# BIJENDRA NATH SRIVASTAVA (DEAD) THROUGH LRS v. MAYANKSRIVASTAVAAND ORS

- **Citation:** [1994] Supp. 2 S.C.R. 529
- **Court:** Supreme Court of India
- **Decided:** 1994-08-10
- **Case number:** Civil Appeal No. 1097 of 1985
- **Bench:** S.C. Agrawal, B.P. Jeevan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bijendra-nath-srivastava-dead-through-lrs-v-mayanksrivastavaand-ors-12309
- **Pages:** 38

## Headnote

Arbitration Act, 194(}-Section 30-.-Code of Civil Procedure, 190&-
0rder 6, Rules. 2 and 4.
B
Under Order 6, rnle 4 C.P. C. particulars have to be furnished of the C
plea of fraud or misconduct raised in accordance with rnle 2 and it is not
pemiissible to introduce by way of particulars an additional plea of fraud or
niisconduct.
Code of Civil Procedure, 190&-Section 35, Order 6, Rules 17-Evidence
Act, 187rSection 115 Arbitration Ac~ 194<>-Section 30.
D
In case, amendment to objections to an award is allowed with direction for payment of costs, the acceptance of costs by a party would not
preclude it from challenging the validity of order allowing amendment.
Arbitration Ad, 1940 :
Section 30.
E
An award which has been acted upon by the parties to a considerable
extent cannot be set aside on the ground of misconduct or error on face of
record merely because the arbitrator returned the documents, not forming F
part of evidence, after making the award or on the ground of uncorroborated assertion of one party amongst six parties or on the ground that
the shares allotted were unequal In a division of joint family property
particularly In a case where there is no real inequality.
B, who died on July 18, 1938, had six sons. On January 3, 1966, an
agreement was entered Into between the six branches of the family P a
retired District Judge, who was the son·ln·law ofB was appointed as the sole
arbitrator to divide the movable as well as Immovable properties Into six
shares according to bis best judgment and allot one such share to each of
G
the six parties. It was also agreed that money, that was needed from dme to H
529
530
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
time by any of the parties to the said agreement and was advanced to him or
to her out of the joint family property, will be deducted from his or her share
at the time of partition. It was also stated in the said agreement that
amounts already taken by branches will be deducted from the shares of the
parties to the said agreement at the time of partition. The agreement was
B
dnly signed by the parties.
Before the arbitrator a paper bearing no. 104/37-Kha was filed on
Jnly 21, 1966, giving the list of 17 immovable properties as well as the
annnal rent, mnnicipal assessment and valnation of the same. The said
paper contains the signatures of the heads of all the six branches. The
C arbitrator beard all the parties and afforded them opportunity to prodnce
evidence and made an award wherennder he divided the immovable as well
as movable properties in six shares for each of six parties to the arbitration,
By the award the joint family properties were divided specifically.
D
The award was duly registered and was filed In the Court of Civil
Jndge. The Civil Judge Issued notices to the parties and in response thereto ,
objections to the award filed by the parties Nos. 1, 3 and 6. Party No. 1
sn~sequently did not ·press the objections and the objections were pressed
only by parties Nos. 3 ,and 6. In the said objections It was snbmitted that the .
award was liable to be set aside for the. reason that the arbitrator was guilty
E of misconduct and acted in excess of his powers. In the objections that were
filed by party No. 6 the factum of the agreement of arbitration was also
disputed. It was asserted that P was not appointed as the arbitrator. The
arbitrator died on December 14, 1970. Respondent No. 1 who was minor at
the time when the objections were filed on behalf of party No.6, attained·
p
majority on February 12, 1973. On March 24, 1975, be filed an application
under Section 151 and Order 6 Rule 17 C.P.C. for impleadment and for
amendment of the objections filed on behalf o_f party No. 6 which was
allowed. Ultimately, the objections were rejected and the award made rule
of the Court and decree drawn in the light of the said award. The Additional
G District & Sessions jndge held that the order dated May 8, 1976 whereby the
amendment was ellowed bad become final and binding on

## Text

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BIJENDRA NATH SRIVASTAVA (DEAD) THROUGH LRS.
A
v.
MAYANKSRIVASTAVAAND ORS.
AUGUST 10, 1994
[S.C. AGRAWAL AND B.P. JEEVAN REDDY, JJ.]
Arbitration Act, 194(}-Section 30-.-Code of Civil Procedure, 190&-
0rder 6, Rules. 2 and 4.
B
Under Order 6, rnle 4 C.P. C. particulars have to be furnished of the C
plea of fraud or misconduct raised in accordance with rnle 2 and it is not
pemiissible to introduce by way of particulars an additional plea of fraud or
niisconduct.
Code of Civil Procedure, 190&-Section 35, Order 6, Rules 17-Evidence
Act, 187rSection 115 Arbitration Ac~ 194<>-Section 30.
D
In case, amendment to objections to an award is allowed with direction for payment of costs, the acceptance of costs by a party would not
preclude it from challenging the validity of order allowing amendment.
Arbitration Ad, 1940 :
Section 30.
E
An award which has been acted upon by the parties to a considerable
extent cannot be set aside on the ground of misconduct or error on face of
record merely because the arbitrator returned the documents, not forming F
part of evidence, after making the award or on the ground of uncorroborated assertion of one party amongst six parties or on the ground that
the shares allotted were unequal In a division of joint family property
particularly In a case where there is no real inequality.
B, who died on July 18, 1938, had six sons. On January 3, 1966, an
agreement was entered Into between the six branches of the family P a
retired District Judge, who was the son·ln·law ofB was appointed as the sole
arbitrator to divide the movable as well as Immovable properties Into six
shares according to bis best judgment and allot one such share to each of
G
the six parties. It was also agreed that money, that was needed from dme to H
529
530
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
time by any of the parties to the said agreement and was advanced to him or
to her out of the joint family property, will be deducted from his or her share
at the time of partition. It was also stated in the said agreement that
amounts already taken by branches will be deducted from the shares of the
parties to the said agreement at the time of partition. The agreement was
B
dnly signed by the parties.
Before the arbitrator a paper bearing no. 104/37-Kha was filed on
Jnly 21, 1966, giving the list of 17 immovable properties as well as the
annnal rent, mnnicipal assessment and valnation of the same. The said
paper contains the signatures of the heads of all the six branches. The
C arbitrator beard all the parties and afforded them opportunity to prodnce
evidence and made an award wherennder he divided the immovable as well
as movable properties in six shares for each of six parties to the arbitration,
By the award the joint family properties were divided specifically.
D
The award was duly registered and was filed In the Court of Civil
Jndge. The Civil Judge Issued notices to the parties and in response thereto ,
objections to the award filed by the parties Nos. 1, 3 and 6. Party No. 1
sn~sequently did not ·press the objections and the objections were pressed
only by parties Nos. 3 ,and 6. In the said objections It was snbmitted that the .
award was liable to be set aside for the. reason that the arbitrator was guilty
E of misconduct and acted in excess of his powers. In the objections that were
filed by party No. 6 the factum of the agreement of arbitration was also
disputed. It was asserted that P was not appointed as the arbitrator. The
arbitrator died on December 14, 1970. Respondent No. 1 who was minor at
the time when the objections were filed on behalf of party No.6, attained·
p
majority on February 12, 1973. On March 24, 1975, be filed an application
under Section 151 and Order 6 Rule 17 C.P.C. for impleadment and for
amendment of the objections filed on behalf o_f party No. 6 which was
allowed. Ultimately, the objections were rejected and the award made rule
of the Court and decree drawn in the light of the said award. The Additional
G District & Sessions jndge held that the order dated May 8, 1976 whereby the
amendment was ellowed bad become final and binding on the parties on the
basis of principles of constructive res jndicata and party No.5 could not
challenge . the correctness or legality of the said order. The Additional
District & Sessions Judge found that the agreement dated July 3, 1966 was
an arbitration agreement whereby the parties agreed to refer the matter to
H the ~rbitration of P. As regards the objections raised by party No. 6 regard·
B.N.SRIVASTAVA(DEAD)BYLRS. v. M.SRIVASTAVA
531
ing division of immovable properties, the Judge held that it was within the A
exclusive jurisdiction of the arbitrator to fix the method and ways to determine the valuation of the properties and from the proceedings it is apparent
that the method and procedure which the arbitrator had fixed was with the
consent of the parties and no party raised any objection to this method and
procedure before the arbitrator filed the award in the court to be made rule B
of the Court and further that the paper (bearing no.104/37- Kha) which was
filed before the arbitrator, wherein the valuation of the properties was
given, was signed by all the parties and that the arbitrator could fix the
value of immovable properties on the basis of the valuation given in the said
paper and the court could not go into the question whether the method
adopted by the arbitrator for the valuation of the immovable properties was
legally erroneous. Against the said Judgment, the appeal and the revision
were disposed of by the High Court by judgment dated July 11, 1983 whereby
c
the appeal was allowed and the judgment and order of the Judge were set
aside and the objections of respondent Nos.l to 3and14 against the award
were allowed to the extent as indicated in the judgment of the High Court D
and the award dated November 21, 1966 was set aside.
On appeal to the Supreme Court it was contended for the appellant
that the application filed by respondent No.I for amending the objection
petition was wrongly allowed by the trial court and the High Court was not
right in rejecting the submissions urged by the appellants to assail the said E
order. It is permissible in law for the arbitrator to make a non-speaking
award and that the impugned award is such an award and that the High
Court was not justified in setting it aside on the view that it suffers from
several mistakes apparent on its face. The High Court was in error in
holding that the paper bearingNo.104/37-kha of the arbitrator's award was
F
not an agreed statement of valuation of immovable properties and that the
immovable properties could not be properly divided by the arbitrator on
that basis. The High Court was not justified in holding that the arbitrator
bas committed judicial misconduct in incorrectly recording the presence of
party No. 6 from October 9, 1966 onwards in the proceedings before him
although the said party was actually absent on those days.
G
Respondents No.1aud14, supported the judgment of the High Court
and urged that the High Court has rightly upheld the order passed by the
Trial Court allowiug the amendment in the objection petition filed by
respondent No.14 and further that the High Court was right in setting aside H
532
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
the award on the ground that the arbitrator had misconducted the proceed·
ings and that the award being not a non speaking award suffers from
several mistakes apparent on its face. The question before the Supreme
Court was whether the award was liable to be. set aside.
B
Allo\ling the appeal, this Court
HELD: 1. Under 0.6, R.4, C.P.C. particulars have to be furnished of
the plea of fraud or misconduct raised in accordance \lith 0.6, R.2, C.P.C.
and it is not permissible to introduce by way of particulars a plea of fraud
or misconduct other than that raised in the pleadings. In the instant case
C
involving challenge to the award of arbitrator on ground of misconduct, in
the paragraph which was sought to be introduced by way of amendment it
has been alleged that the arbitrator had misconducted the proceedings by .
returning the papers and document specified in sub-paragraphs to the
parties who bad submitted the said papers and documents during the
course of the proceedings. In the subsequent paragraph it has been alleged
D that the arbitrator had misconducted the proceedings in falsely sho\ling
the presence of one of the respondents in the proceedings on certain dates
in spite of the fact that he fully knew that said respondent was absent from
these proceedings. Although in the original objections various acts of mis·
conduct have been imputed to the arbitrator in several paragraphs, there
E
was no averment in any of the paragri'phs of original objection petition
imputing misconduct of the nature mentioned In abovesaid paragraphs
which were sought to be inserted by way of amendment. The said amend·
ments cannot be treated as better particulars of what had already been
pleaded in the original objections. And the Trial Court could not allow the
said amendments. [548-F-H, 549-A·B)
F
S.N. Balkrishna v. Fernandez, [1969) 3 SCR 603 and Abdool Hoosain
v. Tuner, L.R. (1887) 141A 111, relief upon.
2. The principle of estoppel which precludes a party from assailing an
order allo\ling a petition for amendment subject to payment of costs where
G the other party bas accepted the costs in pursuance of the said order applies
only in those cases where the order is in the nature of a conditional order
and payment of costs is a condition precedent to the petition being allowed.
In such a case it is open to the party not to accept the benefit of cost and thus
avoid the consequence of being deprived of the right to challenge the order
H
on merits. The said principle would not apply to a case where the direction
B.N. SRN ASTA VA (DEAD) BY LRS. v. M. SRIVASTAVA
533
for payment of costs is not a condition on which the petition is allowed and A
costs have been awarded independently in exercise of the discretionary
power of the court to award costs because in such a case the party who has
been awarded costs has no opportunity to waive his right to question the
validity or correctness of the order. (550-G-H, 551-A-B]
3. Io the instant case the order allowing the amendment to the objections ·to the arbitration award was not a conditional order. Costs were
awarded not as a condition precedent to allowing the amendment but byway
of exercise of the discretionary power of the court to award costs to the
opposite party. The appellants did not accept the said order. They assailed
B
the validity of the same at the stage oflioal hearing before the trial court but C
the said contention was rejected on the view that the said order had become
final as regards the proceedings before him and the same could not be
recalled or reviewed. Thereafter, the appellants assailed the correctness of
the said order in the appeal filed by some of the respondents in the High
Court. The principle of estoppel arising from acceptance of costs so as to D
precludes the appellants from challenging the validity cannot, therefore, be
invoked in the facts and circumstances of the case. (551-F-H, 552-A]
4. The law is well settled that an arbitrator's award is generally
considered binding between the parties since he is the tribunal selected by E
the parties. The power of the court to set aside an award is restricted to
the grounds set out in Section 30 of the Act, namely, (a) where the
arbitrator has misconducted himself or the proceedings; (b) where the
award has been made after the issue of an order by the co11rt superseding
the arbitration or after arbitration proceedings have become invalid under
Section 35; and (c) where the award has been improperly procured or is F
otherwise invalid. The court can set aside the award under clause (C) of
Section 30 if it suffers from an error on the face of the award. Ao award
might be set aside on the ground of an error on the face of it when the
reasons given by the decision, either in the award or in any document
incorporated with it, are based .upon a legal proposition which is er- G
roneous. lo the absence of any reasons for making the award, it is not open
to the court to interfere with the award. The court cannot probe the mental
process of the arbitrator and speculate, where no reasons are given by the
arbitrator, as to what impelled the arbitrator to arrive at his conclusion.
Ao a\vard is not invalid merely because by a process of inference and
argument it may be demonstrated that the arbitrator has committed grave H
534
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
mistake in ·arriving at his conclusion. The arbitrator is under no obligation
to give reasons in support of the decision reached by him unless under the
arbitration agreement or deed of settlement he is require"t to give such
reasons. If the arbitrator or umpire chooses to give reasons in support of
his decision it would be open to the court to set aside the award if it finds
B that an error of Jaw has been committed by the arbitrator or umpire on
the basis of the recording of such reasons. The reasonableness of the .
reasons given by the arbitrator cannot, however, be challenged. The ar·
bitrator is the sole jndge of the qnality as well as the qnantity of the
evidence an.d it will not be for the court to take upon itself the task of being
a judge of the evidence before the arbitrator. The conrt should approach
C an award with a desire to support it if that is reasonably possible, rather
than to destroy it by calling it illegal. [552-C-H, 553-A)
Chempsey Bara and Company v. Jivraj Ba/loo Spinning and Weaving
Company Ltd., L.R.50 I.A. 324; Jivarabhai Ujamshi Sheth & Ors. v. ChinD tamanrao Balaji & Ors., [1964) 5 SCR 480; Sudarsan Trading Co. v. Government of Kerala, [1989) 1 SCR 665; Raipur Development Authority and Ors.
v. Mis. Chokhamai Contractors and Ors., [1989) 3 SCR 144 and Smt. Santa
Sila Devi & Anr. v. Dhirendra Nath Sen & Ors., [1964) 3 SCR 410, relied
npon.
E
5. During the life time of the arbitrator respondent No. 14 remained
silent about the allegation of misconduct and raised it only in 1972 after
the death of the arbitrator. The High Court was conscious of the fact that
this plea was taken only through an amendment and it could be criticised
as .an after-thought. The only reason that weighed with the High Court in
F accepting the version of respondent No. 14 is that the signatures of
respondent No. 14 are not contained in the order sheets of the proceedings
for the period subsequent to October 9, 1966 till the conclusion of the
arbitration proceedings although the signatures of other parties are found
in the said proceedings and that the practice followed by the arbitrator
was to obtain the signatures of all the parties under the proceedings of a
G particular date irrespective of the fact whether that party was present or
not on that date. The charge of misconduct levelled by respondent No. 14 .
against the arbitrator was a very serious charge. The arbitrator was a
retired District judge who was closely related to the parties and who (as
found by the High Court) until sometime before October 9, 1966 enjoyed
H the respect and confidence of all parties. The High Court has not given
..
B.N.SRIVASTAVA(DEAD)BYLRS. v. M.SRIVASTAVA
535
any reason why the arbitrator should have falsely recorded the presence A
of respondent No. 14 at the concluding stages of the arbitral proceedings.
In the absence of corroboration by other contemporaneous evidence the
High Court should not have disbelieved the record of the arbitrator merely
on the ground that signatures of respondent No. 14 are not found in the
record of proceedings,. It would be unsafe to place reliance on the uncorB
roborated assertion of respondent No. 14, as contained in the affidavits
filed by him, the truth of which bas not been tested in cross-examination.
The High Court was not justified in recording a finding against the
arbitrator on the basis of such evidence and in setting aside the award on
this ground. (554-F-H, 555-A-B, 556-C]
c
6. In the absence of any material to show that the documents which
were returned by the arbitrator to party No. 1 were part of the evidence
produced before the arbitrator it cannot be said that the arbitrator was at
fault in returning the said documents to party No.1 after making the
award. Moreover the said conduct of the arbitrator cannot be regarded as D
a misconduct in the conduct of the proceedings or an error in making the
award so as to justify the setting aside the award. (558-B-C]
7. There is nothing in the award to indicate the process of reasoning
adopted by the arbitrator to arrive at the market value of immovable
properties. Merely because the arbitrator has mentioned the municipal
annual rental value of the property before indicating the market value of
the same does not mean that the value is fixed on the basis of the rental
value and the award is a reasoned award justifying the Court to examine
whether the award suffers from an error. It is settled law that it is not open
E
to the court to deduce reasons in the award or in the record accompanying F
the award and proceed to examine whether those reasons were right or
erroneous. This is what appears to have been done by the High Court in
the present case. This was impermissible. [559-C-D]
8. In applying the same principle of capitalisation of annual profits
to all the properties irrespective of the raci that some are tenanted build- G
ings subject to rent control and others are self occupied buildings and even
open land, which was adopted in arising at the valuation of properties in
paper No.104/37-kha, the arbitrator appears to have proceeded on the
basis that the said principle was acceptable to the parties in respect of all
the properties. (563-H, 564-A]
H
536
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
9. The law is well-settled that unless so specifically required au award
B
c
need not formally express the decision of the arbitrator on each matter of
difference and unless the contrary appears the court will presume that the
award disposes finally all matters of difference. (564-C-D]
10. From the proceedings of the arbitrator it does appear that the
matter of advances has been considered by the arbitrator. The fact that
the arbitrator has not separately indicated in the award the amount of
advance in respect of each of the parties does not mean that he did not
determine the dispute relating to advances. The arbitrator, after considering the amount of advances, has fixed the shares of each of the parties in
the award and has made a lump-sum award for each of the parties. It was
permissible for the arbitrator to deliver a consolidated award on the whole
case. [565-B-C]
Smt. S@ta Sita Devi &Anr. v. Dhirendra Nath & Ors., AIR (1963) SC
1677 andB. Subbarama Naidu v.B. Siddamma Naidu & Ors., [1962] 1 SCR
D 784, relied upon.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1097 of
1985.
From the Judgment and Order dated 11.7.83 of the Allahabad High
Court in F.A.No.8 of 1978.
Kameshwar Prasad, Gopal Prasad and Ms. Rachna Gupta for the
Appellant No.1. .
F
S.B. Sanyal, Gopal Pd. and Ejaz Maqbool for the Appellant No.2.
G.L. Sangbi and Ms. Kamini Jaiswal for the Respondent No. 14.
Ashok K. Srivastava, for the Respodent in No. 1.
G
Kailash Vasdev, Raju Ramachandran, Prashant Kr., Pradeep Misra
and S.A. Syed for the Respondent No. 8.
The Judgment of the Court was delivered by
S.C. AGRAWAL, J. The question for consideration in this appeal is
H whether the award made by the arbitrator dividing the movable as well as
..
B.N.SRIVASTAVA(DEAD) BYLRS.v. M.SRIVASTAVA [AGRAWAL,J.[
537
immovable properties of joint family amongst the six branches of the family A
is liable to be set aside. The award was accepted by the Civil Court (Vth
Additional District & Sessions Judge, Lucknow and a direction was given
for making it the rule of.the Court and for drawing a decree in terms of
the award. The High Court, in appeal, has set aside the award on the view
that the award suffers from mistakes apparent on its face and that ArB
bitrator had committed judicial misconduct in recording the proceedings
before him.
Late Shri Bisheshwar Nath Srivastava, ex-Chief Judge of the Oudh
Chief Court, who died on July 18, 1938, had six sons, namely, Bhagwati
Nath, Bhupendra Nath, Bishwa Nath, Brij Nath, Bijendra Nath and C
Birendra Nath. Smt. B.N. Srivastava died on September 22, 1957. Bhagwati
Nath died on February 8, 1942 and Bishwa Nath died on October 27, 1946.
After the death of Shri Bisheshwar Nath Srivastava, his eldest son, Bhagwati Nath was looking after the joint family properties as the karta of the
joint Hindu family and after his death, Bhupendra Nath, the second son of D
Shri Bisheshwar Nath Srivastava, was doing so. On January 3, 1966, an
agreement was entered into between the six branches of the family headed
by the six sons of shri Bisheshwar Nath Srivastava whereby Shri Triveni
Prasad, a retired District J11dge', who was the son-in- law of Shri Bisheshwar
Nath Srivastava, was appointed as the sole arbitrator to divide the movable
as well as immovable properties of late Shri Bisheshwar Nath Srivastava
and Smt. B.N. Srivastava into six shares according to his best judgment and
allot one such share to each of the six parties. By this agreement it was
also agreed that money that was needed from time to time by any of the
parties to the said agreement and was advance\! to him or to her by
Bhupendra Nath out of the joint family money was out of his or her share
in the joint family property and will be deducted from his or her share at
the time of partition. It was also stated in the said agreement that all the
parties to the agreement have taken certain amounts out of their shares in
E
F
the joint family property from Bhupendra Nath or otherwise and that these
amounts will be deducted from the shares of the parties to the said G
agreement at the time of partition. Party No. 1 to the said agreement was
Bhupendra Nath who signed it for himself and his sons Paresh Kumar
(minor), Prabhakar Kumar (minor), Prabhat Kumar and Pankaj kumar;
party No. 2 were Smt. Savitri Devi wife of Bhagwati Nath (deceased) and
H
538
SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.
A
Dr. Bireshwar Nath son of Bhagwati Nath (deceased) who signed for
himself and his minor son Amitabh; party No. 3 were Smt. Chandrawati
Devi wife of Bishwa Nath (deceased) and Bhuwaneshwar Nath son of
Bishwa Nath (Deceased); Party No. 4 was Brij Nath who signed for himself
and his minor son Ravi; Party No. 5 was Bijendra Nath who signed for
B himself and his minor son Brijeshwar Nath; and Party No. 6 was Birendra
Nath who signed for himself and his minor son, Mayank Srivastava (respondent No. 1 herein).
Before the arbitrator a paper bearing no. 104/37-Kha was filed on
July 21, 1966 giving the list of 17 immovable properties as well as the annual
c rent, municipal assessment and valuation of the same. The said paper
contains the signatures of the heads of all the six branches. The arbitrator
heard all the parties and afforded them opportunity to produce evidence
and made an award whereunder he divided the immovable as well as
movable properties in six shares for each of six parties to the arbitration.
D By the said award the joint family properties were divided as follows :
Party No. 1
Immovable property
Rs.
53,600
Movable property
Rs.
29,692
E
Total
Rs.
83,292
Party No. 2
Immovable property
Rs.
90,100
Movable property
Rs.
32,669
F
Total
Rs.
1,22,769
Party No. 3
Immovable property
Rs.
69,480
Movable property
Rs.
28,307
G
Total
Rs.
79,987
Party No. 4
Im:;,.ovable property
Rs.
19,200
Movable property
Rs.
38,729
H
Total
Rs.
57,926
•
,•
B.N. SRIVASTAVA (DEAD) BY LRS.1'. M. SRJV ASTA VA [AGRAWALJ.]
539
Party No. 5
A
Immovable property
Rs.
26,400
Movable property
Rs.
17,786
Total
Rs.
44,186
Party No. 6
B
Immovable property
Rs.
38,000
Movabl' property
Rs.
64,553
Total·
Rs.
1,02,553
The said award was submitted for registration before the Registrar C
of Documents on November 21, 1966. On the same day, the arbitrator move
the Court of Civil judge, Lucknow, for condonation of delay and for
extension of time to file the award. The said application was allowed by
the Civil Judge and time for filing the award was extended to December
31, 1966. Before the expiry of the said period. That award was duly D
registered and it was filed in the Court of Civil Judge, Lucknow, on
December 6, 1966. The Civil Judge issued notices to the parties and in
response t~ereto objections to the award were filed by the parties Nos. 1,
3 and 6. Party No. 1 subsequently did not press the objections and the
objections were pressed only by parties Nos. 3 and 6. In the said objections E
it was submitted that the award. was liable to be set aside for the reason
that the arbitrator was guilty of misconduct and acted in excess of his
powers. In the objections that were filed by party No. 6 the factum of the
agreement of arbitration was also disputed. It was asserted that Sri Triveni
Prasad was not appointed as the arbitrator. The arbitrator died on DecemF
ber 14, 1970. Mayanak Srivastava (respondent No. 1), who was minor at
the time when the objections were filed on behalf of party No. 6, attained
majority on February 12, 1973. On March 24, 1975, Mayank Srivastava filed
an application under Section 151 and Order 6 Rule 17 C.P.C. for impleadment and for amendment of the objections filed on behalf of party No. 6.
The said application was allowed by the Civil Judge by his order dated May G
8, 1976. The objections were tried by the Civil Judge on the basis of
affidavits.
The case was finally disposed of by the Vth Additional District &
Sessions. Judge, Lucknow, by his judgment dated September 14, 1977, H
540
SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.
A
whereby the objections were rejected and it was directed that the award
dated November 21, 1966, given by the arbitrator, be made rule of the
Court and decree be drawn in the light of the said award. The Additional
District & Sessions Judge held that the order dated May 8, 1976 whereby
the amendment was allowed has become final and binding on the parties
B
on the basis of principles of constructive res judicata and party No. 5 could
not challenged the correctness or legality of the said order. The Additional
District & Sessions Judge found that the agreement dated July 3, 1966 is
an arbitration agreement whereby the parties agreed to refer the matter to
the arbitration of Sri Triveni Prasad. As regard the objections raised by
C
party No. 6 regarding division of immovable properties, the Additional
District & Sessions Judge held that it within the exclusive jurisdiction of
the arbitrator to fix the method and ways to determine the valuation of the
properties and from the proceedings it is apparent that the method and
procedure which he fixed was with the consent of the parties and no party
D raised any objection to his method and procedure before ~he arbitrator
filed the award in the court to be made rule of the Court and further that
the paper (bearing no.104/37-kha) which was filed before the arbitrator,
where in the valuation of the properties was given, was signed by all the
parties and that the arbitrator could fix the value of immovable properties
E
F
on the basis of the valuation given in the said paper and the court could
not go into the question whether the method adopted by the arbitrator for
the valuation of the immovable properties was legally erroneous. As
regards the valuation of the movable properties, the Additional District &
Sessions Judge held that from the proceedings recorded by the arbitrator
it was apparent that the parties were asked to furnish valuation of each
movable property yet none of the parties furnished the required prices and
in view of para No. 9 of the arbitration agreement the arbitrator· could
divide the properties according to his discretion as no direction was given
in the said agreement regarding valuation of the properties and mode of
determination of such valuation. The Addition District & Sessions Judge
G
also found that in the award valuation of movables allotted to each share
has been given in lump-sum figure or category wise. As regards the
objection in giving proprietary rights over the family diety to party? No. 2,
the Additional District & Sessions Judge held that under the award the
family diety had not been given to party No.2 and that since the property
H under which the Mandir is situated was allotted to the share of party No,2,
)
B.N. SRIVASTAVA(DEAD) BY LRS. v. M.SRIVASTAVA (S.C.AGRAWAL.J.J 541
the said party was entrusted with the care of the temple. It was also A
observed that in the affidavit dated January 5, 1972, party No. 2 has
specifically admitted that the right to worship is available to all the parties.
The Additional District & Sessions Judge has also mentioned that the
award is a non-speaking award since the arbitrator was not enjoined to give
a finding on each and every item specifically alongwith reasoning and he B
could award particular sum or particular share in a single word and the
award had to be seen in this light. As regards objection that the shares had
not been equally divided amongst the parties. The Additional District &
Sessions Judge observed that under the agreement the division of the
properties was to be made into six shares and at the time of division the C
arbitrator was to reduce the shares of the parties by the amount which was
taken by the parties as advance from the joint family and the arbitrator was
also to add any amount that the found due to that party from the joint
family on account of claims of that party and that the arbitrator was not
required to mention in the award the actual amount of advance which the
arbitrator found out on the basis of evidence to be due to the joint family D
from any particular party. According to the Additional District & Session
Judge the shares allotted were unequal because the amount of advance to •
the parties and claims of the parties were unequal which were taken by
the arbitrator into consideration at the time of the partition.
Feeling aggrieved by the said decision of the Additional District &
Sessions Judge, Mayank Srivastava, (respondent No. 1 herein) as party No.
6 and Bhuwaneshwar Nath Srivastava and Smt. Chandrawati Devi Srivas-
"
E'
tava (respondents Nos. 2 and 3) as party No.3 filed First Appeal, No. 8 of
1978 in the Allahabad High Court. A revisions, Civil Revision No. 399 of F
1978, was also filed against the decree passed by the Additional District &
Sessions Judge in terms of the award. The appeal and the revision were
disposed of High Court by judgment dated July 11, 1983 whereby the
appeal was allowed and the judgment and order of the Additional District
& Sessions Judges were set aside and the objections of respondent Nos. 1
to 3 and 14 against the award were allowed to the extent as indicated in G
the judgment of the High Court and the award dated November 21, 1966
was set aside. As a result Civil Revision No. 399 of 1978 was dismissed as
infructuous.
The High Court rejected the submission of the appellants herein that H
542
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
the applications for amendment of the objections filed by party Nos. 3 and
6 were wrongly allowed by the trial Court. The High Court also did not
accept the contention urged on behalf of respondents Nos. 1 and 3 herein
(appellants in the High Court) assailing the validity of the agree!Jlent dated
January 3, 1966 and held that the joinder of Smt. Chandra,Yati in the
B
agreement and giving of a share to her along with Bhuwaneshwar Nath did
not vitiate the agreement inasmuch as there never bad arisen any conflict
between Bhuwaneshwar Nath and his mother at any stage of the application. As regards non-joinder of the three daughter of Smt. B.N. Srivastava,
the High Court held the it is not open to any of the parties to the agreement
to raise the said plea since they have benefited from the non-joinder of the
C aforesaid female herein of Smt. B.N. Srivastava in the agreement and the
non- allotment of the shares to these female heirs has correspondingly
enlarged the shares of all the parties. The High Court negatived the
contention urged by respondents Nos. 1 to 3 that the agreement dated
January 3, 1966 was not an arbitration agreement and held that the said
agreement is to be construed as arbitration agreement. The High Court
D also negatived the contention urged on behalf of respondents Nos. 1 to 3
that the decree was bad for want of an application under Section ,17 of the
Arbitration Act, 1940 (hereinafter referred to as 'the Act') by any party.
The High Court rejected the contention that as the arbitrator had already
given an interim award on February 5, 1966 in respect of utensils it was not
E open to the arbitrator to make a second award with regard to utensils. The
High Court has, however, found that in recording the proceedings before
him the arbitrator has incorrectly shown the presence of party No. 6 from
October 9, 1966 onwards though that party was actually absent on those
dates and that it constitutes judicial misconduct. The High Court has also
F
found that the arbitrator has deviated from the judicial standard expected
of him as an arbitrator in returning the documents mentioned in paper No.
103/347-Kha of the arbitration record to Bhupendra Nath, party No. 1, on
December 1, 1966, after the arbitrator has already made the award and a
few days before filing it in conrt alongwith an application under Section 14
of the Arbitration Act. The High Court has held that the award was not
G totally non-speaking award in so far as mode of valuation of the immovable
properties is concerned. The High Conrt has further held that the
award suffers from several mistakes apparent on its face. The High Court
has also held that the management of the family diety and control over
movables attached thereto had been illegally allotted to the share of one
party alone. It was also held that the arbitrator has failed to decide· the
H disputes about the amount of advances taken from the joint family funds
B.N.SRIVASTAVA(DEAD)BYLRS. v. M. SRIVASTAVA [S.C.AGRAWAL.J.] 543
by the parties respectively and to make adjustments in respect thereof in A
the award as required to do by the arbitration agreement and has transgressed the limits within which .the arbitrator was required to act in making
the award.
Aggrieved by the Judgment of the High Court the appellants have B
filed this appeal after obtaining special leave. During the pendency of the
Appeal s.ome of the parties have alienated some of the properties which
have been assigned to them under the impugned award. Bijendra Nath,
appellant No. 1, has filed an additional affidavit to say that Birendra Nath
(respondent No. 14) party No. 6 has executed
: (i) a sale deed on
November 15, 1984 in respect of southern half portion of the double C
storeyed premises situated at No. 178/157 (old number) 178/159 (new
number), Badri Nath Road, Golaganj, Lucknow for Rs. 75,000 wherein the
vendor has claimed to be the owner of the property by virtue of the
impugned arbitration award; (ii) a sale deed on February 25, 1988 in
respect of a portion of Narian House No. 195/44, Jagat Narain Road, D
Lucknow, for Rs. 1,100,000, wherein the vendor has claimed to be the
absolute owner of the property by virtue of impugned award; (iii) a sale
deed dated February 25, 1988 in respect of another portion of Narain
House No. 195/44, Jagat Narain Road, Lucknow, for a sum of Rs. 30,000,
wherein also the vendor has claimed to be the owner of the s~id property
by virtue of the impugned award; and (iv) an agreement to sell dated E
August 25, 1989 in respect of Badri Batika, bearing khasra No. 178 (old),
199/l (new), situated at village Fatehpur, Pargana Tehsil and District
Lucknow and the construction Shivala Dalen, Pacca Well, etc for a sum of
Rs. 3,75,000 wherein the vendor has claimed to be the owner of the said
property by virtue of the impugned award. Similarly Smt. Chandrawati F
Devi, respondent No. 2 is said to have executed a sale deed on December
29, 1993 in respect of her 50% Share in the land with building bearing
Corporation No. 178/158 situated at Badri Nath Road, Golaganj Lucknow
for Rs. 5,00,0000 and Bhuwaneshwar Nath, respondent No. 3, is said to
have executed a sale deed dated December 31, 193 in respect of his half
share in the said property for Rs. 5,00,000. Mayank Srivastava, respondent G
No. 1 herein, has filed an additional affidavit dated March 30, 1994 in which
he has not disputed the aforesaid transfers but has alleged that immovable
properties allotted to the share of Brijendra Nath, appellant No. 1 herein,
under the impugned award have also been sold under (i) five sale deeds
executed on August 20, 1975 and five sale deed executed on February 2, H
544
SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.
A
1976 in respect of portions of bhumidari plots nos. 3 and 4 of village
Qasimpur Pakri; (ii) sale deed executed on February 1, 1985 in respect of
30025 sq. ft. of land of plot No. 238 for Rs. 3,06245; (iii) sale deed executed
on July 12, 1988 in respect of 2000 sq. ft. of land out of plot No. 4 for Rs.
40,000; (iv) sale deed executed on January 18, 1990 in respect of 800 sq.
B
ft.. of land out of plot No. 140/1 for Rs. 16,000; and (v) sale deed executed
on February 28, 1990 in respect of 2340 sq. ft. of land of plot No. 140/1 for
Rs. 70,200 and that Brijeshwar Nath son of Bijendra Nath, appellant No.
1 herein, has sold 1361 sq. ft. of land out of plot No. 140/114 for Rs. 27,000
by a sale deed registered on April 12, 1993. It has been further stated in
the said additional affidavit that Ravi Srivastava, appellant No. 2, has
C executed (i) an agreement for sale of 5422 sq. ft. of land which agreement
was registered by Sub- Registrar at Lucknow on March 8, 1983; (ii)
agreement for sale executed on January 27, 1988 in respect of plot No. F
out of the open land at Outram Road in Lucknow allotted to his share
under the impugned award; (iii) agreement to sell executed on February
D
1, 1991 in respect of 400 sq. ft. of land of Chaulakhi Kothi allotted to his
share under the award for Rs. 8,50,000; and (iv) agreement of sale executed
on March 26, 1993 along with respondent Nos. 13, 17 and 18, in respect of
8000 sq. ft. of Chaulakhi Kothi for Rs. 6,00,000. It has been further alleged
that respondent Nos. 9,, 10 and 11 have sold away stable land and Khandhal
allotted to them under the impugned award by a registered sale deed
E
executed on May 2, 1991, and that on April 22, 1991 they have also
executed an agreement for sale of 'Glenroy' at Mussoorie which was
allotted to "them under the impugned award. It would thus appear that
during the pendency of the proceedings the parties, including parties Nos.
3 and 6, have executed several documents of transfer in respect of properF
ties which were allotted to the them under the impunged award.
G
In this appeal Shri Kailash Vasdev, the learned counsel appearing
for respondent No. 8, representing party No. 1, has supported the appellants and the parties who have contested the appeal are party No. 3
(respondents. Nos. 2 and 3) and party Nos. 6 (respondents Nos. 1 and 14).
Shri S.B. Sanyal, lhe learned senior counsel appearing for the appellants, has urged that the application filed by respondent No. 1 for amending
the objection petition was wrongly allowed by the trial court and the High
Court was not right in rejecting the submissions urged by the appellants to
H assail the said order. The learned counsel had also urged that it is permis-
B.N. SRIVASfAVA(DEAD) BYLRS.••. M.