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TMI Blog1964 (12) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ing as trustees. In the deed of settlement, there were various clauses, including Clause 12 which runs as follows: "12. After the death of the first Trustee Dhanonjoy Kundu, if any dispute or difference arise between the subsequent Trustees who would act under these present concerning the management or administration of the trust hereby created according to the tenor of these present or relating to or affecting the sheba of the Deity in the manner hereby directed then in such case such dispute or difference shall be referred to the sole arbitration of Sri Kamal Kishor Khettry, Solicitor of No. 6, Old Post Office Street, Calcutta, so long as he is alive and is available and is willing to act. If the said Sri Kamal Kishor Khettry be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s there is anything repugnant in the subject or context; (a) 'arbitration agreement' means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." 3. In order to constitute an "agreement" it is not disputed that we must refer to the provisions of the Indian Contract Act. Section 2 of the said Act defines a 'proposal', a 'promise' and ultimately an 'agreement'. The relevant provisions of Section 2 of the said Act are set out below: "(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other of such act or abstinence he is said to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted by the parties by their conduct. 5. The first thing to be observed is that Mr. Basak has argued that the arbitration agreement is between the three trustees. Therefore, such an agreement must comply with the provisions of Section 2 of the Indian Contract Act. He concedes that there is no written agreement which has been signed by all the three trustees, ft will be observed however that the written agreement, according to him, is the arbitration clause in the deed of settlement. Therefore, the question is whether it is shown that the trustees agreed inter partes amongst themselves to refer their disputes to arbitration and whether the arbitration clause can be said to have reduced this agreement into writing. Mr. Basak argues that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o refer to these decisions because the matter is concluded by a decision of the Supreme Court in Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormasji, (S) . Actually, Mr. Mukharji, appearing on behalf of the respondent, has not contested this proposition. Where it is found that two parties have agreed to refer matters to arbitration and the terms are to be found in writing, it is settled law that it is not further necessary that they should also sign the agreement. The question however in this case is, as to whether the trustees can be said to be a party to any agreement at all for referring their disputes to arbitration. The way Mr. Basak argues is this: He says that the deed of settlement directs that there shall be such a reference to arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the provisions of the deed of settlement. There can be no question of any agreement amongst themselves; otherwise we are faced with this absurd situation that with regard to every provisions in the deed of trust we have to visualise the trustees agreeing among themselves to carry it out by making a proposal and an acceptance. The learned Judge has pointed out that in order to accept a trust it is not necessary to signify to the other trustees any willingness to do so or to enter into any agreement to do or abstain from doing anything. In other words, no question of any proposal by one trustee or acceptance of the same by another arises. It may be an attractive argument to say that trustees having consented to accept trusteeship under a d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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