Supreme Court of India
BIJENDRA NATH SRIVASTAVA (DEAD) THROUGH LRS.versusMAYANK SRIVASTAVAAND ORS.
- Citation
- 1994 INSC 311
- Decided
- 10 August 1994
Holding
The Supreme Court held that the amendment introducing new particulars was not permissible, the order allowing amendment was not a conditional order and thus estoppel does not apply, the alleged misconduct does not constitute a ground under Section 30, and a non‑speaking award cannot be set aside for errors apparent on its face; therefore the award stands.
Summary
The parties to a family arbitration agreement divided joint family property among six branches, with a retired district judge acting as arbitrator. After the award was registered, objections were filed, and later amended to include new allegations of arbitrator misconduct. The High Court set aside the award on grounds of alleged misconduct and errors apparent on its face. The Supreme Court held that the amendment introduced new particulars not permitted under Order 6 Rule 4 CPC, that the order allowing amendment was not a conditional order and thus estoppel did not apply, and that the alleged misconduct did not fall within the grounds for setting aside an award under Section 30 of the Arbitration Act, 1940. The Court also ruled that a non‑speaking award cannot be challenged for errors apparent on its face and that the award was binding. Consequently, the appeal was allowed and the High Court judgment set aside, restoring the award as the rule of the court.
Issues considered
- The amendment of the objection petition to introduce new particulars of fraud or misconduct is permissible under Order 6 Rule 4 CPC.
- Whether the order allowing amendment, subject to costs, creates estoppel precluding challenge of its validity.
- Whether the arbitrator’s alleged misconduct (falsely recording presence, returning documents) falls within Section 30(1)(a) of the Arbitration Act, 1940 to set aside the award.
- Whether the award can be set aside on the ground of error apparent on its face, including valuation methodology, non‑speaking nature, unequal shares, and allocation of family deity.
- Whether the award, being a non‑speaking award, is binding and not subject to judicial scrutiny beyond the statutory grounds.
Legislation cited
- Arbitration Act, 1940s. 14, s. 30, s. 35
- Code of Civil Procedure, 1908s. Order 6 Rule 17, s. Order 6 Rule 2, s. Order 6 Rule 4, s. Section 151, s. Section 35
- Indian Evidence Act, 1872s. 115
- Limitation Act, 1963s. Article 119
- Representation of People Act, 1951s. Section 83(1)(a), s. Section 83(1)(b)
Subjects
ArbitrationAwardMisconductSection 30 Arbitration ActNon‑speaking awardOrder 6 CPCEstoppelFamily partitionValuation of propertyConstructive res judicata
Judgment
BIJENDRA NATH SRIVASTAVA (DEAD) THROUGH LRS. A
v.
MAYANKSRIVASTAVAAND ORS.
AUGUST 10, 1994
[S.C. AGRAWAL AND B.P. JEEVAN REDDY, JJ.] B
Arbitration Act, 194(}-Section 30-.-Code of Civil Procedure, 190&-
0rder 6, Rules. 2 and 4.
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 direc-
tion 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 : E
Section 30.
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 uncor-
roborated 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
G
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
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
dnly signed by the parties.
B
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 deter-
mine 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
of the Court and further that the paper (bearing no.104/37- Kha) which was
B
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 c
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
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.
Allo\ling the appeal, this Court
B
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. SRNASTAVA (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 objec-
B
tions ·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
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
that an error of Jaw has been committed by the arbitrator or umpire on
B 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. Chin-
D tamanrao Balaji & Ors., [1964) 5 SCR 480; Sudarsan Trading Co. v. Govern-
ment 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 uncor- B
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 E
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
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
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
B 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 consider-
ing the amount of advances, has fixed the shares of each of the parties in
c 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.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1097 of
1985.
From the Judgment and Order dated 11.7.83 of the Allahabad High
E 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 Ar- B
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, Bhag-
wati 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
E
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 F
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
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 (respon-
dent 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. SRJVASTAVA [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 Decem- F
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 implead-
ment 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
on the basis of the valuation given in the said paper and the court could
E 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
F 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.
"
E'
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-
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
agreement and giving of a share to her along with Bhuwaneshwar Nath did
B not vitiate the agreement inasmuch as there never bad arisen any conflict
between Bhuwaneshwar Nath and his mother at any stage of the applica-
tion. 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
found that the arbitrator has deviated from the judicial standard expected
F 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 trans-
gressed 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 proper-
F ties which were allotted to the them under the impunged award.
In this appeal Shri Kailash Vasdev, the learned counsel appearing
for respondent No. 8, representing party No. 1, has supported the appel-
lants 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).
G
Shri S.B. Sanyal, lhe learned senior counsel appearing for the appel-
lants, 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. SRJVASfAVA [AGRAWAL.J.] 545
sible in Jaw for the arbitrator to make a non- speaking award and that the A
impugned award is such an award and that High Court was not justified in
setting it aside on the view that it suffers from several mistakes apparent
on its face. The learned counsel has contended that the High Court was in
error in holding that the paper bearing No. 104/37-Kha of the arbitrator's
award was not an agreed statement of valuation of immovable properties B
and that the immovable properties could not be properly divided by the
arbitrator on that basis. Shri Sanyal has submitted that the High Court was
not justified in holding that the arbitrator has committed judicial miscon-
duct 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. C
Shri G.L. Sanghi, the learned senior counsel appearing for respon-
dent No. 1 and 14, has supported the Judgment of the High Court and has
urged that the High Court has rightly upheld the order passed by the Trial
Court allowing the amendment in the objection petition filed by respondent D
No. 14 and further that the High Court was right in setting aside the award
on the ground that the arbitrator had misconducted the proceedings and
that the award being not a non-speaking award suffers from several mis-
takes apparent on its fac7.
We will first take up for consideration the question regarding amend- E
ment of the objection petition. In this regard it may be mentioned that
amendment was allowed in the objection petition filed by respondents Nos.
2 and 3 {Party No. 3) by order dated October 9, 1969 and in the objection
petition filed by respondent No. 14 {Party No.6) by order dated May 8,
1976. The correctness of the latter order dated May 8, 1976 has been F
assailed by the appellants before us and we will confine ourselves to the
same . In this context it may be stated that after the award was filed by the
arbitrator in the court on December 6, 1966, notice was issued to the
parties and the said notice was served on respondent No. 14 on M.ay 21,
1967. The period of limitation for filing the objections was to expire on July G
3, 1967 and respondent No. 14 filed the objections under Section 30 and
33 of the Arbitration Act on July 3, 1967 on behalf of himself and respon-
dent No. 1, Mayank Srivastava, who was a minor at that time. The said
objections were 45 in number and in a number of objections it was alleged
that the arbitrator had misconducted himself. None of the said objections
contains an allegation that the arbitrator had misconducted by incorrectly H
546 SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.
A recording in the proceedings before him the presence of respondent No.
14 on certain dates although he was actually absent on those dates. Mayank
Srivastava, respondent No. 1, attained majority on February 14, 1973. He
did not file any fresh objection within 30 days of his attaining majority as
provided under Section 6 read with Article 119 of the Limitation Act, 1963.
During the course of the proceedings before the trial court respondent No.
B 14 wanted to adduce evidence to which objection was raised by the
appellants on the ground that it was not covered by the original objections.
Thereupon.on March 24, 1975 Mayank Srivastava, respondent No. 1, filed
an application for impleadment as a party in the proceedings and for
raising ad.ditional objections. The said application of respondent No. 1 was
c allowed by the Civil Judge by order dated May 8, 1976 which reads as
follows :
"Heard learned counsel for the parties at length and gone through .
the objections already made and the earlier amendment proposed .
to be made therein. The Objector by the proposed amendment
D
wants to clarify certain points and even to add fresh particular of
alleged misconduct having been committed by the arbitrator in
giving the award. The proposed amendment does not amount to
depriving the opposite party from any right accured to them.
Further the amendment is necessary in order to decide the matter
E in controversy involved between the parties. Thus in order to
decide the question finaliy and effectively the ame,ndment .
proposed is necessary and essential. Further, the opposite party is
not prejudiced and can very well be compensated in terms of
money. Thus for the aforesaid reasons the amendment is to be
allowed on Rs. 50 as costs."
F
Before, the High Court it was urged on behalf of the appellants that
new pleas taken by respondent No. 1 in the amendment application were
wrongly entertained inasmuch as an objection to the award could not be
raised after the expiry of 30 days from the date of service of notice under
G Section 14: It was .submitted that even prior to his attaining majority ·
respondent No. 1 was aware of the arbitration proceedings inasmuch as on
January 13, 1972 h!s presence is noted in proceedings taken by the Com-
missioner appointed by the court and that respondent No. 1 had also
received copy of paper No. Kha-23/24 on May 21, 1967. The High Court
H has found that respondent No. 1 did have knowledge of the proceedings
B.N. SRIVASTAVA (DEAD) BY LRS. "· M. SRIVASTAVA [AGRAWAL.J.j 547
even during minority and also had co~structive notice of the filing of the A
award after the same was filed and that if no objection had been filed by
respondent No. 14 within 30 days respondent No. 1 could have been
precluded from filing new objections on March 24, 1975 due lo bar of
limitation. The High Court has however observed that the appellants are
estopped from challenging the amendments after having accepted costs
B
allowed to them. The High Court has also held that all the plea that were
canvassed on behalf of respondents Nos. 1 to 3 herein were basically taken
in the objections that were filed by respondent No. 14 and that paragraphs
46 to 60 which were added by respondent No. 1 by way of amendment
application contain merely better particulars of what had already been
pleaded in the original objections. c
In view of the finding recorded by the High Court that respondent
No. 1 would have been precluded from filing a new objection petition on
March 24, 1975 due to the bar of limitation we find it difficult to agree with
the view of the High Court that the trial court did not act on any wrong D
principle while allowing the amendments. Since the grievance of the appel-
lants relates to paragraphs 52 and 53 which have been added by way of
amendment we have examined the averment.s contained therein with refer-
ence to the original objections and we are of the opinion that the High
Court was in error in treating the said amendments as merely better
particulars of what had already been pleaded in the original objections. E
The High Court appears to have lost sight of the well recognized distinction
between statement of material facts which is required under Order 6 Rule
2 C.P.C. and particulars which are required to be stated under Order 6
Rule 4 C.P.C. In the context of Section 83(1) (a) and (b) of the Repre-
sentation of People Act, 1951, which contains provi.sions similar to order 6 p
Rules 2 and 4 C.P.C., this Court, after posing the question, what is the
difference between material facts and particulars, has observed:
"The word 'material' shows that the facts necessary to formulate a
complete cause of action must be stated. Omission of a single G
material fact leads to an incomplete cause of action and the
statement of claim becomes bad. The function of particulars is to
present as full a picture of the cause of action with such further
information in detail as to make the opposite party understand the
case he will have to meet. There may be some overlapping between
material facts and particulars but the two are quite distinct." H
548 SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.
A "The material facts thus will show the ground of corrupt practice
and the complete cause of action and the particulars will give the
necessary information to present a full picture of the cause of
action. In stating the material facts. it will not do merely to quote
the
. words of the section because then the efficacy. of the words
'material facts' will be lost. The fact which constitute the corrupt
B practice must be stated and the fact must be correlated to one of
the heads of corrupt practice. Just as a plaint without disclosing a
proper cause of action cannot be said to be a good plaint, so also
an election petition without the material facts relating to a corrupt
practice is no election petition to all."
c
"If the ·petitioner has omitted to allege a corrupt practice, he cannot
be permitted to give particulars of the corrupt practice. One cannot
under the cover of particulars of the corrupt practice give par-
ticulars of a new corrupt practice. They constitute different causes
of action."
D
[S.N. Balk1ishna v. Fernandez, [1969] 3 SCR 603 at pp. 622 and
623]
This is in consonance with the rule that a charge of fraud must be
substantially proved as laid and that when one kind of fraud is charged,
E another kind of fraud cannot, upon the failure of proof, be substituted for
it. See : Abdool Hoossein v. Turner, (1887) 14 IA. 111 at p. 125. The same
is true for the charge of misconduct. This means under Order 6 Rule 4
C.P.C. particulars have: to be furnished of the plea of fraud or misconduct
raised in accordance with order 6 Rule C.P.C. and it is not permissible to
F introduce by way of particulars a plea of fraud or misconduct other they
that raised in the pleadings.
In paragraph 52 which has been introduced by way of amendment it
has been alleged tha•t the arbitrator had misconducted proceedings by
G returning the papers and documents specified in sub-paragraphs (i) to (iii)
to the parties who had submitted the said papers and documents during
the course of the proceedings. In paragraph 53 it has been alleged that the
arbitrator .had misconducted the proceedings in falsely showing the
presence of Birendrn Nath Srivastava, respondent No. 14, in the proceed-
ings dated October 18, 20 and 25, 1966 and November 4 andlO, 1966 inspite
H of the fact that he fully knew that respondent No. 14 was absent from these
B.N SRIVASfAVA(DEAD)BYLRS.P. M.SRJVASfAVA[AGRAWAL.J.J 549
proceedings from October 10, 1966 till the close of the proceedings on A
November 10, 1966. We have carefully perused the averments contained in
the original objections filed by respondent No. 14 on July 3, 1967. Although
in the said objections various acts of misconduct have been imputed to the
arbitrator in several paragraphs, \\'e have been unable to find an averment
in any of the paragraphs imputing misconducts of the nature mentioned in
B
paragraphs 52 and 53 which were sought to be inserted by way of amend-
ment. The High Court has, however, referred to paragraph numbers 41 and
45 of the original objection petition, which read as under : -
"41. That it is apparent on the face of the record filed by the
arbitrator that between the date fixed for hearing of case, the c
arbitrator met and heard individual members in the absence· of
others. The enquiries made by the arbitrator behind the back of
others have been kept secret and undisclosed. This procedure of
the arhitrator amounts to legal misconduct in the proceedings.
45. That in conducting the proceedings the Arbitrator has failed
D
to follow the principle of natural justice and the objector was not
given equal opportunity with others."
The objection in paragraph 41 was to the effect that during the
course of the arbitration proceedings the arbitrator had met and head E
individual members in the absence of others and the enquiries made by the
arbitrator behind the back of others had been kept secret and disclosed.
The said objection does not refer to any misconduct arising on account of
recording the presence of a party in the proceedings even though the said
party was not present on the date to which the proceedings relate. The
grievance in paragraph 41 relates to proceedings before the arbitrator F
dated February 10, 14 and 20, 1966, April 19, 1966, July 27, 28 & 31, 1966,
August 10 & 14, 1966, and September 4 and 5, 1966 and has been con-
sidered separately by the High Court. The High Court has pointed out that
as regards proceedings upto July 25, 1966 all the parties iin their application
for extention of time dt. 25, 1966 have recorded that the arbitrator had G
"been extremely fair so far during the conduct of the proceedings. " Jn view
of the said statement the High Court felt that it was required to scrutinize
the conduct of arbitrator only after July 25, 1966. Th.e High Court has
observed that even though on different dates some of the parties were not
present before the arbitrator but the said conduct had been waived and
acquiesced by the parties and could not be complained of in tl\ie proceed- H
550 SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.
A ings. This would clearly demonstrate that the misconduct which has been
alleged in paragraph number 41 of the original objection petition was a
misconduct of a different nature and not the misconducts referred to in
paragraphs 52 and 53.
In so far as the objection paragraph 45 of the original objection
B petition is concerned we find that it is a general objection regarding failure
to follow the principles of natural justice by the arbitrator and denial of
equal opportunity to the objector. The misconducts referred to in para-
graphs 52 and 32 are of different nature and are not covered by the the
objection in paragraph 45.
c
Another reason given by the High Court for holding that the order
dated May 8, 1976 allowing the amendment could not be assailed was that
the said order was subject to payment of costs and since cost has already
been accepted by the appellants they are estopped from challenging the
D amendment. As indicated earlier there were two orders whereby amend-
ments are allowed. One was order dated October 9, i969 whereby the
amendments sought by respondent Nos. 2 and 3 in the objection petition
filed by them were allowed and the other was order dated May 8, 1976
whereby the amendments in objection petition filed by respondent No. 14
were allowed. The contained based on estoppel arising from acceptance of
E costs awarded under the order allowing the amendmen~ was raised by Shri
Dhasmana, the learned counsel for Bhuwaneshwar Nath', respondent No.
3, with regard to order dated October 9, 1969. No such contention was
urged by the learned counsel for respondents Nos. 1 and 14 herein as
regards order dated May 8, 1976. The acceptance of the contention urged
F by Shiri Dhasmana, on behalf of respondent No. 2, by the High Court can
only mean that the order dated October 9, 1969 has been upheld on that
bash Since no s•ich contention was advanced by the learned counsel for
resp.Jndents Nos. 1 and 14 in support of the order dated May 8, 1976 the
saicl order cannot be·said to have been upheld on that basis.
G That apart the principle of estoppel which precludes a party from
a"ailing an order allowing a petition subject to payment of costs where the
other party has 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.
H In such a case it is open to the party not to acc.ept the benefit of cost and
B.N.SRIVASTAVA(DEAD) BYLRS.v. M. SRIVASTAVA [AGRAWAL.J.J 551
thus avoid the consequence of being deprived of the right to challenge the A
order on merits. The said principle would not apply to case where the
direction for payment of costs is not a condition on which the petition is
allowed and costs have been awarded independently in exercise of the
discretionary power of the court to award costs because in •uch a case the
party who has been awarded costs had no opportunity to waive his right to
B
question the validity or correctness of the order. The decision of the
Andhra Pradesh High Court in The Metal Ptess Works Ltd., Calcutta v.
G.M. Cotton Press Co., AIR (1976) Andhra Pradesh 205, on which reliance
has been placed by the High Court, proceeds on the basis that awarding
of costs was, in fact and substance, a part of the entire order allowing
amendment in written statement and the said order was ·a conditional one. c
The decision of the Madras High Court in Prayag Dossjee v. Venkat
Perumal, AIR (1933) Madras 410, and the decisions of the Patna High
Court in Ramcharan v. Custodian of Evacuee Property, AIR (1964) Patna
275, and M. Kapur Kumar v. Narain Singh, AIR (1949) Patna 491, on which
reliance has been placed in the said judgment of the Andhra Pradesh High D
Court also emphasise that the orders under Challenge were conditional
orders and payment of costs was a condition precedent allowing the
petition. In Deviah v. Nagappa, AIR (1965) Mysore 102, the order allowing
amendment of the election petition contained a direction regarding pay-
ment of costs. It was held that the application was allowed without any
condition and that the order was not conditional order and principle of E
estoppel was held inapplicable.
A perusal of order dated May 8, 1976 shows that the said order is
not a conditional order. The Civil Judge, after considering the merits has
allowed the proposed amendments. The costs were awarded not as a F
condition precedent to allowing the amendment but by ways of exercise of
the discretionary power of the court to award costs to the opposite party.
It may also be mentioned that the appellants did not accept the said order
dated May 8, 1976. They assailed the validity of the same at the stage of
final hearing before the trial court but the said contention was rejected by G
the Additional District & Session Judge 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 order dated May 8, 1976 in the appeal filed by respon-
dent Nos. 1 & 3 in the High Court. The principle of estoppel arising from
acceptance of costs so to preclude the appellants from challenging the H
552 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A validity of the order dated May 8, 1976 cannot, therefore, be invoked in
the facts and circumstances of the present case. Since the grounds given
by the High Court for upholding the order dated May 5, 1976 cannot be
affirmed the amendments allowed by the said order in so far as they relate
to insertion of paragraphs 52 and 53· in the objection petition filed by
respondent No. 14 are set aside.
B
We would now proceed to deal with the question as to whether the
High Court was right in setting aside the award made by the arbitrator. As
regards an award made by an arbitrator under the Act the law is well
settled that the arbitrator's award is generally considered binding between
C the parties since he is the tribunal selected by 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 after the issue
of an order by the court superseding the arbitration or after arbitration
D proceedings have become invalid under Section 35; an (c) where the award
has been improperly procured or is 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. An award might be set aside on the ground of
an error on the face of.it when the reasons given by the either in the award
or in any document incorporated with it, are based upon a legal proposition
E which is erroneous. In the absence of any reasons for making the award, it
is not open to the court to interfere with 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. An award is not invalid merely because by a process of
F inference and argument it may be demonstrated that the arbitrator has
committed grave mistake in arriving at his conclusion. The arbitrator is
under no obligation to conclusion. The arbitrator is under no obligation to
give reason in support of the decision reached by him unless under the
arbitration agreemJnt or deed of settlement he is required to give such
reasons. If the arbitrator or umpire chooses to give reasons in support of
G his decisions it would be open to the court to set aside the award if it finds
that an error of law 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 arbitrator is
the sole judge of the quality as well as the quantity of the evidence and it
H will not be for the court to take upon itself the task of being a judge of the
B.N.SRIVASfAVA(DEAD) BYLRS.v.1\f.SRIVASTAVA (AGRAWAL,J.] 553
evidence before the arbitrator. The court should approach an award with A
a desire to support it , if that is reasonably possible, rather than to destroy
it by calling it illegal See : Chempsey Bhara and Company v. Jivraj Balloo
Spinning and Weaving Company Ltd., L.R. 50 I.A. 324 at p. 331; Jivarabhai
Ujamshi Sheth & Ors. v. Chintamanrao Balaji & Ors., [1964). 5 SCR 480 at
p. 494-95; Sudarsa11 Trading Co. v. Govemmellt of Kera/a, [1989] 1 SCR B
665 at p. 683-84; Raipur Developmem Authority and Ors. v. Mis Chokhama/
Contractors and Ors., [1989] 3 SCR 144; and Smt. Santa Si/a Devi & Anr.
v. Dhirendra Nath Sen & Ors., [1964] 3 SCR 410 at p. 421.
· In the present case the High Court has set aside the award of the
arbitrator primarily on two grounds, viz., (i) the arbitrator had miscon- C
ducted the proceedings by incorrectly recording the presence of party No.
6 (respondent No. 14 herein) from October 9, 1966 onwards in the
proceedings before him although that party was actually absent on those
days; and (ii) the award suffers from several mistakes apparent on its face.
D
We would first examine whether the arbitrator can be said to have
misconducted the proceedings by incorrectly recording the presence of
respondent No. 14 on certain dated even though the said respondent was
actually absent on those qates. In this regard it may be mentioned that on
behalf of respondent No. 1 it was contended before the trial court as well
as the High Court that the arbitrator was partial and the award had been E
improperly procured from him by the parties who stand favoured thereby.
The trial court rejected the said contention with the observation:
"Nothing was shown how the arbitrator has tried to favour party
Nos. 4 and 5." F
The High Court has also rejected the contention and has held :
"No evidence has been pointed out to us which may show that the
arbitrator was partially disposed towards or against any of the
parties. Nor has any evidence of corruption or dishonesty been G
given."
The allegation of misconduct which has been found established by the High
Court is contained in paragraph 53 which was introduced by way of
amendment allowed by the trial court under order dated May 8, 1976. The H
554 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A said order in so far as it relates to the said amendment has been found to
be uosustainable by us.
Even though we are of the view that paragraph 53 was wrongly
allowed to be included in the objection petition by way of amendment, we
B propose to deal with the finding recorded by the High Court in respect of
this objection. In this context it would be relevant to note that on December
6, 1966 the arbitrator had filed in the court award as well as the record of
proceedings before him. The objection petition was filed by respondent No.
14 after more than six month on July 3, 1967. He had sufficient time to
inspect the' said record before filing the objection petition. He did not,
C however, raise any objection in the objection petition to the effect that he
had not been taking part in the proceedings before the arbitrator from
October 9, 1966 onward and that even though he was absent the arbitrator
has incorrectly recorded his presence in the proceedings since then. This
plea was raised for the first time by respondent No. 14 in paragraph 58 of
D his affidavit dated January 1, 1972, after the arbitrator had died on Decem-
ber 14, 1970. The said plea was repeated in paragraph 15 of the affidavit
of respondent No. 14 dated July 4, 1973 filed by way of evidence. Bijendra
Nath, appellant No. 1, in hi• counter affidavit dated January 20, 1975 raised
an objection that the contents of paragraph 15 of the said affidavit of
respondent No. 14 are beyond the pleadings of party No. 6. Thereupon
E respondent No. 1 filed an application for impleadment and amendment so
as to incorporate paragraph No. 53 in the objection petition. It would thus
appear that 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
F the fact that this plea was taken only through an amendment and it could
be criticised as an after-thought. The only reason that has weighed with the
High Court in accepting the version of respondent No. 14 is that the
signatures of respondent No. 14 are not contained in the order sheets of
the proceedingc. for the period subsequent to October ·9, 1966 ti!l the
conclusion of the arbitration proceedings although the signatures of other
G parties are fouod 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 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
H arbitrator was a retired District Judge who was closely related to the
B.N. SRIVASTAVA(DEAD) BYLRS. v. M. SRJVASTAVA\AGRAWAL,J.J 555
parties and who (as found by the High Court) until sometime before A
October 9, 1966 enjoyed the respect and confidence of all parties. The
High Court has not given any reason why the arbitrator should have falsely
recorded the presence of respondent No. 14 at the concluding stages of
the arbitral proceedings. In the absence of corroboration by other contem-
poraneous evidence the High Court, in our opinion, should not have
B
disbelieved the record of the arbitrator merely on the ground that signa-
tures of respondent No. 14 are not found in the record of proceedings. No
evidence has been produced to show that when the matter was pending
before the arbitrator respondent No. 14 had expressed his desire to
withdraw from the proceedings or bis having raised any objection b'fore
the arbitrator about bis presence being wrongly recorded in the proceed- C
ings subsequent to October 9, 1976. The fact that other parties have
appended their signatures to the proceedings which recorded the presence
of party No. 6 (respondent No. 14) without raising any objection about the
correctness of the said record lends support to the correctness of the said
record. As regards the absence of an affidavit by party No. 1 to rebut the D
assertion in the affidavits filed by respondent No. 14 it may be stated that
the affidavits of respondent No. 14 dated January 1, 1972 and July 4, 1973
were filed before the amendment of the objection petition wherein no such
objection had been taken and this fact was pointed out by appellant No. 1
in bis counter affidavit dated January 20, 1975 filed in reply to the affidavits
of respondent No. 14 dated January 1, 1972 and July 4, 1973. No further E
affidavit was filed by respondent No. 14 or respondent No. 1 after the order
dated May 8, 1976 allowing the amendment. There was, therefore, no
occasion for filing a rebuttal to any such allegation.
It is also pertinent to mention that respondent Nos. 14 had come F
forward with the case that he had made an offer of Rs. 2,50,000 for
Chaulakbi Kathi before the arbitrator and in this regard the trial court has
observed that after the death of the arbitrator on December 14, 1970
respondent No. 14 had filed paper No. 137/Ga on August 16, 1971 contain-
ing offer of Rs. 2,50,000 for Chaulakbi Kathi and he also took aid of the G
brother-in-law of Bhupendra Nath, party No. 1, who had filed an affidavit
saying such an offer was made. The trial court has found that while in paper
No. 137/Ga the date of the alleged offer is mentioned to be April 18, 1966
the brother -in-law in bis affidavit (paper Nos. 241/Kha) has deposed that
the offer was typed ant handed over to the arbitrator on April 19, 1966.
The trial court has also found that there was tampering of paper No. H
_,
556 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A 137/Ga in the court and has observed :
"Actually it appears that no offer was made by party No. 6 and he
has tried to make out a case of offer after the death of the
arbitrator."
B The said finding of the Additional District & Sessions Judge has not upset
by the High Court.
Ha\ing regard to the aforesaid facts and circumstances we are of the
opinion that it would be unsafe to place reliance on the uncorroborated
C assertion of respondent No. 14, as contained in the affidavits filed by him,
the truth of which has not been tested in cross-examination. The High
Court, in our view, was not justified in recording a finding against the
arbitrator on this basis of such evidence and in setting aside the award on
the ground.
D The other finding of misconduct relates to the return of documents
including municipal assessment list by the arbitrator to party No. 1. In this
regard it may be mentioned that in the proceedings of the arbitrator dated
July 27, 1966 it is stated :
"Party No. 1 has brought his written statement, accounts and
E Municipal Assessment Statements. They have been explained.
Party No.l read over his written statement and accounts.
Party. No. 1 has taken back his written statement and some
accounts with my permission to get them typed and arranged within
a few days.
F
Assessment Statements and some accounts have been left for
my e~ation. 11
In the order sheet dated July 28, 1966 the arbitrator has recorded :
G
"Party No. 1 has taken back Municipal Assessment Statements
and some accounts to get them typed.
Party No. 1 will file his written statement accounts on 30.7.66."
H July 30, 1966 order records :
B.N. ~RIV ASTA VA (DEAD) BYLRS. "· M. SRIVASTAVA [AGRAWAL.I.] 557
"Party No. 1 says that his written statement have not been typed. A
He requires a few days time to file them. Party No. 1 read over
his written statement and accounts. Party No. l will file his written
statement and accounts on 2.8.66."
Order dated August 14, 1966 shows :
B
'The parties have scrutinised and considered the accounts of
each other."
From the aforesaid orders it would appear that the Municipal As-
sessment had earlier been filed by party No. 1 before the arbitrator on July C
27, 1966 but they were taken back by him on July 28, 1966 to get them
typed. But thereafter the same could not be filed. There is nothing to show
that the said Municipal Assessment Statements had been taken on record
as part of evidence or reliance has been placed on them. If any of the
parties wanted to rely on them it was open to them to produce them as a
part of their evidence. They did not, however, choose to do so. In these D
circumstances, the fact that the Municipal assessment statements were
allowed to taken back by party No. 1 for typing and the same were not
produced again by party No. 1 before the arbitrator could not be construed
to mean that the arbitrator had committed a misconduct.
It has also been observed by the High Court that large number of E
documents were filed by party Nos. 1 before the arbitrator vide paper
bearing 1031347-348/Kha and that out of 50 serial number in the list all the
documents except those mentioned at serial numbers 20 and 50, were
returned by the arbitrator on December 1, 1966, after he had already made
the award and a few days before filing it in the court. The High Court has F
referred to the provisions of Section 14 of the Act which lays down that
the "arbitrator shall cause the award, together with any depositions and
documents which may have been taken and proved before them to be filed
in Court' and has held that in view of the said statutory duty it was not
correct on the part of the arbitrator to return the documents mentioned in G
the list (paper No. 1031347- 348/Kha) after making the award. According
to the High Court the arbitrator deviated from the judicial standard
expected of him as an arbitrator in returning these documents. The High
Court has not indicated the nature vf these qocument and it is not clear
whether they were part of the evidence produced before the arbitrator. The
explanation offered for the return of the documents was that Bhupendra H
558 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A Nath being the karta of the family often needs the documents in connection
with the management of the family property, was rejected by the High
Court on the view that Bhupendra Nath had ceased to be the karta as soon
as the agreement dated January 3, 1966 was entered between the parties
and it was not for him to manage joint property but for the respective
parties to manage the properties falling to the share of each in accordance
B
with the decision of the arbitrator if and when confirmed by the court. 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 retur.ning the said document to party No. 1 after making the award.
c Moreover the said conduct of the arbitrator cannot be regarded as a
misconduct. in the conduct of the proceedings or an error in making the
award to as to justify the setting aside the award. We are, therefore, unable
to uphold tlie findings recorded by the High Court in setting aside award
on ground of misconduct.
D The High Court has found that the award suffers from mistakes
apparent on its face fo~ the reason that : (i) the arbitrator committed error
in applying wrong basis for valuation of immovable properties; (ii) consid-
erable items of valuable movables have been omitted from the division and
thereby the parties who were respectively in actual possession or enjoyment
E thereof have been allowed to retain undue advantage inasmuch as no
·adjustment has been made in respect thereof from their shares while
making the allotments; (iii) the management of the family deity and control
over movables attached thereto have been illegally allotted to the share of
one party alone; (iv) the arbitrator had failed to decide the disputes about
the amounts of advances taken from the joint family funds by the parties
F respectively, and to make adjustments in respect thereof in his award, as
he was required to do by the arbitration agreement; and (v) the value of
the shares even according to the valuation made by the arbitrator, is
unequal.
G We would first examine the matter of valuation of immovable proper-
ties by the arbitrator.
This raises the question whether the award is a speaking award
containing reasons or a non-speaking one. If it is a non-speaking award it
is not open to challenge on the ground of error apparent on the face of
H the award. The High Court has proceeded on basis that the award is not
B.N. SR!VASfAVA(DEAD) BYLRS. v. M.SR!VASfAVA[AGRAWAL.J.] 559
totally non-speaking and in so far as the mode of valuation of these A
properties is concerned, it very much speaks to the extent that the ar-
bitrator discloses two things, namely :
(i) his factual assertion that such and such is the annual letting value
of the property as assessed by the Municipal Corporation; and
B
(ii) his view that the market value should be 20 times the assessed
annual letting value.
We find it difficult to agree with the said view of the High Court.
There is nothing in the award to indicate the process of reasoning adopted C
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
value is fixed on the basis of the rental value and the award is a reasoned
suffers from an error. It is settled law that it is not open to the court to D
deduce reasons in the award or in the record accompanying 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. We are, therefore, of the opinion that the High
Court was in error in going into the question of valuation of immovable E
properties by the arbitrator in the award.
Though it is not necessary, but since the High Court has dealt with
the question of valuation of immovable properties at some length, we have
examined the matter. We must express our inability to endorse the view of
the High Court that the valuation as fJXed by the arbitration cannot be F
sustained. For this purpose we will proceed on the basis that the valuation
in the award had been fixed on the basis of the valuation given in paper
No. 104/37-Kha filed by party No. 2 before the arbitrator on July 21, 1966.
As noticed earlier the trial court has held that the said paper contained
the valuation of properties as agreed by all the six parties who had
appended their signatures to it and that the arbitrator could accept the G
same as the valuation of the properties. The High Court has, however,
disagreed with the said view and has held that the said paper did not
contain the valuation of properties as agreed by all the properties and that
the said pap~r was filed by party No. 2 and other parties had put their
initials only in token of having noted the contents of the said paper. The H
560 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A High Court has also held that the valuation as fixed in the said paper was
not correct.
With regard to filing of paper No. 104/37-Kha it may be stated that
on May 16,1966 the arbitrator had passed the following order :
B "The parties are requested to furnish by 21.5.66 Municipal
Assessment of all the immovable properties of the joint family aod
values of all the articles kept in Safe Almirah."
On July 16, 1966 the arbitrator has recorded :
c "Municipal assessment aod valuation of all the joint family
properties for the purpose of stamp duty discussed."
On July 21, 1966 party No. 2 filed one application aod one statement
of annual assessment valuation of all the 17 properties. The said statement
of armual assessment valuation (marked paper No. 104/37-kha) bears the
D signatures of all the six parties including respondents Nos. 2 and 14. On
July 21, 1966 the arbitrator has recorded :
"Party No. 2 filed one application aod one statement of annual
assessment valuation of all the 17 properties.
E AJl the above application aod statement will be considered on
30.7.66 date already fixed for evidence.
The application dated 16.7.66 of Party No. 1 shows that house
property Assessment Statements were filed but this is not a fact.
No statement was haoded over."
F
In the award the arbitrator has divided the immovable properties in
six Jots for ·each of the six parties aod against each property he has
indicated the market value of the same which is the same as stated in Paper
No. 104/37-Kha filed before the arbitrator on July 21, 1966. The trial court
.G was of the view that the parties did not produce any evidence regarding
the valuation of the properties except paper No. 104/37-Kha signed by all
the parties which showed that the parties themselves had fJXed their own
valuation. The Trial Court has also observed that the arbitrator decided
the market value of the various properties as given in the award after
thorough discussion in the presence of the parties including Party No. 6
H and that the parties did not raise any objection about valuation before the
B.N.SR!VASI'AVA(DEAD) BYLRS.v. M. ~RIVASI'AVA[AGRAWAL,J.J 561
arbitrator till the date of award or before the Sub-Registrar at the time of A
registration of the award and that in the objection also party No. 6 did not
say that the principle of 20 times annual municipal assessment has not
result in arriving at the correct market value of the properties. The High
Court has, however, held tha5 paper No. 104/37-Kha was not an agreed
valuation list submitted by the parties to the arbitrator inasmuch as the
paper does not mention anything about the valuation being agreed and the B
arbitrator also has not used the word "agreed" anywhere in the award. With
regard to the initials of all the parties at the bottom of the said paper the
High Court has observed that the said initials can only be treated as having
been made token of the parties other than Party No. 2 having noted the
contents of the paper. The High Court also made a reference to the
application submitted in the trial Court by party No. 5 on January 5, 1972
c
for a direction that the said paper be placed in a sealed cover and the reply
filed by party No. 2 on January 6, 1972 to the said application wherein it
was stated that the said paper was filed by him (Party No. 2) on behalf of
all the parties after thorough discussion between all of them, as well as the
application moved by party No. 6 on February 1, 1972 saying that party D
No. 2 should file an affidavit in support of allegations contained in his
application dated January 6, 1972 submitted by party No. 2 that since the
application o.f party No. 5 was only for sealing of any document party No.
2 has no objection to the document being sealed and, therefore, party No.
2 was under no warrant oflaw to file an affidavit about it. The High Court
has observed that not only the arbitrator's record does not bear that the E
contention that paper No. 104/37 Kha was on agreed valuation list but even
Party No. 2 which gave this list to the arbitrator on July 21, 1966 does not
affirm the assertion on affidavit in spite of a square challenge thrown by
party No. 6.
F
In our opinion the question as to whether paper no. 103/37-Kha was
filed party No. 2 at the request of all the parties is not significant. What is
material is that the said paper which gives a valuation or all the 17
immovable properties bears the signatures of all the six parties. The
signatures on a statement filed during the course of proceedings before the G
arbitrator have a different significance than signatures below the record of
proceedings before the arbitrator. It has not been shown that there were
other documents filed before the arbitrator by a party which contained the
signatures of other parties is token of their having noted the contents
thereof. We, therefore, find it difficult to construe the signatures of the
other parties at the bottom of paper No. 104/37-Kha as being appended i!' H
562 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.
A token of their having noted the contents thereof. Furthermore none of the
parties produced any evidence before the arbitrator to prove the valuation
of the properties. In the circumstances the arbitrator could treat the
valuation given in the said paper as the agreed valuation given by all the
parties. The controversy which arose subsequently before the trial court
B between party No. 2 and party No. 6 regarding paper No. 104137-kha, to
which reference has been made by High Court can have no bearing on the
question whether the arbitrator has committed an error in proceeding on
the basis that paper No. 104/37-kha submitted before him bearing the
signature of all the six parties is an agreed valuation of the properties. The
said paper was filed on July 21, 1966 and prior to that on July 16, 1966 the
C arbitrator had discussed with all the parties the municipal assessment and
valuation of all the joint family properties for the purpose of stamp duty.
The arbitrator could, therefore, assume that paper No. 104/37-Kha was
being filed in pursuance of the said discussion. Moreover, there is nothing
on the record to show that any of the parties had raised any objection that
D the valuation fixed in respect of the properties in the said paper was not
correct. The arbitrator could, in the circumstances, proceed on the basis
that the valuation of the properties was as indicated in paper No. 104/37-
· Kha.
The High Court has held that the valuation given by in paper No.
E 104/37-Kha is not correct for the reasons that (i) several immovable
properties which were not subject to municipal assessment are shown as
hav'.ng municipal assessment or annual letting value; (ii) the municipal
assessment in respect of some of the properties which were subject to
municipal assessment was incorrectly specified and the valuation was based
on that incorrect specification; and (iii) a uniform principle of valuation
F has been applied for tenanted buildings subject to rent control as well as
self occupied buildings and even open lands.
In support of the first reason given by the High Court, Shri Sanghi
had pointed out that certain properties, namely, stable with land &
G Khandhal situated in Lucknow, Matadin House in Lucknow, and Badri
Batika, though not assessible to municipal taxes have been valued by the
arbitrator in the award on the basis of Lucknow Corporation rental value.
We find that the valuation that has been placed by the arbitrator for the
aforementioned properties is the same as is set out in paper No. 104/37-
Kha and the arbitrator appears to have nationally fixed the corporation
H rented value by dividing the marked value of the property as stated in the
B.N. SRIVASfAVA(DEAD) BYLRS. v. M. SRIVASTAVA [AGRAWAL.J.] '563
said paper by 20 because in respect of other properties the valuation had A
been fixed by multiplying the annual rental value by 20 to arrive at the
market value. The fixation of the notional rental value in respect of these
three properties is of little consequence because the market value that has
been assessed by the arbitrator for these properties is the same as indicated
in paper No. 104/37-kha.
B
As regards certain other properties, viz.; the Mail Area Property at
Lucknow; Singharewali Kho ti at Lucknow and Glenroy at Mussoorie it has
been pointed out that in paper. No. 104/37-kha the valuation has been fixed
on the basis of incorrect municipal assessments and to prove the correct
assessment for these properties certified copies of the assessment list werec
filed before the trial court as Exhibits 11, 10 and 12. The High Court has
held that these certified copies of the assessment list could be produced
before the trial court because the municipal assessment statements which
were submitted by party No. 1 before the arbitrator on July 27, 1966 had
been taken away by the said party on July 28, 1966 for getting them typed D
and the same were not filed again before the arbitrator. In adopting this
course the High Court has assumed, without any evidence on record, that
the certified copies of the assessment list which have been filed as Exhibits
11, 10 and 12 before the trial court are the copies of the documents which
had been filed by party No. 1 before the arbitrator on July 27, 1966 and
which were taken back by him on July 28, 1966. Moreover if any party had E
any grievance against party No. 1 having taken back the municipal assess-
ment statements which were produced by him on July 27, 1966 before the
arbitrator, the said party could have either moved the arbitrator for direct-
ing party No. 1 to produce the same or could have filed the said statements
itself before the arbitrator. None of the parties chose to adopt such a
F
course. The only evidence that was adduced before the arbitrator regarding
municipal assessment of the properties was that stated in paper No. 4
104/37-kha. The award based on the said evidence cannot be assailed on
the basis of additional evidence in the form of certified copies of the
municipal assessment statements produced before the trial court, which
evidence was not produced before the arbiirator. G
As regards the application of the same principle of capitalisation of
annual profits to all the properties irrespective of the fact that some are
tenanted building subject to rent control and others are self occupied
buildings and even· open land we find that the said principle was adopted H
564 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.
A in arnvmg at the valuation of properties in paper No. 104/37-kha. In
applying the said principle the arbitrator appears to have proceeded on the
basis that the said principal was acceptable to the parries in respect of all
the properties.
We are, therefore, unable to hold that in the matter of immovable
B properties the award suffers from an error on the face of it.
The High Court has held that the considerable items of movables on
the face of the award have been omitted from division and as result the
parties who were respectively in actual possession or enjoyment thereof
C have been allowed to retain undue advantage inasmuch as no adjllstment
has been made in respect thereof from their shares while making the
allotments. In this regard, it may be stated that the law is well settled that
unless so specifically required an award need not formally express the
decision of the arbitrator on each matter of difference and unless the
D contrary appears the court will presume that the award disposes finally of
all matters of difference. See : Smt Santa Si/a Devi & Anr. v. Dhirendra
Nath Sen & Ors. (Supra). In the award the arbitrator has stated: "I have
heard the parties and considered all the points raised by them, the rights
and claims of the parti~ involved, and the accounts and evidence produced
by them." The arbitrator has also made the following provision in the share
E of the movable properties allotted to each of the parties : "Subject to the
terms of the award party No. - will get 1/6 share in all the joint family
property which may be recovered or traced or available for partition
subsequently and it will be distributed after the award". This would show
that in respect of the movable properties referred to in the award the
F arbitrator has made the allotment amongst all the six parties in respect of.
properties which may be recovered or traced or become available for
partition subsequently and the arbitrator has directed that each party shall
get 1/6 share in the same. This would show that the arbitrator has fully
considered all the claims available for partition and it cannot be said that
any property has been left out by the arbitrator.
G
The High Court has also observed that the arbitrator has failed to
decide the disputes about advances taken from the joint family funds by
the parties respectively and to make adjustments in respect thereof in the
award as required to do by the arbitration agreement It is no doubt true
H that in clause 9 of the arbitration agreement it is provided that if there be
B.N.SRIVASTAVA(DEAD) BYLRS. v. M.SRJVASfAVA [AGRAWAL.J.] 565
any disagreement on any figure of the advance between Bhupendra Nath A
Srivastava and tjle party concerned, the same shall be decided by the
arbitrator and his decision will be binding and final on the parties con-
cerned. 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
B
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. In other words, the arbitrator 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. See : Smt. Santa Si/a Devi & Anr. v. Dhirendra c
Nath Sen & Ors.; (supra)."
The High Court also found fault with the award on the ground that
the value of the shares allotted to the parties is unequal. But this was bound
to happen on account of difference in the amounts of advance to each of D
the parties which had to be adjusted against tbe shares allotted. It canno~
therefore, be said that the value of the share allotted to each of the parties
under the award is unequal. Moreover, the award cannot be set aside on
the ground that the shares· allotted are unequal. In B. Subbarama Naidu v.
B. Siddumma Naidu & Ors., [1962] 1 SCR 784, this Court has rejected the
contention. that the arbitrator erred in allotting less than half the share in E
the properties in suit and has observed:
"Plainly this objection would not fall either under clause (a) or
under clause (b) nor under the first part of clause (C). The
question is whether it could possibly fall within the second part of F
clause (c), that is, whether the award is "otherwise invalid". In order
to bring the objection within this clause learned counsel contended
that the award was bad on its face, It is difficult for us to appreciate
how the award could be said to be bad on its face. When a dispute
is referred to arbitration, the arbitrator has to decide it to the best G
of his judgrnen~ of course acting honestly.
Another infirmity in the impugned award, according to the High
Court, was that the worship of the family deity and control over immovable
attached there to have been illegaliy allotted to the Shate of one party H
566 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A alone. Under the award Family Deviji with that and other articles is to be
maintained by party No. 2. The High Court has held that as the arbitration
agreement did not make any mention of the family deity, the assets at-
tached to same should have been kept under joint control or been left out
of the partition scheme altogether. We find it difficult to appreciate as to
B how the award "Can be faulted on this score. Since the family deity is kept
in one of the immovable properties which had to be allotted to one of the
parties, the maintenance of the family deity had to be entrusted to the party
who was allotted that particular property. The arbitrator thought it proper
to allot the said property to party No. 2 representing the branch of
Bhagwati Nath, the eldest son of late Shri B.N. Srivastava, and thereby Smt.
C Savitri Devi, wife of Bhagwati Nath, the eldest daughter-in-law of the late
B.N. Srivastava has been entrusted with the maintenance of the family
deity. Moreover, as mentioned by the trial court, in the affidavit dated
January 5, 1972, party No. 2 had specifically admitted that right of worship
is available to all the parties.
D Before we conclude we may mention that the award has been acted
upon by the parties to a considerable extent in the sense that during the
pendency of the proceedings in court the objectors (parties Nos. 3 and 6)
as well as other parties - have alienated a number of properties which have
been allotted to their share under the award. Some of the sale deeds or
E agreements for sell were executed by respondent No. 14 claiming full
ownership on the basis of the impugned award. This is an additional
circumstance which persuades us to hold that the award made by the
arbitrator should be maintained and should not be upset.
The appeal is therefore, allowed. The Judgment of the High Court
F is set aside and the judgment of the Additional District & Sessions Judge
for making the award the rule of the court is restored. The parties are left
to bear their own costs.
A.G. Appeal allowed.
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