- (1.)BOTH the impugned Orders must and do survive these appeals, though with a little alteration by way of addition as indicated in the Judgment of Ray. J. , following hereinafter, 1 agree with the order proposed by Ray. J. . But a few words on some of the questions Involved. 1. Under the law as it stood before the enactment of the Hindu Adoption and Maintenance Act, 1956, one could not adopt two persons simultaneously, as ruled by the Privy Council in Akhoy Chunderbagchi vs. Kala Pahar Haji (12 indian Appeals 198) and then in Surendra Keshub vs. Doorgasoonderi (19 indian Appeals 108) The decisions of the Privy Council were severely criticized as erroneous and as wrong exposition of law arrived at by "lawyers without Sanskrit", as there was too provision anywhere in any of the Smritis or the Nibanu has prohibiting such adoption, while some of the provisions of the Codes of Atri, Ushana. Brihaspati and Likhita could reasonably be interpreted to permit, or even entourage, plurarity of sons, whether aurasa (natural), dattaka (adopted), or otherwise. (See, among others. Sarkar-Sastris Tagore Law Lectures on the Hindu Law of Adoption ). The present Act of 1956, in prescribing the conditions for a valid adoption, has provided in Section 11 (i) that while adopting a Son, the adopter must not already have another Son, whether natural or adopted, living at the time of adoption. This clearly rules out what used to be called successive adoptions, i. e. , the adoption of one after another has already been adopted and is in existence. But does not, at least expressly, rule out simultaneous adoption of two sons at a time and at one go. if that is otherwise possible in fact in accordance with the requisits rites. The express prohibition in Section 11 (v) against simultaneous adoption of the same child by two or more adopters and the conspicuous absence of such a direct prohibition in respect of simultaneous adoption of two or more sons by the same adopter, may be of great significance. At any rate, now that under the present Act a childless person can adopt a son and also a daughter, a simultaneous adoption of two children of different sex would be permissible. And, but for the binding decisions of the Privy Council referred to hereinabove, I would have ventured to think that in view of the absence of any express prohibition in the earlier hindu Law against plurarity of adopted sons. the mad craze for sons among she early Hindus leading to recognition of twelve kinds of sons, including dattaka and Aurasha and the serious threat in our scriptural laws of banishment to hell to a childless person, eulogizing the Rahuputra and demonizing a Putraheena, a simultaneous adoption of more sons than one would not have been illegal. But accepting that simultaneous adoption of two or more sons was illegal and the award was wrong in [holding such adoption to be legal an award, even if liable to be set aside on the ground of such an error apparent does not and cannot become a nullity on the ground of any such error as no question of any jurisdictional error, which alone can make an award a nullity, is involved. And where, as here, such an award, far from being set aside or attempted to be set aside by appropriate proceedings, has become a rule of the court in the form of a decree, an execution thereof can no longer be resisted.
(2.)AN impression has not only gained ground but is very much deeprooted that anything relating to or covered by a testament is beyond the reach of arbitration. I am afraid that this is too broad a statement. True, it is only Civil Court (the so called Probate Court is obviously a Civil court) which can grant or refuse to grant. Probate or cancel one already granted. Nothing extra-ordinary. For it is Civil Court, only, however labelled, which can grant matrimonial relief, or decree ejectment of tenant, or appoint guardians for minors. But from that alone, it cannot and does not follow that all disputes relating to spouses, or landlord and tenant, or custody of miners are 'no-entry' area for arbitration. The crucial words in the observations extracted by Ray, J. , from the supreme Court decision in Bahadur Singh (1969-2 SCR 432) are "without satisfying itself that a ground of eviction exist" The relevant Premises Tenancy legislation countermanded any decree in flavour of a landlord and against a tenant except on one or more of the grounds specified in the Statute and therefore, any decree for eviction passed by a Court, even though on the basis of a compromise between the parties or am award by an arbitrator, was held to be nullity, if there was nothing to show, from the compromise or the award or otherwise, that the Court was or could be satisfied as to the existence of a statutory ground of eviction. But a long catena of post-Bahadur Singh decisions of the Supreme Court, and also of this Court, has now settled it beyond doubt that if there were materials before the Court, whether in the petition of compromise, or in the award, or elsewhere, to. show that a statutory ground of eviction existed, a decree of eviction on the basis of compromise between the parties or an award by the arbitrator would not be a nullity. Suppose, on coming to know about a Will adverse to his interest, in respect of which no probate has been applied for. an heir on intestacy files a suit for a declaration that the deceased died intestate and that he is entitled to the estate by inheritance. And the dispute between the heir on intestancy and the testamentary heirs or legatees is settled out of Court with division of the estate between the person claiming an intestacy and the persons claiming under the Will I do not know why such a settlement or compromise would be unlawful and why a compromise decree cannot be passed thereon under Order 23, Rule 3 of the Code of Civil Procedure, even though such a compromise and the decree thereon would be in derogation of the provisions of the Will and would considerably affect the Will and virtually set it aside, at least in part. Whether, after such compromise and decree, the legatee can still take steps for enforcing the Will or would be estopped from doing so, is a different matter. But is such a compromise and decree thereon are permissible under the law, then it is difficult to understand as to why the same would be impermissible if done through arbitration. But even though I have my doubts as to whether anything and everything relating to or covered by a Will is necessarily a prohibited Zone or forbidden ground for arbitration, I do not, as I need not, decide the point, because, as rightly pointed out by Ray, J. , the validity or otherwise of the Will would have had no effective bearing on the dispute before us and any determination to that effect by or in the award may very well be ignored in this case, as done by Ray, J.
The expressions 'judgment, "order', 'decision' and 'decree' are very often used synonymously. Going by the definitions in the Code of Civil procedure, Section 2, while 'decree' or 'order' is the formal expression of an adjudication or decision, 'judgment' is the statement of the grounds or reasons for the adjudication or decision. But otherwise, the expression judgment would include any decision on a matter in dispute, whether reasoned or unreasoned. I agree with Ray, J. , that in view of the ratio of the decision of the supreme Court in Khimji (AIR 1981 SC 1786), the Orders assailed before us are to be held as appealable. It is true that as a result of the amendment of the definition of "decree" in the Code of Civil Procedure, the Orders under appeal would no longer be appealable as "decree" and those were never appealable as "orders" under Section 104 read with Order 43 of the Code. An apparent disparity because Orders in execution in the original jurisdiction of the High court may be appealable as "judgment" under Clause 15 of the Letters Patent, but such Orders in other Courts are no longer appealable. This apparent anomaly was sought to be mollified by Mr. Mitra by pointing out that such orders in other Courts would be open to revision, while no revision is available in respect of Order in execution passed by this Court in the Original jurisdiction. True But I wonder whether a revision can at all be a substitute for appeal on facts as well as law. But in view of the Supreme Court decision in Khimji (supra), it may not be permissible for us to project the legislative amendment of 1976 of the Code of Civil Procedure in Clause 15 of the Letters patent of 1865 by way of superimposition and thus to cut down the amplitude of the expression "judgment" as amplified in Khimji on the ground that such circumscription would appear to be in tune with "felt necessities" of time. I agree with the view followed by Ray, J. , that if two views are possible relating to appealability of an Order, the one in favour of appeal is generally to be accepted. But to agree with Ray, J. , in holding that whenever the cause of justice appears to be in distress, the Judges, like Knight-Erranfs of yore, must go into miltant action to exercise appellate jurisdiction to rescue justice in jeopardy, unless the Order assailed is expressly labelled as non-appealable, may be going too far. That would upset the settled principle that appeal must be creature of statute and not of Judge's predilection, to be or not to be according to the mental process of the concerned Judge. With respect, I do not think appealability can be allowed to stand or fall on something like chancellor's foot in the old Equity Jurisdiction of the United Kingdom. As already stated, I agree with the Order proposed by Ray. J. ,as hereinbelow. Ajoy Nath Ray, J. : -

(3.)I think that the two appeals from the two Orders of Justice Suhas chandra Sen, respectively dated 29. 4. 91 and 6. 5. 91 should both be dismissed. By the first Order his Lordship has refused to interfere with an earlier order dated 18. 5. 89 passed in execution of a decree passed on an award. The award was the result of a reference made in the above suit no. 192 which had been filed by the Dugars against the Shyamsukhas. The suit was filed in March 1986, the Order of reference in suit was made on 31. 3. 87. the award was passed exactly after one year and is dated 31. 3. 88; the decree upon award was passed on 29. 9. 88 after due notice to the shyamsukhas. The Order in execution of the decree was passed on 18. 5. 89. By this, the Shyamsukhas were directed to hand over possession of the flat in question, situated on the first floor of No. 5a Lord Sinha Road, Calcutta, to the dugars. 1 should mention here (hat the floor area of the flat is about 5000 sq. feet, that the owners of the flat are the Jhunjhunwallas (who form the third of this three group litigation amongst the Shyamsukhas, the Dugars and the jhunjhunwallas) and that the rent of this huge flat in the heart of Calcutta is about a thousand rupees only. The seeds of today's litigation germinated when, on 20. 3. 86', Srimati Suwat Kunwar Dugar, an admitted tenant of the flat. died.