Holding

An arbitration agreement remains enforceable by the legal representative of a deceased partner, and the appellant was entitled to invoke the arbitration clause and seek appointment of an arbitrator under Section 11.

Summary

The appellant, son and legal heir of a deceased partner in a partnership firm, sought appointment of an arbitrator under the arbitration clause of the partnership deed after the firm failed to render accounts. The Allahabad High Court dismissed the application, holding that the arbitration agreement did not bind the heir. On appeal, the Supreme Court held that an arbitration agreement is not discharged by death and is enforceable by the legal representative of the deceased where the cause of action survives. Sections 46 and 48 of the Indian Partnership Act and Section 40 of the Arbitration and Conciliation Act, 1996, were interpreted to allow the heir to invoke the arbitration clause and file a Section 11 application. Consequently, the High Court’s order was set aside and the appeal was allowed.

Issues considered

Whether the legal representative of a deceased partner can invoke the arbitration clause contained in the partnership deed.
Whether arbitration can be commenced by heirs after the death of a partner when the dispute arose during the partner's lifetime.
Whether an application for appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 is maintainable in view of Sections 46, 48 of the Partnership Act and Section 40 of the Arbitration Act.

Legislation cited

Arbitration and Conciliation Act, 1996s. 11(5), s. 20, s. 40
Indian Partnership Act, 1932s. 46, s. 47, s. 48

Subjects

ArbitrationPartnershipLegal representativeRight to sueRendition of accountsSection 40 Arbitration ActSection 46 Partnership ActSuccessionArbitration clauseCivil appeal

Judgment

---- RA VI PRAKASH GOEL A
v.
CHANDRA PRAKASH GOEL AND ANR.

MARCH 21, 2007

[DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.) B
.....
- Indian Arbitration and Conciliation Act, 1996:

Section 11 (5)-Appointment of arbitrator-Application by the legal
heir of the deceased partner-Held, maintainable. c
Indian Partnership Act, 1932;

Section 46-Rendition of accounts-Legal representative of a deceased
partner-Right to sue-Held, survives on the legal representative.
D
.. -+ The Short questions involved in the appeals were:

(a) When• right to sue for rendition of accounts survives on the legal
representative of a deceased partner, are the legal representative not entitled
to invoke arbitration clause contained in the Partnership Deed?
E
(b) Whether the arbitration can be commenced by the heirs after the
death of partner especially where the dispute had arisen during,the life time
of the partner?

., (c) Whether in view of section 46 read with section 48 of the Indian
Partnership Act, 1932 as well as section 40 of the Arbitration Act, 1996. F
The legal representative of the deceased partner is entitled to claim
appointment of arbitrator under the arbitration clause of the Partnership
Deed?

Answering the questions in the affirmative and allowing the appeal, the
Court
G

HELD: 1.1. A person who has the right to represent the estate of deceased
person occupies the status of a legal and as such claiming under the rights
of a deceased person, he has the right to enforce the award and is also bound
295 H
~
'

296 SUPREME COURT REPORTS [2007] 4 S.C.R.
~
A by it. (Para 14] [304-D-E]

1.2. A suit relating to the distribution of surplus is generally called a
suit for an account which means account taken up accordingly. This right to
a partner to file .a suit for account is not affected by the fact that the retiring
partner has already inspected the accounts of the firm. [Para 15] [304-G]
B
1.3. The arbitration agreement is enforceable by or against the legal
representative of a deceased party provided the right to sue in respect of the r
.......
cause of action survives. On the dissolution of the firm, the arbitration clause
does not come to an end and so if a dispute had arisen during the lifetime of
the deceased partner, his legal representatives would be entitled to continue/
c initiate proceedings under Section 20 of the Arbitration Act, 1940.
[Paras 14 and 16] [304-E; 305-D-E]

2.1. In view of the provisions of Section 46 read with Section 48 of the
Indian Partnership Act as well as Section 40 of the Arbitration· and
Conciliation Act, 1996, the application for appointment of an arbitrator under
D
the arbitration clause of the partnership deed was liable to be allowed.
.,_
[Para 18] [306-B]
....
2.2. Right to sue for rendition of accounts of partnership firm survives
on the legal representative of a deceased partner who is also entitled to invoke
E the arbitration clause contained in the partnership deed. [Para 18) [306-C]

3.1. The appellant being the only son of his deceased mother, undisputedly
a partner in the partnership firm with the respondents, and in view of the
dispute concerning the partnership affairs having arisen during her life time,
the appellant has establishable binding, arbitration agreement with the
F respondent. [Para 18] [306-C-D) \-

Smt. Premlata and Anr. v. Mis. lshwar Dass Chamanlal and Ors., AIR
(1955) SC 714, relied upon.

Sundar Lal Haveliwala v. Smt. Bhagwati Devi, AIR (1967) Allahabad
G 400, referred to.
3.2. Non-probate of will is not a germane factor to be considered at the
time of appointment of arbitrator under Section 11 of the Arbitration Act. In ..
view of the clear recital in the partnership deed that all the disputes touching
the affairs of the partnership firm were referable to arbitrator and thus the
H
J
J

RA VI PRAKASH GOEL v. CHANDRA PRAKASH GOEL [LAKSHMANAN, J.] 297
dispute regarding accounts of the partnership firm is a dispute touching the A
affairs of the firm. Not legally essential to specifically make a mention that
the partners included their heirs, representatives, assigns or legatees etc.
The arbitration clause could be invoked by the appellant as the legatee as
well as the legal heir/legal representative of the deceased particularly where
the dispute had arisen during her life time. [Para 18) (306-E-G]
B
3.3. The word "party" as used in the partnership deed does not exclude
inclusion of legal heirs, legal representatives etc. In view of the provisions of
Sections 40 and 46 of the Partnership Act read with Section 40 of the
Arbitration Act, 1996, the appellant possessed a legal and enforceable right
to invoke arbitration clause and as such has a legal right to commence C
arbitration by moving an application under Section 11 of the Arbitration Act
in the High Court. (Para 18] (306-H; 307-A)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1526 of 2007

From the Judgment and Order dated 10.2.2006 of the High Court of D
Judicature at Allahabad in A.A. No. 7/2005.

Rakesh Diwedi, J.C. Gupta, Rajesh and Anurag Tomer fer the Appellant.

Chandra Shekhar, Sanjay Kumar Tyagi and S.K. Verma for the
Respondents. E
The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. Leave granted.

1. The above appeal is directed against the final judgment and order
dated 10.02.2006 passed by the Chief Justice of the High Court of Judicature F
at Allahabad in Arbitration Application No. 7 of2005 dismissing the application
moved by the appellant under Section 11 of the Arbitration and Conciliation
Act, 1996 for appointment of arbitrator.

BACKGROUND FACTS:
G
Respondent Nos. I and 2 - Chandra Prakash Goel and Rakesh Aggarwal
along with Dulari Devi, mother of the appellant - Ravi Prakash Goel and
Pushplata were carrying on business of sale and purchase of sanitary goods
in the name and style of Mis Kumar and Company under the Partnership
Deed dated 09.08.1983. Pushplata retired from partnership w.e.f. 31.03.1992. H
298 SUPREME COURT REPORTS (2007) 4 S.C.R.

A Thereafter, other partners carried on the business and a new partnership deed
was executed on 01.04.1992.

Clause 5 of the same provided that the net profits of the partnership
business as per accounts maintained after deduction of all necessary expenses
shall be divided and distributed amongst the partners at the close of each
B accounting year in the following ratio:

(1) Sri Chandra Prakash Goel, Respondent No.I- 31%
(2) Sri Rakesh Kumar, Respondent No.2- 34%
(3) Smt. Dulari Devi, Petitioner's Mother- 35%
c
Clause 13 of the Partnership Deed refers to arbitration clause. It reads
as under:-

"That all the disputes touching the affairs of the partnership firm shall
be referred to arbitrator in accordance to the provisions of the Indian
D Arbitration Act and the award of such Arbitrator shall be final and
binding on the parties."

2. When the respondents did not render accounts of the partnership
firm to the appellant's mother despite repeated verbal requests, she on
05.06.2004 sent a notice to the respondents raising dispute regarding accounts
E of the partnership firm and informed them that on account of her illness she
has authorized her son, Ravi Prakash Goel, the appellant herein to look into
the accounts of the partnership business on her behalf and requested them
to explain the accounts to her son on any working day between 05.06.2004
to 16.06.2004, but they did not respond.

F 3. The appellant visited the office of the firm but the respondents
refused to pennit him to have access to the accounts of the firm. On 05.09.2004,
Smt. Dulari Devi the mother of the appellant executed her last will in favour
of the appellant to her only son bequeathing her estate in appellant's name
including the instant partnership business. Dulari Devi expired on 06.10.2004
G leaving her last will dated 05.09.2004 which was registered after publication
in the daily newspaper and also after due notice to all the other legal heirs
of the deceased who categorically stated that they have no objection and
accepted due execution of the will before the Sub-registrar, Dehradun.

4. On 15.12.2004, the appellant sent notice to the respondents to the
H effect that his mother had sent notice to them regarding dispute in relation
RAVI PRAKASH GOEL"· CHANDRA PRAKASH GOEL [LAKSHMANAN, J.} 299
to the accounts by partnership firm and despite her request, accounts were A
not shown to her authorized agent, namely, her son, hence as per the terms
of the partnership deed, the disputes are to be decided by arbitration. He
suggested the name of Shri P.C. Agrawal, a retired District Judge and further
informed that if they are not agreeable, they may suggest the name of their
own Arbitrator.
B"
5. When no reply of the notice dated 15. I2.2004 was received, the
appellant filed application under Section I I of the Arbitration and Conciliation
Act, 1996 before the Hon'ble Chief Justice, Allahabad High Court under the
scheme called the appointment of Arbitrators by the Chief Justice of Allahabad
High Court, I 996, vide High Court of Judicature at Allahabad Notification No. C
11448/Rules dated 18.05.1996 published in the U.P. Gazette Pt l-KA dated
16.11.1996.

6. The learned Chief Justice of the High Court on I 0.02.2006 has dismissed
the appellant's application conciuding that the applicant has no presently
estabiishable binding arbitration agreement with the respondents. The order D
passed by the Hon'ble Chief Justice reads as under: -

"Hon'ble Ajoy Nath Ray, C.J.

This is an application for an Arbitrator by the son of one of the
deceased partners of the Firm. E
The partnership deed is annexed. The lady died on 6.10.2004. If an
arbitration has been commenced by the lady during her lifetime, it
might have been continued by the son who is applicant before this
court, by obtaining substitution. However, the arbitration is being
attempted to be commenced now. Whether the heirs of a deceased F
partner or parties, are to be deemed as parties, to an arbitration
agreement contained in a partnership deed, is a question of intention
and construction in every different cases. The deed annexed does not
show that any of the parties mentioned was to be construed by
contract as including his/her heir, successor or assignee. That usual
clause is absent. Furthermore the son claims as legatee of a will not G
yet probated. It is well known that Courts of law cannot look into
unprobated wills. In these circumstances I am of the opinion that the
applicant has no presently establishable binding arbitration agreement
with the respondent.
H
,J.__
\

300 SUPREME COURT REPORTS (2007] 4 S.C.R.

A The application is, therefore, dismissed. A suit might be filed.
Sd/-
Ajoy Nath Ray, C.J
I0.2.2006"
\

B 7. As stated earlier, the present appeal has been filed against the above
judgment.

8. We heard Mr. Rakesh Dwivedi, learned senior counsel for the appellant
and Mr. Chandra Shekhar, learned counsel for the respondents.

C 9. Mr. Rakesh Dwivedi, learned senior counsel forthe appellant submitted
that that High Court overlooking the provisions of Section 46 read with
Section 48 of the Partnership Act and Section 40 of the Arbitration Act, has
erred in dismissing the application under Section I I of the Arbitration Act as
in law arbitration could be commenced by the heirs of the deceased partners
and since right to sue survives on the appellant as sole son and legal
D representative of the deceased partner is entitled to invoke clause I 3 of the
arbitration contained in the Arbitration Agreement. According to him, the
view taken by the learned Chief Justice is wholly contrary to the earlier
decision of a Single Judge of the same High Court in Sundar Lal Haveliwala
v. Smt. Bhagwati Devi, reported in AIR (1967) Allahabad 400 as such the
E Chief Justice ought to have referred the matter to a larger Bench. He would
further submit that the views expressed in the impugned order is contrary to
the principles laid down by this Court in the case of Premlata & Anr. v.
Ishwar Dass Chamanlal and Ors., AIR (1955) SC 7I4.

10. Mr. Chandra Shekhar, learned counsel appearing for the respondent
F submitted that the partnership deed which is unique in its character cannot
be ignored as the arbitration clause is contained therein and the disputes
referable for arbitration are the disputes touching upon the affairs of the
partnership firm and that the partnership deed while describing three parties
confined the extent of the respectiye partners to their respective individual
person alone, namely, not extending the same nomenclature to the legal heirs,
G representatives, assigns or even legatees etc. This fact, according to the
learned counsel for the appellant, is evident from annexure-Pl to the petition
and have also been noted by the High Court of Allahabad while passing the
impugned order in the following words:

"The deed enclosed does not show that any of the parties mentioned ·
H was to be construed by contract as including his/her heir, successor
RAVI PRAKASH GOEL v. CHANDRA PRAKASH GOEL [LAKSHMANAN, J] 30}
and assignee. The usual clause is absent." A
11. Mr. Chandra Shekhar further submitted that the Partnership Act and
the Arbitration and Conciliation Act, 1996 are characterized by "party
autonomy" and accordingly are founded upon the contract giving pre-eminence
to the will of the parties and even the interference of the Court has been
curtailed t_o the minimum possible level. It is the contention of the learned B
counsel that the rights of the legatee under the Partnership Act are regulated
and conditioned by Section 29 of the Indian Partnership Act and on the said
strength he is only entitled to receive the share of the assets of the firm to
which the testator, his predecessor was entitled. It is further submitted that
the answering respondents have never denied the rendition of the deceased C
partner's account to her share as per the deed and that the respondents have
always been ready and willing to pay her share if so ordered by the Court.

12. Mr. Chandra Shekhar further submitted that no dispute have ever
arisen during the lifetime of Dulari Devi and she was the tax payer, all the
accounts were conducted in her presence and with her consent during her D
lifetime and that no dispute was ever even alluded during her lifetime.
Accordingly, the appellant as a legatee on her behalf can continue the claiming
for resolution of the disputes which arose during her lifetime. No certificate
of service, not even the receipt of registration have ever been filed. In view
of the fact Mr. Chandra Shekhar submitted that it is clear that the appellant
by no stretch of imagination can claim to be the party to the Agreement of E
Arbitration contained in the partnership deed. According to Mr. Chandra
Shekhar the will of the parties is pre-eminent and the same is to be given
effect to by all means and, therefore, the appellant cannot be said to be a
party to the Arbitration Agreement and accordingly, cannot avail mode of
7" alternative resolution of disputes by way of arbitration as claimed. The learned F
-. counsel has also made submission under Section 29 of the Partnership Act.
According to him, that the right of the appellant as legatee/legal representative
of Dulari Devi are conditioned by Section 29 of the Partnership Act and in
case if Section 40 of the Arbitration and Conciliation Act is read along with
Section 29 of the Partnership Act, it becomes clear that the appellant's right
of account is confined to rendition of accounts as permitted by Section 29 G
of the Partnership Act. So far as the appellant's right to claim arbitration is
concerned, the same cannot be taken benefit of particularly in view of the
unusual character of the partnership deed where the definition of party
deliberately excludes legal heirs, legal representatives and legatees. According
to him, it is also relevant to mention that the commencement of arbitration H

l
302 SUPREME COURT REPORTS (2007) 4 S.C.R.

A proceedings is the judicially recognized and statutorily defined concept as is
evident from Section 21 of the Arbitration and Conciliation Act and if the
proceedings had commenced, the right of the legal heir would remain to carry
on the same further but in the instant case, the proceedings have not
commenced during the lifetime ofSmt. Dulari Devi. In view of the submissions
B made above, learned counsel for the respondent submitted that the petition
deserves to be dismissed as the appellant is not a party to the arbitration
agreement.

13. On the above pleadings, the following questions of law emerge for
our consideration.

C (a) Where right to sue for rendition of accounts survives on the
legal representative of a deceased partner, are the legal
representatives not entitled to invoke arbitration clause contained
in the Partnership Deed?
(b) Whether the arbitration can be commenced by the heirs after the
D death of partner especially where the dispute had arisen already
during the life time of the partner?

(c) Whether in view of section 46 read with section 48 of the Indian
Partnership Act as well as section 40 of the Arbitration Act, I 999,
the petitioner is entitled to claim appointment of arbitrator under
E the arbitration clause of the Partnership Deed and the Hon'ble
Chief Justice of the Allahabad High Court has erred in overlooking
these provisions?

Before we proceed further, it is useful to reproduce Section 40 of the
Arbitration Act and Sections 46, 47 and 48 of the Indian Partnership Act.
F
"40. Arbitration agreement not to be discharged by death of party
thereto.- (I) An arbitration agreement shall not be discharged by the
death of any party thereto either as respects the deceased or as
respects any other party, but shall in such event be enforceable by
or against the legal representative of the deceased.
G
(2) The mandate of an arbitrator shall not be terminated by the death
of any party by whom he was appointed.

(3) Nothing in this section shall affect the operation of any law by
virtue of which any right of action is extinguished by the death of a
H person."
J
RAVI PRAKASH GOEL v. CHANDRA PRAKASH GOEL [LAKSHMANAN, J.] 303
"46. Right of partners to have business wound up after dissolution.- A
'-~
On the dissolution of a finn every partner or his representative is
entitled, as against all the other partners or their representatives, to
have the property of the finn applied in payment of the debts and
liabilities of the finn, and to have the surplus distributed among the
partners or their representatives according to their rights.
B
47. Continuing authority of partners for purposes of winding up. -
After the dissolution of a finn the authority of each partner to bind
the finn, and the other mutual rights and obligations of the partners,
continue notwithstanding the dissolution, so far as may be necessary
to wind up the affairs of the finn and to complete transactions begun
but unfinished at the time of the dissolution, but not otherwise: C
Provided that the finn is in no case bound by the acts of a partner
who has been adjudicated insolvent; but this proviso does not affect
the liability of any person who has after the adjudication represented
himself or knowingly pennitted himself to be represented as a partner
of the insolvent. D

..... 48. Mode of settlement of accounts between partners.- In settling the
accounts of a finn after dissolution, the following rules shall, subject
to agreement by the partners, be observed :-

(a) losses, including deficiencies of capital, shall be paid first out of E
profits, next out of capital, and lastly, if necessary, by the partners
individually in the proportions in which they were entitled to
share profits;
.,_ (b) the assets of the finn, including any sums contributed by the
partners to make up deficiencies of capital, shall be applied in the F
following manner and order-

(i) in paying the debts of the finn to third parties;

(ii) in paying to each partner rateably what is due to him from the
finn for advances as distinguished from capital;
G
(iii) in paying to each partner ratea~ly what is due to him on
account of capital; and
(iv) the residue, if any, shall be divided among the partners in the
proportions in which they were entitled to share profits."
It is .clear from Section 40 of the Arbitration Act that an arbitration H
'
+
304 SUPREME COURT REPORTS (2007] 4 S.C.R.

A agreement is not discharged by the death of any party thereto and on such
death it is enforceable by or against the legal representatives of the deceased,
nor is the authority of the arbitrator revoked by the death of the party
appointing him, subject to the operation of any law by virtue of which the
death of a person extinguishes the right of action of that person.

B Section 2(l)(g) defines "legal representative" which reads thus:

"Legal Representative" means a persofl who in law represents the ,
estate of a deceased person, and includes any person who intermeddles
with the estate of the deceased person , and, where a party acts in
a representative character, the person on whom the estate develops
c on the death of the party so acting."

14. The definition of 'legal representa!ive' became necessary because
such representatives are bound by and also entitled to enforce an arbitration
agreement. Section 40 clearly says that an arbitration agreement is not
D discharged by the death of a party. The agreement remains enforceable by or
against the legal representatives of the deceased. In our opinion, a person
who has the right to represent the estate 'lf deceased person occupies the
status of a legal person. Section 35 of the 1996 Act which imparts the touch
of finality to an arbitral award says that the award shall have binding effect
on the "parties and persons claimin~ under them". Persons claiming under
E the rights of a deceased person are the personal representative of the deceased
party and they have the right to enforce the award and are also bound by
it. The arbitration agreement is enforceable by or against the legal representative
~

...
of a deceased party provided the right to sue in respect of the cause of action
survives. ...
'

F 15. We have already extracted Sections 46, 47 & 48 of the Partnership -\.
Act. Section 46 provides two things, namely, I) first is to realize the assets ~L
of the business and then to apply the same for discharge of liabilities and j
finally to distribute the surplus, if any, among the partners. All that Section
46 empowers is that every partner shall claim that this is to be done for
G ultimate distribution of the surplus to the partners according to their shares.
A suit to enforce the latter right relating to the distribution of surplus is
generally called a suit for an account which means account taken up
accordingly. This right to a partner to file a suit for account is not affected
by the fact that the retiring partner has already inspected the accounts of the
firm. Section 46 is, however, merely declaratory of the rights of the partners
H or their legal representatives in the surplus and does not set out the mode

r
~
11
RA VI PRAKASH GOEL v. CHANDRA PRAKASH GOEL [LAKSHMANAN, J.] 305
~ .... of calculating the surplus. The share of a partner upon the winding up of a A
dissolved firm, is only in the residue which is left after the liabilities mentioned
in the various clauses of Section 48 have been paid out. Payment of capital
and advances to partners is not out of the residue. The amount paid as capital
investment to a partner will have to be deducted in order to find the value
of the residue, because the value of a partner's share is only his proportion
of the residue. B

. "Right of Representative of a Partner:
. ..,
The right of a representative of a partner is really a claim against the
~
surplus assets on realisation- whether the surplus consists entirely of
the proceeds of realisation or whether they include some specific c
items of property, which existed on the death of the partner. The
proper remedy of a partner in the circumstances is to have accounts
taken to ascertain his share and if the right to sue for accounts is
barred by limitation, the partner cannot sue any partner in possession
of the assets for a share therein, and the limitation will be governed
D
'by Art.5 of the Limitation Act."
,;_
., 16. On the dissolution of the firm, the arbitration clause does not come
to an end and so if a dispute had arisen during the lifetime of the deceased
partner, his legal representatives would be entitled to take proceedings under
Section 20 of the Arbitration Act, 1940. E
17. When a partner dies and the partnership comes to an end it is not
only right but also the duty of the surviving partner to realize the assets for
the purpose of winding up of the partnership affairs including the payment
of the par·nership debts. However, it is true that in a general sense the
_, executors or administrators of the deceased partner may be said to have a lien F
tp< upon the partnership assets in respect of his interest in the partnership and
taking the partnership account.

Section 47: It is clear that the commencement of the dissolution does
not at once terminate the authority of the partners. Such authority continues
at least for 2 purposes, namely, (1) so far as necessary to wind up the affairs G
' of the firm; and (2) to complete the transaction begun but had not yet been
completed .
......,
Section 48: It lays down two fundamental propositions which are in line
of the provisions of Section 46 of the Partnership Act, namely, ( 1) as to the
H
+
306 SUPREME COURT REPORTS [2007] 4 S.C.R.

A payment of the losses; and (2) as to the application of the assets. It is to be
noted that the provisions of Section 48 are the culmination of the provisions
of Section 46 of the Partnership Act. Therefore, both the sections have to be
hannoniously read together and interpreted.

18. We are of the opinion that in view of the provisions of Section 46
B read with Section 48 of the Indian Partnership Act as well as Section 40 of
the Arbitration and Conciliation Act, 1996 the application for appointment of
an arbitrator under the arbitration clause of the partnership deed was liable
to be allowed and the learned Chief Justice has erred in overlooking the said
provisions. While right to sue for rendition of accounts of partnership finn
C survives on the legal representative of a deceased partner, he is also entitled
to invoke the arbitration clause contained in the partnership deed. In the
instant case, the appellant being the only son of his deceased mother,
undisputedly a partner in the partnership firm with the respondents especially
J
where the dispute concerning the partnership affairs had arisen already during
her life time. The view taken in the impugned order with the appellant has no
D presently establishable binding arbitration agreement with the respondent is
erroneous in law and facts. The impugned order is also bad in law in the teeth
of the law laid down by this Court in Smt. Premlata & Anr. v. Mis lshwar Dass
Chamanlal & Ors., AIR (I 955) SC 714. This apart, the appointment of arbitrator
could not be rejected on the ground of non-production of the will executed
E by the mother when no family member is disputing the will and the appellant's
claim vis-a-vis the partnership finn, even otherwise also the appellant is the
legal heir of the deceased partner being her only son. Jn our view, non-
probate of will is not a gennane factor to be considered at the time of
appointment of arbitrator under Section 11 of the Arbitration Act. In our
opinion, the partnership deed clearly recites that all the disputes touching the
F affairs of the partnership finn were referable to arbitrator and it cannot be
gainsaid that the dispute regarding accounts of the partnership finn is a
dispute touching the affairs of the finn. As already stated, it was not legally
essential to specifically make a mention that the partners included their legal
heirs, representatives, assigns or legatees etc. and the arbitration clause could
G be invoked by the appellant as the legatee as well as the legal heir/legal
representative of the deceased Dulari Devi particularly where the dispute had
arisen during her life time. The appellant's claim in the instant case is based
on the will as well as being a lt:gal heir of the deceased Dulari Devi. The
appellant, in our opinion, possessed a legal and enforceable right to invoke
arbitration clause and moved application under Section 11 of the Arbitration
H Act before the High Court for appointment of arbitrator. The word "party" as
RA YI PRAKASH GOEL i·. CHANDRA PRAKASH GOEL [LAKSHMANAN, J ] 307
-·,,,. used in the partnership deed does not exclude inclusion of legal heirs, legal A
representatives etc. as being canvassed by the respondents. Thus, in our
opinion, in view of the provisions of Sections 40 and 46 of the Partnership
Act read with Section 40 of the Arbitration Act, the appellant has a legal right
to commence arbitration by moving an application under Section 11 of the
Arbitration Act in the High Court as in our view, the right to sue survives
on him as legal representatives of the deceased Dulari Devi and he is entitled B
to invoke clause 13 of the partnership deed. Moreover, the dispute referable
to arbitration had already arisen during the life time of Dulari Devi which is
also well settled that where a dispute is referable to arbitration. the parties
cannot be compelled to take recourse to in the civil courts.

19. Jn view of the aforesaid facts, the civil appeal filed by the appellant
c
stands allowed. However, there will be no order as to costs.

B.K. Appeal allowed.