that inasmuch as the original arbitrators Ahmed Abdullah, Srirangam Rajaram and Mohan Lal, the arbitrators appointed under Ex. 32 could not perform their duties because they had to Saway, the parties executed another agreement which is Ex. 33. The Court also had found that the properties had been divided in metes and bounds in pursuance of the agreement arrived at between the parties under Ex. 32. The court passed a decree in the following terms:

A decree is passed in favour of the Plaintiff to the extent of Rs. 0-6-6 share in the suit properties.

After this, the Appellant filed an application in the High Court stating that he had not been given an opportunity to lead evidence. The High Court, keeping the file on its record, passed an order directing the trial court to permit the Defendant to lead rebuttal evidence, u/s 580 of the Hyderabad CPC (Order 41, Rule 25, Code of Civil Procedure). The Defendant examined three witnesses including himself. The Defendant in his statement denied his having put his signature to the document Ex. 32 and as regards Ex. 33, his statement was to the effect that it was not final agreement but only a draft and also denied his signature on that document. He also stated that the contents were not read out to him. D.Ws. 2 and 3 only speak about the document Ex. 33 and not about Ex. 32. D.W. 2 Darsi deposes that Mavji with regard to Ex. 33 said settle the matter according to the will of our father''. At that time, there was no settlement. D.W. 3 Abdul Nabi says T do not recollect as to whether the Defendant had put his signature to the document''. The Defendant stated with regard to Ex. 33 ''settle the matter according to the will of our father.''

This is the stage at which we have reached in this case. We have now to consider as to whether the order passed by the lower Court was correct or not. It was argued by the learned Advocate for the Appellant that there was no completed, compromise between the parties. It had not passed the stage of negotiations and there was no final settlement and the lower court was wrong in coming to the conclusion that there was a final settlement and to have passed a preliminary decree on the basis of such a settlement. It was urged by the learned Advocate for the Respondent that it was proved by the evidence on record that the parties had agreed that the suit property should be divided between them in the proportion of Rs. 0-6-6 and Rs. 0-9-6 for the Plaintiff and the Defendant respectively.

It would be clear from the record that on 18th Azur, 1333 F., the Plaintiff filed an application stating that somewhere in Thir 1332 F., it was agreed that the Plaintiff and the Defendant should take their shares in the proportion of Rs. 0-6-6 and Rs. 0-9-6 respectively, and it was also stated in the application that they mentioned this fact before certain persons whom they intended to appoint as arbitrators for division of the properties in accordance with the agreement arrived at between the parties. In reply to this application, the Defendant, while admitting that the document Ex. 32 of 29th Thir 1332 F., contained his signatures, stated that he was made to put his signature on the representation that the division of the properties would be made according to the will executed by their father, Lalji, and that another agreement would be executed soon after, as per the desire of the Defendant.

18-19. The question now turns upon as to whether the statement of the Plaintiff as mentioned in the application of 18th Azur, 1333F, has been proved. (After discussing the evidence with regard to execution of Exs. 32 & 33 the judgment proceeded) We find from the record that when the matter was referred to the arbitrators under Ex. 32, the arbitrators evidently did not find time to divide the properties and it was decided that the properties should be sold by public auction and the sale proceeds divided between the parties. Therefore, the properties were advertised to be sold on 24th Amardad 1332 Fasli. So far as this sale is concerned, it must be regarded as having been admitted by the Defendant because in his counter to the application of the Plaintiff stating that there was a settlement, he states in paragraph 5 that the settlement, if any, could not be relied upon because the Plaintiff got the sale cancelled. The Defendant, by this statement, only raised a legal plea to the, effect that the compromise could not be relied upon because the Plaintiff had resiled from it by asking for cancellation of the same.

But as regards the question as to whether the properties were advertised for sale by both the parties, there is no denial by the Defendant. It would, therefore, appear from the conduct of the parties that they actually acted upon the agreement of 29th Thir 1332P. The matter did not stop with merely executing an agreement but it went to the stage of getting the properties sold and proceeds divided between the parties. As the events would show, when the Plaintiff stated that there would be heavy loss if the properties were sold, the sale was stopped and the parties again entered into another agreement on 28th Amardad 1332P., and referred the matter of the division of the properties to certain arbitrators. This document is Ex. 33. We have already adverted to the evidence led by the Plaintiff and the Defendant with regard to this document.

It is clear from the evidence of the Plaintiff''s witnesses who had been examined with reference to Ex. 33 that they divided the properties actually in pursuance of the agreement between the parties in the proportion of Rs. 0-6-6 for the Plaintiff and Rs. 0-9-6 for the Defendant and actually took out lots for the division of the properties, when the Defendant refused to abide by the division of the arbitrators. This would also show that the parties did not merely stop by the execution of an agreement but proceeded further in pursuance of that agreement.

We desire to point out that the conduct of the parties & the events that have been proved in this case clearly go to support the case set up by the Plaintiff that the parties agreed to get the properties divided in the shares mentioned in Ex. 32. In any event, these circumstances go against the contention of the Defendant raised by him in his written statement that the suit properties were the separate properties of Lalji, the father, and that the Plaintiff had been sent away from the family and excluded from his share in the property. We are therefore of the opinion that the plea of the Defendant that the suit properties were self-acquire; and separate properties of Lalji, in which the Plaintiff could have no share, cannot stand.

If that plea of the Defendant goes, then the natural consequence will be that the suit properties will be regarded as joint family properties. Ordinarily the Plaintiff and the Defendant being brothers would be each entitled to eight annas'' share in the suit properties. But they entered into an agreement by which the Plaintiff agreed to take Rs. 0-6-6 and leave Rs. 0-9-6 to the Defendant. We had in the foregoing paragraphs come to the conclusion that this agreement is proved by the evidence on record.

Therefore, the other issues in the case need not be gone into and only a division of the properties in the proportion agreed upon by the parties would have to be made. It was urged that the agreement relied upon by the Plaintiff could not be regarded as a compromise between the par-ties in the suit itself falling within Order 23, Rule 3 CPC and that being the case, the court could not pass a decree in terms thereof. We are afraid that there is a fallacy in this argument The agreement, Ex. 32, no doubt, cannot be regarded as a compromise arrived at between the parties within the meaning of Order 23, Rule 3, CPC but the statement of the parties contained therein that they have agreed to take Rs. 0-6-6 and Rs. 0-9-6 in the suit properties can certainly be regarded as an agreement between the parties with regard to the shares that they were to take in the ancestral property.

So far as the Defendant is concerned, his statement can be relied upon as an admission within the meaning of Section 21, Evidence Act. Although Exs. 32 and 33 are documents purporting to be agreements for reference to arbitration and the arbitration proved abortive, the statements in Ex. 32 can be separated and relied upon for the purpose of holding that the parties had agreed upon their respective shares in the suit property. We may herein refer to the decision of the Privy Council in the case of--Cameron v. Cuddy 1914 AC 651 (A) wherein Lord Shaw observed:

When an arbitration for any reason becomes abortive, it is the duty of a court of law in working out a contract of which such an arbitration is part of the practical machinery to supply the defect which has occurred. It is the privilege of a court in such circumstances and it is its duty to come to the assistance of parties by the removal of impasse and the extrication I of their rights.

We may also mention here that in an agreement of compromise and reference to arbitrators, if the arbitration proves abortive, that portion, of the agreement wherein the parties have come to a settlement with regard to their respective shares in the property in a suit can be relied upon and be made the basis of a decree to be passed by the Court. When in an agreement signed by two parties, while making a declaration that the parties have agreed that they should take specific shares in the family properties, and refer the matter of the division of the properties to arbitration and the arbitration proves abortive, the parties would be bound by the declaration although the contemplated arbitration proves abortive.

We are supported in this view by the decision, of the Calcutta High Court in the case of-- Tara Prosanna Bal and Others Vs. Asoke Prosanna Bal and Another, . Therefore, on the above principle, we hold that the suit property is the joint family property of the Plaintiff and the Defendant, in which they have agreed to take the shares of Rs. 0-6-6 and Rs 0-9-6 for the Plaintiff and the Defendant respectively.

We, therefore, dismiss this appeal with costs and modify the decree of the lower court in the following terms.

Therefore, (there?) be a preliminary decree in this case passed by declaring that the plain tiff will be entitled to Rs. 0-6-6 share and the Defendant to Rs. 0-9-6 share in the suit properties The case will go back to the trial court for further proceedings according to law. We cannot help remarking that the decision of the case has been unduly prolonged on account of various circum-stances amidst which the cantankerous attitude of the Defendant has been greatly responsible. We would, therefore, direct the trial Court to go on with the further proceedings expeditiously and dry to dispose of the case within six months from the date of receipt of the file from this Court.