Kulwant Sahay, J.The petitioners instituted the suit out of which the present application arises for a declaration of their title in respect of one third share of certain joint family properties which they alleged to have purchased under a deed of sale, dated 9th May 1925, executed by defendant 8, Bandhu Lohar and for partition. The defence was that Bandhu Lohar was not a member of the family and had no right to execute the conveyance and that the plaintiffs acquired no title under the deed of sale.

2. The matter in dispute between the parties was referred to the arbitration of five arbitrators, viz., Tapesar Singh, Wazir Alum, Bhiku Mian, Harprasad Singh and Alamat Ali. On the 14th February 1927, an award was filed in Court which was dated the 10th February, and was signed by three of the arbitrators, but was not signed by Alamat Ali, and it purported to be signed by Harprasad Singh by the pen of Tapesar Singh. Objections were taken to the award by the petitioners. One of the objections was that the. award was invalid inasmuch as it had not been signed by all the arbitrators. The other objections were that the reference was bad inasmuch as the guardian ad litem of one of the minor defendants had not signed the application for reference and that the award was invalid on account of the misconduct of the arbitrators who had antedated the award and it was not made on the date on which it purported to have been made.

3. The learned Subordinate Judge has found that the guardian ad litem did join in the reference although he did not sign the application for reference. He has also found that there was no misconduct on the part of the arbitrators and that the award filed was the award unanimously made by all the arbitrators. As regards the question relating to the validity of the award on account of the absence of the signatures of two of the arbitrators the learned Subordinate Judge was of opinion that all the arbitrators agreed in making the award and had come to the decision which was ultimately embodied in the written document but that Alamat Ali had to go away before the award was written as he had to attend his office and as regards Harprasad Singh, it was found that his signature was made by Tapesar Singh at his request. Now para. 10, Schedule 2, Civil P.C. provides that where an award in a suit has been made, the persons who made it shall sign it and cause it to be filed in Court There is a distinct statutory provision that the award must be signed by the persons who made it.

5. The learned Subordinate Judge was of opinion that the writing out of the award was a ministerial act and, if all the arbitrators agreed in the decision of the points referred to them and the formal award was written out in the absence of one or other of the arbitrators and it was not signed by some of them that did not invalidate the award.

6. In my opinion the writing out of the award cannot be treated to be a ministerial act. The award embodies the decision to which the arbitrators came and the writing of the decision in a case cannot be treated to be a ministerial act. Even if the writing out of the award be a ministerial act, it does not become an award until it is signed by the arbitrators. It was open to them to change their mind upon further consideration when the written award was placed before them for signature. The provisions of para. 10, Schedule 2, are based on sound judicial principles. Instances are not wanting where Judges have changed their minds when judgments dictated by them are placed before them for signature.

7. In Ramesh Chandra Dhar v. Karuna moyi Dutt [1906] 33 Cal. 498 one of the dissenting arbitrators who did not agree to the award had not signed the award and the award was filed in Court without the signature of the dissenting arbitrator, even then it was held that the award was invalid because it did not boar the signature of that arbitrator. This decision was referred to in this Court in Khudiram Mahto v. Chandi Charan Mahto [1916] 1 Pat. L.J. 306 and apparently accepted as correct. Reference is made on behalf of the opposite party to the decision in Ram Narain Ram v. Pati Ram Tewary [1916] 1 Pat. L.J. 90, where it was held that, when the parties have agreed to abide by the decision of the majority of the arbitrators, an award cannot be set aside on the ground that it has not been signed by the minority. In that case no reference was made to the provisions of para. 10, Schedule 2, Civil P.C. But, even assuming that the point of law was correctly decided in that case, it can be clearly distinguished from the facts of the present case, inasmuch as in that case there was a provision in the application for reference to arbitration that the award should be the award of the majority of the arbitrators and the want of signatures of the arbitrators who did not agree with the decision of the majority could not be held to invalidate the award which was made by the majority and which by agreement of the parties, was to be considered to be the award of the arbitrators.

8. In Dandekar v. Dandekar [1881] 6 Bom. 663 three out of the seven arbitrators did not sign the award and their Lordships observed that the omission to take the signatures of the minority of the arbitrators to the document which formed the record of their award would not be fatal to the award. No reference appears to have been made in this judgment to the provisions of Section 516, Act 10, 1877, which was the CPC then in force which provided as para. 10, Schedule 2 to the present CPC provides, that the award must be signed by all the persons; and with very great respect to the learned Judges, I am unable to agree to the proposition that the want of signatures of some of the arbitrators from the award does not invalidate the award. I am of opinion that this defect is fatal to the award and the award cannot be accepted and a decree cannot be passed in accordance therewith.

9. The order of the learned Subordinate Judge must, therefore, be set aside and the case remanded to him for hearing according to law.