IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 AR.No. 30 of 2011 ------------------------- PETITIONER: ------------------- S.RAJEEV KUMAR,S/O.V.S.SUKUMARA PILLAI, RAKENDU,PUNNAMPARAMPIL,PONKUNNAM P.O, KOTTAYAM DISTRICT. BY ADVS. SRI.V.V.ASOKAN, SRI.R.JAIKRISHNA. RESPONDENTS: ----------------------- 1. DR.SANTHAKUMARI,SANTHINIKETHAN HOSPITAL, PONKUNNAM. 2. DR.RAJU R.NAIR,MATHA HOSPITAL, THELLAKAM,KOTTAYAM. 3. DR.P.B.GOPIKRISHNAN,PUNNAMPARAMBIL HOUSE, PONKUNNAM. 4. DR.LAKSHMI. S.RENUKA,SANTHI DENTAL CLINIC,PUNNAMPARAMBIL HOUSE,PONKUNNAM. R1 BY ADV. SRI.BASANT BALAJI, R2 BY ADVS. SRI.K.HARILAL, SRI.R.GOPAN. THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 14/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.R. NO.30/2011: APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A: COPY OF THE SALE DEED NO. 2720/1974 OF KANJIRAPPALLY SR.O DTD 27/07/1974. ANNEXURE B: COPY OF THE WILL NO. 126/2003 OF KOTTAYAM S.R.O. DTD. 27/01/1988. ANNEXURE C: OFFICE COPY OF THE PARTNERSHIP DEED DTD. 01/04/2008. ANNEXURE D: COPY OF THE DRAFT PARTNERSHIP DEED BROUGHT BY THE R.1. DTD. 03/04/2010. ANNEXURE E: COPY OF THE LETTER SENT BY THE PETITIONER TO THE RESPONDENTS DTD. 19/01/2011. ANNEXURE F: COPY OF THE LAWYER NOTICE DTD. 10/04/2011. ANNEXURE G: COPY OF THE REPLY GIVEN BY THE R.1. DTD. 28/04/2011. ANNEXURE H: COPY OF THE REPLY GIVEN BY THE R.2. DTD. 28/04/2011. RESPONDENTS' ANNEXURES:- ANNEXURE R2(A): COPY OF THE PARTNERSHIP DEED DTD. 12/11/1997. ANNEXURE R2(B): COPY OF THE DEED OF RECONSTITUTION OF PARTNERSHIP DTD. 27/11/2003. ANNEXURE R2(C): COPY OF THE EXTRACT OF THE FIRM NO.1713/74 DTD. 24/01/2011. ANNEXURE R2(D): COPY OF THE DEED OF RECONSTITUTION OF THE PARTNERSHIP DEED DTD. 01/03/2006. ANNEXURE R2(E): COPY OF THE DEED OF RECONSTITUTION OF THE PARTNERSHIP DEED DTD. 01/04/2008. //TRUE COPY// P.A. TO JUDGE Prv. S. SIRI JAGAN, J. ------------------------------------------- A.R.No.30 OF 2011 ---------------------------------------------- Dated this the 14th day of October, 2011 ORDER The petitioner and respondents 1 to 4 are partners in a business venture. The firm itself came into being in 1974. At that time, the petitioner and respondents were not the partners, but their predecessors-in-interest. Subsequently, by virtue of the clauses in the relevant partnership deed, the petitioner and respondents were nominated by their predecessors-in-interest and they together executed Annexure C partnership deed on 1.4.2008. Now, a dispute has arisen between them as to the share in the partnership deed to which the petitioner is entitled to. The petitioner is the successor-in-interest of one of the original partners namely, Sri. Neelakanda Pillai. While, Sri. Neelakanda Pillai was living, he executed Annexure-B Will dated 27.1.1988 bequeathing his share in the partnership to the petitioner herein. It is subsequent to the execution of the Will that, by Annexure R2(a), Sri. Neelakanda Pillai nominated the A.R.No.30/11 2 petitioner as well as one Sri. Raju. R as his nominees in the partnership in the event of his death. Subsequently, on 10.10.2003, the said Sri. Neelakanda Pillai died. The petitioner sought shares in the partnership on the basis of Annexure-B Will. 2. The respondents are resisting the same on two grounds. First is that, the Will itself is not a genuine Will. Secondly, their contention is that it is after executing Annexure-B Will that Sri. Neelakanda Pillai nominated the petitioner and one Sri. Raju. R as nominees to the partnership and therefore, the rights and liabilities of the parties have to be decided on the basis of that nomination and not on the basis of the Will. That dispute is sought to be referred for arbitration at the instance of the petitioner, in this arbitration request, as per clause 18 of Annexure-C partnership deed, which provides for arbitration of dispute between the partners. 3. The respondents have filed a statement of objections taking the stand that despite the arbitration clause this dispute cannot be referred for arbitration at all. The respondents would rely on Section 2(3) of the Arbitration & A.R.No.30/11 3 Conciliation Act 1996, wherein it is stipulated that Part 1 of the Act shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. The contention is that under Section 68 of the Evidence Act, a Will can be proved only by an examination of an attesting witness which can only be before a Civil Court and not before an Arbitrator. According to the learned counsel for the respondents, the genuineness of a Will cannot be decided by an Arbitrator under the Arbitration and Conciliation Act. 4. In answer thereto, the learned counsel for the petitioner would contend that no law prevents an Arbitrator from deciding the question of genuineness of a Will. According to him, Section 68 only provides that a Will cannot be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, which can be before an Arbitrator as well, insofar as the Arbitrator is competent to take evidence in an arbitration proceedings. 5. I have considered the rival contentions in detail. Admittedly, Clause 18 of Annexure -C is the Arbitration Clause, which reads as follows: A.R.No.30/11 4 “18. Any dispute that my arise between the parties or their representatives with regard to the construction, meaning and effect of this deed or in respect of accounts, profits or losses of the business or the rights and liabilities of the parties under this deed or the dissolution or winding up of the business of any other matters relating to the firm shall as far as possible be referred to an arbitrator appointed by all the partners by mutual agreement and the decision of the arbitrator shall be binding on all parties.” Admittedly, the dispute between the parties is as to the share of the petitioner in the partnership. The petitioner relies on the Will whereas the respondents rely on Ext.R2(a) partnership deed. I am of opinion that whether the petitioner can rely on Annexure-B Will or not and whether the Arbitrator can decide the genuineness of the Will or not themselves are disputes which can be decided by the Arbitrator himself. Insofar as the dispute is regarding the shares of the two parties, ultimately, what the Arbitrator has to decide is the shares of the two parties. Annexure-B Will and Annexure-R2(a) partnership deed are only the evidences in support of the contentions regarding the issues of either parties. Reliability of those evidence themselves are to be decided by the Arbitrator. The objections raised by the respondents in respect thereof do not prevent this Court from appointing an Arbitrator as per Clause A.R.No.30/11 5 18 of Annexure-C, which is the Arbitration Clause. In the above circumstances, I am of opinion that the petitioner is entitled to have an Arbitrator appointed in accordance with Clause 18 of Annexure-C partnership deed. Sri. K.C. George, Retd.District Judge, Kalarickal, Vedipara Lane, Kottayam – 686 002 is appointed as the Arbitrator. The Arbitration Request is allowed as above. S. SIRI JAGAN, JUDGE acd A.R.No.30/11 6 A.R.No.30/11 7