1870 DRA ROY v. GUнO. ferred could be interpreted into an opinion on my part that the managing member of a joint Hindu family could not be called ABHAYCHANto account by the other members of the family. In that parti- CHOWDHRY cular case, the plaintiff had, in fact, so far as could be seen from PYARI MOHAN the evidence, taken as much part in the management and control of the joint property as the defendant; and he placed his cause of action, solely on the ground that the defendant was the karta of the family. I intended on that occasion to say that the mere circumstance of the one man being the karta of the family did not make him accountable to those other members of the family who took the ordinary part in the management of the property which an adult member, living in commensality with the others, must be supposed to take, in the absence of all evidence to the contrary. I endeavoured to guard myself at that time from being understood to say more than this; for certainly my own feeling, as an English lawyer, fairly conversant with equity and practice in England, is that every man, be he karta of a joint Hindu family or not, who manages the property of another person, or property in which another person is beneficially interested, upon the foundation of a trust or confidence between the two, is in a Court of Equity and good conscience accountable to the latter for the mode in which he does manage it, and for the profits which he may have made out of it. The principle which I understand the English Courts of Equity to act upon in these matters is simply this, that a person who has the control of, and management of, another's property, upon the footing of any thing which amounts to a confidence or trust reposed in him by this other, shall not be allowed to abuse that confidence, and to make a profit out of his management, without the owner's consent; and inasmuch as the question whether or not a profit has been made, or what has been done, lies, under these circumstances, solely within the knowledge of the manager himself, a Court of Equity will make him disclose what he has done; in other words, will make him account for his administration of the property. It is the necessity for discovery, as the English lawyers term it, in order to protect the actual owner's right and interest which founds the jurisdiction of the English Courts of Equity in cases of this sort. I regret very much that I should have so inade 1870 quately expressed myself on the former occasion as to lead to ABHAYCHAN- the conclusion that I intended to favour the view which has DRA ROY v. GUHO. CHOWDHRY been contended for here to-day, because, I think, if it had PYARI MOHAN not been for that, there would hardly have been any occasion for this reference. Mr Justice Markby's judgment did not amount to a decision. It is, I understand, nothing more than a dictum which was so little necessary to the determination of the particular case before him, that the learned Judge actually in that case decreed an account. It appears to me that there ought to be no hesitation on our part as to the answers which we must give to these questions. MITTER, J.-I concur in the answers proposed; but as I was one of the Judges by whom this reference was made, I wish to say a few words as to the circumstances under which I thought myself bound to make it. I did not make the reference in consequence of the decision of Mr. Justice Phear in Chuckunlall Singh v. Poran Chunder Singh (1). I have distinctly stated in my judgment that that case was decided upon the ground that there was no evidence to prove that the defendant, who was sued for an account, was, in fact, the exclusive manager of the joint family property; so that, properly speaking, it was not a case for account against a manager, but a suit by one of the two joint managers against the other. The decision passed by Mr. Justice Markby, however, was the one which induced me to make this reference; and I must say that, in that case, the construction which Mr. Justice Markby put upon the decision of Mr. Justice Phear, just now referred to, was one of the principal grounds which led me to adopt that course. Mr. Justice Markby says in that decision that it was determined, in the case decided by Mr. Justice Phear, as well as another case decided by himself (Mr. Justice Markby) and the late Chief Justice, that the members of a joint undivided Hindu family have no right to sue the managing member of the joint family for account merely upon the ground that the (1) 9 W. R., 483. person sued had the exclusive management of the joint family property. 1870 ABHAYCHAN DRA ROY CHOWDHRY υ. This was a proposition which appeared to me to be erroneous, and I was, therefore, obliged to make this reference to the Full PYARI MOHAN Bench. As to the questions themselves, I have nothing to add to what has been already observed by the learned Chief Justice and by Mr. Justice Phear. [ORIGINAL CIVIL.] Before Mr. Justice Norman. S. M. JAGATSUNDERI DASI v. SONATAN BYSAK. Award-Submission-Completion-Delivery-Act VIII of 1859, 88. 315, 318, and 320. By an order of Court, of January 17th, 1867, a suit was referred to two arbitrators, under section 312, Act VIII of 1859, who were to make their award in writing, and submit the same to the Court within three months. No order for enlarging that time was made. The first meeting of the arbitrators was held on May 22nd, 1867, and four subsequent meetings were held, at which all the parties attended, and evidence was taken; at the last of which meetings, namely on 27th July, an objection for the first time was taken on behalf of the defendant that the time limited by the order of reference had expired, but the arbitrators proceeded with the reference. The award was made on 12th August 1867, and remained with one of the arbitrators until his death in August 1868. Subsequently it was produced by the other arbitrator, on the application of the parties to the suit, and delivered to the successful party, by whom it was brought into Court on the 10th May 1870, and judgment was moved for in accordance therewith. Held, that the arbitrators had authority to make the award. The award was properly submitted to the Court. Section 320, Act VIII of 1859, does not make it necessary for the arbitrators to submit the award to the Court personally. Submission to the Court, under section 320, is not necessary to the completion of an award under sections 315 and 318. Although an arbitrator may deliver his award to one of the parties, he ought not to hand over with it the proceedings, depositions, and exhibits. THIS was an application, on behalf of one of the parties to the suit, to have an award of two arbitrators made therein confirmed, and for an order of Court in accordance therewith. The order of reference to arbitration was made on the 17th 1870 July 6. SUNDERI DASI v. SONATAN 1870 January 1867, and the time fixed by the Court, within which S. M. JAGAT- the arbitrators were to make their award in writing and submit it to the Court, was three months. After some hearings before the arbitrators, the case was, by the desire of the parties, adjourned beyond the three months granted by the Court for the making and submission of the award. No application was made to the Court for the extension of the time. The arbitrators made and signed their award on the 12th August 1867, but they did not communicate it to the parties. In August 1868, one of the arbitrators, in whose possession the award had remained, died, and the award was, on the application of the party in whose favor it was made, delivered to him by the other arbitrator, and submitted by him to the Court on the 10th May 1870. Mr. Branson, in support of the application contended that the award was complete. By the English cases an award is to be considered as published when the parties have notice that it is ready for delivery on payment of the reasonable charges -Musselbrook v. Dunkin (1) and Macarthur v. Campbell (2). So soon as the award was made by the arbitrators, and was ready for delivery, it was made sufficiently to satisfy the order of the reference. The award has been submitted, however irregularly, to the Court, and the requirements of Act VIII of 1859 have been complied with. An award which is required to be in writing and ready to be delivered at a certain time is complete if made in writing and ready to be delivered by the arbitrator within the appointed time, though not actually delivered—Brown v. Vawser (3). In Henfree v. Bromley (4), an award signed and ready for delivery was then altered by one of the arbitrators, and it was held that the award was still good, and not vitiated by the alteration, the arbitrator being held to be functus officio, and a stranger to the award. This award was good when made and signed by the arbitrators, and it has been submitted to the Court. The Advocate-General (Offg.) contra.—The award is not com 1870 SUNDERI DASI v. SONATAN plete until it has been submitted to the Court by the arbitrators after they have made and signed it. Until this has been done, S. M. JAGATthe requirements of Act VIII of 1859 have not been complied with, and no valid award exists. The time fixed for the completion of the award having expired, and this having been brought to the arbitrators' notice before they made their award, they ought to have applied to the Court for an extension of time. The difference between the English form of order of reference and the wording of Act VIII of 1859 with respect to awards was intentional, or it would have been the same as the English form. There is no reason for the difference, if only signature and publication were necessary, but Act VIII makes submission to the Court also requisite. The cases that have been cited, therefore, do not apply here, the form of procedure in this Court being different. There is nothing to show that the arbitrator who is dead did not alter his opinion, which he might have done; the award cannot be considered final while the power of alteration by the arbitrators remains. The time for completing the award has long expired, and the award ought not now to be enforced. [NORMAN, J., refered to Hungate's case (1)]. Mr. Branson in reply. NORMAN, J.-By an order of this Court dated the 17th of January 1867, this case was referred in accordance with the provisions of section 312, Act VIII of 1859, to Baboo Grish Chandra Banerjee and Baboo Romanath Law, as arbitrators, who were "to make their award in writing and submit the same to this Court within three months from that date." No order for enlarging the time for making the award appears to have been made. The proceedings submitted to this Court with the award show that the first meeting of the arbitrators took place on the 22nd May 1867. Subsequent meetings were held on the 12th June, the 22nd June, the 6th July, and the 27th July, which were attended by all the parties, and at which evidence was taken. On the 27th July, Baboo Dinanath Bose for Sona (1) 5 Rep., 103. |