promissory notes, or whether, if promissory notes, they can be stamped by the Court. Contingent on the opinion of the High Court my judgment will be for the defendant." 1880 MANICK บ. JUMONA DASS. Argument. Piffard, for the Plaintiff Palit, for the Defendant. Piffard contended that the documents in question were not promissory notes requiring ad valorem stamps. They were either acknowledgments coming under Art. 1, or agreements or memoranda, coming under Art. 5 of Schedule I of the Stamp Act, I of 1879. [GARTH, C.J.:-These documents are not agreements or memoranda relating to the sale of Government securities. They do not, therefore, come within Art. 5.] If the documents are promissory notes, may they not be given. in evidence as accounts stated, or as acknowledgments? See Evans vs. Prothero, 1 De G. M. and G. Palit. That question does not arise on the reference. Piffard then referred to Narain Cumari vs. Ram Krishna Das, 6 C. L. R., 286, and Brojender Coomar Roy Chowdhory vs. S. M. Brommomoyee Chowdhrain, 3 C. L. R., 520. The defendant was not called upon. The judgment of the High Court (1) was as follows :- GARTH, C.J.: We shall answer both questions in the negative, and we make no order as to costs. (1) GARTH, C.J., and PONTIFex, J. Arbitration in suits under Act X of 1859-Procedure. Irrespective of the Civil Procedure Code, persons are at liberty to refer any matter in dispute to arbitration, and any award made under such circumstances may be enforced. There is no reason why the principal should not be applied to a suit under Act X of 1859. APPEAL PPEAL from a decision passed by the Officiating Judicial Commissioner of Chota Nagpore, dated 13th June 1879, reversing the decree of the Deputy Collector of Chuttra. This was a suit to obtain a kabuleut at 21 rupees, 15 anuas, 19 dams and 4 cowries, in respect of a 1 anna kasht of jain laud cultivated by the defendant. The matter was referred to arbitration, and the arbitrators. found that Rs. 15 was the proper rent to be paid by the defendant. To the award the defendant objected that he had been made to pay an excessive rent, that proper enquiries had not been made as to the productive power of the land, and that the award was bad, there being no provision for reference to arbitration under Act X of 1859. The Deputy Collector rejected the award. He relied on the case of Gogan Manghy vs. Kasheshwary Deby, I. L. R., 3 Cal., 498. On appeal the Officiating Judicial Commissioner reversed the order of the first Court. He was of opinion that the matters in dispute in a suit under Act X of 1859 might be referred to arbitration. The defendant then appealed to the High Court. Baboo Jogendra Chunder Dey, for the Appellant. The judgment of the High Court (1) was as follows:- 1880 KHEMUN V. BUDDOO KHAN The plaintiff, who is respondent in this Court, brought this suit for a kabuleut against the defendant, appellant, in the Court of the Deputy Collector of Chutt ra in the Manbhum district on 3rd June 1878, and on 7th August following both plaintiff and defendant filed a joint petition before the Deputy Collector, Judgment. stating that they had agreed to refer the matter in dispute to certain arbitrators. These arbitrators accordingly delivered their award on 8th November, and it was sent into the Deputy Collector. He, however, rejected it, as he considered that it was at variance with a Full Bench decision referred to in Gogan Manjy vs. Kasheshwary Deby, I. L. R., 3 Cal., 498, as it awarded a lower rate of rent than was claimed in the plaiut. He therefore dismissed the suit. The Lower Appellate Court, however, after discussing the legality of a reference to arbitration in a suit under Act X of 1859 (as to which he decided that such a reference could be legally made), aud, finding that there were no valid objections to the proceedings of the arbitrators, reversed the decree of the Deputy Collector, and passed a decree in terms of the award. In this Court it is contended that the reference to arbitration was null and void, as the chapter of the Civil Procedure Code relating to reference to arbitration is not applicable to suits under Act X of 1859. It is quite true that that part of the Civil Procedure Code does not apply, and the Lower Appellate Court was in error in relying upon two cases reported in the North-Western Provinces reports as authorities. We have referred to those cases, and find that they are based upon Act XIV of 1863, which was only applicable to the North-Western Provinces. But we think that on other grounds we can uphold the decision of the Lower Appellate Court. Irrespective of any Code of Procedure, persons are at liberty to refer any matter in dispute to arbitration, and any award made under such circumstances may be enforced by a suit brought for that purpose. It has also been held by this Court that parties who have a suit pending in Court may submit the subject-matter of that suit to arbitration. See Thakoor Doss Roy vs. Hurry Doss Roy, W. R., 1880 KHEMUN v. 1864, p. 21, Miscellaneous Rulings, and the same law has been laid down in Bombay. See Hurivalabdas Kalliandas v. Utmachand, I L. R., 4 Bom., 1. We see no reason why this principle should BUDDOO KHAN not be applied to a suit in Court under Act X, 1859; at any rate, Judgment. if there was any irregularity in the reference to arbitration at the request of both the parties, we think, on the authority of 22 W. R., 398, it is one which the respondent cannot be allowed to object to in appeal. No valid grounds for setting aside the award of the arbitrators have been shown to us. We therefore affirm the decree of the Lower Appellate Court, and dismiss this appeal with costs. Appeals 2056 to 2059 of 1879 will be governed by this judgment. Small Cause Court (Mofussil), Act XI of 1865, section 6-Partnership A suit by one of the joint owners of a mouzah, seeking to recover, to the extent of his share, profits appropriated by a co-sharer in excess of his share, is a suit based upon an implied contract which exists between the joint owners of a zemindary or other landed property, and by which one co-sharer binds himself to make good to the others any profits which he may have appropriated in excess of his own proper share, and such a suit may be cognizable by a Court of Small Causes. The word "partnership," in the first provison of section 6 of Act XI of 1865, refers to a relation which subsists between persons as defined in section 239 of the Contract Act, IX of 1872. APPEAL from a decision passed by the Subordinate Judge of Bhaugulpore, dated 22nd February 1879, modifying the decree of the Moonsiff of Begu Sarai. The facts are sufficiently set out for the purposes of this report in the judgment of the High Court. Mr. M. L. Sandel, for the Appellant. Baboo Chunder Madhub Ghose, for the Respondents. The judgment of the High Court (1) was as follows: The plaintiff seeks to recover from the first party, defendants, the sum of Rs. 412-3 annas, under the following circum stances: The plaintiff is the owner of 9 annas of Mouzah Ishakpore, and the defendants, first and second parties, of 1 anna and 6 annas respectively. The plaintiff is in charge of the collection of the rent of the mouzah from the tenants. There are thirty-two beegahs of khodkust lands which have been distributed amongst the proprietors in the proportion of two beegahs per anna, for which no rent is realizable. Over and above their proportionate share of the khodkust lands, the defendants, first party, cultivated 54 beeghas 18 cottahs and 3 dhoors in the years 1281, 1282, 1283, and 57 beegahs 8 krants 13 dhoors in the year 1284. The plaintiff brought a suit under Act VIII, B. C. of 1869, to recover rent for these years on account of these lands from the defendants, first party, and obtained a decree in the Court of first instance. But on appeal the suit was dismissed, on the ground that there did not exist the relationship of landlord and tenant between the parties, and that its frame was misconceived, inasmuch as the plaintiff could not recover anything without an adjustment of accounts between the shareholders, regarding the profits of the mouzah. The plaintiff has accordingly brought this suit, alleging that on an adjustment of accounts of the profits of the mouzah, he is entitled to recover the sum claimed. This being the nature of the suit, a preliminary objection has been taken to the hearing of this second appeal, on the ground that it is of the nature cognizable by a Court of Small Causes. The appellant's pleader, on the other hand, urges, first, that a Court of Small Causes, under section 6 of Act XI of 1865, has no jurisdiction to try a case in which accounts have to be taken; and, secondly, that under the first proviso of the section in question that Court is not competent to (1) MITTER and MACLEAN, J.J. 1880 ASMAN SINGH v. DURGA ROY. Judgment. |