VIJAY KUMAR SHARMA @ MANJU versus RAGHUNANDAN SHARMA @ BABURAM & ORS.

Citation: [2010] 1 S.C.R. 582 · Decided: 05-01-2010 · Supreme Court of India · Bench: R.V. RAVEENDRAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2010) 1 S.C.R. 582 
VIJAY KUMAR SHARMA @ MANJU 
V. 
RAGHUNANDAN SHARMA @ BABURAM & ORS. 
(Civil Appeal No. 89 of 2010) 
JANUARY 5, 2010 
[R.V. RAVEENDRAN AND K.S. RADHAKRISHNAN, JJ.] 
Arbitration and Conciliation Act, 1996: 
c 
ss. 8(1), (3), 11 and 15(2) - Appointment of arbitrator 
pending appeal filed against dismissal of suit under Or. 7, r. 11 
CPC read withs. 8(1) of the Act- HELD: An application uls 
11 or s. 15(2) of the Act, for appointment of an arbitrator, will 
not be barred by pendency of an application uls 8 in any suit, 
0 
nor will the Designate of the Chief Justice be precluded from 
considering and disposing of an application uls 11 or s. 15(2) 
- Thus, if an arbitrator is appointed by the Designate of the 
Chief Justice u/s 11, nothing prevents the arbitrator from 
proceeding with the arbitration - Therefore, the mere fact that 
E an appeal from order dismissing the suit under Or. 7 r. 11 CPC 
(on the ground that the disputes require to be settled by 
Arbitration) is pending before the High Court, will not come 
in the way of appointment of an arbitrator uls 11 read with 
s. 15(2), if the authority uls 11 finds it necessary to appoint an 
arbitrator - Practice and Procedure. 
F 
s. 7 - Arbitration agreement - Declaration by father that 
any future disputes among his sons should be settled by an 
arbitrator - HELD: Cannot be considered as an arbitration 
agreement among the children or such of the children who 
G became parties to a dispute - Even if the Will provided for 
reference of disputes to arbitration, it would be merely an 
expression of a wish by the testator that the disputes should 
be settled by arbitration and cannot be considered as an 
arbitration agreement among the legatees - Such a wish, 
H 
582 
VIJAY KUMAR SHARMA@ MANJU v. RAGHUNANDAN 563 
SHARMA@ BABURAM 
even if proved, cannot be construed as an agreement in 
A 
writing between the parties to the dispute, agreeing to refer 
their disputes to arbitration - Will. 
Raj Kumar vs. Shiva Prasad Gupta AIR 1939 Cal. 600, 
held inapplicable. 
B 
Case Law Reference : 
AIR 1939 Cal. 500 
held inapplicable Para 11 
CIVIL APP ELLA TE JURISDICTION : Civil Appeal No. 89 
of 2010. 
C 
From the Judgment & Order dated 16.05.2008 of the High 
Court of Judicature for Rajasthan at Jaipur Bench is SB Civil 
Arbitration Application No. 72 of 2007. 
D 
P.N. Mishra, K.N. Tripathy, R.M. Patnaik, H.P. Sahu and 
V .. K. Sidharthan for the Appellant. 
K.V. Vijwanthan, Neha, Sanjeeb Panigrahi, Vikas Mehta, 
Jayanat K. Mehta and Amit Bhandari for the Respondents. 
The Order of the Court was delivered by 
ORDER 
R.V. RAVEENDRAN, J. 1. Leave granted. Heard the 
E 
learned counsel. 
F 
2. The first respondent and appellant are brothers. The first 
respondent filed a suit (Civil Suit No.100 of 2006) against the 
appellant alleging that their father Durganarayan Sharma died 
on 20.10.2005 leaving a will dated 21.10.2003 bequeathing 
G 
portions of property bearing No.B-133, Bapu Nagar, Jaipur (for 
short the suit premises) to him, and that the appellant who was 
in possession of the said portions, was liable to deliver 
possession thereof to the first respondent on the basis of the 
H 
584 
SUPREME COURT REPORTS 
[2010) 1 S.C.R. 
A said will. The Executors of the said will were impleaded as 
defendants 2 and 3 (respondents 2 and 3 herein). 
3. The appellant herein, in turn filed a Civil Suit No.53 of 
2007 for partition and separate possession of his one-sixth 
8 share in the ancestral properties. He also sought a declaration 
that the will dated 21.10.2003 propounded by the first 
respondent was fabricated, null and void. In the said partition 
suit, first respondent and his son were impleaded as 
defendants 1 and 6; appellant's another brother and three 
C sisters were impleaded as defendants 2 to 5; the son of 
another brother who had been given away in adoption was 
impleaded as defendant no.7; and the executors under the will 
were impleaded as defendants 8 and 9. 
4. The two suits were consolidated for trial. Respondents 
D 2 and 3 claiming to be the executors of the will of Durganarayan 
Sharma filed an application under section 8 of the Arbitration 
& Conciliation Act, 1996 ('Act' for short) in the said suits 
alleging that the deceased Durganarayan Sharma had made 
a declaration on 15.10.2005, shortly before his death, that if 
E there was any dispute in connection with the will, the same 
should be decided by Shri U.N. Bhandari, Advocate; that t

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