TMI Blog1949 (7) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... hamria Co. The business seems to have been originally in the sole hands of Hurdutroy Chamria, but at any rate by 6th October 1910, he had made a written agreement associating with him as a partner his nephew Eamprotap. Hurdutroy married three times, his third wife being Anardeyi Sethani, whose legal personal representative is respondent 1 in this appeal. By her he had two sons, Radhakissen Chamria, respondent 3 and Motilal Chamria, respondent 4. The appellant Durga Prasad was an adopted son of Hurdutroy, the adoption having been effected during the period of Hurdutroy's first marriage. The appellant Keshardeo Chamria is by birth a eon of Durga Prasad but became the adopted son of Amolakchand, Ramprotap's brother, by an adoption effected after Amolakehand's death by his widow Surji, respondent 5. 3. The crucial year for the purpose of this narrative is the year 1916. On 2nd December of that year Hurdutroy died. It is apparent from what has been said previously that the interest in Hurdutroy Chamria Co. was divided between his branch of the family and the branch repreaented by Ramprotap. It is also apparent that there were possibilities of disputes in his own f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which the appellant Durga Prosad was a party, a decree was made by consent that scheduled terms of settlement should be carried out, and that these terms contained undertakings to abide by the family settlement of 1916; while in Keshardeo's Suit (2472 of 1928), to which Durga Prosad, Radhakissen, Motilal and Surji were parties, a decree was made by consent that terms of settlement defining the shares in the partnership business according to the partnership agreement of 1916 should be carried into effect. 7. Suit 1840 of 1930 was instituted originally by the Official Receiver as receiver appointed by the High Court in Suit 367 of 1924. Later Anardeyi was substituted as plaintiff. Its object was to obtain a declaration as to the shares in the partnership business, dissolution and winding-up. By March 1935, sufficient progress had been made in preliminary proceedings to enable Panckridge J., in the High Court, to frame 12 issues. It will be convenient to defer until later any specific reference to what those issues were. On 29th June 1937, an order was made by consent of the parties that agreed terms of settlement set out in the schedule to the order should be carried i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to hold either of these documents invalid on any of the grounds on which their validity has been questioned. The two documents, in my opinion, have to be read together. (4) I find that the arrangement last mentioned was binding as amongst the parties thereto but did not purport to disturb the plaintiff's status as a partner in the firm and that the assets which belonged to her as suoh partner were utilised for carrying on the business thereafter. (5) I find that there has been no dissolution of the firm as it existed in 1916 nor any exclusion of the plaintiff, so as to bar the plaintiff's claim on the ground of limitation. (6) I hold that in order to award reliefs to the plaintiff, accounts should be taken, (a) To ascertain the value of the assets which the plaintiff came to have by the deed of family settlement dated 16th November, 1916; (b) To ascertain what profits were earned by the said assets (i) up to 31st December, 1916 and (ii) from 1st January 1917 till the business was closed. (7) I hold also that for ascertaining the assets as mentioned in para. 6 (a) above, a 2 as share of profits should be deducted as belonging to Amlakchand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this award ought to be set aside or remitted as showing error of law on the face of it. In their view, the reference was of such a nature that the arbitrator must be treated as having been appointed by the parties to decide, amongst others, those specific questions of law which be is now said to have decided wrongly. What are the facts? Before any submission to arbitration had been agreed upon by the parties certain issues had been settled by Panckridge J. in the High Court in the action that was then pending. Of these issues two may be quoted: (1) (b) Is the agreement dated 16th November 1916, relating to the alleged family settlement valid or admissible in evidence ? * * * * (9) Is the plaintiff's claim or any portion thereof barred by limitation? After these issues had been settled, the parties agreed to refer to arbitration the outstanding matters in the suit. It is indeed true that at the conclusion of the hearing before the arbitrator he did, in the presence of counsel for the respective parties, reframe the issues before him and that in so doing he did not include an issue as to the admissibility in evidence of the 1916 family settlement. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law was departed from by the arbitrator in noticing the existence or contents of these documents they could not succeed in any event in establishing an error appearing on the face of the award. 13. It remains to deal with the other two grounds of appeal. It was said that the arbitrator had exceeded the scope of his reference in that he had made a finding in para. 1 of his award that Anardeyi became co-owner in respect of all properties which belonged to Hurdutroy Chamria at 16th November 1916, and in para. 2 had found what that share was. Their Lordships are not able to entertain this objection. They take the same view as that expressed by the Judges in both the Courts below. The arbitrator's references to the plaintiff's interest as co owner in Hurdutory Chamria's property are merely introductory to his finding that she enjoyed an aliquot share as a partner in the firm of Hurdutroy Chamria and Co., and are intended to explain the purpose and scope of the deed of family settlement. It is para. 8 of the award, which contains the arbitrator's findings as to the interests of the parties in the firm at different dates and is confined to their respective, interest ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
