LexBIJENDRA NATH SRIVASTAVA (DEAD) THROUGH LRS. versus MAYANK SRIVASTAVAAND ORS.
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BIJENDRA NATH SRIVASTAVA (DEAD) THROUGH LRS. A v. MAYANKSRIVASTAVAAND ORS. AUGUST 10, 1994 [S.C. AGRAWAL AND B.P. JEEVAN REDDY, JJ.] Arbitration Act, 194(}-Section 30-.-Code of Civil Procedure, 190&- 0rder 6, Rules. 2 and 4. B Under Order 6, rnle 4 C.P. C. particulars have to be furnished of the C plea of fraud or misconduct raised in accordance with rnle 2 and it is not pemiissible to introduce by way of particulars an additional plea of fraud or niisconduct. Code of Civil Procedure, 190&-Section 35, Order 6, Rules 17-Evidence Act, 187rSection 115 Arbitration Ac~ 194<>-Section 30. D In case, amendment to objections to an award is allowed with 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 : Section 30. E An award which has been acted upon by the parties to a considerable extent cannot be set aside on the ground of misconduct or error on face of record merely because the arbitrator returned the documents, not forming F part of evidence, after making the award or on the ground of 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 agreement was entered Into between the six branches of the family P a retired District Judge, who was the son·ln·law ofB was appointed as the sole arbitrator to divide the movable as well as Immovable properties Into six shares according to bis best judgment and allot one such share to each of G the six parties. It was also agreed that money, that was needed from dme to H 529 530 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R. A time by any of the parties to the said agreement and was advanced to him or to her out of the joint family property, will be deducted from his or her share at the time of partition. It was also stated in the said agreement that amounts already taken by branches will be deducted from the shares of the parties to the said agreement at the time of partition. The agreement was B dnly signed by the parties. Before the arbitrator a paper bearing no. 104/37-Kha was filed on Jnly 21, 1966, giving the list of 17 immovable properties as well as the annnal rent, mnnicipal assessment and valnation of the same. The said paper contains the signatures of the heads of all the six branches. The C arbitrator beard all the parties and afforded them opportunity to prodnce evidence and made an award wherennder he divided the immovable as well as movable properties in six shares for each of six parties to the arbitration, By the award the joint family properties were divided specifically. D The award was duly registered and was filed In the Court of Civil Jndge. The Civil Judge Issued notices to the parties and in response thereto , objections to the award filed by the parties Nos. 1, 3 and 6. Party No. 1 sn~sequently did not ·press the objections and the objections were pressed only by parties Nos. 3 ,and 6. In the said objections It was snbmitted that the . award was liable to be set aside for the. reason that the arbitrator was guilty E of misconduct and acted in excess of his powers. In the objections that were filed by party No. 6 the factum of the agreement of arbitration was also disputed. It was asserted that P was not appointed as the arbitrator. The arbitrator died on December 14, 1970. Respondent No. 1 who was minor at the time when the objections were filed on behalf of party No.6, attained· p majority on February 12, 1973. On March 24, 1975, be filed an application under Section 151 and Order 6 Rule 17 C.P.C. for impleadment and for amendment of the objections filed on behalf o_f party No. 6 which was allowed. Ultimately, the objections were rejected and the award made rule of the Court and decree drawn in the light of the said award. The Additional G District & Sessions jndge held that the order dated May 8, 1976 whereby the amendment was ellowed bad become final and binding on the parties on the basis of principles of constructive res jndicata and party No.5 could not challenge . the correctness or legality of the said order. The Additional District & Sessions Judge found that the agreement dated July 3, 1966 was an arbitration agreement whereby the parties ag
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