# Mukherjea v. New Blieerbhum

- **Citation:** [1960] 2 S.C.R. 209
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mukherjea-v-new-blieerbhum-1857
- **Pages:** 31

## Headnote

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•
8.C.R.
SUPREME COURT REPORTS
209
hold that r. 89 of 0. 21 does not apply to such a sale
and that the High Court was right in rejecting the
·appellants' claim based on the said rule.
The result is the appeal fails and is dismissed with
costs.
..A_p_peal dis111issed.
1959
J ibon ]( ris.hna
Mukherjea
v.
New Blieerbhum
Coal Co. Lid •
Gajendragadkar J .
•
CT. A. CT. NACHIAPPA CHETTIAR AND OTHERS,
v.
CT. A .. CT. SUBRMIANIAJl.I CHETTIAR.
. (P. B. GAJENDRAGADKAR, K. SunBA RAO and
J. c. SHAH, JJ.)
Arbitration-Partition suit-Preliminary decree-Appeal to·
High Coitrt~Reference to arbitration by Trial Court-CompetencyForeign immoveable properties ·excluded by preliminary decreeJV hether reference and award include such properties-Constructionlndian Arbitration Act, I940 (X of I940), s. 2I.
In a suit for partition of the j'lint 'family properties filed by
the respondent against his brother and his sons, appellants' I to 5
respectively, the latter while admitting the relationship of the
respondent and his half share to the family properties, pleaded,
inter alia, that the court had no jurisdiction to divide the imlnoveable properties situated in Burma and in the Indian State of
Pudukottai. The trial court passed a preliminary decree excluding from its operation the aforesaid immoveable, properties.
Against the preliminary decree appeals were preferred before the
High Court by the several parties on various grounds, but in his
appeal the respondent did not challenge the finding of the trial
court that it had no jurisdiction to deal with foreign immoveable
properties. During the pendency of the appeals, on the joint
application made by the parties, the trial court made an order
referring for determination by the two arbitrators .named by
them" all the matters in dispute in the suit and all matters and
proceedings connected therewith". In due course the arbitrators
gave an award which was then filPd in the trial court. As regards
immoveable properties in Pudukottai the award recited that since
the parties had separated and the properties in suit before the
arbitrators had been· actually divided by metes and hounds, the
two branch•s shall enjoy the Pudukottai properties in equal
halves; while with reference to the properties in Burma the
arbitrators asked the parties to hold the documents of title half
and half for safe custody and added that when the parties decided
to divide the properties all the documents would have to be
27
1959,
November IJ . .
210
SUPREME COURT REPORTS [1960 (2)]
'959
brought together and a partition made according to law.
The
. -
. appellant challenged the validity of the award on the grounds
Nach1appa CheUtar inter alia (1) that the reference and the award dealt with immovev.
able properties in Burma and Pudukottai and so they were
Subramania»i
invalid, and (z) that the trial court was not competent to make
Chettiar
the order of reference under s. 21 of the Indian Arbitration Act,
1940.
Held: (1) that the reference and the award could not be
challenged on the ground that they purported to deal with
foreign immoveable properties because (a) at the time when the
matters in· dispute were referred to arbitration it \vas on the basis
of the finding of the trial court that the court had no jurisdiction
to deal with foreign immoveable properties, and (b) the award
did not divide the said properties or declare their shares in them,
but merely recited the fact that the parties having become
divided and accepted a half share in each of the branches they
would hold and enjoy the properties half and half.
There is a distinction between a mere recital of a fact and
something which in itself creates a title.
Bageshwari Charan Singh v. J agarnath Kuari, (1932) L.R. 53
I.A. 130, relied on.
(2) that the words "suit" and "court" in s. 21 of the Indian
Arbitration Act, 1940, include appellate court proceedings and
appellate court, respectively.
Abani Bhusan Chakravarthy and Others v. Hem Chandra
Chakravarthy and Others, A.LR. 1947 Ca

## Text

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•
8.C.R.
SUPREME COURT REPORTS
209
hold that r. 89 of 0. 21 does not apply to such a sale
and that the High Court was right in rejecting the
·appellants' claim based on the said rule.
The result is the appeal fails and is dismissed with
costs.
..A_p_peal dis111issed.
1959
J ibon ]( ris.hna
Mukherjea
v.
New Blieerbhum
Coal Co. Lid •
Gajendragadkar J .
•
CT. A. CT. NACHIAPPA CHETTIAR AND OTHERS,
v.
CT. A .. CT. SUBRMIANIAJl.I CHETTIAR.
. (P. B. GAJENDRAGADKAR, K. SunBA RAO and
J. c. SHAH, JJ.)
Arbitration-Partition suit-Preliminary decree-Appeal to·
High Coitrt~Reference to arbitration by Trial Court-CompetencyForeign immoveable properties ·excluded by preliminary decreeJV hether reference and award include such properties-Constructionlndian Arbitration Act, I940 (X of I940), s. 2I.
In a suit for partition of the j'lint 'family properties filed by
the respondent against his brother and his sons, appellants' I to 5
respectively, the latter while admitting the relationship of the
respondent and his half share to the family properties, pleaded,
inter alia, that the court had no jurisdiction to divide the imlnoveable properties situated in Burma and in the Indian State of
Pudukottai. The trial court passed a preliminary decree excluding from its operation the aforesaid immoveable, properties.
Against the preliminary decree appeals were preferred before the
High Court by the several parties on various grounds, but in his
appeal the respondent did not challenge the finding of the trial
court that it had no jurisdiction to deal with foreign immoveable
properties. During the pendency of the appeals, on the joint
application made by the parties, the trial court made an order
referring for determination by the two arbitrators .named by
them" all the matters in dispute in the suit and all matters and
proceedings connected therewith". In due course the arbitrators
gave an award which was then filPd in the trial court. As regards
immoveable properties in Pudukottai the award recited that since
the parties had separated and the properties in suit before the
arbitrators had been· actually divided by metes and hounds, the
two branch•s shall enjoy the Pudukottai properties in equal
halves; while with reference to the properties in Burma the
arbitrators asked the parties to hold the documents of title half
and half for safe custody and added that when the parties decided
to divide the properties all the documents would have to be
27
1959,
November IJ . .
210
SUPREME COURT REPORTS [1960 (2)]
'959
brought together and a partition made according to law.
The
. -
. appellant challenged the validity of the award on the grounds
Nach1appa CheUtar inter alia (1) that the reference and the award dealt with immovev.
able properties in Burma and Pudukottai and so they were
Subramania»i
invalid, and (z) that the trial court was not competent to make
Chettiar
the order of reference under s. 21 of the Indian Arbitration Act,
1940.
Held: (1) that the reference and the award could not be
challenged on the ground that they purported to deal with
foreign immoveable properties because (a) at the time when the
matters in· dispute were referred to arbitration it \vas on the basis
of the finding of the trial court that the court had no jurisdiction
to deal with foreign immoveable properties, and (b) the award
did not divide the said properties or declare their shares in them,
but merely recited the fact that the parties having become
divided and accepted a half share in each of the branches they
would hold and enjoy the properties half and half.
There is a distinction between a mere recital of a fact and
something which in itself creates a title.
Bageshwari Charan Singh v. J agarnath Kuari, (1932) L.R. 53
I.A. 130, relied on.
(2) that the words "suit" and "court" in s. 21 of the Indian
Arbitration Act, 1940, include appellate court proceedings and
appellate court, respectively.
Abani Bhusan Chakravarthy and Others v. Hem Chandra
Chakravarthy and Others, A.LR. 1947 Cal. 93, disapproved,
Thakur Prasad v. Baleshwar Ahir and Others, A.LR. 1954
Pat. ro6, M oradhwaj v. Bhudar Das A.LR. 1955 All. 353 and
Subramannaya Bhatta v. Devadas Nayak and Others, A.I.R. 1955
Mad. 693, approved.
(3) that the word "judgment" in s. 21 of the Act means a
judgment which- finally decides all matters in controversy in the
suit and does not refer to the various interlocutory orders and
judgments that may be passed during the hearing of the suit.
(4) that a judgment delivered by a court in a partition suit
which is followed by a preliminary decree is not a final judgment
in the suit and that a court after a preliminary decree has been
passed has jurisdiction to make an order of reference under s. 21
of the Act.
]adu Nath Roy and Others v. Parameswar Mullick and Others,
(1939) L.R. 67 I.A. II, relied on.
(5) that where a preliminary decree has been drawn up and
an appeal has been filed against it, both the trial court and the
appellate court are possessed of the matters in dispute in part
and it would be open to either court to make an order of
reference in respect of all the matters in dispute between the
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S.C.R.
SUPREME COURT REPORTS
211
parties; that as in the present case proceedings subsequent to the
z959
preliminary decree were pending before the trial court, the latter
was competent to act under s. 21 of the Act.
Nachiappa Chettiar
C1v1L APPELLATE JURISDICTION:
Civil
Appeals
v.
Subramaniam
Nos. 112 to 116 of 55.
Chettiar
Appeals from the judgment and order dated December 14, 1951, of the Madras High Court, in AAO 210
of 1946, C. M. Ps. Nos. 3273 and 3274 of 1946, AAO
661 of 1946, and AAO 49 of 1947 respectively, arising
out of the judgment and order dated January 28, 1946,
of the Subordinate Judge, Devakottah, in I. A. No. 18
of 1945 in 0. S. No. 91 of 1941.
A. V. Viswanatha Sastri, K. Parasaran and M.S.K.
Aiyangar, for the appellants.
K. Rajah Iyer, R. Rangachari and R. Ganapaihy Iyer,
for the respondent.
1959. November 13. The Judgment of the Court
was delivered by
GAJENDRAGADKAR J.-These five appeals arise from Gajendragadkar J.
a partition suit (O.S. No. 91 of 1941) filed by the
respondent Subramanian Chettiar against his brother
Ct. A. Ct. Nachiyappa Chettiar and his four sons, appellants 1 to 5 respectively, m the court of the
Subordinate Judge of Devakottai, and they have been
brought to this Court with a certificate granted by the
·High Court of Madras under A.rt. 133 of the Constitution. The principal appeal in this group is Civil
Appeal No. 112 of 1955 and the questions which it
raises for our decision relate to the validity of the
award made by the arbitrators to whom the matters
in dispute bet~een the parties were referred pending
the present~litigation. It would, however, be convenient at the outset to state broadly the material facts
leading to the suit and indicate the genesis and nature
of the five respective appeals.
The appellants and the respondent belong to the
Nattukottai Chettiar community and their family
which is affluent had extensive money-lending business in Burma. Chidambaram Chettiar, the father of
appellant 1 and the respondent, died on August 20,
1926. At the time of his death the respondent was·an
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SUPREME COURT REPORTS [1960(2}]
z959
infant 6 years of age. Appellant I had already been
N ,. PP C' ,,. associated with his father in the mana~enient of the
acnia
a
11l iar
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v.·
. busmess and· on his father's death he became the
Subramaniam
manager of the family and took pharge of its affairs
Chtttiar ·
and business. On September 6, 1941, the respondent
. -
gave notice lo appellant 1 calling upon him to effect
Ga1emlragadkar J. a partition and to render accounts of his management
and the properties of the family. This demand was
not complied with and so the respondent instituted
the present suit on September 24, 194L
According to the plaint the assets of tho family
consisted of immoveable properties in India which was
then described as British India and iri. Pudukottai, an
Indian Sta to. These consisted of Items Nos. I to 12
and Item No. 13 respectively.in Sch. 'A~. The jewels
and moveables belcinging tu the family were set out in
Sch. 'B ', whereas two money-lending firms which the
family owned and conducted at l\Iinhla and Sitkwin in
Burma were set out in Schs. 'D' and 'E' respectively.
The plaint further alleged that Chidambaram Chettiar
had entered large amounts belonging to the family in
the names of the members of the family in what are
·called Thanathu maral accounts and these amounts
were _invested in various firms or lent to several
individuals. The total of these investments came to
about Rs. 15,00,000 described in Sch. 'C '. The assets
thus described in Schs. ' C ', ' D' and ' E ' included
immoveable properties in Burma and the respondent
claimed a half-share in all of them. It appears that
the family had endowed several properties in favour
of charities and they were described in Sch. 'F '. The
respondent claimed that in effecting partition between
the parties a scheme should be framed for the management of the said respective charities. According to
the respondent appellant 1 had in the course of his
management manipulated accounts and had in fact
misappropriated large amounts, and so he claimed an
account from appellant 1. That in brief is the nature
of the claim made by the respondent in his plaint.
At the date of the suit appellants 3 to 5 were minors
and they were represented by appellant 1. It appears
that a written statement was filed by appellant I for ·
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S.C.R.
SUPREME COURT REPORTS
213
himself and as guardian of his minor sons in which the
z959
relationship of the respondent and his half-share to N
h. -Ch .
h ,,
.1
.
d "tt d
S
l
ac iappa
ettiar
t e iam1 y properties were a m1 e .
evera contenv.
tions were, however, raised with reference to the proSubramaniam
perties available for partition. It was alleged that
Chettiar
Items Nos. 10 and 11 in Sch. 'A' were dedicated to
charity and as such not divisible and that Item No. 3 Gajendragadkar f.
was being used as a school. The written statement
referred to some more properties which had not been
included· in the plaint though they were 'liable to
partition: In regard to the jewels and moveables it
was contended that"'several items not belonging to the
family, and some not even in existence, had been
shown in the said schedule. It was also alleged that
some of the jewels shown in the said schedule belonged to the several appellants as their separate property.
Then as regards the Thanathu maral accounts the appellants gave a detailed history of the amounts and their
investments. It was admitted that the said amounts
belonged to the family though the investments had
been made in the names of the different members
of the family. It was, however, urged that the total
value of the assets enumerated in ~ch. 'C ' would be
only Rs. 9,00,000 and not Rs. 15,00,000 as alleged by
the respondent. The respondent's case that appellan.t I had manipulated accounts and misappropriated
family fonds was denied, and it was urged that for the
purpose of partition the assets of the family as they
stood on the date of the partition should be taken
into account. The appellants also pleaded that the
court had no jurisdiction to divide the immoveable
properties situated in Burma. According to them there
was a special practice obtaining among the families of
the N attukottai Ohettiar community according to
which· appellant I was entitled to a decent remuneration for the management of the joint family business
and properties. According to another custom pleaded
by the appellants it was alleged that provision had to
be made for future Seermurais for the unmarried
· daughters of the family.
Broadly stated these were
the pleas raised by appellants l and 3 to 5.
Appellant 2 who was a major filed a seEarate written
214
SUPREME COURT REPORTS [1960 (2)]
1959
statement generally adopting the written statement
-
. filed by appellant 1; nevertheless he put the respondNachiappa Chell•ar
h
·
f f h
lJ
·
d b
h"
ent to t e stnct proo o t . e a egat10ns ma e
y
im
Subra:;aniam
in the plaint in support of his claim.
Chettiar
In reply to the contentions thus raised by the
. -
appellants the respondent filed a reply. In this stateGa;endragadkar J. ment he pleaded inter alia that there was a custom
amongst the community for a member of the joint
family to set up a separate family after marriage and
that monies drawn by him thereafter would b'e entered
in a separate account called Pathuvazhi and that at
the time of the partition the amounts appearing in the
said account would be debited to the said member.
The respondent claimed that account should be made
in accordance with this custom in effecting the partition
of the family.
On these pleadings the learned trial
judge framed fifteen issues.
It appears that an attempt was made by the parties
to have their disputes referred to arbitration, and in
fact a reference was ·made on April 6, 1943, but this
attempt proved abortive and the suit was set down for
hearing before the court, and the hearing actually
commenced on December 11, 1943.
Meanwhile, on
Decem her 6, 1943, appellant 2 filed an application
under 0. 8, r. 9, of the Code of Civil Procedure for permission to file an additional written statement. This
application was numbered as I. A. No. 988 of 1943. It
would be relevent to refer to the plea which appellant
2 sought to raise by this application. He alleged that
the deceased Chidambaram Chettiar had set apart on
March 25, 1925, two sums of money of Rs. 2,10,251-4-0
each separately in the name of the respondent and
appellant 1 so as to vest the same in them forthwith,
and he urged that these amounts and their accretions
were not the properties of the family liable to partition ·
in the suit. This application was opposed by the respondent. On December 14, 1943, the trial jndge
dismissed the said application on the ground that it
sought to raise a new and inconsistent plea and that
had been really inspired by appellant 1. On December 29, 1943, the learned judge delivered his judgment
in the suit and it was followed by a preliminary decree.
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S.C.R.
SUPREME QOURT REPORTS
215
Against this decision three appeals were preferred
r959
before the High Court of Madras." A. S. No. 115 of 1944
.
.
was filed ,by appellant 2 and No. 199 of 1944 byNachiap~~ Chet'.•ar
appellants 1, 3 to 5, whereas A. S. No. 499 of 1944 w~s Subramaniam
filed by the respondent. It appears that under his
Chettiar
appeal No. 115 of 1944, appellant 2 made an applic-
. -- -
ation for stay of further proceedings before the Com- Ga;end.-agadkar J.
missioner (C.M.P. No, 1402 of 1944). On this petition
the High Court ordered that there was no need to stay
all proceedings before the Commissioner and that it
would be enough if the passing of the final decree
alone was stayed.
As a result of this order interim
stay which had been granted ex parte was vacated.
After the final order on this appliqation was passed
the Commissioner commenced his enquiry, but before
the enquiry could make any progress the parties
decided to refer their disputes for arbitration.
Accordingly on July 18, 1944, a joint application
was filed by the parties before the trial judge requesting him to refer to the arbitration of Mr. VE. RM.
AR. Ramanathan Chettiar of Kandanoor and RM.
AN. S. RM. Chellappa Chettiar of Kothamangalam
"all matters in dispute in the suit and all matters a.nd
proceedings connected therewith". An application
under 0. 32, r. 7, was also filed since three of the
parties to the dispute were minors. On July 21, 1944,
the trial court allowed the said application and certified that the proposed reference was for the benefit of
the minors and so referred "the matters in dispute in
the suit and all matters and proceedings connected
therewith" for determination by the two arbitrators
named by the parties.
.
The arbitrators then began their proceedings and
made an interim award on August 1, 1944. It was
followed by their final award on December 6, 1944.
This award was filed in the trial court.
On January 3, 1945, the appellants filed a petition
(I. A. No. 18 of 1945) under ss. 30 and 31 of the Indian
Arbitration Act (he.reinafter called the Act).
By this
petition the appellants urged that the award should be
set aside on the grounds enumerated by them in the
petition. Their case was that the reference to arb~tration
216
SUPREME COURT REPORTS [1960(2)]
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had been brought about by coercion and undue
N
h . -Ch . influence, that the arbitrators had not held any proper
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d
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v.
enquiry an that they were partial and biased. Thus
submmaniam
the award was sought to be set aside on the ground
Chettiar
that the reference was bad and that the arbitrators
--
were guilty of misconduct. The validity of the award
Gajendragadk.r J. was also challenged on the ground that both the
reference and the award were invalid because they
contravened the principle of private international law
that comts in one country would have no jurisdiction·
to adjudicate on title to immoveable property situate,d
in a foreign country or to direct its division; the
reference and the award dealt with immoveable properties in Burma and so they were invalid.
The
appellants further contended that the reference to
arbitration was opposed to the orders passed by the
High Court in C.M.P. No. 1402 of 1944, and as such it
was invalid.
This application was resisted by the respondent. He
traversed all the allegations made by the appellants
and claimed that a decree in terms of the award should
be passed. At t.he hearing of this petition no oral
evidence was Jed by the parties; they were content to
base their case on the documents produced on the
record and on points of law raised by them.
The trial judge rejected the appellants' case about
the alleged misconduct of the arbitrators.
He also
found that there was no substance in the contention
that the reference was the result of undue influence or
coercion. He was satisfied that the arbitrators had
made a proper enquiry and that the award was not
open to any objPction on the merits.
He, however,
held that the reference to the arbitrators which included matters in dispute in the suit comprised q11estions
of title in relation to immoveable properties in Burma,
and so it was without jurisdiction and invalid. In his
opinion the reference also included the dispute relating
to the sums of Rs. 2,10,251·4 0 which had been entered
in the Thanathu maral accounts of appellant l and the
respondent aud that this part of the rPference contravened the order passed by the High Court in
C.M.P. No. 1402 of 1944.
He thus upheld these two
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SUPREME COURT REPORTS
217
contenti9ns raised by the appellants and set aside the
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reference and the award. It was against this order
--
h.
h
d
£
d C M A N
210 f 19 6 Nachiappa Chettiar
t at t e respon ent pre1erre
. . .
o.
o
4 .
The High Court has allowed the respondent's appeal.
Subra:aniam
It has confirmed the findings of the trial court in
Chettiar
respect of the pleas raised by the appellants as to the
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misconduct of the arbitrators and as to the invalidity Ga;endragadkar f.
of the referen'Ce on the ground .that it was the rei:mlt of
coercion and undue influence. It has, however, reversed the conclusions of the trial court that the
reference and the award were invalid inasmuch as
they related to immoveable properties in Burma and
contravened the stay order passed by the High Court.
The High Court has construed the order by which
reference was made to the arbitrators in the present
proceedings as well as the award and has held that
they are not open to be challenged on either of the
two grounds urged by the appellants. It was also
urged before the High Court that the order ofreference
was invalid because under s. 21 of the Act the trial
court was not competent to make the reference; this
contention has been negatived by the High Court. In
the result the High Court has found that the reference
and the award were vaJid and it has directed that a
· . decree should be passed in t('lrms of the award. Itjs
against this decision that Civil Appeal No. 112 of 1955
arises; and, as we have already mentioned, the
questions which it raises relate to the validity of the
award on which the two courts have differed.
Before
we deal with the merits of these points, however, we
may indicate how the other appeals arise.
In A. S. No. 115 of 1944 filed by appellant 2 before
the High Court the appellant presented Miscellaneous
Application C.M.P. No. 2374 of 1U46 under 0. 23, r. 3,
for an order that the interim award (Ex. P. 15) passed
by the arbitrators which had been signed by all the
parties in token of their consent should be treated as a
com.promise and a decree passed in accordance with it
under 0. 23, r. 4.
The High Court has observed that
in view of its decision in C.M.A. No. 210 of 1946 it was
really unnecessary to pass any order in this appeal;
but it thought that since the matter was likely to go
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SUPREME COURT REPORTS [1960 (2)]
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in appeal to this Court it would be better to make a
N
h. P-P Ch 11 • formal order and direct that a decree in terms of the
acia
a
eiar .
.
v.
mtenm award should be drawn under 0. 23, r. 3.
Subramaniam
Against this decision the appellants have preferred
Chet!iar
Civil Appeal No. 116 of 1955 in this Court.
. d
dk
1
The appellants had made a similar application in
GaJ"' raga "' ·A. S. No. 199 of 1944 and it was numbered as C.M.P.
No. 3273 of 1946. The High Court has allowed this
application for similar reasons and. its decision has
given rise to Civil Appeal No. 115 of 1955.
In the trial court the appellants had filed two similar
applications under 0. 23, r. 3; but they had been
rejected by the trial court; these orders had given rise
to two appeals in the High Court, C.M.A. No. 661 of
1946 and C.M.A. No. 49of1947. The High Court has
allowed these appeals and has ordered that a decree in
terms of compromise should be passed under 0. 23,
r. 3. Against the orders thus passed by the High Court
in these two appeals, Civil Appeals Nos. 113 and 114
of 1955, have been filed in this Court. That is the
genesis and nature of the four subsidiary appeals in the
group. We will now.revert to the points which arise
for our decision in the principal Civil Appeal No. 112
of 1955.
•
The first ground on which the validity of the reference and the award is challenged is based on the
assumption that the reference involved the determination of the title to immoveable properties situated
in Burma and/or that the award has actually determined the said question of title. The appellants
contend that there can be no doubt that courts in
this country have no
jurisdiction to
determine
questions of title in respect of immoveable properties
in foreign countries or to direct a division thereof.
This position is not and cannot be disputed. The
rule of law on this subject has been thus stated by
Dicey: "The courts of a foreign country have no
jurisdiction to adjudicate upon the title or the right
to the possession of any immoveable property not
situate in such country."( 1)
It is also urged that
where a court has no jurisdiction to determine any
(1) Dicey's "Conflict of Laws", 6th Ed., pp. 1~1 and 348.
S.C.R.
SUPREME COURT REPORTS
219
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matter in controversy such as the question of title in·
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respect of the foreign immoveable property it has no
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· · d' ·
c
"t c
th d t
·
t"
f th Nachiappa Cheltiar
Juris ict10n to re1er 1 ior
e
e ermma 10n o
e
arbitrators. This position also is not and cannot be
Subra:aniam
disputed. The appellants further ,argued that if ,the
Chettiar
reference includes properties over which the court
-
had jurisdiction as well as those over which it had no Gajendragadkar J.
jurisdiction the whole of the reference becomes invalid
and in such a case it is not permissible to separate the
invalid part of the reference from that which is valid.
The correctness of this contention is disputed by the
respondent; but, for the purpose of the present appeal
the respondent is prepared to argue on the assumption
that even this contention is well-founded. The respondent's case is that neither the reference nor the
award purports to deal with any immoveable property
in Burma; and so the challenge to the validity of the
reference and the award on the legal points raised by
the appellants cannot· succeed. It is, therefore, necessary to examine the reference and the award and
decide whether the factual assumption made by the
appellants in urging their legal grounds against the
validity of both . the reference and the award is
justified.
In dealing with this question it is necessary first to
ascertain the scope of the request made by the parties
when they applied to the trial court for reference of
their dispute to arbitration. In their application (Ex.
P. 12) the parties have briefly indicated the nature of
the respondent's claim and have stated that the
dispute between the parties was then pending before
the High Court in the form of three appeals preferred
by them. 'rhen it is averred that appellants 3 to 5
are.minors but it is added that the proposed reference
was for their benefit and so another application had
been separately made for the court's sanction to the
said reference in respect of the said minors. "The
parties desire and agree", said the application, "that
all matters in dispute in this suit and all matters and
proceedings connected therewith should be referred to
the unanimous decision of the two named arbitrators".
They had also agreed that they would abide by the
220
SUPREME COURT REPORTS [1960(2))
'959
unanimous decision of the arbitrators and that the
Nachiappa Chettiararbitrat?rs shoul~. be empowered to partiti?n the
v.
properties of the JOlllt family between the parties and
Subramaniam
if necessary also by payment of monies to equalise the
Che1tiar
shares and to tak;e the necessary accounts and to
' decide all matters in dispute between them including
Gajendragadkar ). costs. The parties had further agreed to produce
their own papers and copies before the arbitrators
and that if the arbitrators needed any further papers,
accounts or documents which had been filed in court
they should be authorised to require the Commissioner
to send them to the arbitrators. It is on this application that the court made the order that "all matters
in dispute in this suit and all matters and proceedings connected therewith " be referred for determination to the two named arbitrators. The question
which arises for our decjsion is: What was the scope
and extent of the matters thus referred to arbitration?
In other words, did this order of reference include
the respondent's claim for a share in the immoveable
properties in Burma ?
The appellants contend that the order of reference
includes not only all matters in dispute in the suit but
also all matters and proceedings connected therewith
and their case is that these clauses are wide enough to
include the respondent's claim for a share in the
immoveable properties in Burma. There is no doubt
that the latter clause refers to matters and pmceedings
connected with the suit; but the appellants' contention can be upheld only if it is shown that the respondent's claim for a share in the properties in Burma
was connected with the suit or was a part of the
matters connected with it at the material time.
What then was tho natur~ and extent ofthe dispute
between the parties at the material time? Let us
examine the pleadings of the parties, the issues framed
by the trial court, the decision of the trial court on
them and ascertain the nature and extent of the
subsisting dispute between them which was pending
in the High Court in the three respective appeals.
There is no doubt that in his plaint the r.espondent
had claimed a share in the immoveable properties in
-
•
-
S.C.R.
SUPREME COURT REPORTS
221
Burma. In regard to this claim his allegation was
J959
that with the aid of the advances made by the familyN h' -Ch .
fi
. B
d f h
. th
t d
"b d
oc iappa
ett1ar
rms 1n
urma an o t ose m
e accoun s escn e
v.
as Thanathu maral accounts, lands and other properSubramaniam
ties had been purchased and they formed part of the
Chettiar
assets of the firms and the Thanathu maral accounts.
The written statement filed by appellant 1 admitted Gajendragadkar J.
that there were Thanathu maral -transactions during
-
the lifetime of Chidambaram Chettiar and that all
sums taken from the family assets, though invested
for the sake of convenience in the name of one or the
other member of the family, belonged to the family
and had been treated as family assets. According to
the appellants, however, the extent of the Thanathu
maral transactions had been exaggerated by the
respondent. On the whole the written statement
-
clearly ad+riitted that the branches of appellants 1 to
5 on the one hand and of the respondent and his son
on the other are entitled to a half-share each; but
they pleaded that the said shares have to be allotted
only after making some provisions out of the joint
family funds for the payments of the future Seermurai
etc., due to the unmarried daughters in the family.
They also contended that the court had no jurisdiction to divide the immoveable properties in Burma
though it was admitted that the respondent was
entitled to the relief in respect of the division of the
family assets as set forth in the written statement.
This written sta~ement was adopted by appellant 2
-
though in a general way he denied the allegations in
the plaint which had not been expressly admitted by
him in his written statement. It would thus be seen
that the respondent's share in the family properties
was not in dispute nor was his share in the· properties
in Burma seriously challenged. The only plea raised
in respect of the latter cla,im was that the court had
no jurisdiction to deal with it. This state of the
pleadings in a sense truly reflected the nature of the
dispute between the parties. It is common ground
that the family is a trading family and there could be
..
no doubt that the assets of the family were partible
between the members of the family .. It was on these
222
SUPREME COURT REPORTS [1960 (2))
'959
pleadings that the trial judge framed fifteen issues and
set down the case for hearing.
Nachiappa Chettiar
,
v.
At this stage appellant 2 wanted to go back upon
Subramaniam
his written statement by making further and additional
Ch•ttiar
pleas. That is why he filed an application (Ex. P. 3 (a))
for leave to file an additional written statement. As
Gajendragadkar J. we have already mentioned this application was
rejected by the trial court; but for our present purpose it is relevant to consider the pleas which he
wanted to raise by this additional statement. He
wanted to contend that the amounts set apart in
favour of appellant 1 and the respondent respectively
by their father remained invested distinctly and
separately during his lifetime and that in law they
ought to be taken to be separate properties belonging
tn the two respective branches. In other words, the
plea thus sought to be raised was that by reason of
the investment of the amounts in the names of appellant. 1 and the respondent respectively the said
amounts constituted the individual . and separate
monies of the respective persons and became the
separate properties of their branches. Appellant 2
thus raised a contention about the character of the
amounts invested· by the deceased Chidambaram
Chettiar in the two names of his sons respectively and
in that sense the issue which he sought to raise was
in regard to the character of the amounts themselves.
It had no direct reference to any immoveable properties in Burma.
Since the trial court refused to allow appellant 2 to
raise this additional plea he proceeded to try the issues
already framed by him, and, as we have already indicated, he held that he had no jurisdiction to deal with
immoveable properties in Burma., and appointed a
Commissioner to make an enquiry in pursuance of the
preliminary decree.
The preliminary decree in terms
excluded from its operation the immoveable properties
in• Burma as well as in the Indian State of Pudukottai.
In the proceedings before the Commissioner parties
agreed that the properties in Burma and Pudukottai
shvuld be left out of account and so no dispute appears
,,
•
'· _1
( -
•
-
•
S.C.R.
.SUPREME COURT REPORT~
223
to have been raised before him that the accounts of -
z959
the firms in Burma should be taken by him.
N h'
Ch. 11 •
ac iappa
e •a•
In the appeal filed by the respondent against this
v.
preliminary decree he did not challenge the decision
Subramaniam
of the trial court that he had no jurisdiction 'to deal
Chettiar
with immoveable properties out of British India. His" . / d -dk
1
appeal raised some other points which it is unneces- ,a;en raga
ar
•
sary to mention. This fact is very significant. It
shows that the respondent accepted the finding of the
trial court and did not want the High Court to consider
his claim for a share in the excluded properties. In
the appeal preferred by appellant 2 he had urged inter
alia that the trial court should have allowed him to
raise the additional pleas and it appears that he had
also raised a point that the trial court bad no jurisdiction to direct a division of the moveable properties of
the firms in Burma. The grounds taken by appellant 2
in his memo leave no manner of doubt that none of
the pleas which he sought to raise before the High
Court had any reference to immoveable properties in
Burma. It is, therefore, clear that in none of· the
three appeals pending before tlie High Court was it
urged by any party that the immoveable properties in
Burma should be brought within the scope of the
partition suit.
The application made by the parties for arbitration
to which we have already referred has deliberately set
out the pendency of the three appeals in the High
Court at the material time in order to furnish the
background for determining the extent and nature
of the dispute which was sought to be referred to
arbitration. The respondent's claim for a share in the
properties outside India had been negatived by the
trial court and the decision of the trial court had
become final because it was not challenged by the
respondent and so there can be no doubt that the said
claim was outside the purview of the dispute which
was then pending between the parties in the High
Court. It was not, and could not have been, intended
to be a matter in dispute in the suit between the
parties or any matter and proceedings connected
therewith. Therefore we are tiatisfied that the High
224
SUPREMB COURT REPORTS [1960 (2)]
r959
Court was right in coming to the conclusion that the
N
h .. P-P Ch 11 . reference did not include any claim with regard to the
acia
a
eiar.
bl'
.. B
v.
1mmovea e properties m
urma.
Subraman;am
It is, however, urged that the reference did include
Chettiar
the points raised by appellant 2 in his appeal before
G . d-dk
1 the High Court; and that no doubt is true. But what
a;en raga
ar
. .
h
.
1s t e effect of the said grounds raised by appellant 2?
As we have already pointed out the said grounds did
not raise any question about immoveable properties in
Burma. They merely raised a dispute about. the
character of amounts invested by the deceased
Chidambaram Chettiar in the names of appellant I
and the respondent respectively. It was a dispute in
regard to monies or·moveables and so appellant 2 was
driven to contend that the trial court had no jurisdiction to deal with such moveables. This contention is
obviously without. substance and has not been raised
either in the courts below or before us.
The only
argument raised is that the reference included claims
in regard to immoveable properties in Burma and this
argument CIJ.nnot be supported on the ground of the
pendency of the appeal by appellant 2 before the High
Court because, even if the said appeal was allowed, it
could have no reference to any immoveable properties
in Burma. Thus the attack against the reference on
the ground that it included immoveable properties in
Burma must fail. ·
Does the award deal with the said immoveable properties in Burma? That is the next question which
falls to be considered. If it does, it would be invalid
not only because it purports to deal with foreign
immoveable properties but also for the additional
reason that it is in excess of the terms of reference. At
the hearing of the present appeals in this Court
Mr. Viswanatha Sastri, for the appellants, attempted ·
to criticise the decision of the arbitrators on several
_grounds; but we did not allow him to raise any contentions against the merits of the award because both
the courts below have rejected the appellants' objections
in that behalf, and in view of their concurrent findings
it would not be open to the appellants to raise the
same points over again. That is why we would
...
•
SUPREME COURT REPORTS
225
confine ourselves to.those portions of the award which,
z959
according to the appellants, show that the arbitrators Nachiappa Chettiar
divided the immoveable properties in Emma and
v.
.
·
P d k tt ·
Subramaniam
U u 0
a1.
.
.
.
,
.
Chettiar
In regard to the propertie~ m Pudukkotta1 this' is
_
what the award says in paragraph 3: "The plaintiff Gaje11dragadkar ].
and the defendants shall enjoy them in equal halves
as under marukkal kuttu. In proportion to their
respective shares, the plaintiff shall pay one-half of
the taxes and the defendants 1 to 5 the other half .
$ince the aforesaid property has been situate in Pudukottai State it has not been divided on the good and
bad qualities of the soil; if it is necessary, the plaintiff
and the defendants shall have it divided in equal
halves later on when required,"
In regard to the properties in Burma, paragraph I
of the award recites that "after communications are
restored in Burma the plaintiff and the defendants
have to divide the firms in Burma at the places Minhla
and Sitkwin belonging to them and the lands, godowns,
homes, gardens and the properties items, bank deposits;
jewels, movables, all assets etc., and the subsequent
income attached thereto into two halves; and the plaintiff has to take one half and the defendants the other
half". Paragraph 2 adds.that since both the parties
have agreed to divide the movable properties attached
to the said shop later on the arbitrators had not divided them. The award has also stated that the sale deeds
at Alagapuri and rc;ilating to the lands attached to the
said firms have been divided into two lots and for
the purpose of safe custody two lists known as Schs. A
and B have been prepared and both parties have
signed the lists. Later on, at the time of division of
the said lands, firms and assets, all the documents shall
be collected together and the parties shall take the
documents relating to their respective shares.
· The arbitrators then dealt with the additional plea
sought to be raised by appellant 2, and in substance
they refused appellant 2 permission to raise that plea
because they thought that having regard to the
conduct of the parties it was futile to raise such a plea.
That is why'they directed that "the plaintiff's branch
29
226
. SUPREME COURT REPORTS [1960 (2)]
'959
and the defendant's branch have shares iii all the
. N
h" PP Ch tt" amounts and they added that their conduct fully
ac •a v: ' '"'justified the said conclusion and the parties agreed
Subramaniam
to it. "
Chettiar
It is these portions of the award on which the
-
appellants based their content.ion that immoveable
Gajendragadkar J. properties in Pudukottai and Burma have been dealt
with by the arbitrators. In our opinion this contention is not wellcfounded.