Kulwant Sahay, J.This is an appeal by the defendant 1st party against the decision of the Subordinate Judge of Muzaffarpur decreeing the plaintiffs suit for recovery of possession of the 16 annas Government partitioned patti, bearing tauzi No. 10,570, in village Gaibipur alias Ranjitpur. The plaintiffs case was that the proprietors of the village were Goswami Ranchaur Lalji Maharaj and Goswamini Rukmini Bahuji Maharani, that the said proprietors at first let out the village to the father of the defendant 1st party, Ramautar Sah, who is a minor under a lease dated 21st March 1917. This lease was for a period extending from 1324 to 1332 F.S. On 26th August 1923 the proprietors executed another lease of the same property in favour of the plaintiffs for the period from 1331 to 1341 F.S. It was provided in this lease that in 1331 and 1332 the plaintiffs were to recover the rent payable to the proprietors by the father of defendant 1 under his lease of 21st March 1917 and the plaintiffs were to take possession from 1333 F.S. Subsequent to this lease defendant 1 or his father succeeded in getting a mukarrari settlement of the village from the proprietors under a mukarrari deed, dated 27th August 1924. It was provided in this mukarrari deed that during the period from 1333 to 1341 the mukarraridar was to recover rent from the plaintiffs under the lease of 26th August 1923 and that the mukarraridar was to recover khas possession from 1342 F.S.

2. The plaintiffs case was that on the expiry of the defendants first lease they took possession of the khas zirat lands and of the fisheries but that Bhular Sah, the am-mukhtar or Mt. Suga Kuar the guardian of defendant 1, created several kinds of dispute with the plaintiffs and ultimately there was a criminal case u/s 107, Criminal P.C., before the Sub-divisional Magistrate of Sitamarhi, and that in that proceeding u/s 107 three mukhtars were appointed arbitrators on behalf of the plaintiffs and the said Bhular Sah, and although the arbitration aforesaid was only in respect of the case u/s 107, Criminal P.C., yet the arbitrators gave an award in respect of several matters which they had no right to determine, that the plaintiffs filed an objection in the Court of the Subdivisional Officer of Sitamarhi against the award but that the Sub-divisional Officer summarily dismissed the case u/s 107 on 4th January 1926, that being emboldened by this order the servants of defendant 1 kept the plaintiffs out of possession and that an application of the plaintiffs before the Land Registration Deputy Collector for registration of their name was also summarily rejected. The plaintiffs therefore instituted the present suit for a declaration of their title as lessee under the lease of 1923 and for recovery of possession.

3. The defence was that the parties were bound by the award of the arbitrators and that under the terms of the award the plaintiffs were not entitled to recover possession of the property. The learned Subordinate Judge has held that the award was invalid and was not binding upon the plaintiffs, and has made a decree for possession and for mesne profits in favour of the plaintiffs.

4. The defendant 1st party, who is a minor and is represented by his natural guardian his mother, Mt. Suga Kuar, has preferred the present appeal and the only point for consideration is whether the award was valid and binding on the parties. If the award is held to be invalid and not binding on the parties, then clearly the plaintiffs will be entitled to recover possession under the terms of their lease of 26th August 1923, and the defendant 1st party under the terms of the mukarrari of August 1924 will be entitled to recover possession only after the expiry of the period of the plaintiffs lease.

5. The circumstances under which the reference to arbitration was made are shortly these: On 4th November 1925 a petition of complaint was filed by Khub Lal Mahto the servant of the plaintiffs, against Bhular Sah and fifteen other persons, stating that the property in dispute was in the zarpeshgi thika of his master and that this property had subsequently been let out in mukarrari to Ramautar Sah, minor whose am-mukhtar was Bhular Sah (the second party in the petition of complaint), that Bhular Sah and the other persons complained against were interfering with his master in his cultivation of the zirait lands and the gairmazrua lands, and that they were forcibly catching fish from the jalkar, that there was an apprehension of a serious breach of the peace, and that therefore the complaint was filed with a prayer that notice under Sections 144 and 107, Criminal P.C., might issue and orders might be passed so that peace might be preserved.

6. On 1st December 1925 a petition, which purported to be a joint petition of both the parties to the proceeding u/s 107 was filed before the Magistrate in the following terms:

In the above case, today is the date fixed for hearing. But there is a compromise between the parties, for which Babu Sheobachan Singh, Babu Anukul Chandra Sarkar and Rai Saheb Parmeshwar Deyal, mukhtars, have been appointed panches. Before the aforesaid pancheses, the master of your petitioner 1st party and your petitioners 2nd party will submit their respective statements in writing. The aforesaid panches will report whatever they would decide; and the same will be considered as a sulehnama which will be accepted and approved of by the master of your petitioner 1st party and your petitioners 2nd party. In support thereof signatures of the parties and Babu Nawab Singh, uncle of Ramdeo Singh, master of your petitioner, who is the head and manager or the joint family, and the signature of Bhular Sah, am-mukhtar of Ramautar Sah, are affixed thereon.

7. Then follows the signature of Nawab Singh and of Khublal Mahto, the first party in the proceeding u/s 107, and of Bhular Sah who signs himself as: "am-mukhtar on behalf of Ramautar Sah, minor, 2nd party."

8. It is to be noticed that the lease of 26th August 1923 stood in the name of Ramdeo Singh who is one of the members of the Hindu joint family of the plaintiffs, Nawab Singh plaintiff 2 being admittedly the karta and manager of the joint family. It appears that upon this petition the case u/s 107 was adjourned by the order of 1st December 1925 to 18th December 1925.

9. On 18th December 1925 an award was filed before the Subdivisional Officer by the arbitrators named in the petition of 1st December, by which it was decided that Nawab Singh, who was the managing member of his joint family, will relinquish all his claim, title and possession in favour of Ramautar Sah in the property in dispute by virtue of the lease of 26th August 1923, that he will get a sum of Rs. 450 yearly in two equal instalments from the minor Ramautar Sah until the expiry of his lease, and that in the event of any default in any of the instalments Nawab Singh will have the option to take possession of the property and Ramautar Sah or his guardian will have no objection to give up possession. Then there are other directions in the award as regards advance payment of a portion of the sum of Rs. 450 and as regards payment of the rent to the proprietors and the standing crops on some of the zirait lands. The award then states as follows:

That as regards the dispute for mango trees both the parties will move the Court for deputation of amin to find out whether the disputed trees stand in 5 annas patti or 8 annas patti. If by measurement the trees fall within 5 annas patti Babu Nawab Singh will retain possession of them. If they fall in 8 annas patti, they will remain in possession of the said minor Ramautar Sah;

and that, as agreed upon in the petition of 1st December 1925, this award will be regarded as the terms of compromise to be given effect to by the parties, and in the end the arbitrators asked the Magistrate to drop the proceeding u/s 107, Criminal P.C.

10. The ground given by the learned Subordinate Judge for holding that this award is invalid is that neither the plaintiffs nor the defendants were parties to the submission of the case to arbitration. The learned Subordinate Judge therefore was of opinion that there was no valid reference by the parties to the arbitrators, and the subsequent written statement filed by the plaintiffs before the arbitrators would not give jurisdiction to the arbitrators to decide the matters mentioned therein. The learned Subordinate Judge further observes that the arbitrators in their award disposed of several matters which did not come within the scope of Section 107 case, and he winds up by saying:

I do not think that such an award made by the arbitrators on the petition of reference, not properly signed and agreed upon by the parties in the suit, can take away the legal rights of the parties based on the documents.

11. He accordingly held that the award was invalid and was not binding on the plaintiffs.

12. It is to be noticed that the submission to arbitration was not by the petition of 1st December 1925; that petition merely stated the fact that there was a compromise and certain persons named therein had been appointed panches. The reference to arbitration does not appear to have been by any written agreement between the parties. It must have been a verbal submission of the disputes to arbitration. There is nothing in law which requires a submission to arbitration to be in writing, and a parole submission is a legal submission to arbitration, The reason given by the learned Subordinate Judge that the submission was invalid inasmuch as the petition of 1st December was not signed by the parties to the present suit, is therefore not sound. That petition is only evidence of the fact that there had been a submission to arbitration, and Nawab Singh, the karta of the plaintiffs joint family, signed it as supporting the allegation of submission to arbitration made by the parties to the proceeding u/s 107 evidently with the object of satisfying the Magistrate that there had been a compromise and to induce him to grant an adjournment. In this view of the case the elaborate argument of the learned advocate for the respondents, that the submission was bad in law inasmuch as it was signed by Bhular Sah as am-mukhtar for the minor Ramautar Sah, does not require consideration. Even if the petition be treated as submission to arbitration the argument of the learned advocate for the respondents can have no force. In so far as the plaintiffs are concerned the petition was signed by Nawab Singh who is admittedly the manager and karta of their joint family. There can therefore be no legal objection on the ground of the submission not being validly made on behalf of the plaintiffs.

13. The learned advocate on behalf of the respondents however contends that the submission was illegal in so far as the minor Ramautar Sah (defendant 1), is concerned. His first objection is that Bhular Sah, who signed the petition described himself as am-mukhtar for Ramautar Sah, and it is contended that such submission was illegal inasmuch as Ramautar Sah was a minor and that therefore he himself could not make a valid submission to arbitration nor could his am-mukhtar do so, as an am-mukhtar can have no valid authority under a mukhtarnama executed by a minor. It is true that Bhular Sah signs the petition as mukhtar for Ramautar Sah; but that does not necessarily mean that he held a mukhtarnama from the minor Ramautar. The minor was admittedly under the guardianship of his mother and natural guardian Suga Kuar, and the plaintiffs in the plaint admit that Bhular Sah was am-mukhtar of Mt. Suga Kuar, the guardian of defendant 1. It is evident from the petition that he signed it as am-mukhtar on behalf of the guardian of Ramautar Sah.

14. It is next contended that, assuming that he signed it on behalf of the guardian of Ramautar Sah, the guardian herself had no authority to make a submission to arbitration, and reference has been made to the decision of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri [1912] 39 Cal. 232. In that case it was held by the Judicial Committee that it was not within the competence of the guardian of a minor to bind the minors estate by a contract for the purchase of immovable property. That case therefore is no authority for the proposition that the guardian cannot make a valid reference to arbitration. On the other hand, we have got direct authority on the point and I may refer to one only of them, viz., the decision in Romon Kissen Sett v. Hurrololl Sett [1892] 19 Cal. 334 where it was held that a natural guardian has power to submit to arbitration. The reference to arbitration by the guardian of the minor was not illegal.

15. It is next contended that the submission was vague and indefinite and therefore the award on such a submission could not be binding on the parties. For this purpose reference has been made to the decision of this Court in Babua Lal Pardhan v. Badri Lal Pardhan [1919] 49 I.C. 522 where it was held that where the terms of an agreement of reference to arbitration are so vague as to make it impossible to ascertain what the dispute was which the parties referred to arbitration, the agreement of reference is bad for indefiniteness. In the present case we have not got any written document showing the terms of the agreement, but we know what the dispute between the parties was. The defendant 1st party or his father was in possession of the property in dispute under the lease of 1917. Under the terms of the plaintiffs lease of 1923 the plaintiffs were entitled to enter upon possession of the property from 1333 P.S. In the meantime however defendant 1 had secured a mukarrari settlement and opposition was made on his behalf to the plaintiffs taking possession of the property in 1333. The petition of complaint was accordingly filed before the Subdivisional Magistrate on 4th November 1925, which was the beginning of Aghan, the third month of the Fasli year 1333. The dispute which is stated in the petition of 1st December 1925 to have been referred to the panches was evidently the dispute as regards the rights of the parties to the possession of the village in dispute. The reference to arbitration therefore was the question as to who was entitled to retain possession of the property. There can be no indefiniteness or vagueness about the reference to arbitration. There was no complication in the matter and the question was quite definite. Reference has however been made to the two written statements, one filed by Nawab Singh and the other filed by Bhular Sah in which a long history is set out. The written statement of Nawab Singh is almost similar to the plaint in the present suit which contains a number of irrelevant matters; but all the statements in the written statement were merely intended to show that Nawab Singh was entitled to possession of the property. Similarly, the contents of the written statement filed by Bhular Sah went to show that defendant 1 Ramautar was entitled to possession.

16. It is next contended that what was referred to arbitration was not the question as regards the right to retain possession of the property, but the dispute u/s 107, Criminal P.C., and reliance is placed on the prayer in the written statement of Bhular Sah to the effect that the proceeding u/s 107 may be dropped. I am of opinion that the reference to arbitration was not, and could not have been as to the way in which the proceeding u/s 107 ought to be decided. The Magistrate could not delegate his power to make an order u/s 107 to the panches. The only question referred to arbitration was the question as regards possession, a decision of which question would render the proceeding u/s 107 infructuous. I am therefore of opinion that the reference was not bad on the ground of indefiniteness or vagueness, and the question referred was the right to possession and not the case u/s 107.

17. It is next contended that the award was illegal and could not be given effect to inasmuch as the arbitrators did not decide all the matter referred to them. The learned advocate was unable to point out what matter was left undecided. The only thing that he refers to is the paragraph in the award relating to the trees; but there is a clear decision as regards the trees inasmuch as it was held that if these trees stood on the 5-annas patti they would belong to Nawab Singh, and if they stood on the 8-annas patti then they would belong to Ramautar. The fact that the final decision on this point was left on a measurement of the land does not make the award invalid.

18. It is next contended that it has not been shown that Bhular Sah had authority under his mukhtarnama to make a reference. The mukhtarnama has not been produced; but it appears that no question was ever raised as regards the authority of Bhular Sah to make the reference. There were three occasions on which such an objection might and ought to have been taken: first, when Bhular Sah signed the petition of 1st December 1925; secondly, when Bhular Sah appeared before the arbitrators and filed the written statement; and lastly, in the plaint in the present suit. Nowhere does any objection appear to have been taken that Bhular Sah was not authorized. On the other hand, the plaint states that Bhular Sah was acting throughout as am-mukhtar of Mt. Suga Kuar, the guardian of defendant 1, and that he made the reference to arbitration; and the validity of the arbitration is challenged on other grounds and not on the ground that Bhular Sah had no authority to make the submission. I am of opinion that as the question was not raised during the trial in the Court below it is not open to the respondent to raise it now, and having regard to his own conduct throughout the proceedings it must be assumed that Bhular Sah had authority under the mukhtarnama to make the reference.

19. In the view I take of the case I am of opinion that the reasons given by the learned Subordinate Judge for holding that the award was invalid are unsound. There appears to be no illegality in the award and it must be given effect to. I would therefore allow this appeal, set aside the decision of the Subordinate Judge and dismiss the suit with costs. The appellant is entitled to his costs in all the Courts.

20. The award ought to have been stamped with a stamp of Rs. 5 under Article 12, Schedule 1, Stamp Act. It bears no stamp. Sir Abdur Rahim, on behalf of the appellant; expresses his readiness to pay the stamp duty and the penalty. u/s 61(2) of that Act we determine that the amount of duty with which the award is chargeable is Rs. 5 and we permit it to be admitted in evidence on payment of the said sum together with the penalty of Rs. 50. Let the award be impounded and a copy of this order and the original document sent to the Collector of Muzaffarpur.

21. The decree in this appeal will not be prepared until the stamp duty and penalty have been paid.

Macpherson, J.

22. I agree.