JUDGMENT
1. In this case the plaintiff Rup Singh is suing his sole surviving brother, Bhabhuti Singh, and the three minor sons of a deceased brother Ratan Singh, for separate possession by partition in respect of a one third share of certain properties, moveable and immoveable, specified at the foot of the plaint. He also asks for the cancellation of a certain award, dated the 28th of February 1912, made by two arbitrators, Bijai Singh and Mihin Lal, under circumstances to be noted presently. The plaint recites that the joint family consisting of the plaintiff, his brothers and his nephews "was divided and made separate in food" about the year 1909 or 1910 A. D. From this time the plaintiff and another nephew, a major, by name Hukam Singh, son of a deceased brother named Sarup Singh, each continued to utilize the family property to the extent of their respective one-fourth share, Hnkam Singh has now scoured separate possession of his share after a complete partition by metes and bounds and the plaintiff, being now the owner of an undivided one-third share in the property formerly belonging to the joint family, left in the hands of himself and the defendants, seeks a partition of his own share in the same manner.
2. He is conscious, however, that there is one obstacle in his way. He admits that on she 3rd of February 19 2 he had signed, along with his brothers, Bhabhuti Singh and Satan Singh, a reference to arbitration, by which the arbitrators already named were empowered to settle all disputes between them and to make arrangements for the management of the property. The arbitrators delivered an award on the 28th February 1912, and got it registered on the day following; but the plaintiff says that the terms of the said award had only some to his knowledge within the "last few months." He admits that by the terms of this award he purports to be compelled to "remain under the control of and look to the defendants for support," which is an indirect way of admitting that the award purports to leave the management of the family property with Bhabhuti Singh and Ratan Singh and to bind the plaintiff not to seek separate possession of his share by partition. He attacks the award upon three distinct grounds:
(i) because the plaintiff's signature on the agreement of reference had been obtained by undue influence, at a time when the plaintiff was being prosecuted on a criminal charge brought against him by, or at the instigation of, Bhabhuti Singh and Ratan Singh.
(ii) because the arbitrators had been guilty of misconduct and had returned an unjust award by collusion with the aforesaid brothers of the plaintiff.
(iii) because the terms of, the award are in themselves illegal, beyond the powers of the arbitrators and not binding on the plaintiff.
3. The plaintiff, therefore, seeks, as his first relief, a declaration that the said award is "null and void," this relief being apparently sought as a preliminary to the claim to separate possession by partition which follows.
4. The defendants, while admitting that Hukam Singh had separated from the rest of the family, pleaded that the status of membership of a joint undivided Hindu family still subsisted as between themselves and the plaintiff. They contended that the latter had joined in the reference to arbitration "of his own accord and will, without any unlawful compulsion," that the proceedings in arbitration and the delivery of the award bad taken place with the fall knowledge of the plaintiff, and that there had been no misconduct on the part of the arbitrators. They pleaded, further, that any claim to have the award set aside was now barred by limitation and that the award was binding on the plaintiff "by the principle of res judicate." As to the terms of the award, they pleaded that these were altogether lawful and within the competence of the arbitrators under the terms of the agreement of reference; but they contended further that even if for any reason any particular provisions of the award should be found to be illegal or ultra tires, this would not invalidate the award as a whole, and the plaintiff remained bound by the provision that he should not seek for separate possession by partition.
5. The trial Court fixed a large number of issuers, but decided only those of them which required to be determined in order to justify the dismissal of the plaintiff's suit. As regards the terms of the award it is assumed that the plaintiff would be hound by the provision forbidding him to seek for separate possession by partition, unless he could get rid of the award on the ground that his signature on the agreement of reference to arbitration had been obtained by undue influence. It is found that the plaintiff had become aware of the existence of the award and of its terms, if not from the date of the execution of that document, then at any rate before the 7th of March 1912, a date more than three years anterior to the institution of the suit. From this the learned Subordinate Judge goes on to hold that the claim to have the award declared invalid, either on the ground of undue influence or on that of misconduct on the part of the arbitrators, is time barred under Article 91 of the First Schedule to the Indian Limitation Act. Incidentally he has also found that the award had been acted upon and that the plaintiff had received money under it. The trial Court has nevertheless proceeded to determine the question whether the plaintiff's consent to the agreement of reference to arbitration had been obtained by undue influence; it finds in the negative.
6. The memorandum of appeal to this Court challenges the decision of the Court below on each point. It seems most convenient to reserve the questions of law raised, or sought to be raised, and to deal first of all with the plaintiff's attack on the validity of the award on the ground of undue influence brought to bear upon him, or of misconduct on the part of the arbitrators. The allegations of misconduct against the arbitrators are vague and flimsy; the trial Court has recorded no clear finding on the issue specifically raised on this point. In the memorandum of appeal before us the plea appears in the form that the award should be held to be vitiated by "partiality on the part of the arbitrators." Thiss really amounts to spying that the arbitrators have decided the questions referred to them in a manner unfavourable to the plaintiff and favourable to his brothers, the sort of plea which might be taken by any person who had submitted a dispute to arbitration and was dissatisfied with the result. If it is intended to suggest that, apart from the terms of the award, it is proved that the arbitrators displayed undue bias or partiality, it seems almost sufficient to remark that there is really nothing in the evidence which can be used to support such a plea.
7. The judgment then discuses the circumstances relied on to support the plea of undue influence and proceeds:
We agree, therefore, with the trial Court in holding that the agreement of reference to arbitration is not void, or unenforceable, or liable to be set aside on the ground that the plaintiff's signature to the same' was obtained by undue influence. Nor has any adequate case been made out against the award on the ground of misconduct on the part of the arbitrators.
8. The question whether any attack upon the award on either of the above grounds would not have been barred by limitation on the date on which this suit was instituted is a mixed question of fact and of law. The learned Subordinate Judge is probably right both as to the facts and as to the law; but it is not necessary for us to record a finding, the attack on the award having failed on the merits.
9. There remains the question whether the award is or is not on the face of it a nullity, either as going beyond the terms of the reference, or as embodying conditions which it was not legally in the power of the arbitrators to impose. In argument on behalf of the defendants-respondents it was strenuously sought to support the document as a whole. We were taken back to the defendants' original plea that the parties were, on the date of the agreement of reference members of a joint undivided Hindu family. The contention is that Rap Singh was then claiming a partition in the sense that ho was threatening to enforce his right to separate; he wag, however, willing to refer to arbitration the question whether there should be a partition, or whether (in the alternative) the arbitrators should make some arrangement for the management of the joint family property which should at the same time provide for the discharge of existing debts for which all the members of the family were liable, protect the property from waste or mismanagement, and secure to Rup Singh the enjoyment of a reasonable income out of the joint family funds. We were asked by the respondents to treat the award as a fair and equitable attempt on the part of the arbitrators to carry into effect the latter of the two alternatives.
10. The difficulties in the way of the full acceptance of this contention are considerable.
11. After giving reasons for this their Lordships proceeded as follows:
There is force in the argument addressed to us on behalf of the appellant, to the effect that the kernel of the dispute between Rup Singh and his brothers is to be found in the fact that Rup Singh has no mala issue, but has daughters and daughter's sons: his separation from his brothers involves a change in the devolution of his share in the joint family property after his death. The award itself frankly recognizes the importance of this consideration, though it is fair to add that the arbitrators evidently accepted the contention of the other two brothers that Rup Singh is a poor man of business and not likely to prove an efficient manager of any property over which he obtains complete control, The object of the award is to prevent him from obtaining such control; but at the same time the arbitrators seem to have attempted to re create, by means of their award, all the incidents of a status of jointness as between Rup Singh and his brothers. The appellant seems to be on strong ground when he contends that this is more than the arbitrators had power to do, Presumably Rap Singh and his brothers could have some to a binding agreement to remain joint at the time when the integrity of the joint family was broken up by Hukam Singh's separation, or could have agreed to re unite after the event; but such an agreement would required to be evidenced by a document absolutely clear and unam biguous in its terms. On the whole, it does not seem to us possible to treat this agreement o£ reference and the award which followed thereupon as having this effect. The question which we have to determine, however, is a much narrower one. For the purposes of this suit the point for determination is simply whether Rup Singh personally is bound by the provisions of the award not to claim, during his lifetime, separate possession, by means of a partition by metes and bounds, over any of the property of which he himself and the defendants to this suit are joint owners, in the sense that they possess the same as "tenants-in-common" within the meaning of that phrase in English Law. In order to determine this question it does not seem necessary to site the somewhat voluminous case law referred to before us during the argument. Mr. Justice Trevelyan in his book on Hindu Law has correctly summed up the general effect of the decided case s, when he says that except in the Bombay High Court the authorities generally are agreed that members of a joint undivided Hindu family can bind themselves for their own lifetime not to claim their right to partition. But the point to be noticed here is that all the arguments in support of this proposition apply a fortiori to the case of members of such a family after the integrity of the joint family has been broken up by the ascertainment of shares, after (in fact) the parties have become "tenants-in-common" of the property concerned. Indeed it may be doubted whether the Bombay decisions relied upon by the appellant have any application to such a state of facts. The point to be emphasized is that the appellant cannot have it both ways: he is either a member of a joint undivided Hindu family with the respondents, or he is not. It is the case for the respondents, and not the case for the appellant, that Rup Singh, Bhabhuti Singh and Ratan Singh were still members of a joint family when the agreement of reference to arbitration was entered into. If we had accepted the case of the defendants on this point, other considerations would have arisen. We are now dealing with the case set up by Rup Singh himself that the joint ness of the family had been definitely broken up when Hukam Singh seprated. To take the simplest possible case, suppose two brothers, who have ceased to be joint, to remain owners in equal shares of a certain dwelling house. Can it seriously be contended that one brother would not be bound, for his own lifetime at any rate, by an agreement that he would, in return for good consideration, leave the other brother in sole possession and enjoyment of the house and refrain from claiming a partition by metes and bounds and the separate possession of his own share? But what is true of a single item of property must be true of all property owned by the brothers in equal shares, and whatever could be effected by a lawful agreement for consideration can equally be effected by a reference to arbitration followed by an award. The main difference is that in the case of an award the question of consideration does not arise: the settlement of a pending dispute and the avoidance of litigation are themselves good consideration for an agreement of reference to arbitration.
12. In our opinion, therefore, the Court below has rightly held that Rup Singh personally for his own lifetime is bound by the directions in the award forbidding him to claim a partition by metes and bounds or separate possession over his own share.
13. We accordingly dismiss this appeal with costs.