judgement:
il Appeal No. 1178 of 1966.
Appeal by special leave from the judgment and order dated June 15, 16, 1965 of the Bombay High Court in Special Civil Application No. 2061 of 1963.
V. A. Seyid Muhammad and section P. Nayar, for the appellant.
N. N. Keswani for the respondents.
This appeal by special leave is directed against the decision of a Division Bench of the Bombay High Court allowing 441 a petition under articles 226 and 227 of the Constitution by Arjandas Dayaram Vachhani challenging the order of the Deputy Chief Settlement Commissioner (with delegated powers of Chief Settlement Commissioner) under the (44 of 1954), hereafter referred to as the Act disallowing the writ petitioner 's revision from the order of the Settlement Officer (with delegated powers of Settlement Commissioner) which had affirmed on appeal the order of the Assistant Settlement Officer.
The writ petitioner 's case was held to fall within r. 19(3) of the Displaced Persons (C & R) Rules, hereafter called the Rules, made by the Central Government under section 40 of the Act.
The question which falls for decision is a very short one and it relates to the meaning and effect of r. 19(3).
The facts are not in dispute.
Kishanchand Dayaram Vachhani and his four sons Arjandas Dayaram Vachhani, Dayaram A. Vachhani, Ramchand Dayaram Vachhani and Kanayalal Dayaram Vachhani constituted a joint Hindu family when, as a result of partition of the country in 1947, they migrated from Sind (now in Pakistan) to India.
After their migration Kishanchand Dayaram Vachhani, the father, made an application for vertification of claim in respect of the properties left by the joint Hindu family in Sind.
This claim was duly verified.
It is unnecessary to make a detailed reference to the history of the case.
Suffice it to say that on October 28, 1961 'Shri Purshottam Sarup, Deputy Chief Settlement Commissioner (with delegated powers of Chief Settlement Commissioner) (Rehabilitation Department) allowed the appeal preferred by Arjandas Dayaram Vachhani from the order of Shri H. K. Chaudhary, Regional Settlement Commissioner, Bombay, dated May 14, 1961 and after setting aside the impugned order, directed that the property.
in question be treated as joint family property in which the parties would be entitled to apportionment as members of joint Hindu family in accordance with the Rules.
Pursuant to this direction Shri K. section Bedi, Assistant Settlement Officer, Bombay, on June 12, 1963 directed that the case be re processed.
Shri Arjandas Dayaram Vachhani appealed from this order to the Settlement Officer (with delegated powers of the Regional Settlement Commissioner) but without success.
That officer recorded a fairly exhaustive order dated October 21, 1963 in which the entire history of the case was noticed.
A revision was taken to the Deputy Chief Settlement Commissioner, Shri Purshottam Sarup (with delegated powers of Chief Settlement Commissioner).
That officer also went into the controversy at some length and by his order ' dated February 13, 1964 disallowed Shri Arjandas Dayaram Vachhani 's claim both under r. 20 and r. 19(2).
of the Rules.
It was pointed out that in his (Shri Purshottam Sarup 's) earlier order it had 442 been clearly stated that the parties constituted a joint Hindu family and were entitled to apportionment.
The father and the sons could not be treated as separate and that their claim as tenants in common or as co sharers was contrary to his earlier decision which had remained unchallenged.
In view of sub r.
(3) of r. 19, r. 19(2) was held inapplicable.
On an application under articles 226 and 227 of the Constitu tion the High Court disagreed with the view of the Chief Settlement Commissioner and held r. 19(3) to be inapplicable when the joint Hindu family consists only of father and his sons.
On this view the order of the departmental authorities was set aside.
The short question which now falls for our determination in this appeal is whether the sons of Kishanchand Dayaram Vachhani are entitled to claim the benefit of r. 19(2) which has been granted by the High Court on their writ petition in disagreement with the view of the departmental authorities which excluded the claim of the sons under r. 19(3).
Rule 19 may here be re ad "Special provision for payment of compensation to joint families : (1) Where a claim relates to properties left by the members of an undivided Hindu family in West Pakistan (hereafter referred to as the joint family) compensation shall be computed in the manner hereinafter provided in this rule.
(2) Where on the 26th September, 1955 hereinafter referred to 'as the relevant date the joint family consisted of (a) two or three members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into two equal shares and calculating the compensation separately on each such share, (b) four or more members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into three equal shares and calculating 'the compensation separately on each such share.
(3) For the purpose of calculating the number of the members of a joint family under sub rule (2), a person who on the relevant date: (a) was less than 18 years of age, 443 (b) was a lineal descendant in the main line of another ' living member of joint Hindu family entitled to claim partition shall be excluded : Provided that where a member of a joint family has died during the period commencing on the 14th August, 1947 and ending on the relevant date leaving behind on the relevant date all or any of the following heirs namely: (a) a widow or widows, (b) a son or sons (whatever the age of such son or sons) but no lineal ascendant in the main line, then all such heirs shall, notwithstanding anything contained in this rule, be reckoned as one member of the joint Hindu family.
Explanation : For the purpose of this rule, the question whether a family is joint or separate shall be determined with reference to the status of the family on the 14th day of August, 1947 and every member of a joint family shall be deemed to be joint notwithstanding the fact that he had separated from the family after that date.
" According to the High Court the other living member of the joint Hindu family whose lineal descendants are to be excluded under sub r. (3) (b) must be a person other than their own father.
This view, in our opinion, is ' contrary to the plain words used in this sub rule.
The High Court expressed its opinion in these words "It is clear that this condition is intended to apply to a case where a joint family consists of more than two persons where each one of them is entitled to claim partition and the members sought to be excluded are lineal descendants of one of such members.
It is only in such cases that it could be said that they were lineal descendants of a member who was ' entitled to claim partition against another.
In the present case the father and each of the sons is entitled to claim partition against each other.
If the lineal descendants are to be excluded even in a case like the present it only means that all the descendants of the father must be excluded even though there is no other member against whom the father can seek to enforce partition.
Having regard to the words used the only interpretation which can be placed on clause (b) of sub rule (3) of r. 19, is the one adopted by us.
" 444 The error into which the High Court seems to have fallen is that it has assumed that a person against whom partition can be claimed by the father ' of the lienal descendants constituting the joint Hindu family must be some member of that family other than his lienal descendants and that it excludes his right to claim partition when the only other members of the joint family are his own lineal descendants.
Far this assumption there does not seem to us to be any.
justification either in the language or in the scheme of the Act and the rules or in any other provision of law applicable to the parties before us and governing the present controversy.
According to the general provisions of Hindu law the father in a joint Hindu family has the power to partition the joint family property and indeed in the present case the High Court has accepted the legal position that the father and each of his sons are entitled to claim partition against each other.
It is only on the language of r. 19(3) and as the judgment under appeal suggests, on that Court 's disinclination to accept as proper, the exclusion of the sons when the, joint family consists only of the father and his sons that the High Court construed r. 19(3) in the, manner stated above.
We are unable to find any warrant for this view.
The plain reading of r. 19(3) is against it.
The language is not susceptible of the meaning that there should be in existence some member of the joint family other than the sons, against whom the father should be entitled to claim partition.
The words of the sub rule being plain and unambiguous they have, in our view, to be construed in their natural and ordinary sense.
No cogent reason has been suggested for departing from the rule of literal construction in this case.
The consequence flowing from.
this construction is quite intelligible and seems to us to be rational and logical.
The special provision embodied in r. 19 for paying compensation to joint Hindu families is, in our view, intended to treat a joint Hindu family consisting only of a father and his sons as one, unit for the purpose of payment of compensation for the joint family property left in Pakistan.
Such a joint family is not intended to be broken up by the statutory scheme of the Act and the Rules.
Sub rule (3) (b) of r. 19 was, in our opinion correctly construed by the Chief Settlement Commissioner and the High Court was wrong in disagreeing with it and in allowing the writ petition.
The appeal accordingly succeeds and is allowed with costs.
V.P.S. Appeal allowed.

summary:
Rule 19(2) of the Displaced Persons (Compensation and Rehabilitation) Rules provides for the method of compensation to joint families which have migrated to India as a result of the partition of the country in 1947.
Rule 19(3)(b) provides that for the purpose of calculating the number of members of a joint family.
Under r. 19(2), a person who was a lineal descendant in the main line of another living member of the family entitled to claim partition shall be excluded.
A joint family consisting of a father and his sons had migrated to India from Sind.
The father made an application for the verification of claim in respect of the properties left by the family in Sind and the claim was verified.
One of the sons claimed that the father and sons should be treated as tenants in common.
The authorities under the Act held that the parties constituted a joint Hindu family 'and that in view of the r. 19 (3) (b), r. 19(2) was not applicable.
The High Court quashed the order holding that the living member of the family whose lineal descendants are to be excluded under r, 19(3) (b), must be a person other than their father, on the assumption that a person against whom partition can be claimed by the father must be some member of the family other than his lineal descendants.
In appeal to this Court, HELD : The special provision embodied in the rule is intended to treat a joint Hindu family consisting only of a father and his sons as one unit for the purpose of payment of compensation for the joint family property left in Pakistan.
The rule is rational and logical and its_language is not susceptible of the meaning given to it by the High Court, because under Hindu law a father and each of his sons are entitled to claim partition against each other.
[444 A B, C F]


judgement:
ivil Appeal No. 1201 of 1966.
Appeal by special leave from the judgment and order dated June 24, 1965 of the Bombay High Court in Appeal No. 79 of 1963.
F. section Nariman, K. D. Mehta and 1.
N. Shroff, for the appellants.
M. C. Chagla and A. K. Verma, for the respondents.
The Judgment of the Court was delivered by Shah, J.
Dadiba Hormusji Boatwalla was one of the eight partners of Messrs Meghji Thobhan & Company a firm of Muccadams and cotton brokers.
Boatwalla died on February 20, 1957.
By virtue of cl. 8 of the deed of partnership the business of the firm was continued by the surviving partners.
Khorshed and Nariman widow and son respectively of Boatwalla obtained letters of administration to the estate of Boatwalla and commenced an action in the High Court of Bombay for an account of the partnership between Boatwalla and the surviving partners and for an order paying to the plaintiffs the amount determined to be due to Boatwalla at the time of his death.
The suit was resisted by the surviving partners who will hereinafter be called ` the defendants '.
Tarkunde, J., passed a preliminary decree declaring that qua Boatwalla the partnership stood 'dissolved on February 20, 1957, but not in respect of the surviving partners, and directed that an account be taken of the partnership upto February 20, 1957.
Against that decree the defendants appealed under cl. 15 of the Letters Patent.
In appeal the High 'Court modified the decree.
The learned Judges held that the plaintiffs were not entitled to an account in the profits and losses of the firm after the death of Boatwalla, nor to exercise an option under section 37 of the Partnership Act, but that the plaintiffs were entitled only to interest at six per cent.
per annum on the amount found due as Boatwalla 's share in the assets of the partnership including .the goodwill.
They further declared that the interest of Boatwalla in the firm ceased on February 20, 1957, and deleted the direction with regard to the dissolution of the firm as between Boatwalla and the defendants.
With special leave, this appeal has been filed by the defendants.
The defendants contend that the plaintiffs as legal representatives of Boatwalla were not entitled to a share in the value of the goodwill of the firm because the goodwill of a firm may be taken into account only when there is a dissolution of the firm and in any event because Boatwalla had agreed that his interest in the goodwill shall cease on his death and the business shall 691 be continued by the surviving partners.
The defendants do not challenge the decree of the High Court awarding to the plaintiffs Boatwalla 's share in the assets of the firm other than goodwill icy contend that in the goodwill of the firm the plaintiffs had to share.
By section 14 of the Partnership Act, 1932, it is enacted that "Subject to contract between the partners, the property of the firm includes all property and rights and interest in property originally brought into the stock of the firm or acquired, by purchase or otherwise, by or for the firm or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.
" Goodwill of the firm is expressly declared to be the property of he firm.
Counsel for the defendants relied upon section 55 of the Partnership Act which makes a provision with regard to sale of goodwill after dissolution.
It is provided by sub section
(1) of section 55 that : "In settling the accounts of a firm after dissolution, the goodwill shall, subject to contract between the partners, be included in the assets, and it may be sold either separately or along with other property of the firm.
But it is not enacted thereby that goodwill may be taken into account only when there is a general dissolution of the firm, and not when the representatives of a partner claim his share in the firm, which by express stipulation is to continue notwithstanding the death of a partner.
Nor do sections 39, 42 and 46 which were relied upon by counsel for the 'defendants support that contention.
Under section 39 the dissolution of partnership between all the partners of a firm is called the "dissolution of the firm"; and by section 42 a firm is said to be dissolved subject to the contract between the partners on the happening of certain contingencies.
Section 46 provides that on the dissolution of a firm every partner or his representative is entitled as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights.
These provisions deal with the concept and consequences of dissolution of the firm : they do not either abrogate the terms of the contract between the partners relating to the consequences to ensue in the event of the death of a partner when the firm is not to stand dissolved by 692 such death, nor to the right which the partner has in the, assets an( property of the firm.
The Partnership Act does not operate to extinguish the right in the assets of the firm of a partner who dies when the partnership agreement provides that on death the partnership is to continue.
In the absence of a term in the deed Of partnership to that effect, it cannot be inferred that a term that the partnership shall continue notwithstanding the, death of a partner will operate to extinguish his proprietary right in the assets of the firm.
Clause 8 of the deed of partnership reads as follows "This partnership shall not be dissolved or determined by the death of any of _the parties hereto but the same shall be continued as between the surviving part:ners on the same terms and conditions but with such shares as shall then be determined.
" Mr. Nariman says that goodwill is nothing but the right to the name, the place of business and the reputation of the firm, and when all these components of the right by express agreement between the partners devolve upon the surviving partners '.
it follows that. the share of the deceased partner in the goodwill of the firm devolves upon the surviving partners and not upon his legal representatives.
The goodwill of a business is however an intangible asset being the whole advantage of the reputation and connections formed with the customers together with the circumstances which make the connection durable.
It is that component of the total value of the undertaking which is attributable to the ability of the concern to earn profits over a course of years because of its reputation, location and other features.
An agreement between the partners that the name, the place of business and the reputation of the firm are to be utilised by the surviving partners will not necessarily warrant an inference that it was intended that the heirs of the deceased partner will not be entitled 'to a s hare in the goodwill.
Our attention was invited to Hunter vs Dowling( '); Smith vs Nelson(2); and Bachubai and L. 'A. Watkins vs Shamji Jadowji(3).The first two cases proceed upon the interpretation Of certain clauses in partnership Agreements It was inferred in those cases from the terms of the agreement that the right in the goodwill of a partner in a firm dying or retiring shall not survive to ' his legal representatives.
Bachubai and L. A. Watkin 's case(") arose out of a case in which in the partnership agreement it was provided that (1) (2) 96 Law Times Reports.
(3) 1.
L. R. 9 Bom .
536. 694 the firm shall be the agents of a company: carrying on business as a manufacturer of cotton textiles so long as the firm carries on business in Bombay, or until the firm should resign.
The firm were appointed the agents of the Corn any and continued to act as agents.
One of the, partners died, and a representative of the partner filed a suit,.
claiming a certain share in the assets of the firm including the goodwill.
It was observed by Sargent, c.
J,in rejecting the claim of the plaintiff to a share in the goodwill of the business as an asset of the firm, that "Assuming_ (which may well be doubted) that the term "goodwill" is applicable to a business of this nature, it is plain that it is attached to the name of the firm which, by the partnership agreement itself is to be used by the surviving partners, or partner for their own benefit.
Such an arrangement between the partners must take away all value from the goodwill; even if it be not, as Mr. Justice Lindley in his Treatise on Par tnership, p. 887, (3rd ed.), considers it to be inconsistent.
with its being an asset at all" The, learned Chief Justice expressed a doubt presumably relying upon old.
English decisions that the goodwill of a firm may not be an asset at all.
These observations do not set out any rule, of interpretation of a deed 'of partnership.
But the question is now settled by statutory enactment.
Under the Partnership Act, 1932, it is expressly declared that the goodwill of a business is ' an asset.
Whether the goodwill has any substantial value may be determined on the facts of each case.
We are unable to agree with Mr. Nariman that in interpreting a deed of partnership, business whereof it is stipulated shall be continued by the surviving partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.
The goodwill of a firm is an asset.
In interpreting the deed of partnership, the Court will insist upon some indication that the right to a share in the assets is, by virtue of the agreement that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.
In the absence of a provision expressly made or clearly implied, the normal rule.
that the share of a partner in the assets devolves upon his legal representatives will apply to the goodwill as well as to other assets.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
D who was one of eight partners in a firm, died on February 20, 1957.
By virtue of a provision in the partnership deed, the business of the firm was continued by the surviving partners.
The respondents, being the widow and son of D commenced an action for an account of the partnership between D and the surviving partners, praying for an order for the payment of the amount determined to be due to D at the time of his death.
A single judge of the High Court passed a preliminary decree directing that an account be taken of the partnership as on February 20, 1957.
A Division Bench, in appeal, modified the decree holding that the respondents were entitled only to interest at 6 % p.a. on.
the amount of D 's share in the assets of the partnership, including good will.
In appeal to this Court it was contended on behalf of the appellants that the respondents as legal representatives of D were not entitled to a share in the value of the good will of the firm because good will may be taken into account only when there is a dissolution and not otherwise; and.
furthermore, because D had agreed that his interest in the good will would cease after his death and the business shall be continued by the _surviving, partners.
HELD : Dismissing the appeal, It could not be held that in interpreting a deed of partnership, business.
whereof, it is stipulated shall be continued by the surviving I partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.
The good will of a firm is an.
asset of the firm.
In interpreting the deed of partnership, the Court will insist upon, some indication that the right to a share in the assets is, by virtue of the agreement that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.
In the absence of a provision expressly made or clearly implied, the normal rule that the share of a partner in the assets devolves upon his legal representatives will apply to the good will as well as to other assets.
[693 F H] There is no indication in section 55 of the Partnership Act that goodwill may be taken into account only when there is a general dissolution of the firm,.
and not when the reprensentatives of a partner claim his share in the firm, which by express stipulations is to continue not with standing the death of a partner.
Nor do sections 39, 42 and 46 of the Act support such a contention.[691 F] Hunter vs Dowling, [18951 ; Smith vs Nelson 96 Law Times Reports 313; Bachubai and L. A. Watkins vs Shamji Jadowji, I.L.R. ; referred to.
Cl/70 14. 690


judgement:
No. XLII of 1950.
Appeal from the judgment of the Calcutta High Court (Harries C.J. and Chakravarthi J.) in Appeal from Original Order No. 78 of 1948.
N.C. Chatterjee (B. Sen, with him), for the appellants.
A.N. Grover, for the respondents.
November 30.
The judgment of Fazl Ali and Patanja li Sastri JJ. was delivered by FAZL ALI J.
This is an appeal from a judgment of a Bench of the High Court of Judicature at Calcutta in West Bengal, reversing the decision of a single Judge of that Court, who had refused to set aside an award given by the arbitration tribunal of the Bengal Chamber of Commerce on a submission made by the respondents.
The facts of the case are as follows.
On the 25th January, 1946, the appellants entered into a contract with the respondents for the sale of 5,000 mounds of jute, which was evidenced by a "sold note" (Exhibit A), which is in the form of a letter addressed to the respond ents, commencing with these words: "We have this day sold by your order and for your account to the undersigned, etc.
" The word "undersigned" admittedly refers to the appellants, and, at the end of the contract, below their signature, the word "brokers" is written.
On the same day, a "bought note" (Exhibit B) was addressed by the appellants to the Bengal Jute Mill Company, with the following statement: "We have this day bought by your order and.
for your account from the undersigned, 794 etc.
" In this note also, the word "undersigned" refers to the appellants and underneath their signature, the word "brokers" appears, as in the "sold note" There are various provisions in the sold note, relating to delivery of jute, non delivery of documents, nonacceptance of documents, claims, etc., but the most material provisions are to be found in paragraphs 10 and 11.
paragraph 10 provides that the sellers may in certain cases be granted an extension of time for delivering the jute for a period not exceeding thirty days from the due date free of all penalties, and if the contract is not implemented within the extended peri od, the buyers would be entitled to several options, one of them being to cancel the contract and charge the sellers the difference between the contract rate and the market rate on the day on which the option is declared.
In the same para graph, there is another provision to the following effect: "Sellers shall notify Buyers that goods will or will not be shipped within such extended period referred to in (a) and in the case of sellers intimating that they will be unable to ship within the extended time Buyers shall exercise their option within 5 working days of receiving notice and notify Sellers.
In the absence of any such notice from Sellers it shall be deemed that the goods have not been shipped and Buyers shall exercise their option within 5 working days after expiration of extended date and notify Sellers.
" The 11th paragraph provides among other things that "all matters, questions, disputes, differences and/or claims arising out of and/or concerning and/or in connection and/or in consequence of or relating to this Contract whether or not obligations of either or both parties under this contract be subsisting at the time of such disputes and whether or not this contract has been terminated or purport ed to be terminated or completed shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted.
" 795 It is common ground that the respondents delivered 2,256 maunds of jute under the contract, but the balance of 2,744 maunds could not be delivered within the stipulated period, and, by mutual agreement, time was extended up to the 30th June, 1946.
On the 2nd July, 1946, the respondents addressed a letter to the appellants stating that the balance of jute could not be despatched owing to lack of wagons, and "exten sion" was requested for a period of one month.
In reply to this letter, which was received by the appellants on or about the 3rd July, 1946, time was extended till the 31st July, 1946.
On the same day on which the reply was received by the respondents, i.e., on the 9th July, 1946, they ad dressed a letter to the appellants pointing out that the extension of time had not been intimated within the 5th working day as provided in the contract and therefore the contract was automatically cancelled.
After this letter, some further correspondence followed between the two par ties, and finally a bill of difference amounting to Rs. 4,116 was submitted by the appellants to the respondents, who, in their turn, denied their liability to pay the sum.
The appellants thereupon claimed arbitration under clause 11 of the sold note and submitted the dispute between them and the respondents to the Bengal Chamber of Commerce.
On the 6th February, 1947, the Tribunal of Arbitration made an award to the effect that the due date of contract had been extended by mutual agreement up to the 31st July, 1946, and accordingly the respondents should pay to the appellants a sum of Rs. 4,116 together with interest at the rate of 4% per annum from the 10th August, 1946, until the date of the award.
A sum of Rs. 210 was also held to be payable by the respondents on account of costs.
Nearly a year later, on the 19th February, 1949, a petition was presented by the re spondents under the Indian , to the High Court at Calcutta, in its ordinary original civil jurisdiction, praying inter alia that the award may be adjudged to be without jurisdiction and void and not binding on the respondents, and that it may be set aside.
The main point raised by the 796 respondents in the petition was that it was not open to the appellants to invoke the arbitration clause, as the Bengal Jute Mill Company and not the appellants were the real party to the contract and the appellants had acted as mere bro kers.
The appellants asserted in reply that the allegation made by the respondents in regard to there being no privity between them and the appellants was wrong, and in paragraph 16 of their affidavit they stated as follows : "With regard to paragraph 7 of the petition I crave reference to the said contract for its true construction and effect.
I say as I have already stated that according to the custom or usage or practice of the trade the respondent is entitled to charge brokerage and also to enforce the terms of the said contract.
" The case was heard by Sinha J., who dismissed the peti tion on the ground that the contract was directly between the respondents and the appellants.
The learned Judge also observed that if the right of the appellants to enforce the contract depended upon the existence of custom it would have been necessary to take evidence and the arbitrators would have had jurisdiction to decide the question of the exist ence of custom.
The respondents being dissatisfied with the judgment of Sinha J., preferred an appeal, which was heard and disposed of by a Division Bench of the High Court consisting of the learned Chief Justice and Chakravarthi J.
The learned Judges held that having regard to the fact that the appellants ' own contention was that they had entered into the contract as brokers and were entitled to enforce its terms by reason of the usage or custom of the trade, it was not open to Sinha J. to treat them as principals, and the award was liable to be set aside on the ground that the arbitration tribunal had no jurisdiction to make an award at the instance of a per son who was not a principal party to the contract.
The appellants thereafter having obtained a certificate from the High Court under section 109 (c) of the Code of Civil Proce dure, preferred this appeal.
797 It seems to us that this appeal can be disposed of on a short ground.
We have carefully read the affidavit filed on behalf of the appellants in the trial court, and we are unable to hold that their case was that they were not par ties to the contract or that they had asked the court to proceed on the sole ground that they were entitled to en force the contract by virtue of the custom or usage of the trade.
In our opinion, the position which was taken up by them may be summed up as follows : (1) They did not accept the allegations made by the respond ents that they were not parties to any arbitration agreement with the respondents.
(2) They asked the Court to construe the contract and its effect and asserted that they were entitled to enforce it.
(3) They also stated that they were entitled to enforce the contract according to the custom or usage of the trade.
The principal dispute raised in this case was whether the extension of time for delivery was granted within the time limited in the contract.
That dispute is certainly covered by the arbitration clause.
The further dispute that the brokers (appellants) were not parties to the contract in their own right as principals but entered into the contract only on behalf of the Bengal Jute Mill Company does not appear to have been raised until the matter went to the arbitrators.
Assuming that at that stage it was open to the respondents to raise such an objection, after the other dispute which clearly fell within the arbitration clause was referred to the arbitrators, this further dispute is also one which turns upon the true interpretation of the con tract, so that the respondents must have recourse to the contract to establish their claim that the appellants were not bound as principals while the latter say that they were: If that is the position, such a dispute, the determination of which turns on the true construction of the contract, would also seem to be a dispute, under or arising out of or concerning the contract.
In a 798 passage quoted in Heyman vs Darwins Ltd.(1), Lord Dunedin propounds the test thus: " If a party has to have recourse to the contract, that dispute is a dispute under the con tract ".
Here, the respondents must have recourse to the contract to establish their case and therefore it is a dispute falling within the arbitration clause.
The error into which the learned Judges of the appellate Bench of the High Court appear to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract ever having been entered into.
If, therefore, we come to the conclusion that both the disputes raised by the respondents fail within the scope of the arbitration clause, then there is an end of the matter, for the arbitrators would have jurisdiction to adjudicate on the disputes, and we are not concerned with any error of law or fact committed by them or any omission on their part to consider any of the matters.
In this view, it would not be for us to determine the true construction of the contract and find out whether the respondents ' contention is correct or not.
Once the dispute is found to be within the scope of the arbitration clause, it is no part of the province of the court to enter into the merits of the dispute.
In the result, we allow this appeal, set aside the judgment of the appellate Bench of the High Court and re store the order of Sinha J.
The appellants will be entitled to their costs throughout.
MAHAJAN J. I agree with my brother Fazl Ali that this appeal be allowed with costs.
Appeal allowed.

summary:
The appellants, a firm of brokers, entered into a contrct for the sale and purchase of a quantity of jute under a "sold note" addressed to the respondents which they signed as "A & Co., brokers" and a "bought note" of the same date and for the same quantity of jute addressed to a third person in which also they signed as "A & C0.
, brokers ".
The" sold note" contained the usual arbitration clause under which all matters, questions, disputes, differences and/or claims, arising out of and/or concerning, and/or in connec tion and/or in consequence of, or relating to, the contract . . shall be referred to the arbitration of the Bengal Chamber of Commerce.
" A dispute having arisen with regard to a matter which admittedly arose out of the contract evidenced by the sold note, the appellants referred the dispute for arbitration.
The respondents raised before the arbitrators the further contention that as the appel lants were only brokers they were not entitled to refer the matter to arbitration.
The arbitrators made an award in favour of the appellants.
The respondents made an applica tion to the.
High Court under the Indian Arbitration Act for setting aside the award: Held that, assuming that it was open to the respondents to raise this objection at that stage, inasmuch as this further dispute 793 was also one which turned on the true interpretation of the contract and the respondents must have recourse to the contract to establish their claim, this was also a dispute arising out of or concerning the contract and as such fell within the arbitration clause, and the award could not be set aside under the Indian , on the ground that it was beyond jurisdiction and void.
Heyman vs Darwins Ltd. ([1942.] A.C. 356) referred to.