P L D 1956 (W (PLP)

(2) Is the will in question by the late Nawab Sir Allah Bakhsh governed by rules of customary law and not by Shariat as alleged by the plaintiffs? (3) If issue No. 2 is found in favour or plaintiffs, are they under the will entitled to the whole of the property left by the late Nawab Sir Allah Bakhsh, excepting a life interest in the Allahabad and Alashamas properties, as alleged by the plaintiffs? (4) Is the Muslim Personal Law Application Act of 1948, a nullity and ultra vires of the Punjab Legislative Assembly as alleged by the plaintiffs to what property in his inheritance are the plaintiffs entitled? (6) To what, property are the plaintiffs entitled in the inheritance of he late Nawab Sir Allah Bakhsh if its testa mentary succession is governed by Muslim Personal law? (7) What is the effect, if any, on the construction of the will of the surrounding circumstances, as alleged by the plaintiffs? (8) Relief. Evidence was being taken on the above issues when on the 25th of July 1953, the parties put in a joint application for an order of the Court referring the case to the arbitration of Hazrat Muhammad Qamar-ud-Din Sajjada Nashin of Sayyal Sharif for determination of the matters mentioned in the application. Acting on this application the Senior Civil judge, Sargodha, referred the suit to arbitration and directed the arbitrator to send his award before the 31st of August 1953, but it appears that the period for sending the award was extended subsequently On- the 1st of October 1953, Brigadier Gulsher Khan, the husband and mukhtar-i-am of Malkani Bhag Bhari, put in an applica tion in the Court of the Senior Civil judge for an order withdrawing the arbitration alleging that the arbitrator was siding with the plaintiffs. On the day that this application was put in, the Senior Civil judge issued a notice to the plaintiffs for the 5th of October 1953 to show cause against the application and directed the issue of an urgent notice to the arbitrator requesting him not to proceed further with the arbitration pending the disposal of the application. On the 5th of October 1953, however, an award which showed that it had been completed at 7 a.m. on the 1st of October 1953, was filed in the Court of the Senior Civil Judge Sargodha. The arbitrator in the award held that besides the land bequeathed to the persons mentioned in paragraph (6) of the will, the late Nawab had left land which was about 98690 kanals in area and that out of that land Malkani Bhag Bhari was entitled to only 16174 kanals which came to 10/61st of the land which could be divided between the parties to the suit. Out of the movable and the other immovable property left by the late Nawab, Malkani Bhag Bhari was held by the arbitrator to be entitled to 100/583rd share. The finding was that being a sister of the late Nawab, Malkani Bhag Bhari was entitled to one half of the property left by the late Nawab, but as the property had not come to him under the Muslim law but by succession under custom the arbitrator calculated what property would have come to the late Nawab if Muslim Law had been applied at the time of the death of his grandfather and father. He held that under strict Muslim Law the defendant was entitled to one half of that property only which should have been left by the late Nawab if he and his father had not abandoned the law of God in favour of man-made custom. A number of objections including one that it determined questions which were never in dispute between the parties were raised to the award by the defendant while the plaintiffs, who were called upon to reply to the objections, pleaded that the objections were baseless and ill-founded. On the pleadings of the parties with regard to the invalidity of the award, about a score of issues were framed by the Senior Civil Judge, Sargodha, and the parties were leading their evidence on those issues when the suit was transferred by me to this Court on the 21st of November 1955, on a transfer application (Civil Miscellaneous No. 549 of 1955). When the matter came up before me on the 13th of February 1956, in the presence of Malik Muhammad Hussain and Mr. M. Anwar Advocates for the plaintiffs and Mr. Bashir Ahmad Advocate for the defendant, it was stated by Mr. Bashir Ahmad that it would perhaps save a lot of time if the question whether or not the arbitrator had exceeded his power by entering upon the determination of the property which the late Nawab left were considered before the other questions were considered. The case was adjourned to consider the question whether or not the points raised by Mr. Bashir Ahmad be dealt with before going into the other issues, most of which require evidence. Whets the matter came up before me on the 2nd of April 1956, in the presence of Mr. M. Saleem, Mr. A. K. Brohi, Malik Muhammad Hussain and Sardar Muhammad Iqbal Advocates for the plaintiffs and Mr. Bashir Ahmad Advocate for the defendant, all the learned counsel agreed that as the question whether or not the arbitrator had exceeded his powers could be dealt with separately from the other issues regarding the validity of the award the following be treated as a preliminary issue:- "Had the arbitrator given an award with regard to a matter which was not referred to him?" The learned counsel for the parties addressed arguments on the 3rd of April 1956, and I have to decide whether the arbitrator had exceeded his powers and if so what consequences follow. Translated into English the application which the parties put in on the 25th of July 1953, reads as follows:- '`We, the parties to the suit pending with regard to the estate at village Khawajabad between the plaintiffs and Mst. Bhag Bhari defendant, have entered into an agreement that Hazrat Khawaja Muhammad Qamar-ud-Din should be the sole arbitrator to decide to what part of the property, left by Nawab Sir Allah Bakhsh Tiwana, Mst. Bhag Bhari defendant is entitled under the Muhammadan Law. Mst. Bhag Bhari will get the property to which she is held entitled as above while the rest of the property will go to the heirs, i.e., the plaintiffs. The decision given by the arbitrator will be binding on both the parties and will not be open to appeal. We have further agreed that the sum of Rs. 11,312-8-0 which had to be deposited as the interest by the 26th of April 1953 should not be deposited." A post-script added to the application was to the effect that as long as the proceedings were pending before the arbitrator and no award was given, payment of instalments of interest was to be suspended and that, if the said Hazrat Khawaja Muhammad Qamar-ud-Din refused to act as an arbitrator, the instalments of interest shall become payable within ten days of that refusal. The Senior Civil judge, before whom the case was pending, recorded the statements of the parties on the back of the above application and after that passed an order, which is at page 4504 of the record, and is in the following terms:- "The entire suit is hereby referred to Hazrat Khawaja Muhammad Qamar-ud-Din as sole arbitrator. The arbitrator is requested to file the award by the 31st of August 1953. Parties will abide by the terms with respect to the deposit of the installments falling due henceforth." Mr. Bashir Ahmad, learned counsel for the defendant contended that the only question which the arbitrator had to decide was what share Malkani Bhag Bhari has in the property left by the late Nawab, and when he took upon himself the decision of the extent of the property which would have come to the late Nawab if his father and grand father had been governed by Muslim Law and not by custom as they were, he travelled outside his jurisdiction. In support of his contention, the learned counsel for the defendant urged that the only point in difference between the parties was with regard to the law applicable i.e., whether the personal or the customary law of succession was to govern the property left by the late Nawab and, as, by reason of the fact that they signed the application dated the 25th of July 1953, the plaintiffs are to be deemed to have abandoned their stand that customary law was applicable, the arbitrator could only determine the share of the defendant according to Muslim Law in the property mentioned in the plaint to have been left by the late Nawab and could not concern himself with the determination of questions which had not been referred to him. It was argued on behalf of the plaintiffs that as the share of Malkani Bhag Bhari under the Muslim Law in the property left by the late Nawab was a matter of simple calculation, there would have been no necessity to refer the case to the arbitrator, if the only point to be determined by him were the share of the lady in the property which had been stated in the plaint to be the heritable estate left by the late Nawab. This argument overlooks the fact that while the plaintiffs averred in the plaint that the defendant was claiming to be entitled under the Muslim Law to half of the property left by the late Nawab in spite of the fact that that law had no application, the defendant asserted in her written statement that under the Muslim Law of succession she was, to the exclusion of the plaintiffs entitled to the whole of the property left by her brother, to which position her husband, who is her attorney adhered in the statement lie made before the arbitrator on the 30th of August

153. It is, therefore, apparent that the mere fact that there was a reference to arbitration of the question of the extent of the share of the defendant in the property left by the late Nawab is not by itself sufficient to establish that the arbitrator had to determine what property should be deemed to have been left by the late Nawab for purposes of succession under the Muslim Law. The contention on behalf of the plaintiffs that because it was known what heritable property the late Nawab left, it was not necessary to have the extent of the share of the defendant under the Muslim Law determined by the arbitrator if the object of the reference were not what the arbitrator took it to be, is also based on overlooking of some of the material facts. A reference to clauses 5 to 8 of the will of the late Nawab, which have been reproduced in an earlier part of this order would show that the late Nawab, had bequeathed a par of this property to each of the parties to the present litigation. The object of mentioning in the application for reference of the dispute to the arbitrator that he was to determine what part of the property was Malkam Bhag Bhari entitled to under the Muslim Law, evidently was that no part of the estate was to be given to either of the parties on the basis of the will. Then there was the fact that the plaint as finally amended contained an admission that the defendant was entitled to a life-estate in Chah Allahabad and the house 'Alshamas' and the object of mentioning in the application dated the 25th of July 1953, that the defendant's share in the estate left by the late Nawab be determined according to Muslim Law, may well have been to make it clear that the whole of the estate was to be kept in view and no part of it was to be excluded from consideration on the ground that the plaintiffs had admitted that the defendant was entitled to keep it in her possession till her death. It was contended for the plaintiffs by Mr. Saleem that, as the arbitrator had to determine the share of the defendant according to shariat, he could not but have ignored that par: of the property left by the late Nawab which had come to him under the customary rules of succession. If the application for referring the case to arbitration had said that the arbitrator was to determine what part of the property left by the late Nawab could be considered to be his property under the Muslim Law before determining the share of the defendant, the way the arbitrator dealt with the matter would perhaps have been open to no objection, but all that was said in the application was that the arbitrator should determine what part of the property in dispute the defendant was entitled to under the Muslim Law. Mr. Brohi drew my attention to page 16 of Fatawa-I- Usmania wherein it is stated that property which the Muslim Law prohibits a Muslim from possessing cannot be con sidered to be his heritable property when succession to his property opens on his death, and argued that because property other than that which the arbitrator held to be the heritable property of the late Nawab for the purposes of determining the share of the defendant, had not come to the late Nawab under the Muslim Law, the arbitrator did the correct thing in excluding about two-thirds of the property from consideration while determining what the defendant would be entitled to under the Muslim Law. It may be that if the arbitrator acted within his jurisdiction his award will be unassailable even if it were contrary to law, but all I have to determine for our present purposes is whether the arbitrator had travelled beyond the powers given to him. Had it been necessary to examine the question whether or not the award was in accordance with the Muslim Law one would have to take into consideration the fact that while the arbitrator thought that the Muslim Law would not allow the defendant to get property which had not come to the late Nawab and his father under the Muslim Law, he said in the award (perhaps by a slip) that the property which he held the plaintiffs entitled to was theirs under the Muslim Law. It was pointed out that the arbitrator purported to act on the Muslim Law rule of Munaskha which, if it is the same as that mentioned in paragraph 56 of Mulla's Principles of Muhammadan Law (1950 Edition) as it was, during arguments, stated by Mr. Saleem or Mr, Brohi to be, could be demonstrated to have been wrongly applied. The rule mentioned in paragraph 56 of Mulla's above-mentioned book means only this that if an heir under the Muslim Law dies before distribution of the property in which he has a share, his share will pass to such person or persons as are his heirs at the time of his death because property vests in a person's heirs at the moment of his death. The rule could have been invoked, if at all, only if it could be established that the plaintiffs or their ancestors had been deprived of their Muslim Law share in the estate by the grandfather or father of the late Nawab. I have, however, no doubt in my mind that if the suit had not been referred to arbitration and the Senior Civil Judge had happened to hold that for the purposes of succession under the Muslim Law, the late Nawab could be considered to have left only that part of the property which could have come to his father and him under the Muslim Law, learned counsel for both the parties would have subjected the decision to the severest criticism in an appeal against it. But, as I have indicated already, I am not at this stage concerned with whether or not the award is in conformity with the Muslim Law as it purports to be,' and I have but cursorily dealt with that aspect of the award because it was sought to be supported on the ground that it had, as desired by the parties, applied pure, unmixed, and unadulterated Muslim Law to the estate which had come to the late Nawab and his .ancestors under custom. If in connection with a reference to arbitration during the pendency of a suit, a question arises whether or not a matter had been referred to arbitration and, as in the present case, the parties are not agreed as to what they had agreed to refer to arbitration, the most satisfactory method for the Court called upon to decide that question is to see whether the matter about which there is controversy was in difference between the parties in the suit or not. From the common-sense point of view this is the acid test because if the parties were agreed about a matter, they could not have referred it to the arbitrator for decision. And even from the legal point of view the test is most appropriate because section 21 of the Arbitration Act, 1940, makes it clear that it is only matters about which the parties to a pending suit are in difference that can be referred for decision to an arbitrator under the orders of the Court seized of the suit. A perusal of the by no means brief plaint shows that the plaintiffs averred that the late Nawab left about 98690 kanals of land as well as some houses, furniture and cash as his heritable estate to all of which they were entitled under custom which was applicable because, according to them, the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, was not a valid piece of legislation. The burden of the plaint was that the plaintiffs had on his death, become the owners of the late Nawab's estate, the whole estate and not an iota less than the whole estate. In the written statement put in by the defendant the extent of the heritable estate of the late Nawab was not stated to be any different from what it had been stated in the plaint, though it was pleaded that custom was not applicable and that under the Muslim Law the defendant was entitled to the whole estate left by the late Nawab. The replication put in by the plaintiffs did not, as it could not contain an averment that the heritable estate of the late Nawab would be less than that mentioned in the plaint if the Muslim Law of succession were to apply. The two amended plaints agreed with the original plaint with regard to the heritable estate of the late Nawab and nowhere in the plaints which run into many pages was it even hunted that the estate of the late Nawab will be different from what it was mentioned in the plaints to be, if the defendant wanted succession to it to be governed by the Muslim Law in preference to customary law which the late Nawab and his ancestors had followed for generations. The issues framed on the 19th of April 1952, (reproduced in an earlier part of this order) the burden of all of which was on the plaintiffs and which were admitted by the counsel for the parties in the Court of the Senior Civil Judge Sargodha to effectively represent the points on which the parties did not agree, did not indicate that the plaintiffs wanted the heritable estate of the late Nawab to be considered less than that mentioned by them in the plaint in case Muslim Law were held applicable. Evidence was being led on the above-mentioned issues when the parties put in their joint application on the 25th of July 1953, for the reference of the case to arbitration. I am prepared to agree with Mr. Brohi that for the purposes of section 21 of the Arbitration Act, a matter may be in difference between the parties though it was not in issue between them on their pleadings but cropped up before reference was made to an arbitrator. He did not, however, point to any material on the record which would make one believe that by the time the parties put in their joint application on the 25th of July 1953, the plaintiffs had claimed that if shariat were the law applicable, the heritable estate of the late Nawab would be different from that mentioned in the plaint, and my attempt to find if at any time the plaintiffs or any of them had raised that point, has been fruitless, though I have waded through the voluminous record in search of material which might indicate that in reducing to about one-third the heritable estate of the late Nawab for the purposes of determining the defendant's share therein, the arbitrator had adjudicated on a matter which was in difference between the parties when he was made the arbiter in their dispute. I might here point out that the order which the Senior Civil Judge, Sargodha, passed on the 25th of July 1953, shortly after the parties had agreed to refer the dispute to the arbitration, which order has' been reproduced in an earlier part of this order, was to some extent inaccurate. The application put in by the parties said in clear terms that the arbitrator was to determine the share of the defendant according to the Muslim Law 1Shariat) which would indicate that the plaintiffs had, at least for the purposes of the arbitration, abandoned their stand that the heritable estate of the late Nawab was to be divided according to customary law and not Muslim Law. And yet the Senior Civil Judge said in his order that the entire suit was referred to arbitration, which would mean that the arbitrator had to give his decision on all the points in difference between the parties. In passing his order with regard to the arbitration in those terms the Senior Civil judge over-looked the provisions of subsection (1) of section 23 of the Arbitration Act, 1940, which enjoins that when the parties are agreed with regard to what the matter in difference between them is the Court is to refer to the arbitrator the matter in difference which he is required to determine. If the Senior Civil Judge had kept section 23 of the Arbitration Act, 1940, in view at the time of referring the matter to arbitration the arbitrator could have been under no misapprehension about the fact that there was no difference between the parties about the extent of the heritable estate of the late Nawab. In view of what I have said above, I hold that the extent of the heritable estate of the late Nawab was not in difference between the parties before or at the time of the reference to arbitration. It follows, therefore, that in attempting to determine which part of the estate left by the late Nawab was heritable for the purposes of granting to the defendant her Muslim Law share in the estate of her brother the arbitrator embarked on the decision of a matter which was not in difference between the parties. Consequently, I would decide the preliminary issue framed by me on the 3rd of April 1956, in favour of the defendant. I pass on to the consideration of the effect of the arbitrator having travelled beyond the pale of the powers j conferred on him by the agreement of the parties, who had, given him unlimited powers if he but confined himself to the determination of the question referred to him. I am not un-alive to the fact that the effect of the arbitrator having decided a matter not referred to him has not been put in the form of an issue by me, but as during arguments I, on more than one occasion, expressed the view that if the arbitrator had transgressed his limits the award would be invalid and received nothing but concurrence of the learned counsel for the plaintiffs in that view, I feel myself justified in assuming that the learned counsel for the plaintiffs had no intention of attempting to show that the law allowed an arbitrator to decide for himself what matters he should adjudicate upon. In these circumstances it will be nothing but a waste of time to adjourn the case for the purpose of complying with the formality in this case unnecessary of framing an issue on which the learned counsel for the plaintiffs had shown no inclination of addressing any arguments. Issues are framed so that the parties should not be in any doubt with regard to the points about which they have to satisfy the Court, but, as the determination of the effect of the decision of the preliminary issue in favour of the defendant cannot for the reason mentioned above take the plaintiffs by surprise, I proceed to the determination of that point. Under section 23 of the Arbitration Act, 1940, the Court has, after ascertaining the matters in difference between the parties, to refer those matters to the arbitrator for determination, and it can hardly be doubted that the arbitrator has to determine only those matters which have been entrusted to him for determination and no other. Within his own particular sphere of jurisdiction-a jurisdiction bestowed on him by the parties who choose him as the judge in their dispute-an arbitrator appointed by the Court under Chapter 1V of the Arbitration Act, 1940, can give any decision and that decision will be unassailable however unjust it might appear to be if it cannot be shown that the arbitrator has been guilty of misconduct or the award has been improperly pro cured, unless the unjustness, of the award be such as to furnish evidence of misconduct. If, however, the arbitrator chooses to determine a matter not referred to him, the party against whom the decision on the un-referred point is given cannot be bound by that determination. I need not consider the question whether the determination of an arbitrator on a matter not referred to him will become binding on the party adversely affected by it if objection is not taken within the time prescribed by law because in the present case the defendant did raise numerous objections to the award including the one about its having decided a matter not referred to arbitration. In order to see if the award in the present case can be set aside on the ground proved against it the relevant provision of law is section 30 of the Arbitration Act, 1940, which runs as follows:- "

30. An award shall not be set aside except on one or more of the following grounds, namely:-- (a) that an arbitrator or umpire has misconduct himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35; (c) that an award has beer improperly procured or is otherwise invalid". It appears to me clear that an award which determines a matter which was not referred to arbitration is invalid would say void if invalid in the section does not mean void-with regard to the matter which it had no business to determine. If the invalid part of the award cannot be separated from the rest the result has to be that the whole g award has to be ignored. In the present case the award has not concerned itself with the division of the property in dispute in the manner mentioned in the arbitration agreement but has devoted itself to matters entirely irrelevant for the purposes of the question that had to be resolved. I am of the view, therefore, that the fact that the award may possess the rare merit claimed for it of being in strict conformity with Shariat-a point on which I am not called upon to adjudicate cannot prevent it from being declared invalid under section 30 of the Arbitration Act. In view of what I have said above, I set aside the award on the ground that the arbitrator having decided a point which was not referred to arbitration and failed to decide the one which was, it was invalid under section 30 of the Arbitration Act, 1940. I have considered the question whether the papers be sent to the arbitrator again after clearly specifying the points in difference between the parties but in view of the fact that objections of by no means impersonal nature were raised by the defendant to the conduct of the arbitration proceedings, I have decided not to follow that course. As the period fixed for giving of the award has long since expired the reference terminates and I proceed to hear the case on the issues framed by the Senior Civil Judge, Sargodha, on the 19th of April 1952. Evidence regarding those issues which is already on the record will be evidence in the case and the parties will now produce rest of their evidence on 28th May 1956. The list of witnesses along with the process fee and diet money will be put in not later than 5th May, 1956. A. H. Award set aside.