Whether declaration by father that future disputes among sons should be settled by arbitrator will amount to arbitration agreement?

A reading of the aforementioned sections in
juxtaposition goes to show that in order to constitute a
valid, binding and enforceable arbitration agreement,

the requirements contained in Section 7 have to be
satisfied strictly. These requirements, apart from
others, are (1) there has to be an agreement (2) it has
to be in writing (3) parties must sign such agreement
or in other words, the agreement must bear the
signatures of the parties concerned and (4) such
agreement must contain an arbitration clause.
24) In other words, aforementioned four conditions
are sine qua non for constituting a valid and
enforceable arbitration agreement. Failure to satisfy
any of the four conditions would render the arbitration
agreement invalid and unenforceable and, in
consequence, would result in dismissal of the
application filed under Section 11 of the Act at its
threshold.
25) The question as to what are the conditions which
are necessary for constituting a valid and enforceable

arbitration agreement came up for consideration
before this Court in Vijay Kumar Sharma Alias
Manju vs. Raghunandan Sharma Alias Baburam &
Ors., 2010 (2) SCC 486. In this case, a question arose
in the context as to whether a clause in a Will, which
provides that in the event of any dispute arising in
relation to the properties bequeathed by the testator
would be settled by named arbitrator, can such a
clause or/and the Will be considered as an arbitration
agreement within the meaning of Section 2(b) read
with Section 7 of the Act for the purpose of invoking
the jurisdiction of the High Court under Section 11 for
appointment of an arbitrator for resolving the
disputes. This question arose on the following facts.
26) The father executed a Will in favour of his one
son whereby he bequeathed to him his one house. He
had another son to whom he did not give any share in

the said house. In the Will, father appointed two
executors and expressed that if any dispute arises in
relation to the bequeathed property, one named
arbitrator will decide such dispute. On the death of
the father, one son filed a suit for declaration of his
1/6th share in the bequeathed property and also
demanded partition whereas the other son filed a suit
on the strength of the Will and claimed his exclusive
ownership to the exclusion of all his brothers and
sisters. The suits were clubbed for trial.
27) The two executors, who were also made parties to
the suits, filed an application under Section 8 of the
Act contending therein that the testator had declared
in the Will as also in one separate declaration that in
the event of any dispute arising in relation to the
bequeathed house, the same will be referred to a
named arbitrator for his decision. It was, therefore,

contended that in the light of this, the two civil suits
filed by the parties are liable to be dismissed as being
not maintainable with a liberty to be granted to the
parties to submit themselves to the jurisdiction of the
named arbitrator so as to enable the arbitrator to
decide the disputes as per arbitration clause contained
in the Will/declaration.
28) The Trial Court allowed the application filed by
the executors under Section 8 of the Act and, in
consequence, dismissed the suits with a liberty
granted to the parties to approach the named
arbitrator. One party, accordingly, submitted himself
to the jurisdiction of the named arbitrator and filed his
claim whereas the other party objected to the
jurisdiction of the arbitrator. He contended that there
was neither any arbitration agreement between the
parties for appointment of any arbitrator and nor he

ever signed the Will or any declaration, if made, by his
late father and nor gave his consent for appointment
of any named arbitrator. He, therefore, challenged the
very initiation of arbitration proceedings before the
arbitrator as being without jurisdiction.
29) This led to named arbitrator withdrawing from
the arbitral proceedings which, in turn, gave rise to
the filing of the application by one son under Section
11 of the Act before the High Court of Rajasthan. He
prayed therein for appointment of new arbitrator in
place of earlier named arbitrator. The application was
contested by other son reiterating the same objection,
which he had raised earlier, namely, that there is no
valid and enforceable arbitration agreement between
the parties and neither the Will and nor the
declaration constitute any arbitration agreement for
deciding any dispute between them in relation to the
house in suit.
30) The learned designate of Chief Justice overruled
the objection and allowed the application and
appointed new arbitrator for deciding the disputes
arising between the parties to the application in
relation to the house. It is this order, which was
impugned in the special leave to appeal before this
Court. Allowing the appeal and setting aside of the
order of the High Court, this Court held that firstly,
the Will did not contain any such clause; Secondly,
even assuming that it had any such clause then also it
was merely an expression of the wish by the testator
that the disputes relating to bequeathed property
should be settled by the arbitrator and nothing more.
It was held that in no case the Will could be
considered as constituting an arbitration agreement;

Thirdly, even if there was some declaration made by
the testator subsequent to the execution of Will to this
effect yet since it was a unilateral declaration made by
the father and hence by no stretch of imagination
such declaration could be considered as an arbitration
agreement among his children. It was further held that
at best such declaration could be taken as an
expression of a fond hope of a father that his children
should get the disputes settled in case if they arise
between them by means of arbitration but certainly it
did not partake the nature of an arbitration agreement
within the meaning of Section 2(b) read with Section 7
of the Act. Justice Raveendran, speaking for the
Bench, succinctly dealt with this issue in paras 18 to
22 and held as under:
“18. In this case, admittedly, there is no
document signed by the parties to the
dispute, nor any exchange of letters, telex,
telegrams (or other means of

telecommunication) referring to or recording
an arbitration agreement between the
parties. It is also not in dispute that there is
no exchange of statement of claims or
defence where the allegation of existence of
an arbitration agreement by one party is not
denied by the other. In other words, there is
no arbitration agreement as defined in
Section 7 between the parties.
19. In Jagdish Chander v. Ramesh Chander,
(2007) 5 SCC 719, this Court held: (SCC p.
726, para 11)
“11. The existence of an arbitration
agreement as defined under Section 7 of the
Act is a condition precedent for exercise of
power to appoint an arbitrator/Arbitral
Tribunal, under Section 11 of the Act by the
Chief Justice or his designate. It is not
permissible to appoint an arbitrator to
adjudicate the disputes between the parties,
in the absence of an arbitration agreement or
mutual consent.”
20. While the respondents rely upon the will,
the appellant denies the existence of any
such will. The validity of the will is pending
consideration in the two civil suits filed by
the appellant and the first respondent,
referred to above. The alleged will,
admittedly, does not contain any provision
for arbitration, though the learned designate
has proceeded on an erroneous assumption
that the will provides for arbitration. Even if
the will had provided for reference of
disputes to arbitration, it would be merely an
expression of a wish by the testator that the
disputes should be settled by arbitration and

cannot be considered as an arbitration
agreement among the legatees.
21. In this case, according to the
respondents, the provision for arbitration is
not in the will but in a subsequent
declaration allegedly made by Durganarayan
Sharma, stating that if there is any dispute in
regard to his will dated 28-12-2003, it shall
be referred to his friend, U.N. Bhandari,
Advocate, as the sole arbitrator whose
decision shall be final and binding on the
parties. A unilateral declaration by a father
that any future disputes among the sons
should be settled by an arbitrator named by
him, can by no stretch of imagination be
considered as an arbitration agreement
among his children, or such of his children
who become parties to a dispute. At best,
such a declaration can be an expression of a
fond hope by a father that his children, in the
event of a dispute, should get the same
settled by arbitration. It is for the children, if
and when they become parties to a dispute,
to decide whether they would heed to the
advice of their father or not. Such a wish
expressed in a declaration by a father, even if
proved, cannot be construed as an agreement
in writing between the parties to the dispute
agreeing to refer their disputes to arbitration.
22. We are therefore of the view that there is
no arbitration agreement between the parties
and the learned designate committed a
serious error in allowing the application
under Sections 11 and 15(2) of the Act and
holding that there is an arbitration
agreement between the parties to the dispute
and appointing an arbitrator.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8164 OF 2016
(ARISING OUT OF SLP(C) No. 13369 of 2013)
Shri Vimal Kishor Shah & Ors.
VERSUS
Mr. Jayesh Dinesh Shah & Ors. 

Citation:AIR 2016 SC 3889

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Whether contract once terminated can be revived at the option of one of parties?

Learned senior counsel further submitted that the
respondents terminated the contract on 15.12.1977, that is,
within two month. The question of waiver of a condition would
not at all arise so as to revive the contractual obligations into

existence and thereby claim his contractual rights under the
contract so revived. It is settled position of law that once a
contract has been terminated, either on the breach of the
terms of the contract by one party and subsequent repudiation
by the other or by frustration of the contract due to
circumstances beyond the control of either of the parties, the
contract legally comes to an end between the parties. Then
there is no question of any contract/agreement subsisting
between the parties, what follows is only the legal
consequences which may have been contemplated in the terms
of the contract e.g. liquidated damages, etc. However, the
parties are at liberty to mutually novate the contract by
bringing into existence a new contract altogether which would
replace the old contract between the parties and the terms of
the new contract take the place of the old contractual terms.
It will not only be illogical but also absurd to contend that
once the contract has been terminated by a party, it will still
subsist in the background and either of the parties may be
able to waive a condition attached to that contract so as to
revive that contract from a period of slumber. This will in fact

amount to saying that even though a contract has been
terminated by putting it to an end but it is actually still
available, at the option of one of the parties, to be revived back
to its original form and content through unilateral waiver of a
contractual condition. In order to substantiate this claim,
learned senior counsel placed reliance on K. Narendra vs.
Riviera Apartments (P) Ltd. (1999) 5 SCC 77 which held as
under:-
“36….. We are clearly of the opinion that at one point of time
the contract had stood frustrated by reference to Section 56
of the Contract Act. We do not think that the subsequent
events can be pressed into service for so reviving the
contract as to decree its specific performance”.
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 1148 OF 2010
Nandkishore Lalbhai Mehta .... Appellant(s)
Versus
New Era Fabrics Pvt. Ltd. & Ors. .... Respondent(s)
 WITH
CIVIL APPEAL NOs. 1131-1132 OF 2010
Citation;(2015) 9 SCC 755

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When Husband has failed to prove that wife was previously married to some other person?

On being summoned, the petitioner filed his written statement before the learned Magistrate in the proceeding No. 63/1993. The Written statement is at Exh.30 on the record. What is important to note from the written statement is that, the petitioner has not admitted his marriage with respondent No. 1 on 17.6.1991 at Mauje Sonosi as per Hindu rites and custom. He made a claim in the written statement that, prior to his marriage the respondent No. 1 was having illicit relations with Ankush Avhad. If the written statement is minutely scanned and scrutinized some what contradictory stand is taken in the said written statement. At one place, it is the claim of the petitioner that prior to his marriage with respondent No. 1 on 17.6.1991 there was a love marriage between the respondent No. 1 and Ankush Avhad and at the next breath, he submitted in his written statement that prior to his marriage with respondent No. 1, respondent No. 1 was having illicit relations with Ankush Avhad.

Since the petitioner not only admitted in his pleading about the factum of his marriage with respondent No. 1 at Mauje Sonosi on 17.6.1991, but also he has admitted said fact when he entered into the witness box in order to substantiate his claim in the written statement. Thus, both in the pleadings and in the evidence the petitioner has admitted the fact that he married with respondent No. 1 on 17.6.1991. In that view of the matter, initial burden which was on the shoulder of the respondent No. 1 to prove that she is legally wedded wife of the petitioner stands discharged. Now, once that initial burden was discharged by the respondent No. 1, onus was shifted on the shoulder of the petitioner since he claimed that prior to his marriage with respondent No. 1, there was a marriage of respondent No. 1 with Ankush Avhad. If the entire evidence is properly scrutinized in the light of his pleading in the written statement Exh.30, then there is no iota of proof adduced before the Court to show that the petitioner has discharged the burden which was shifted on his shoulder to prove that prior to 17.6.1991 there was a marriage between respondent No. 1 and Ankush Avhad. Since the petitioner has failed to discharge said burden in order to prove his case, the claim of the petitioner that the respondent No. 1 is not his legally wedded wife has to be necessarily rejected and which is rightly rejected by both the Courts below.

5. In so far as criminal proceeding filed by Ankush is concerned, in the said proceeding, present respondent No. 1 was brought before the Court in the said criminal proceeding. Now there is no evidence adduced by present petitioner that from which place the respondent No. 1 was produced before the Court in the said Criminal Proceeding initiated by Ankush. Obviously, when those proceedings were initiated by Ankush, the police must have produced the respondent No. 1 from the house of the present petitioner. Leave apart said aspect, in the said proceeding, it was specifically stated by respondent No. 1 that she is wife of present petitioner and she is having no concern with said Ankush Avhad.

If any statement recorded in the said proceeding of the said person Ankush, those statements are surely not binding on the respondent No. 1. Any unilateral claim made by Ankush about his relationship with Respondent No. 1 can not be binding on respondent No. 1 to dis-entitle her to claim the right of maintenance from the present petitioner especially when there is nothing on record to show that any marriage was performed between Ankush Avhad and Respondent No. 1.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.592 OF 2000

Bhalsing Sahebrao Jagdale,

Vs

 Latabai w/o Bhalsing Jagdale,

CORAM : V.M. DESHPANDE, J.
      Dated   : July 24, 2014
Citation;2015ALLMR(Cri)1067

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