John Beaumont, Kt., C.J.
1. This is an appeal against a decision of Mr. Justice Rangnekar. The plaintiffs are suing defendants Nos. 1 and 2, who are father and son, for a sum of Rs. 26,844-13-0 and interest, the money being due in respect of transactions in cotton and silver carried out by the plaintiffs as agents for defendant No. 1 between the months of January and September 1928. At the trial the plaintiffs obtained a decree against defendant No. 1 for the amount claimed. Defendant No. 1 had set up a defence that the transactions in suit were void, but the learned Judge decided against those contentions, and there is no appeal from that part of the judgment. Defendant No. 2 succeded in the suit, which was dismissed as against him, and the question we have to determine is whether that decision is right or wrong.
2. The original case of the plaintiffs was that defendants Nos. 1 and 2 owned a joint family business in respect of which these debts were incurred, but that contention was given up in the Court below, and the plaintiffs based their case entirely on the pious obligation of defendant No. 2 to pay his father's debts. Defendant No. 2 took two points: the first was that the debts were avyavaharika, that is to say, immoral in the sense that they were of such a character that the son was not liable to pay them under the pious obligation, and, secondly that before the said debts were incurred he had separated from his father. The learned Judge decided the first point in favour of the plaintiffs, and it is not necessary for us to consider that point. On the second point, the learned Judge decided in favour of defendant No. 2, that is to say, he decided that the defendants had severed before these debts were incurred, and it is upon that part of the decision that this appeal has been argued, though the point as to the character of the debts was not given up.
3. The facts are not in dispute and can be stated shortly. Defendant No. 1 is the son of one Shaligram from whom he inherited property of considerable value in the year 1925, and by the beginning of the year 1928 defendant No. 1 had wasted a considerable part of the family property and had mortgaged part of the family property for a sum of Rs. 25,000. Nandrani, the wife of defendant No. 1 and the mother of defendant No. 2, was complaining of her husband's conduct in wasting the family property, and in January 1928 she and the mother of defendant No. 1 consulted a family friend named Lala Kunwersen, who has been examined as a witness on behalf of defendant No. 2 in the ease. He is an elderly gentleman, a Government pensioner, who had no interest in the matters in dispute, and he was consulted as a friend of the family. According to his evidence he was willing to interfere in the matter if all the parties desired him to do so, and accordingly on January 31, 1928, the parties signed a reference to him, which is Exhibit No. 1. The reference was signed by defendant No. 1 and by Nandrani, purporting to act as guardian of her minor son defendant No. 2. The reference provided that defendant No. 1 and Nandrani as guardian of defend' ant No. 2 are the parties. Then it recites :-
Whereas a dispute has arisen between ourselves with regard to the moveable, immoveable properties and the mortgage affairs left by Babu Shaligram Saheb, we the parties of our own will and accord and without being forced or induced by any one appoint Lala Kunwersen Saheb, son of Lala Dowlatram Saheb, a pensioner, a Khatri by caste residing at Ghandi Gully, as our sole arbitrator and authorise him to decide the said dispute. Whatever decision the arbitrator gives according to his own opinion in our matter, either on law points or on facts, the same shall be considered as final and absolute decision given by the arbitrator and shall be agreed to and approved of by the parties.
Kunweraen took the matter into his consideration and on February 19 he made an award, which is Exhibit 2, The short effect of that award is that the family property is to be in the ownership of defendant No. 2, during his minority the mother is to act as guardian ; then there is a provision that the parties are to mesa together, and defendant No. 1 is to receive a sum of Rs. 150 a month from the income of the property ; then there are provisions as to management and then certain sums are allowed for maintenance to two ladies who were members of the family. That award was registered by Kunwersen on March 10, 1928, and on September 10, 1928, a suit was filed to make the award an order of Court, and in that suit on September 25 a decree was made in terms of the award, defendant No. 1 consenting to that decree.
4. Now the award is attacked by Mr. Desai on behalf of the plaintiff on various grounds. But before coming to his contentions it is necesaary, I think, to bear in mind certain propositions of Hindu law, which are not really in dispute, but which have some bearing on the matters which we have to consider. The first proposition is that defendant No. 2 in January 1928 was in a position, through his next friend, to ask for a partition of the family property since the father had admittedly squandered a considerable part of the property. Secondly, it is competent in Hindu law to partition family property, although one of the coparceners may be a minor Thirdly, severance of the joint interests in the property can be effected by an unequivocal indication of an intention to sever on the part of any one coparcener. Fourthly, defendant No. 1 as the manager of the family property was competent to refer to arbitration disputes relating to the joint property. And, fifthly, a reference to arbitration to settle the terms of partition would operate to effect a partition. An authority for that is the case of Sayed Kasam v. Jorawar Singh (1922) 26 Bom. L.R. 1 Now, bearing those propositions in mind one has to consider what was the real nature of the transactions effected by this reference and award. Mr. Desai says in the first place that the whole thing was colourable, that is to say, that it was never intended to be acted upon at all. He says that as a matter of fact there were no disputes, and that the reference does not ask for a partition. Now the position was, as I have said, that the father was squandering the family property and the mother was in a position, whether she knew it or not, to go to the Court and ask for a partition. In those circumstances it is clear on the evidence that the father and mother and the father's mother discussed the matter, and decided to leave the questions between them to the arbitration of this family friend. It is, think, quite clear, as the learned Judge has held, that the only effective way of settling the questions between the parties, those questions being how the interest of the minor son was to be preserved, was to arrange for a partition, and in those circumstances I think that Kunwersen the arbitrator was justified in construing the reference to him to settle the disputes between the parties as entitling him to arrange for a partition of the family property. I think, therefore, he was justified in effecting a partition, and I see no evidence from which we can say that the transaction was colourable, I think it was intended to be acted upon. The subsequent conduct of the parties is only consistent with that, because the award was in fact registered, and was ultimately made an order of Court, and there is no evidence that it was put on one side and not intended to be acted upon. I think, therefore, that the suggestion that the whole transaction was colourable is not established by the evidence.
5. Then the nest point taken by Mr. Desai is that there was no legal reference, inasmuch as the mother had no power on behalf of her minor son to refer the matter to arbitration. The learned Judge dealt with that point, as I understand him, by saying that if the mother had gone to the Court and asked to be appointed as guardian of her minor son with liberty to file a suit for partition, that liberty would no doubt have been granted, and although she did not actually go to the Court nevertheless she is entitled to be put into the same position as though she had taken that step, I doubt myself whether that reasoning is right. Generally speaking, the only way to bind an infant by a contract is to get the approval of the Court to the contract on behalf of the infant, and if in fact the approval of the Court is not asked for it seems to me irrelevant to consider what view the Court would have taken had an application in the matter been made to it. To bind an infant, an order of the Court is vital. As there was no order of the Court here, I am disposed to think that the mother could not bind the infant by the reference to arbitration. But in my view of the matter that is really irrelevant, because I think the father, as the manager of the joint property, had power to refer the matter to Kunwersen and at any rate to bind his own interest. No doubt when the minor attained his majority he could apply to have any award under the reference set aside. But he has attained his majority, and has not taken that step, and inasmuch as the award is entirely in his favour it is clear that that step is not likely to be taken. But so far as the father is concerned, I think he is bound by the award, whether the mother had power in law to refer the matter to arbitration or not.
6. Then the next point taken is that the award, even if there was a valid reference, is a bad award, because according to the evidence of Kunwersen he took no evidence upon the subject, and the award is not based on the legal rights of the parties, The learned Judge in his judgment says that the father had lost his rights in the family property. He says:-
On the facts the arbitrator found, and i think rightly, that the father was not entitled to any share, he having spent the whole of it, even more than the whole of it out of the family property, and all the parties were willing that whatever remained should go to the minor and nothing should be given to the father.
7. With all respect to the learned Judge, I think that is not a correct view. The learned Judge held that the debts incurred by the father were not immoral, and that being so, the father was within his legal rights in incurring those debts, and paying them out of the joint property, and the infant could not have claimed that the whole of those debts should be set off against the father's undivided share in the property. If the parties had gone to the Court for a partition in January 1928, I think that as between the father and the son they would have been entitled to an equal share in the property ; the father's wife might also have claimed a share, but it is not necessary to consider that. The father certainly would have been entitled to as great a share in the property as the son, and it is, I think, a criticism which may be made on the award that it is not based on the legal rights of the parties, but rather on moral grounds. The arbitrator considered that in asmuch as the father had squandered more than half the family property, he was morally not entitled to any share in what was left. It may be that if the father had challenged the award on the ground that the arbitrator ought to have proceeded on legal grounds, and not on moral considerations, he could have got the award set aside. But it seems to me impossible to say that the award was void from its inception. It did provide for a partition, though a very uneven partition, because the father was to get a sum of Rs. 150 a month for maintenance, and, as I have already said, I think the arbitrator was entitled to consider the reference to him as entitling him to arrange for a partition, It seems to me the most that can be said against the award is that it was voidable, and that the father might have attacked it, but in fact the father has not attacked it. On the contrary he has submitted to an order making the award an order of Court and that being so, he has put it out of his power to attack the award in future. I think, therefore, that the award now must be treated as binding between the parties, and inasmuch as it was not void in its inception I think it was binding between the parties from the start, that is to say, from February 19 when it was made, and at that date, according to the evidence, defendant No. 1 was not indebted to the plaintiffs, I, therefore, come to the conclusion that the learned Judge was right in holding that there was a severance between defendant No. 1 and defendant No. 2 at any rate from February 19,1928.
8. If that is so, I think technically the appeal must fail, because defendant No. 2 is not liable on the pious obligation to pay his father's debts after the date of the severance. But Mr. Desai has taken this further point, that, even i there was a severance between the two defendants, nevertheless defendant No. 1's share in the joint property never validly passed to defendant No. 2. That is technically a point between the plaintiffs and defendant No. 1, and defendant No. 1 is not a party to this appeal. The plaintiffs have got a judgment against defendant No. 1, and if in fact a part of what was the joint property is now vested in defendant No. 1, the plaintiffs could execute their judgment against that part. But defendant No. 2 is no doubt claiming the whole of the joint family property, and I think the learned Judge has held that he is entitled to the whole property, and Mr. Desai has, therefore, desired to argue the question whether the property effectively passed to defendant No. 2 because he says otherwise he will be barred by res judicata. The points having been argued, and the persons substantially interested in the property being before the Court, it is, I think, desirable to decide that question between those parties.
9. Two grounds are suggested for saying that the father's share in the property never effectively passed to the son. The first is that there is no transfer registered under the Indian Registration Act; but the answer to that is that under Section 17, Sub-sectiones (2)(vi) of the Act, as it stood in 1928, there is an exception in the case both of decrees and awards, and inasmuch as the only transfer here which could have been registered was either the award or the decree, it seems to me that in terms the Act does not apply. I may observe also that in fact the award was registered. I think therefore, there is nothing in the point of non-registration.
10. Then the next point is that the transfer, in whatever form it may have taken place, of the share of defendant No. 2 in the joint property to defendant No. 2 is void under Section 53 of the Transfer of Property Act, It is said that if in fact the share of the father in the joint family property has somehow or other got into the son, then it must have been by means of some sort of conveyance from the father to the son. The conveyance may conceivably have been verbal. There certainly does not appear to be any document which could be said to be in the nature of a conveyance. But Mr. Desai says that if in fact the property has got into the son it must somehow or other have been transferred, and therefore there is a transfer of immoveable property, and if that transfer was made with intent to defraud, defeat or delay the creditors of the transferor, i.e., defendant No. 1, then the transaction is void under Section 53. A good many points arising on Section 53 were discussed, which it is not necessary in my view to deal with, For the purpose of considering whether there was an intent to defeat or delay creditors, the material date, I think, is the date of the reference, that is, January 31, 1928, because it was by the reference that the father first gave authority under which the property was taken from him. At that date the plaintiff's were not creditors of defendant No. 1, but I will assume for the purpose of my judgment, without expressing any opinion upon the point, that Section 53 covers the case, not only of existing creditors of the transferor, but of possible future creditors. The way the case is put then by Mr. Desai is, that in January 1928 defendant No. 1 was just commencing the speculative business with the plaintiffs which ultimately resulted in the debt for which the plaintiffs now sue, and that we must assume that defendant No. 1 in parting with his property when he was about to commence those business transactions had the intention of defeating his creditors if the business transactions resulted in a loss. But in my view on the facts in this case we are not justified in coming to the conclusion that there was an intention to defeat the creditors. As I have already pointed out, the reference was not in the nature of a transfer of the father's property, but left to Kunwersen the question how the matters in dispute should be settled. As I have said, that empowered the arbitrator to partition the property even unequally as against the father, but I think it is impossible to say that the father knew that he was going as a result of that reference to be deprived of the whole of his property. Indeed the evidence is rather the other way, that Kunwersen did not know about these specific dealings which defendant No. 1 was embarking upon with the plaintiffs, and further that Kunwersen was not a mere tool of defendant No. 1. Therefore, as far as defendant No. 1 was concerned, the reference might have resulted in his not being deprived of the whole of his property. Apart from the circumstance that he was about to, or at any rate soon afterwards did, eater into speculative transactions with the plaintiffs, we really have no ground whatever to justify us in saying that the intention of defendant No. 1 in referring these disputes to arbitration was to defeat the plaintiffs I think myself his probable intention was to safeguard his minor son. Ho had no doubt speculated in the past, and he may have felt no great confidence in his ability to refrain from speculating in the future. Moreover, we do not really know that in January 1928 he intended to embark on the heavy speculations, which he afterwards did embark upon. That is a mere matter of conjecture. Having regard to the fact that the plaintiffs were not creditors of defendant No. 1 in January 1928, I think the evidence is not sufficient to justify us in holding that the reference of the disputes to the arbitrator was made with intent to defeat creditors. If that is so, the subsequent transfer of the property resulting from that reference cannot be attributed to such an intent. I think, therefore, that the point under Section 53 of the Transfer of Property Act also fails, In the result, I think, the appeal must be dismissed with costs.
Mirza, J.
11. I agree. In the trial Court the present respondent joined defendant No. 1 in the defence that the cotton contracts sued upon were void as contravening the provisions of the Bombay Cotton Contracts Act and the bye-laws of the East India Cotton Association. The learned Judge overruled this defence. In this appeal we have heard no arguments on behalf of the respondent in support of that contention. The present respondent relied upon a further defence in the trial Court, viz., that the debts incurred by defendant No. 1 in respect of the transactions in suit were not binding upon him on the ground that they were avyavaharika debts. In view of the ruling of this Court in Bal v. Maneklal (1931) 34 Bom. L.R. 55 the learned Advocate General has not advanced any argument in support of that contention without expressly abandoning it.
12. The plaintiffs originally brought this suit against the two defendants suing the present respondent who is original defendant No. 2 as a major member of a joint and undivided Hindu family and praying for a relief against him which was not limited to the extent of his interest in the joint family business or in the joint family properties. Soon after the suit was filed the plaintiffs took proceedings in attachment before judgment and in those proacedings were made aware that defendant No. 2 was a minor and was contending that he was separate from his father by virtue of an award made in his favour on February 19, 1928. The plaintiffs then applied for and obtained leave to amend the plaint, but contented themselves by amending only the title of the plaint in which they now described defendant No. 2 as a minor by his guardian ad litem his mother Bai Nandrani. They did not amend the prayer of the plaint so as to restrict the liability of the minor to the extent of the assets of the firm or his interest in the joint family estate. When the case came on for trial the plaintiffs applied for and obtained further leave to amend the plaint and inserted paragraphs 1A and 1B in the body of the plaint still leaving the prayer unamended. By the newly added paragraphs they denied that there had been any partition between defendants Nos. 1 and 2 and submitted that if there was any partition it was collusive and fraudulent and was void as against the plaintiffs. This part of the pleading was taken in the lower Court to justify the plea which was there taken and is persisted in before us that the transaction was also void under the provisions of Section 53 of the Transfer of Property Act, The view which the learned Judge took was that the plaintiffs were really in the position of defendants so far as that part of their ease was concerned, the presumption under the Hindu law being that members of a Hindu family are joint unless the contrary is proved. The onus lay in the first instance on defendant No. 2 to establish that he was separate from his father, defendant No. 1. If he discharged that onus it would be open to the plaintiffs then to contend that the partition of the property between defendants Nos. 1 and 2 was void as against defendant No. 1's creditors on the ground that it was effected with a view to defeat, defraud or delay the creditors of defendant No. 1, From the proceedings taken for attachment before judgment, it appears that the ground on which the attachment before judgment was asked was that defendant No. 1 had some time prior to the filing of the suit fraudulently transferred all the joint family properties in which he was interested to his son defendant No. 2. This fact was mentioned to the learned Judge by Mr. Daphtary in his final address. The learned Judge was of opinion that there was no evidence before him to substantiate that allegation and that he need not express any opinion whether the properties were or were not so transferred. The fact that the properties were so transferred appears from an affidavit filed by Bai Nandrani, which is Exhibit K in the suit. From that affidavit it also appears that Bai Nandrani had also set up the defence that her son defendant No. 2 was separate from his father by virtue of the award dated February 19, 1928. Having regard to these allegations it was incumbent, in my opinion, upon the plaintiffs when they amended their plaint at the hearing to have set out their case with regard to the alleged fraudulent transfer by defendant No. 1 of the joint family properties to defendant No. 2 and the onus of proving that the transfer was fraudulent would be upon the plaintiffs.
13. The plaintiffs can claim to succeed in this suit if they establish either that the partition or transfer was in fraud of creditors or that the partition was a sham and bogus transaction, From the amended plaint it would appear that the plaintiffs were relying only upon the latter contention, If this suit is to be treated as a suit brought by a creditor to set aside a transfer of property under the provisions of Section 53 of the Transfer of Property Act, it would seem to contravene the rulings of this High Court in Burjorji Dorabji Patel v. Dhunbai I.L.R. (1891) Bom. 1 and Ishvar Timappa v. Devar Venkappa I.L.R. (1902) Bom. 146 : 5 Bom. L.R. 19 inasmuch as the plaintiffs have not brought the action in a representative capacity as representing themselves and all the other creditors of defendants. To the same effect is the ruling of the Calautta High Court in Hakim Lal v. Mooshahar Sahu I.L.R. (1907) Cal. 999. The Madras High Court had given a contrary ruling and had held that it would be competent to a creditor to maintain an action in his own right to set aside a fraudulent transfer of property. But when the legislature recently amended the Transfer of Property Act it followed the rulings of this and the Calcutta High Courts on this point in preference to the rulings of the Madras High Court to the contrary. This would not affect the merits of the question, as this case is governed by the Transfer of Property Act before it was amended in 1929 We are, however, bound by the ruling of our own High Court on this point, and in my opinion the plaintiffs' case would fail under Section 53 of the Transfer of Property Act as the suit is not brought by them in a representative capacity on behalf of themselves and the other creditors of the defendants. Apart from this objection the plaintiffs' case under Section 63 of the Transfer of Property Act is not free from difficulties. The plaintiffs have adduced do evidence to show that the partition or transfer which they are challenging was frandulent and rely only upon a presumption which arises under Section 53 of the Transfer of Property Act as to when such a transfer may be deemed to be fraudulent. Under Clause (2) of the old section it is provided that where the effect of any transfer of iminoveable property is to defraud, defeat or delay any creditor and such transfer is made gratuitously or for a grossly inadequate consideration the transfer may be presumed to have been made with intent to defeat, defraud or delay creditors. If the partition in this case is to be deemed to be a transfer of defendant No. 1's interest, the transfer was from a father to his only son and the conniderntion would be natural love and affection which cannot be said to be a grossly inadequate consideration. Further, the transaction is not altogether a one-sided one. The award provides that defendant No. 1 is to have residence, maintenance and a pocket allowance of Rs. 150 per month out of what was at the time the joint family estate. In that view of the case it is not easy to wee how the plaintiffs case would come under the provisions of a 5i of the Act.
14. A further point to consider is whether there were creditors at the date of the reference to arbitration in order to ascertain whether the intention of the transaction was ultimately to delay or defeat them. The plaintiffs' munim, the witness Gulzarilal Nathuram, has stated in his re-examination that at the date of the award about Rs. 1,200 were due by defendant No. 1 to the plaintiffs and a transaction of 100 bales was then outstanding. This is not borne out by the account Exhibit J which was put in at the trial. From that account it would appear that certain transactions were outstanding on February 19, 1928, and one of them being a transaction for the purchase of 100 bales of cotton had been closed. If that was to be taken as relating to the earliest trans-action of purchase of 100 bales which was on January 24, 1928, it would result in a loss of a few hundred rupees, but if the closing transaction was to be taken as relating to a later transaction of purchase of 100 bales of cotton, then it would result in a profit of a few hundred rupees. The learned Judge came to the conclusion that there was no reliable evidence before him that defendant No. 1 had any debtors at the date of; the reference or of the award besides the mortgagee for Rs. 25,000. The transactions between the plaintiffs? and defendant No. 1 were all forward transactions and it would be difficult to say that one party was the creditor of the other until they were all closed on the due dates or prior thereto by mutual consent, In this state of the evidence it must be held that the plaintiffs have not proved that they were creditors of defendant No. 1 at the date of the reference or of the award. The mortgagee's claim is provided for in the award. There is no internal evidence to show that there were any creditors whom it was the intention of defendant No. 1 to defraud at this date. It has been contended by Mr. Desai on behalf of the plaintifis that the present case would be covered by the ruling in Mackay v. Douglas (1872) L.R. 14 Eq. 106. That case arose under the Statutes of Frauds, 13 Eliz. c. 5 and 27 Eliz. c. 4, and the language of those statutes is materially different from that of Section 63 of the Transfer of Property Act. In that case the Court was dealing with a debtor who had transferred his property to his wife for life with remainder to himself which was to be defeated in case of his bankruptcy and had thereafter launched into fresh speculative transactions; his intention was found to have been to safeguard himself and his family from any adverse consequences resulting from such speculative transactions, and having regard to the wide language of the statutes of Elizabeth the Court held that the transaction was in fraud of creditors and could, therefore, be set aside. In the present case the facts seem to be materially different. Defendant No. 1 had, before the date of the reference, indulged in forward transactions of cotton with other merchants and in respect of those transactions a decree was passed against him and he was arrested in execution of that decree. On January 24, 1928, he had entered into a forward transaction in cotton with the plaintiffs. Prior to that date he was also indebted in respect of his forward transactions in a sum of Rs. 25,000 for which he had mortgaged a joint family property. Under the circumstances, in my opinion, it cannot be said defendant No. 1's intention at the time was to safeguard himself against the consequences of any new venture which he was going to undertake.
15. Coming to the second part of the plaintiffs' case, they have challenged the reference, the award, and the decree which followed on the award as being sham transactions, Mr. Desai on behalf of the appellants contends, using the language of their Lordships of the Privy Council in Abdul Hye v. Mir Mohammed Mozaffar Hossein I.L.R. (1883) Cal. 616 that the award was 'a mere pocket instrument' not intended to operate according to its tenor and effect. In my opinion there is no justification for taking that view of the present award and the decree which followed upon it. The terms of the reference (Exhibit No. 1) no doubt do not expressly authorise the arbitrator to effect a partition between the father and son. What is referred to the arbitrator is a dispute which is said to have arisen, but the dispute is described as being in connection with the moveable and immoveable properties left by defendant No. 1's father Shaligram. Taking Exhibit No. 1 along with the oral evidence which has been given in the case, it would appear that the disputes related to defendant No. 1 wasting and jeopardising the joint family estate by indulging in speculative businesa. The immediate cause of the dispute very likely was that on January 14, 1928, defendant No. 1 had to mortgage a valuable joint family property for Rs. 25,000 to secure a debt which was then due by him in respect of a business transaction. The disputes were between the father on the one hand and the ladies of his family acting in the interest of his minor son on the other, and under the circumstances the disputes can have reference only to the manner in which the father should be stopped from any more dissipating the family properties. Under such circumstances the mother of the minor should have been entitled to ask for a partition on behalf of her son in order to safeguard his interests in the family properties. It has been urged by Mr. Desai that under the Hindu law a minor is not entitled to ask for partition and that the only way in which a partition could be effected on his behalf would be by the father of his own accord effecting a partition. In this case what the parties did was to go to a friend who was also related by marriage to the family and request him to take up the matter as an arbitrator. Although the intention was not expressed that he was to effect a partition, the matter was left to him to decide the dispute in any manner he pleased. So far as the submission paper is concerned the evidence is that the stamp paper was purchased by defendant No. 1 on January 19, 1928. Defendant No. 1 has signed the submission paper as a party of the first part, He is described in the body of the submission paper as party of the first part. The minor's mother has signed the paper on behalf of the minor as party of the second part. No doubt under the Hindu law the father is the natural guardian of the person and property of his minor son, but in the absence of the father it would appear that the mother would be regarded as the natural guardian of her minor son. In this transaction the mother acting as the guardian of her minor son was a mere formality, as the father himself took an active part, if not the initiative, in submitting the disputes which had arisen to arbitration. The evidence of the arbitrator is that he was first approached in this matter by the mother and grandmother of the minor. Before the submission paper was brought the father had gone to the arbitrator along with the two ladies and the minor and had agreed to refer the matter in dispute to arbitration. In my opinion, the result was that the submission to arbitration was made at the instance of defendant No. 1 who was the father of the minor and also manager of the joint family properties. The submission would, therefore, be binding upon both father and son subject to this that if it resulted in an award which was prejudicial to the minor's interests, the same could be challenged by the minor when he attained majority or by a next friend on behalf of the minor during his minority. I am inclined to agree with Mr. Desai that no partition can be said to have been notionally effected as the result of this submission paper. The submission paper does not record any express intention to effect a partition, and the dispute which was referred may possibly have been decided in a manner other than by effecting a partition. When we come to the award made on February 19, 1928, the evidence is that the father was present and agreed to the terms of tie award. Whatever defects there may have been under the terms of the submission paper Exh. No. 1, so far as the arbitrator's authority to partition the property between father and son was concerned, were, in my opinion cured when the father expressly agreed to the terms of the award on February 19. The learned Judge was favourably impressed by the manner in which the arbitrator gave his evidence and has believed him on all material points. Mr. Desai has pointed out that in some particulars the arbitrator's evidence is untrue, as for instance, when he states that the award he had made was signed by all the parties. That is not borne out by the award. Further, he has stated that he handed over the award to defendant No. 1 and defendant No. 1 got it registered. But at the same time he has stated that he himself was present in the Registry Office when the award was registered, It would not be reasonable to suppose that the Sub-Registrar would accept a document for registration except from one who had executed the document; the executant of the award being the arbitrator, the endorsement of the Registration Office would mention the name of the executant only as presenting the document for registration. The arbitrator admitted when these discrepancies were pointed out to him that he was possibly making a mistake as he was speaking from memory. I see no reason to disbelieve the evidence of the arbitrator that defendant No. 1 agreed to the terms of the award on February 19, 1928. The partition would, therefore, be effective in any event as from the date of the award, viz., February 19,1928.
16. In Bhaurao Jivaji v. Radhabai (1909) 11 Bom. L.R. 406 this Court has held that an award is equivalent to a judgment whether it has passed into a decree or not, that it is binding upon the parties, and when it directs partition to be effected it dissolves the joint family and severe their joint interests from the date of the award. The further conduct of the parties is consistent, in my opinion, with the genuineness of this transaction. Soon after the award was made it was presented for registration and was actually registered on March 10,1928. Thereafter a suit was filed on the award on behalf of defendant No. 2 on September 10, 1928. Defendant No. 1 was the defendant in that suit. He appeared at the date of hearing which was September 25, 1923, and confessed judgment, Thereupon a decree was passed on the award and it would appear from the attachment before judgment proceedings that in consequence of that decree the joint family properties which were the subject-matter of the award have been duly transferred to the name of defendant No. 2. The appellants' case, in my opinion, fails and the appeal should be dismissed.