Champalal Vs. Mst. Samarath Bai 
INSC 11 (21 January 1960)
IMAM, SYED JAFFER SUBBARAO, K.
CITATION: 1960 AIR 629 1960 SCR (2) 810
CITATOR INFO :
R 1970 SC 833 (11)
Arbitration Award, Registration of--power of
court to extend time for filing--The Arbitration Act, 1940 (X of 1940), s. 14(2)--Indian
Registration Act, (XVI of 1908), ss. 17, 49--Indian Limitation Act, (IX of
1908), Art. 178-Indian Succession Act, 1925 (XXXIX of 1925), S. 192.
By means of a will the respondents husband
autliorised her to adopt the appellant, and the will was duly registered after
the death of the testator. The relevant portion of the will ran thus:"Under
this will, I am authorising the said Champalal Ishwardas to execute the same. I
have appointed him the executor of this will. Under the said will the said
Champalal alone shall be the full owner of my entire movable and immovable
property and the executor of the will after my 811 death if I adopt him during
my lifetime or even if my wife adopts him (after my death)." The appellant
applied for appointment of a curator under S.192 of the Succession Act but
subsequently the parties entered into an agreement for arbitration in the
Three arbitrators were appointed and the time
for making the award was extended by the Court on their application. The
arbitration agreement stated that the arbitrators had to decide what should be
the respective rights of the parties in the estate in case the respondent
adopted the appellant.
An award was made and filed in Court by the
arbitrators to the effect that the respondent should adopt the appellant
according to Hindu Law within four months failing which the appellant would be
their and executor of the entire property of the deceased and the respondent
would be entitled to a maintenance of Ks. 200 per mensem. But it in spite of
the respondent's readiness to adopt, the appellant refused to be adopted within
four months, he would not have any right in the property nor would he be the
executor. The award was at first unregistered and on being returned it was
subsequently registered and refiled in Court. The attorney of two of the
arbitrators furnished to the Sub-Registrar a list of the property covered by
the award. The proceedings under the Succession Act and the Arbitration Act
were then separated.
The respondent made an application under s.
14(2) Of the Arbitration Act, and the appellant applied for setting aside the
award. The Court passed a decree in terms of the award.
The High Court on appeal by the appellant
upheld the award.
On appeal by a certificate of the High Court
the appellant contended that being an executor lie could not refer the matter
to arbitration, that the award was not filed within the time prescribed by the
Limitation Act, that it was not registered according to law, that the First
Additional judge had no jurisdiction to extend time for making the award, that
the arbitrators were guilty of misconduct and the award was in excess of the
power given to them and that even if the award was proper and legal the
respondent having refused to adopt the appellant the decree should have been as
provided by the award on the happening of the contingency and the Court passing
the decree had no jurisdiction to take subsequent events into consideration.
Held, that the filing of the award by the
arbitrators after notice to the parties was not barred by limitation as Art.
178 of the Limitation Act applied to
applications made by the parties and not to the filing of the award by the
The award required registration but the
filing of an unregistered award under S. 49 of the Registration Act was not
prohibited; what was prohibited was that it could not be taken into evidence so
as to affect immovable property falling under s. 17 Of the Act.
812 The Court had jurisdiction to entertain
the application for filing the award and to extend time for filing it.
By the will the appellant could not get the
property of the Bai testator nor was he constituted an executor except in the
event of his being adopted and therefore he could enter into the arbitration
The agreement for arbitration having
specifically stated that the consequences of adoption or non-adoption were to
be decided by the arbitrators, they rightly laid down what was to happen if the
adoption did not take place owing to the default of either party, imposing a time
limit Was implicit in the terms of the agreement and their award was not in
excess of the power given to them by the arbitration agreement.
The award could not be treated as having
perverted the line of succession by merely stating that if the adoption did not
take place the respondent would receive I share of the testator's property and
it would form her stridhan.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 34 of 1956.
Appeal from the judgment and order dated
February 19, 1954 of the former Nagpur High Court, in Misc. Appeal No. 164 of
1949, arising out of the judgment and decree dated November 22, 1949, of the
First Additional District Judge, Akola, in Civil Suit No. 12-A of 1948.
C. B. Agarwala and Ganpat Rai, for the
S. K. Kapur and B. P. Maheshwari, for the
1960. January, 21. The Judgment of the Court
was delivered by KAPUR J. KAPUR J.-This is an appeal against the judgment and
order of the Nagpur High Court and arises out of proceedings under the Indian Arbitration
The appellant in this case is Champalal and
the respondent is Samarath Bai, the widow of Lal Chand. The parties who are
Jains belong to Balapur in the district of Akola in the previous State of
Madhya Pradesh. The relationship of the parties is shown by the following
813 Phool Chand
|------------------|---------------------|| | | Nanak Chand Khushal Chand
Sundarlal | | | Bulakhidas= Lalchand= Deolal jivanbai Samarathbai |
|------------|-----------| | | | | Babibai= Ratanbai= | Rasiklal Vijay Kumar |
| |-------------|--------------------------| | | | Ishwardas Baglal Digamber
Das | | Champalal | | |----------|---------------| | | | Sakarchand Vinaychand
Vimalchand On September 14, 1944, Lal Chand made a will by which he authorized
his wife Samarath Bai to adopt Champalal and made certain disposition of his
property. Lal Chand died on September 26, 1944. On October 20, 1944, the
appellant made an application under s. 192 of the Succession Act to the First
Additional District Judge of Akola for the appointment of a Curator. This was
Misc. Judl. No. 3 of 1944.
Notices were issued to the respondent,
Samarath Bai and her daughters, The will was registered on December 29, 1944.
On January 10, 1945, an arbitration agreement was entered into between the
appellant and the respondent and on January 16, 1945, both parties applied for
stay of proceedings in the case (Misc. Judl. No. 3 of 1944) and the case was
adjourned to March 28, 1945, and then was adjourned to June 18, 1945. On that
date the arbitrators made an application to the First Additional District Judge
for extension of time for four months for making the award. This application
was opposed by the appellant but the court gave three months' time on July 26,
1946. The award was made on October 18, 1946. On October 21, it was filed by
the arbitrators in the court of the First Additional District Judge who on
October 30, gave to the parties ten days' time for objections. On November 15,
814 1946, the appellant filed objections to the award and on January 31, 1947,
the respondent applied for a judgment in terms of the award and for a decree.
The award was unregistered and therefore at the request of the respondent it
was handed over for getting it registered to Mithulal who was an attorney of
two of the arbitrators Magandas and Sakarchand. On February 7, 1947, he
presented it for registration to the Sub-Registrar but the Sub-Registrar
returned it as it was not accompanied by a list and particulars of the property
covered by the award. On February 15, 1947, the list and particulars signed by
Mithulal were supplied and the award was represented for registration by
Mithulal. As he was an attorney of only two of the three arbitrators the
Sub-Registrar registered the document on March 26, 1947, in regard to said
arbitrators and refused it qua the third arbitrator, Bhogilal. But under the
orders of the Registrar the document was registered in regard to Bhogilal also
and it was refiled on July 21, 1948, in the Court of the First Additional
District Judge. He ordered the two proceedings one under s. 192 of the
Succession Act and the other under the Arbitration Act to be separated and the
proceedings under the Arbitration Act were ordered to be registered as a suit
on August 14, 1948, and on August 30, the court ordered a proper application as
required under the High Court Rules to be filed. On September 15, 1948, an
application under s. 14(2) of the Arbitration Act was filed. On October
14,1948, the appellant filed an application for setting aside the award and
therein raised various objections which were rejected and on November 22, 1949,
a judgment was passed in accordance with the terms of the award followed by a
Against this order the appellant took an
appeal to the High Court which was dismissed on February 19, 1954. The High
Court held that the application filed. by the respondent dated September 15,
'1948, under s. 14(2) of the Arbitration Act was not within time but the
original application filed by the arbitrators on October 21., 1946, was within
that no objection could be taken to the award
on the ground that 815 there were two awards one by the arbitrators and the
other by Mithulal who had added to the award by giving the list and
particulars; that the First Additional District Judge was authorised to extend
time for making an award an the application of the arbitrators and he was
properly seized of the case; that no misconduct had been proved and that no
illegality had been established and that the appellant did not get anything
under the will except on adoption nor was he until then constituted an
executor. Against this judgment this appeal has been filed on a certificate by
the High Court.
In appeal before us counsel for the appellant
raised six points: (1) the filing of the award was not within time as no application
was made under s. 14 within the time allowed by the Limitation Act; (2) that
the award required registration and was not registered in accordance with law
and the mere fact that it was registered does not clothe it with legality ; (3)
the First Additional District. Judge had no jurisdiction to grant three months'
extension of time to the arbitrators for making the award which was granted on
July 26, 1946 ; (4) that the arbitrators were guilty of misconduct; (5) that
the award is in excess of the power given to the arbitrators under the
agreement of arbitration and (6) even if the award was proper and legal the
respondent had refused to adopt the appellant and therefore the decree should
have been as provided by the award on the happening of that contingency and in
the alternative the First Additional District Judge who passed the decree had
no jurisdiction to take subsequent events into consideration.
In our opinion points nos. 1, 2 and 3 are
wholly without substance. The award was made on October 18, 1946, and the
arbitrators filed it in the court of the First Additional District Judge and
they also gave notice to the parties by registered post informing them of the
making of the award.
It has not been shown as to how the filing of
the award is barred by Imitation. Article 178 of the Limitation Act which was
104 816 relied upon by the appellant applies to application, made by the
parties and not to the filing of the award by the arbitrators.
The second question that the award required
registration and could not be filed by the arbitrators before it was registered
is equally without substance. The filing of an unregistered award under s. 49
of the Registration Act is not prohibited; what is prohibited is that it cannot
be taken into evidence so as to affect immoveable property falling under s. 17
of that Act. That the award required registration was rightly admitted by both
parties. It was contended by counsel for the appellant that under s. 21 of the
Registration Act and the rules made tinder s. 22 a description of the property
was necessary and as that was supplied through Mithulal who, according to
counsel, did not have the necessary authority to do so, the award must be taken
to be an incomplete document which could not be registered. The High Court has
found that in the circumstances of this case lists were not necessary and
therefore anything done by Mithulal whether authorised or not will not affect
the legality of the registration. The third point that the First Additional
District Judge before whom the application was made for extending the time for
making the award had no jurisdiction is also not sustainable. It so happened
that the court which had jurisdiction to entertain applications for the filing
of awards was the same before whom the application under s. 192 of the
Succession Act had been filed. If that court was the proper court in which such
applications were to be made then no defect can be found in the application
being made to that court or that court giving such extension.
The ground on which the charge of misconduct
of the arbitrators was founded was that the arbitrators had before hearing the
parties decided amongst themselves that they would give a particular award. The
High Court has found that this charge has not been proved. It was based on a
statement of the appellant that one of the arbitrators, Magandas, had suggested
to him that he, the appellant, should agree to give to 817 the respondent an
absolute estate in a portion of the property and if that was done the dispute
would be settled, but he was agreeable only to giving a life estate and the
arbitrators then told him that in that case they would give an absolute estate
to the respondent. As the High Court has pointed out this fact was not pleaded
in the first application of objections filed by the appellant and it was in its
opinion an after-thought. Reliance was also placed on the following statement
of Magandas in cross-examination as P.W. 3:
" We had decided as to how the award was
to be made by us, but as these two persons did not come we made the application
to the Court for extension of time ".
But the explanation of the other arbitrators
was that they wanted to bring about an amicable settlement and had gone to
Balapur and then to Akola. The appellant and his brother had promised to follow
them there but as they did not turn up an application was made for extension of
time. There is nothing wrong in what the arbitrators did and it cannot be said
that, any inference of misconduct can be drawn from this evidence.
It was then submitted that the award was in
excess of the powers given to the arbitrators and was therefore invalid.
This point was divided into three points: (i)
that the reference itself was invalid and therefore the award was a nullity;
(ii) that the award was in excess of the powers given to the arbitrators and
(iii) the award was contrary to law on the face of it. In support of point No.
(1) it was submitted that the appellant having accepted the office of an
executor could not enter into an arbitration concerning the execution,
authority to adopt or the property covered by the will. It is unnecessary to
decide the vitality of this point because according to the true construction of
the will the appellant was not to become the executor till he had been adopted.
Paragraph 10 of the will was as follows:
" I have this day, made as above the
wilt of my estate.
Under this will, I am authorising the said
818 Champalal Ishwardas to execute the same. I have appointed him the executor
of this will. Under the said will, the said Champalal alone shall be the full
owner of my entire movable and immoveable property and the executor of the will
after my death if I adopt him during my lifetime or even if my wife adopts him
(after my death).
" The words " under the said will
the said Champalal shall be the executor of the will after my death if I adopt
him during my lifetime or even if my wife adopts him after my death " show
that the appellant was to become executor after his adoption and as he was not
adopted he cannot be the executor and therefore the argument that an executor
cannot enter into arbitration does not arise and we do not think it necessary
to decide this matter beyond saying that the appellant was not constituted an
executor econominiee but was to be an executor if he was adopted. Similarly the
question whether the appellant after accepting the office of an executor had
renounced it or a discharge was necessary under s. 301 of the Succession Act
does not arise.
Points (ii) and (iii) may be taken up
together. lt was argued that the award is in excess of the power given to the
arbitrators because it determined the rights of the appellant as an executor
and because it was in excess of para. No. 1 of the arbitration agreement which
provided that the arbitrators should maintain the gifts to charities and the
gift in favour of the testator's daughters and others. lt is difficult to see
how the award has lost sight of this paragraph. As a matter of fact the
arbitrators have maintained the gifts to charities and other gifts made by the
testator in the will and they have clearly stated that the person becoming the
owner of the deceased's property, will have to provide for the maintenance of
the persons named in the will and pay the charities therein enumerated.
Another objection raised was that according
to the arbitration agreement the arbitrators had to enforce the will and, not
to act outside it and also they could not impose a limit of time for adoption.
How they 819 have acted dehors the will has not been shown. The contention
raised was that according to the arbitration agreement the arbitrators had to
decide in what proportion the parties to the dispute were to " enjoy
" the estate of the testator and not that one of them will get nothing at
all. As we read paragraph 10 of the will, and the High Court also so construed
it, the appellant could get the property of the testator only if he was adopted
by the testator or his widow, the respondent. It is not correct, therefore, to
read the term of the arbitration agreement as meaning that the appellant was to
get at least some portion of the property irrespective of his being adopted.
Paragraph 2 of the arbitration agreement
shows that they had also to decide that in case the respondent adopted the
appellant what should be the respective rights of the parties in the estate.
The arbitrators decided that the respondent should adopt the appellant
according to Hindu Law within four months before February, 1947, and if the
respondent failed so to do within the time above specified the appellant would
be the heir and executor of the deceased's entire property and the respondent
would he entitled to Rs. 200 per mensem as maintenance. But if in spite of the
respondent's readiness to adopt the appellant refused to be adopted within four
months, he would not get any rights in the property of the deceased nor would
he be the executor. As it was specifically stated in the arbitration agreement
that the consequences of the adoption or non-adoption were to be decided by the
arbitrators, they rightly laid down what was to happen if the adoption did not
take place and also provided that if it was due(,, to the default of the
appellant one consequence will follow and if it was the default of the
respondent another consequence would follow. The words of the agreement
"In the same way the arbitrators may also decide that in case it is
decided that the party No. 2 should adopt the party No. 1 and if that thing is
accepted by the party No. 1 and in case the adoption takes place, what shall be
the rights of both the parties and how they will stand in respect of the
property ............ ..
820 mean that the power to limit the time was
implicit because the happening of these events could not be left for a
The courts below have found on the evidence
that the appellant was not prepared to be adopted. We have been taken through
the evidence and we find no reason to differ from the opinion of the High Court
that the appellant was not prepared to be adopted. His attitude in regard to that
matter is clear from ground No. 37 of the Grounds of Appeal taken by him in the
High Court which was:" The lower Court erred in holding that Champalal was
not within his rights in consenting to get adopted by Mt. Samarathbai within
the time fixed by the arbitrators without prejudice to his objections against
the award " and the courts have rightly come to that conclusion. In this
view of the matter the alternative argument of taking subsequent events into
consideration does not arise.
It was also argued that by making the award
the arbitrators had perverted the line of succession. All that the award has
stated is that in case the adoption takes place the respondent would receive I
share of the property of the testator and it would form her stridhana. How that
has perverted the line of succession is difficult to understand.
There is no force in this appeal and it must
there. fore be dismissed with costs.