Case: Champalal Vs. Mst. Samarath Bai

made as above the will of my estate. Under this will, I am authorising the said Champalal Ishwardas to execute the same. I have appointed him the executor of this will. Under the said will, the said Champalal alone shall be the full owner of my entire movable and immoveable property and the executor of the will after my death if I adopt him during my lifetime or even if my virtue adopts him (after my death)."The words "under the said will the said Champalal shall be......the executor of the will after my death if I adopt him during my lifetime or even if my wife adopts him after my death" show that the appellant was to become executor after his adoption and as he was not adopted he cannot be the executor and therefore the argument that an executor cannot enter into arbitration does not arise and we do not think it necessary to decide this matter beyond saying that the appellant was not constituted an executor eo nomine but was to be an executor if he was adopted. Similarly the question whether the appellant after accepting the office of an executor had renounced it or a discharge was necessary under S. 301 of the Succession Act does not arise.8. Points (ii) and (iii) may be taken up together. It was argued that the award is in excess of the power given to the arbitrators because it determined the rights of the appellant as an executor and because it was in excess of para. No. 1 of the arbitration agreement which provided that the arbitrators should maintain the gifts to charities and the gift in favour of the testators daughters and others. It is difficult to see how the award has lost sight of this paragraph. As a matter of fact the arbitrators have maintained the gifts to charities and other gifts made by the testator in the will and they have clearly stated that the person becoming the owner of the deceaseds property, will have to provide for the maintenance of the persons named in the will and pay the charities therein enumerated.9. Another objection raised was that according to the arbitration agreement the arbitrators had to enforce the will and not to act outside it and also they could not impose a limit of time for adoption. How they have acted de hors the will has not been shown. The contention raised was that according to the arbitration agreement the arbitrators had to decide in what proportion the parties to the dispute were to "enjoy" the estate of the testator and not that one of them will get nothing at all. As we read paragraph 10 of the will, and the High Court also so construed it, the appellant could get the property of the testator only if he was adopted by the testator or his widow, the respondent. It is not correct, therefore, to read the term of the arbitration agreement as meaning that the appellant was to get at least some portion of the property irrespective of his being adopted.10. Paragraph 2 of the arbitration agreement shows that they had also to decide that in case the respondent adopted the appellant what should be the respective rights of the parties in the estate. The arbitrators decided that the respondent should adopt the appellant according to Hindu Law within four months before February, 1947, and if the respondent failed so to do within the time above specified the appellant would be the heir and executor of the deceaseds entire property and the respondent would be entitled to Rs. 200 per mensem as maintenance. But if in spite of the respondents readiness to adopt the appellant refused to be adopted within four months, he would not get any rights in the property of the deceased nor would he be the executor. As it was specifically stated in the arbitration agreement that the consequences of the adoption or non-adoption were to be decided by the arbitrators, they rightly laid down what was to happen if the adoption did not take place and also provided that if it was due to the default of the appellant one consequence will follow and if it was the default of the respondent another consequence would follow. The words of the agreement:"In the same way the arbitrators may also decide that in case it is decided that the party No. 2 should adopt the party No. 1 and if that thing is accepted by the party No. 1 and in case the adoption takes place, what shall be the rights of both the parties and how they will stand in respect of the property......"mean that the power to limit the time was implicit because the happening of these events could not be left for a limitless period.11. The courts below have found on the evidence that the appellant was not prepared to be adopted. We have been taken through the evidence and we find no reason to differ from the opinion of the High Court that the appellant was not prepared to be adopted. His attitude in regard to that matter is clear from ground No. 37 of the Grounds of Appeal taken by him in the High Court which was:-"The lower Court erred in holding that Champalal was not within his rights in consenting to get adopted by Mt. Samarathbai within the time fixed by the arbitrators without prejudice to his objections against the award"and the courts have rightly come to that conclusion. In this view of the matter the alternative argument of taking subsequent event into consideration does not arise.12. It was also argued that by making the award the arbitrators had perverted the line of succession. All that the award has stated is that in case the adoption takes place the respondent would receive 1/4 share of the property of the testator and it would form her stridhana. How that has perverted, the line of succession is difficult to understand.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. In our opinion points nos. 1, 2 and 3 are wholly without substance. The award was made on October 18, 1946, and the arbitrators filed it in the court of the First Additional District Judge and they also gave notice to the parties by registered post informing them of the making of the award. It has not been shown as to how the filing of the award is barred by limitation.Article 178 of the Limitation Act which was relied upon by the appellant applies to applications made by the parties and not to the filing of the award by the arbitrators.5. The second question that the award required registration and could not be filed by the arbitrators before it was registered is equally without substance. The filing of an unregistered award under S. 49 of the Registration Act is not prohibited; what is prohibited is that it cannot be taken into evidence so as to affect immoveable property falling under S. 17 of that Act.That the award required registration was rightly admitted by both parties.It was contended by counsel for the appellant that under S. 21 of the Registration Act and the rules made under S. 22 a description of the property was necessary and as that was supplied through Mithulal who, according to counsel, did not have the necessary authority to do so, the award must be taken to be an incomplete document which could not be registered. The High Court has found that in the circumstances of this case lists were not necessary and therefore anything done by Mithulal whether authorised or not will not affect the legality of the registration. The third point that the First Additional District Judge before whom the application was made for extending the time of making the award had no jurisdiction is also not sustainable. It so happened that the court which had jurisdiction to entertain application for the filing of awards was the same before whom the application under S. 192 of the Succession Act had been filed. If that court was the proper court in which such applications were to be made then no defect can be found in the application being made to that court or that court giving such extension.Points (ii) and (iii) may be taken up together. It was argued that the award is in excess of the power given to the arbitrators because it determined the rights of the appellant as an executor and because it was in excess of para. No. 1 of the arbitration agreement which provided that the arbitrators should maintain the gifts to charities and the gift in favour of the testators daughters and others. It is difficult to see how the award has lost sight of this paragraph. As a matter of fact the arbitrators have maintained the gifts to charities and other gifts made by the testator in the will and they have clearly stated that the person becoming the owner of the deceaseds property, will have to provide for the maintenance of the persons named in the will and pay the charities therein enumerated.9. Another objection raised was that according to the arbitration agreement the arbitrators had to enforce the will and not to act outside it and also they could not impose a limit of time for adoption. How they have acted de hors the will has not been shown. The contention raised was that according to the arbitration agreement the arbitrators had to decide in what proportion the parties to the dispute were to "enjoy" the estate of the testator and not that one of them will get nothing at all. As we read paragraph 10 of the will, and the High Court also so construed it, the appellant could get the property of the testator only if he was adopted by the testator or his widow, the respondent. It is not correct, therefore, to read the term of the arbitration agreement as meaning that the appellant was to get at least some portion of the property irrespective of his being adopted.