Omar and Another v Said and Others (Civil Case No. 18 of 1941) [1942] EACA 16 (1 January 1942)

## ORIGINAL CIVIL

## BEFORE THACKER, J.

## 1. MOHAMED BIN OMAR, 2. OMAR BIN DAHMAN, Administrator of the estate of Sheikha binti Omar, deceased, Plainfiffs

## AZIZA BINTI SAID, as Wasi of the estate of Umar bin said, deceased and/or in her personal capacity, and SIX OTHERS, *Defendants*

Civil Case No. 18 of 1941

Arbitration—Order 43 Rule 14 $(c)$ .

The plaintiffs in this action complained of certain acts and omissions on the part of the first defendant who was the Wasi or administrator of a deceased's estate in which all the parties were interested. The plaintiffs asked for administration by the Court and for accounts to be taken. The parties referred all matters in dispute to arbitration. An award was duly filed and the first defendant filed objections to it and applied for an order setting aside the award on the ground inter alia that it was bad on the face of it.,

Held $(28-10-42)$ .—(1) That an error in law on the face of an award means that you can find in the award some legal proposition which is the basis of the award and which you can say is erroneous.

Champsey Bhara & Co. v. Jivraj Balloo 1923 47 Bombay 578 followed.

Dictum in *Madepalli v. Madepalli* 1. L. R. 41 Madras 1022 approved.

(2) That where a specific question of law is submitted to an arbitrator, the parties are bound by his decision, even if his decision be erroneous in law.

In re an Arbitration King and Duveen 1913 2 K. B. 32 followed.

(3) That where the dispute between the parties is formulated in pleadings (as herc) and the reference to arbitration includes a direction that the matters in dispute between the parties are those at issue as shown by the pleadings, it is proper that the pleadings be included in any consideration of the question whether there is any error apparent on the face of the award.

Hitchins and another v. British Coal Refining Processes, Ltd., 1936 2 A. E. R. 191 followed.

The application to set aside the award was dismissed with costs and judgment for the plaintiffs was entered in terms of the award.

Inamdar for plaintiffs.

A. B. Patel for $1st$ defendant.

C. H. Patel for defendants 2, 3, 5 and 7.

JUDGMENT.—The parties to this suit after the filing of pleadings resorted to arbitration—that of the learned Chief Kathi of Mombasa. The Chief Kathi has filed his award and the defendant No. 1 now objects to certain findings in it, namely that the Chief Kathi's decision that the deceased's will is invalid is bad in law. I am asked, first, to say whether that finding is wrong and, secondly, if it is wrong to say whether the Wasi of the deceased's estate, the defendant No. 1, was entitled to spend moneys in pursuance of the directions contained in the Will... The defendant No. 1 rests her objections upon Order 43 Rule 14 (c) which is as follows: -- "The Court may remit the award or any matter referred to arbitration to the reconsideration of the same arbitrator upon such terms as it thinks fit, $(c)$

where an objection to the legality of the award is apparent upon the face of it". These latter words have been discussed in various English and Indian cases which have been cited before this Court; as follows: —

In re an Arbitration King and Duveen 1913 2 K. B. 32;

Madepalli v. Madepalli I. L. R. 41 Madras (in which the various Indian and English cases on this subject are referred to);

Hitchins v. British Coal Refining Processes, Ltd., 1936 2 A. E. R. 191.

There is also a commentary at page 1271 of Mulla's Civil Procedure Code 10th Edition.

The meaning of these somewhat general words in Order 43 Rule 14 (c) was also explained by the Privy Council in Champsey Bhara and Co. v. Jivraj Balloo 1923 47 Bombay 578, as follows: -

"An error in law on the face of an award means in their Lordships' view that you can find in the award ..... some legal proposition which is the basis of the award and which you can say is erroneous".

But this principle is to be read together with the principle in King and Duveen's case (supra) to the effect that where a specific question of law is submitted to an arbitrator, the parties are bound by his decision, even if his decision be erroneous in law. Ought this Court to say that the Chief Kathi's finding that the deceased's will is invalid is erroneous? The Chief Kathi has given his reasons; he has quoted Mohammedan authorities for his decision. He has held that the will is invalid according to Shafee law. The parties in this litigation are admittedly Shafees, and the Mohammedan Law applicable to each sect is to prevail as to litigants of that sect. (Mulla's Mohammedan Law 7th Ed. p. 10.) Mohammedan Law in general as distinct from Shafee Law would appear to be in conflict with the Chief Kathi's decision (see Wilson's Anglo-Muhhamaden Law 2nd Edition at p. 330 and Mulla's Mohammedan Law 7th Ed. at p. 100), from which it seems that Mohammedan wills require neither signature nor attestation, nor indeed to be in writing at all. It is to be noted that the leading authority on the subject of wills is the Hedaya, which records the doctrines of the Hanafi School and not of the Shafee School (see introduction to Chapter IX on wills'in Mulla's Mohammedan Law 7th Ed. p. 99). It is clear that Shafee Law ought to apply and the Chief Kathi states that he has applied Shafee Law. The introduction to Vol. I, E. A. L. R., says that among Mohammedan natives in the dominions of the Sultan of Zanzibar, Mohammedan Law, or the Sheriah as expounded by the Shafee School of commentators is to apply. One of the authorities cited by the Chief Kathi is Anwar-a commentator on the Shafee Law.

The judgment in Madepalli v. Madepalli (supra) includes these words:-"Coming to the Civil Procedure Code, we think that clause $(c)$ of paragraph 14 should be confined to cases like those where the arbitrator perversely and manifestly mis-applies a rule of succession or applies to the parties a rule by which they are not bound; we are not to be supposed to have exhausted the category of the cases which may come under that clause, but we do think that where the arbitrator has applied his mind honestly and has arrived at a decision to the best of his ability, the fact that a Judge might take a different view is not a ground for holding that the award is illegal on its face".

The defendant No:-1 was granted Letters of Administration of the deceased's estate although she had in her possession what purported to be and what she now alleges is a will of the deceased. It is not clear from the record whether this will was produced to the Court at the time of her application to be appointed Wasi of the estate—and the plaintiffs were apparently from the record unaware of its contents. However, in her defence, the defendant relies upon the will for her

authority to spend certain moneys on charity, etc. The disputes between the parties were formulated in pleadings and paragraph 3 of the application for order of reference to arbitration says "The matters in dispute between the parties are those at issue as shown by the pleadings herein". Paragraph 4 of the defendant's defence raised the question of the deceased's will, and its validity. These pleadings must therefore be included in the consideration whether there is any error apparent on the face of the award (Hitchins and another v. British Coal Refining Processes, Ltd. (supra)). It is clear that the defendant relied on this will and that the question of its validity was a specific question before the Chief Kathi. The decision in "In the matter of an Arbitration between King and Duveen and Others" (supra) to the following effect: $-$

"If a specific question is submitted to an arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law does, not make the award bad on its face so as to permit of its being set aside. Otherwise it would be futile ever to submit a question of law to an arbitrator".

is a sufficient answer to the defendant's objection. I am not, in citing this case, to be taken as suggesting or saying that the Chief Kathi's decision on the validity of the will is erroneous. All I say is that, even if it is, this does not make the award bad on its face for the reason that the question of law was specifically referred to him. In accepting the Chief Kathi's opinion I may fittingly repeat the words used by Thomas, J. in Keatinge v. Mohamed bin Seif Salim and 3 others 12 K. L. R. $.74$ as follows: -

"The Chief Kathi has had long and great experience and his opinion is founded on a recognized authority in this Colony. It does not appear to agree with some of the excerpts from the authorities handed in by counsel. I content myself in accepting the opinion of the Chief Kathi".

It is for the objecting defendant to show clearly that the award is on its face illegal and I can only conclude that she has failed to demonstrate this--in other words I cannot hold that the will is invalid. Nor am I disposed to disagree with the learned Chief Kathi's opinion that the administratrix or Wasi was not empowered in these circumstances to follow the directions of the will. In holding that this award cannot be set aside or remitted for reconsideration, this Court is in no way encroaching on the principle that an award which is bad on its face may be set aside.

I see no reason for interfering with the award, and the objections to it, therefore, are overruled with costs.

Upon application of Inamdar, judgment is entered for the plaintiffs in terms of the award.

Liberty to apply, to implement the above terms.