Kashinathsa Yamosa Kabadi, Vs.
Narsingsa Bhaskarsa Kabadi,  INSC 47 (10 February 1961)
CITATION: 1961 AIR 1077 1961 SCR (3) 792
CITATOR INFO :
R 1970 SC 833 (12) R 1972 SC1121 (9)
Hindu Law-Partition-Reference to arbitration
out of CourtArbitrator actually dividing some Properties and giving possession
to parties-Revocation of reference-Suit for Partition, maintainability
of-Documents recording division by arbitrator-Registration, if
necessary--Arbitration Act, 1940 (10 of 1940), s. 32-Registration Act, 1908 (16
of 1908), s. 17.
The parties were members of a joint Hindu
family possessed of considerable property movable and immovable. They voluntarily
appointed Panchas to determine the shares of the parties and to divide the
property. The Panchas first determined the shares of the parties and reduced
the determination to writing. It was accepted by the parties and was signed by
all of them and the Panchas. Thereafter, on various dates the Panchas divided
several items of movable and immovable properties and the parties entered into
possession of their shares. These divisions were duly entered in the "
partition books " and were signed by the parties and the Panchas. The
Panchas were unable to divide the remaining properties and with the consent of
the parties they appointed one G to divide them. G divided some of the
properties but he too was unable to divide the remaining properties. One of the
parties served a notice cancelling the authority of the Panchas and filed a
suit for partition of the remaining properties. Upon an application made by the
plaintiff for revoking the reference the Trial Court cancelled the arbitration
as one of the Panchas was unwilling to proceed with the division. Another party
filed a suit for partition of all the properties contending that the division
made by the Panchas was not binding as the award had not been made a rule of
the court and the reference had been revoked and as the award was not
Held, that the divisions already made by the
Panchas were binding on the parties and only the remaining properties were
liable to be partitioned. By the reference to the Panchas, the 793 parties
ceased to be members of the joint Hindu family.
Thereafter, by the division of the family
assets which was accepted by the parties and by the taking into possession of
their shares by the parties, the properties came under the individual
ownerships of the parties to whom they were allotted; and in respect of the
remaining properties they became tenants-in-common. The proceedings taken by
the Panchas were not revoked by the order of the trial Court revoking the
reference as they had been accepted and acted upon by the parties. Where an
award made in arbitration out of court is voluntarily accepted and acted upon
by the parties and a suit is thereafter filed by one of the parties ignoring
the acts done in pursuance of the acceptance of the award, the defence that the
suit is not maintainable is not founded on the plea that there is an award
which bars the suit but that the parties have by mutual agreement settled the
dispute, and that the agreement and the subsequent actings of the parties are
binding. Such a plea is not barred by s. 32 of the Arbitration Act. The records
made by the Panchas were documents which merely acknowledged partitions already
made and were not required to be registered.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 218 to 223 of 1959.
Appeals from the Judgment and Decree dated August 9, 1953, of the Bombay High Court in Appeals Nos. 605 and 606 of 1952 from Original
B....B. Kotwal, S. N. Andley, J. B.
Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant (In C. As. Nos.
218 and 219 of 59), Respondent No. 1 (In C.
As. Nos. 220 and 222 of 59), Respondent No. 2 (In C. A. No. 221 of 59) and
Respondent No. 5 (In C. A. No. 223 of 59).
W....S. Barlingay and A. G. Ratnaparkhi, for
the appellants (In C. As. Nos. 220 and 221 of 59), Respondents Nos. 1 to 4 (In
C. As. Nos. 218 and 223 of 59) and Respondents Nos. 3 to 6 (In C. As. Nos. 219
and 222 of 59).
Naunit Lal, for the appellants (In C. As.
Nos. 222 and 223 of 59), Respondent No. 6 (In C. A. No. 218 of 59), Respondent
No. 1 (In C. As. Nos. 219 and 221 of 59) and Respondent No. 3 (In C. A. No. 220
R....Gopalakrishnan, for Respondents Nos.
5(a) to 5(c) (In C. A. No. 218 of 59), Respondents Nos. 2(a) to 2(c) (In C. As.
Nos. 219, 220 and 222 of 59) and Respondents Nos. 3(a) to 3(c) (In C. A. No.
221 of 59) and Respondents Nos. 6(a) to 6(c) (In C. A. No. 223 of 59), 794
1961. February 10. The Judgment of the Court was delivered by SHAH, J.-These
six appeals are filed with certificates under Art. 133 of the Constitution
granted by the High Court of Judicature at Bombay. The appeals arise out of the
judgments and decrees in suits Nos. 47 of 1948 and 36 of 1949 in the court of
the Civil Judge, Senior Division, Dharwar. The followinggeneology set out in
the plaint in Suit No. 47 of 1948 explains the relationship between the
| Yamosa Ramakrishnasa | | | | ----------------------| | | Hanmantsa
Kashinathsa Bhaskarsa Murarsa | (D 1) | (D 2) Bhimasa | (D 3) |
--------------------------------------| | | | Narsingsa Pandurangsa Benakosa
Hanmantsa (P 1) (P 2) (P 3) (P 4) The principal contesting party in the suits
was Kashinathsa, eldest son of Yamosa, and he was the first defendant in both
the suits. For facility of reference, we propose to refer to the parties as
they were arrayed in Suit No. 47 of 1948.
Bhimasa the plaintiff in Suit No. 36 of 1949
will, therefore, be referred in this judgment as defendant No. 3.
At a partition in 1893 between Dongarsa's
branch and the other branches, the former branch received property of the
aggregate value of Rs. 13,000/-. Members of that branch thereafter carried on
business of weaving silk garments and also of sale and purchase of silk
garments. In 1912, defendant No. 1 started a cloth shop in the name of Kashinathsa
Kabadi. In 1916, be started a commission agency business in the name of H. R.
Kabadi Shop, and in 1920 he started, business in money-lending and silk goods.
Since 1912, defendant No. 1 was the principal earning member of the family and
was attending to the various lines of business and he was assisted by the other
members of the family. The family prospered and in course of time acquired a
large estate. Before 1946, Bhaskarsa father of the plaintiffs and Ramakrishnasa
and 795 Hanmantsa grandfather and father respectively of defendant No. 3 had
expired, and the first defendant was the seniormost member of the family. In
1946, disputer, arose between the members of the family and defendant No. 3
declined to continue in jointness with the other members of the family and
demanded that he be given his half share after dividing the properties by metes
and bounds. Claiming that he alone was instrumental in amassing the vast estate
which exceeded in value to Rs. 14,00,000/-, defendant I submitted that the estate
be divided in four equal shares and that one share be given to him and the
remaining shares to the heirs of Bhaskarsa, defendant No. 2 and defendant No. 3.
On August 17,1946, the disputes were referred under a deed in writing to three
persons Vithaldas Devidas Vajreshwari a merchant of Betegiri, Devindrasa
Tuljansa a common relation of the parties and Parappa Nagappa Jagalur a clerk
of the pleader acting for the family-(whom we will collectively refer as the
Panchas) with authority to determine what shares should be allotted to the
different branches of the family and to determine the extra shares to be given
to defendant No. 1 for " special exertions made by him in acquiring the
property " and to divide the assets of the money lending and other
properties of the family_ business as the " Panchas thought fit and
proper." The Panchas accepted the reference and embarked initially upon an
enquiry for ascertaining what shares in the family property should be allotted
to the various contesting parties. On September 23, 1946, the Panchas decided
that each of the four parties-defendant No. 1, defendant No. 2, the plaintiffs
collectively and defendant No. 3-should be given a fourth share in the
properties of the family. This decision was reduced to writing: it was signed
by the Panchas and was accepted by the parties and in token of acceptance, they
subscribed their signatures thereto. On the same day, gold ornaments of the
value of Rs. 67,000/were divided by the Panchas in four equal shares. A record
thereof was made in the proceedings of the Panchas.
102 796 The Panchas then proceeded to award
to each of the parties gold ornaments weighing 167 tolas 15 as. and silver 481
tolas and 4 as. On September 24, 1946, it is the case of defendant No. 1 that
the Panchas decided to give him an additional share of the value of Rs. 40,000/out
of the property for bringing the family " to the present prosperous
conditions " and the Panchas directed that defendant No. 2 should for that
purpose pay out of his share Rs. 30,000/to defendant No. 1 and the plaintiffs
should pay Rs. 10,000/to him and the old house of the joint family be allotted
to him as his exclusive property. This was denied by the other parties. On
October 12, 1946, the Panchas divided the residential houses and a record of
this division was entered in five separate books hereinafter referred to as
"partition books." In each of the " partition books the Panchas
subscribed their signatures under the record of the division and allotment of
the shares and the parties also signed underneath the same in token of
acceptance of that division.
On October 19, 1946, the Panchas divided an
amount of Rs. 64,000/entries regarding which had been posted in the family
books of account. Each party was given Rs. 16,000/and this division was entered
in the account books of Yamosa Dongarsa Kabadi and the entry was duly signed in
token of acknowledgment of the correctness by all the parties. It is the case
of defendant No. 1 that on that day another amount of Rs. 3,20,000/. which was
" the unaccounted cash lying in the safe of the family but which was not
entered in the books of account and details whereof were set out in a Tippan
Book," was also divided and each party was given Rs. 80,000/-. of the two
major contentions in this group of appeals, one has centered round the truth of
the story about the division of this amount. 1 On October 20, 1946, the "
four empty safes " and the warehouses and lands at Betgiri were divided.
On October 21, 1946, the stock-in-trade of the silk shop was divided in four
equal shares and on November 10, 1946, miscellaneous gold and pearl ornaments
and the houses at Gadag and plots of land in the Hubli Cotton Market were
similarly divided, On February 7, 1947, 797 the agricultural lands, cattle and agricultural
implements were divided. On February 22,1947, Rs. 24,000/as the accumulated
cash on hand in the money lending business were divided into four equal shares.
Divisions made on October 20, 1946, October 21, 1946, February 7 and February
22, 1947, were duly entered in the " partition books " and the
entries were signed by the Panchas and were also by the parties in
acknowledgment of the correctness of the divisions. On February 24, 1947,
acknowledgments were obtained from the junior members of the family to the
reference to the Panchas and to the decision of the Panchas dated September 23,
1946, whereby each branch was given a four annas share and also to the
subsequent divisions made from time to time between September 23, 1946, and
February 24, 1947. Between February 25, 1947, and April 10, 1947, cotton bales
belonging to the family of the value of Rs.
3,20,000/were divided into four equal shares.
The record of this division was not signed by the parties. After the furniture
and utensils of the family were divided, there survived certain disputes about
the outstandings of the family and other properties especially a dispute about
16,000/lying in cash with the family which
could not be decided. To resolve the disputes about these properties and the
outstandings of the family, the Panchas, with the consent of the parties
referred them for decision to one Bhim Rao Godkhindi, a senior pleader of the
Gadag Bar. On November 3, 1947, the Panchas executed a writing in favour of
Godkhindi authorising him to complete the work of partition of the estate.
Godkhindi accepted the authority.
On December 5, 1947, Godkhindi asked the
parties to "state clearly " what according to them were the
properties which remained to be partitioned, and the plaintiffs gave a list to
Godkhindi of such properties. Between February 5 and February 9, 1948,
outstandings of the value of Rs.
1,20,000/were divided by Godkhindi and this
was accepted by the parties. But Godkhindi was unable to proceed with the
division of the remaining assets. On February 9, 1948, the first plaintiff
served a notice canceling the authority of the Panchas to 798 divide the
properties of the family and on August 19, 1948, he filed Suit No. 47 of 1948
in the court of the Civil Judge, Senior Division, Dharwar, for partition of the
properties remaining to be divided and for accounts of the joint family
properties. By his plaint, the plaintiffs admitted that the parties had agreed
to divide the property into four equal shares. in para. 6 of their plaint, they
set out the properties which they alleged had not been divided.
The plaintiffs claimed that they be awarded a
fourth share in the outstandings of the assets of " Kashinathsa Yamosa
Kabadi " and " H. R. Kabadi " shops, and in " a
considerable amount of money that has been there" since the time of the
ancestors the Tippan in respect of which it was alleged was with defendants
Nos. 1 and 2 and in certain gold and silver articles, and lands and houses and
rents which were recovered. On August 19, 1948, the plaintiffs also filed a
petition in the court of the Civil Judge for leave to revoke the authority of
the Panchas. Notice of this petition was served upon the Panchas, and the
Panchas having expressed unwillingness to function the court passed an order cancelling
Thereafter defendant No. 3 filed Suit No. 36
of 1949 on August 16, 1949, for partition and separate possession of a half
share in all the properties of the joint family. By his plaint, he claimed that
he " had been told " that despite the decision of the Panchas dated
September 23, 1946, he will be given a half share in the properties, that his
consent to the divisions made by the Panchas was obtained by misrepresentation
and that the Panchas were guilty of partiality and therefore their decisions
were not binding on him. He averred that it was not possible for him to give
the descriptions of the properties other than those described in the plaint and
of all the movables belonging to the family and the money lending dealings, he claimed
a declaration that the authority given to the Panchas had been revoked and for
a decree for partition and separate possession of a half share in the property
which may be proved to belong to the joint family.
799 In both the suits, defendant No. 1
contended that the Panchas had divided the properties in four equal shares
after their decision to divide the same in that manner was accepted, that the
Panchas from time to time had made actual division of the properties with the
consent of the parties, that the division of the properties in each case was
acted upon and properties allotted to the parties were reduced into possession
by the parties to whom they were allotted, and that on that account the
division could not be reopened.
He also contended that the " unaccounted
cash " had been divided on October 19, 1946, and each party was given his
share therein, and that the Panchas had given to him an extra share of the
value of Rs. 40,000/in cash payable by the plaintiffs and defendant No. 2 and
the residential family house at Betgiri. Defendant No. 2 supported the claim
made by the plaintiffs.
The Civil Judge held that by virtue of the
order passed in the petition for revoking the reference to the Panchas their
authority as well as the proceedings and all the decisions given by them ceased
to bind the parties because " the decisions stood cancelled." He also
held that the decisions were not binding upon the parties as they were not
filed in court; that the Panchas were not proved to have awarded to defendant
No. 1 any additional share in the property of the family; and that the
,unaccounted cash" of the family which amounted to Rs. 3,20,000/was not
divided. He accordingly passed decrees in the two suits ordering that a fresh
partition be effected of all the joint family property moveable and immoveable.
Against the decrees passed by the court of
first instance defendant No. 1 preferred Appeal No. 605 of 1952, against the
decree in Suit No. 47 of 1958 and Appeal No. 606 of 1952, against the decree in
Suit No. 36 of 1949. In the two appeals, the High Court at Bombay by a common
judgment modified the decrees passed by the court of first instance.
In the view of the High Court, there were in
law no valid awards made by the Panchas which could be set up in defence by
defendant No. 1 to the claim made by the third defendant.
They observed that the awards of the 800
Panchas were not binding because they were not properly stamped and those that
affected immoveable properties were not registered. But the High Court held
that the division of the moveables such as gold and silver ornaments made on
September 23, 1946, could not be reopened. They further held that the "
unaccounted cash " amounting to Rs. 3,20,000/was divided on October 19,
1946, and that each branch had received Rs. 80,000/-. The High Court
accordingly modified the decree passed by the trial court in so far as it
related to the gold and silver ornaments divided by the Panchas on September
23, 1946, and also in respect of the amount of the unaccounted cash of Rs. 3,20,000/-.
There were certain other modifications made in the decrees which are not
material for the purposes of these appeals, as no arguments have been advanced
at the bar relating thereto.
In these appeals by defendant No. 1, the plaintiffs
and defendant No. 3, two principal questions fall to be determined: (1) whether
defendant No. 3 is entitled to a half share in all the properties of the joint
family ignoring the division already made and (2) whether the unaccounted cash
which was estimated by defendant No. 3 and the plaintiffs at Rs. 4,00,000/and
which was stated by defendant No. 1 to be Rs. 3,20,000/was divided on October
19, 1946. On these two questions, the parties are differently arrived. On the
first question, defendant No. 1 is supported by the plaintiffs and defendant
No. 2. On the second question, defendant No. 1 is opposed by the plaintiffs and
defendants Nos. 2 and 3.
After setting out the contentions of the
parties, it is recited in the deed of reference that the parties had given
authority to the Panchas to peruse the written and oral evidence and to decide
what shares shall be allotted to the different branches and also to decide what
may appear to be proper for providing an "extra share" to defendant
The agreement between the members of the
joint Hindu family to appoint Panchas for dividing the family properties
amounts to severance of the joint family status from the date of the agreement.
Once reference is made, joint family 801 status is severed and it is not
postponed until the division of the property by metes and bounds.
To appreciate the contentions, it is
necessary to follow the method adopted by the Panchas in dividing the
The decision of the Panchas to allot to each
branch a fourth share was accepted by all the parties. Thereafter the Panchas
proceeded to allot shares in the properties movable and immovable. The
distribution of the properties was set out in writing and in acknowledgment of
the fact that distribution was made as described the parties signed the
" We have appointed these as the
Panchas. In accordance therewith all the Panchas heard all the information
(placed below them) and all the Panchas unanimously decided on 23-9-1946 that
Kashinathsa Yamosa Kabadi should be given a 1/4 share, that Narasingsa
Bhaskarsa Kabadi should be given a 1/4 share, and that Bhimasa Hanumantasa
Kabadi should be given a I share, and we all having consented to the said
decision of the Panchas, we all and all the Panchas have put our respective
signatures to the said decision of the Panchas. The details of the properties
that have fallen to the shares of the different shares as per the decision
effected in accordance with the said decision are as follows:" This
acknowledgment was not merely an agreement not to challenge the decision of the
Panchas, but was made as evidencing the division actually made and reduced to
writing. The trial court found that the properties separately allotted to the
various branches were reduced into possession by the parties and the High Court
agreed with that view. If the consent of the parties was not procured by fraud,
misrepresentation or any other ground which may vitiate a partition under the
general law, the division made by the Panchas and accepted by the parties would
be binding upon them. It is always open to the members of a joint Hindu family
to divide some properties of the family and to keep the remaining undivided. By
the reference to the Panchas, the parties ceased, to be members of the joint
Hindu family. If thereafter the 802 assets of the family were divided and that
division was accepted by the parties, the properties reduced by the parties to
their possession must be deemed to be of the individual ownership of the
parties to whom they were allotted, and the remaining properties as of their
tenancyin-common. Evidently in this case, the Panchas suggested what they
regarded as a just and -convenient method of partition and that method was
accepted by the parties.
Originally it was intended to make a general
division or award in respect of all the properties and with that end in view a
stamp paper of the value of Rs. 30/was purchased.
But in the course of the proceedings,
effectuating a division of all the properties by a single award was apparently
found inconvenient and a convenient method was adopted and the properties were
divided by stages. In the first instance, the principle of division was
discussed and decided upon and that principle was accepted by the parties.
Thereafter the properties were divided in
The plea raised in his plaint by defendant
No. 3 that his consent to the reference was obtained by coercion and undue
influence is somewhat vague and indefinite. He merely stated that he had
recently attained the age of majority, that defendant No. I was the head of the
family and that he was not in a position ',either to say anything against him
(defendant No. 1) or to act against him." He also stated that defendant
No. I had threatened him that he (defendant No. 3) would be given a share only
if he acted according to the behest of defendant No. 1 otherwise he would be
driven out of the house without anything and therefore he " became
helpless " and agreed to sign the " letter of authority passed in
favour of the Panchas." He pleaded in para. 5 of the plaint that he had
not agreed to take a more fourth share and that he " had all along been
insisting upon receiving a half share," and that it was his intention to
take his legitimate half share " without dispute if that could be managed
" and as he believed that he would be given that share he did not
immediately raise any objections He also stated that hill had been promised 803
by defendant No. 1 that he would be given his share in the property. The
learned trial judge rejected this plea holding that Defendant No. 3 failed to
prove that he was " compelled by exercise of undue influence and coercion
to agree to the reference to the Panchas, and that he had been promised by
defendant No. I that he would be given a half share." In the High Court,
the plea raised by defendant No. 3 about coercion and undue influence and the
promise made by defendant No. I does not appear to have been seriously pressed.
The plea of defendant No. 3 that he subscribed his signatures to the various
decisions given by the Panchas from time to time because he believed that he
was bound by the decision dated September 23,'1946, and that but for such
belief he would not have subscribed his signatures to those decisions has in
our judgment no force. Defendant No. 3, it appears on the evidence, voluntarily
accepted the decision that each branch was to be given a fourth share and he
accepted the division of the properties allotted to him on that footing.
Again by virtue of the order passed by the
Civil Judge cancelling the reference, the proceedings taken by the Panchas
including the division of the property which had been accepted were not
revoked. The plaintiffs filed Misc. Application No. 15 of 1948 for an order
revoking the reference and as the Panch Devendrasa was found unwilling to
proceed with the work of dividing the property, the arbitration was cancelled.
Under s. 12, sub-s. (2) of the Arbitration Act, where the authority of an
arbitrator or arbitrators is revoked by leave of the court, the court may order
that the arbitration agreement shall cease to have effect with respect to the
difference referred. If the decisions of the Panchas had not been accepted by
the parties with the revocation of the reference, all proceedings which they
had adopted might have fallen through; but the parties did accept the decisions
made from time to time and the cancellation of the reference had not the effect
of vacating the divisions already made. We are unable to agree with the view of
the trial judge that the cancellation had the effect of 804 nullifying all the
interim divisions and that they must be deemed to have been impliedly set
It is unnecessary to consider whether these
decisions may be regarded as " interim awards " within the meaning of
s. 27 of the Arbitration Act. The decisions given and divisions made were not
merely tentative arrangements liable to be superseded at a later stage. The
decisions were treated as final and were carried out. We agree with the High
Court that whatever may be the original intention of the parties, the Panchas
having with the consent of the parties proceeded to divide the properties in
stages, each decision must be regarded as final with regard to the property
We are of the view that it was open to defendant
No. I to set up the division of the properties made from time to time as a
defence to the action filed by defendant No. 3. Even assuming that the records
of the divisions made by the Panchas are awards strictly so called, what is set
up in defence is not the awards made by the Panchas, but the partition of the
property by agreement after accepting the method of partition suggested by the
Panchas. To such a plea, there is in our judgment no bar of s. 32 of the
Arbitration Act. By s. 32 it is provided:
" Notwithstanding any law for the time
being in force, no suit shall lie on any ground whatsoever for a decision upon
the existence, effect or validity of an arbitration agreement or award nor
shall any arbitration agreement or award be set aside, amended, modified or in
any way affected otherwise than as provided in this Act. " Before the Arbitration
Act, 1940, was enacted, an award made by arbitrators appointed out of court
even if it was -not made a rule of the court was regarded as equivalent to a
final judgment and any suit filed on the original cause of action referred to
the arbitrators was held barred.
In Muhammad Nawaz Khan v. Alam Khan it was
held by the Judicial Committee of the Privy Council that an award is valid even
if no party has sought to enforce it by the summary procedure, (1) (1891) L.R.
18 I.A. 73.
805 Since the enactment of the Arbitration
Act, 1940,, there has &risen wide divergence of judicial opinion among the
High Courtís on the question whether an award made in a reference out of court
can be set up as a defence to an action filed by a party thereof on, the
original cause of action when the award is not filed in court. Section 31,
sub-s. (2) of the Arbitration Act provides:
" Notwithstanding anything contained in
any other law for the time being, in force and save as otherwise provided in
this Act, all questions regarding the validity, effect or existence of an award
or an arbitration agreement between the parties to the agreement or persons
claiming under them shall be decided by the Court in which the award under the
agreement has been, or may be, filed and by no other court " and s. 33
sets out the procedure to be followed for challenging the existence, effect or
validity of an arbitration agreement or an award or to have its effect
determined. It is manifest that questions relating to the validity, effect or
existence of an award can be decided by the court to which an application
making it a rule of court lies.
In Babui S. K. Kuer v. B. N. Sinha (1), the
Patna High Court held that by virtue of s. 32 of the Arbitration Act, 1940, an
award made on a private reference to arbitration is not operative of its own
force; it only becomes operative on being made a rule of the court. It was held
in that case that an award cannot be set up as a defence to an action unless it
is filed in court and a decree is obtained thereon. Similar view was taken in
Sait Pamandass v. T. S.
Manikyam Pillai Bhimavarapu Venkatasubbauva
v. Addanki Bapadu and Firm Gulzarimal Gheesdal v. Firm Rameshrhandra
Radhyeshyam (4). On the other hand, in Pamudurthi Suryanarayana Reddy v.
Pamudurthi Venkata Reddi (1), it was held that ss. 32 and 33 of the Indian Arbitration
Act, 1940, did not preclude a defendant from (1) (1952) l.L.R. 31 Pat. 886.
(2) A.I.R. 1960 And. Pra. 59.
(3) A.I.R. 1951 Mad. 458.
(4) I.L.R.  Raj. 515.
(5) I.L.R.  Mad. 11.
806 setting forth an award which had been
fully performed by him but which was not filed in Court under s. 14 and on
which a judgment was not pronounced or a decree given under s. 17 of the Act,
in answer to the plaintiff's claim which was the subject matter of the
reference and the award. That view was accepted in Rajamanickam Pillai v.
Swaminatha Pillai (died) (,). It is not necessary in this appeal to express a
considered opinion on this disputed question. It may be sufficient to observe
that where an award made in arbitration out of court is accepted by the parties
and it is acted upon voluntarily and a suit is thereafter sought to be filed by
one of the parties ignoring the acts done in pursuance of the acceptance of the
award, the defence that the suit is not maintainable is not founded on the plea
that there is an award which bars the suit but that the parties have by mutual
agreement settled the dispute, and that the agreement and the subsequent
actings of the parties are binding. By setting up a defence in the present case
that there has been a division of the property and the parties have entered
into possession of the properties allotted, defendant No. I is not seeking to
obtain a decision upon the existence, effect or validity of an award. He is
merely seeking to setup a plea that the property was divided by consent of
parties. Such a plea is in our judgment not precluded by anything contained in
the Arbitration Act.
The records made by the Panchas about the
division of the properties, it is true, were not stamped nor were they
registered. It is however clear that if the record made by the Panchas in so
far as it deals with immoveable properties is regarded as a non-testamentary
instrument purporting or operating to create, declare, assign, limit or extinguish
any right, title or interest in immoveable property, it was compulsorily
registrable under s. 17 of the Registration Act, and would not in the absence
of registration be admissible in evidence. But in our judgment, the true effect
of what are called awards is not by their own force to create any. interest in
immoveable property they recorded (1) A.I.R. 1952 Mad. 24.
807 divisions already made and on the facts
proved in this case, their validity depends upon the acceptance by the parties.
The records made by the Panchas were
documents which merely acknowledged partitions already made and were not by law
required to be registered. On a perusal of Ex. 456A which is a translation of
the tippan book in which are recorded the decisions which are signed by the
parties, it is evident that the Panchas were merely recording what had been
actually divided and they were not seeking to set out their decisions relating
to division of property to be made. The question whether the various decisions
recorded in Ex. 456A and in the, books of account were required by law to be
stamped need not be decided. The documents were admitted in evidence by the
trial court and no question of admissibility of those documents can be raised
at a later stage of the suit or in appeal (see s. 36, Stamp Act).
We are unable to agree with the view of the
High Court that the decisions dated October 12, 1946, October 20,1946, and
November 10, 1946, were not intended to be final decisions.
There is no reliable evidence to support the
view of the High Court. Even if the divisions are not strictly in conformity
with the shares declared in the decision dated September 23, 1946, the parties
having accepted those divisions and having reduced the shares allotted to their
possession, it is not open to them to seek to reopen the same on the ground
that the division was unequal.
Defendant No. 3 contended in the trial courts
and the High Court that he had not taken possession, of the property allotted
to his share. The trial court held that he had taken possession of all the
properties which had fallen to his share and the plea that he has not obtained
possession was untrue. The High Court has accepted that view.
To sum up: on a consideration of the
materials placed before the court, the reference to Panchas is proved to be
made voluntarily by all the parties, that the Panchas had in the first instance
decided that each branch was to get a fourth share in the properties and that
decision was accepted by the parties, that division 808 of properties made from
time to time was also accepted by the parties, and subsequently, when the
Panchas were unable to proceed with the division, the matter was referred by
consent of the parties to Godkhindi and Godkhindi divided with the consent of
the parties the outstandings. but he was unable to divide the remaining
properties. For reasons we have already stated, the division made by the
Panchas and by Godkhindi is binding upon the parties. Such properties as are
not partitioned must of course be ordered to be divided and the division will
be made consistently with the rules of Hindu law. To the division of such
properties which have not been divided, the decision of the Panchas dated
September 23, 1946, will not apply.
We may now turn to the second question whether
on October 19, 1946, the amount of Rs. 3,20,000/which was the "
unaccounted cash with the family " was partitioned. It was the plea of
defendant No. I that on that day after dividing the amount of Rs. 64,000/the
" unaccounted cash " which was found to be Rs. 3,20,000/was actually
divided and each branch was given Rs. 80,000/-. Defendant No. 1 relied upon his
own testimony besides the testimony of Parappa (one of the Panchas) and of
Huchappa---clerk of the family shop.
Defendant No. 3 examined the other Panch
The trial court held that the testimony of
Huchappa and Parappa was unreliable. Defendant No. 1 did admit that the family
possessed Rs. 3,20,000/as " unaccounted cash "; and the burden of
proving that division was in fact made lay on him. The trial court observed
that there was no writing evidencing the division of Rs. 3,20,000/-, no receipt
was taken from any person for payment of a share in that amount, and that it
was highly improbable that a person like defendant No. 1 would part with
substantial amounts without taking receipts.
The High Court disagreed with this view.,
They pointed out that there was no entry made in the books of account of this
large amount of cash, and apprehending that a division of the property with a
809 formal record which may ultimately be produced in court was likely to
involve the members of the family in proceedings for concealment of income, no
record was maintained of the division thereof. The High Court also relied upon
the testimony of Parappa, Huchappa and defendant No. 1 and upon the
circumstance that neither in the plaintiffs' plaint nor in the plaint of
defendant No. 3 was any specific reference made to the refusal of defendant No.
1 to divide this amount. In our view, the High Court was right in the
conclusion to which it arrived.
It is true that it is difficult to rely upon
the oral testimony of either side. Defendant No. I and defendant No. 3 are
evidently interested persons and their testimony may not carry much weight.
Parappa one of the Panchas deposed that the amount of Rs. 3,20,000/was divided
on August 19, 1947, and each branch received its share. He stated that the
amount was not entered in the books of account. He further stated that after
the safes were opened, the Tippan book was found together with the money and
that the cash was counted but it was not compared with the Tippan book, that
thereafter the amount was divided. According to this witness, there was no
documentary evidence about that amount and he did not know whether the
defendants had knowledge of the extent thereof He explained that no receipts
were taken because defendant No. I did not demand the same, that he did not
press for a writing as the parties said that it was a " secret arrangement
", and as the division was " with complete concord ", he did not
think it necessary to take a writing or to record it in the books.
The testimony of Huchappa 'was similar. The
other Panch Devendrasa stated that plaintiff No. 1 and defendant No. 2 had
pressed the Panchas to give them their share in the " unaccounted cash
", saying that defendant No. I was " indefinitely postponing "
it, that the Panchas advised defendant No. 1 to divide this amount, but he
stated that he would be " reduced to equality " with others when' he
had a large family and that he had made great efforts and that he should 810 be
given more property, otherwise he would not allow division of the "
unaccounted cash " and the other property.
The Panchas then told him that they had
decided upon the share each should be given and no further proposal would be
entertained by plaintiff No. 1. The witness then said that he left for Gadag.
In cross-examination, he stated that he and the other Panchas had told
defendant No.1 to give the shares of the unaccounted cash to the other sharers.
The evidence of the witnesses clearly shows
that the question relating to the division of the "unaccounted cash "
was expressly discussed and the plaintiffs as well as defendant No. 3 were
fully aware of the existence of this amount lying in the safe which was not
entered in the books of account. It is the case of defendant No. I that the
amount was divided on October 19, 1947. The first plaintiff and defendant No. 3
have denied this on oath; defendant No. 2 did not enter the witness box. The
burden certainly did lie upon defendant No. 1 to establish the division of the
amount but there are several important circumstances which go to prove that a
partition must have been effected as alleged by defendant No. 1. From the
sequence in which various properties were partitioned, it is clear that in the
first instance the principle of division was decided and then the valuable
properties like the immovable properties, the cash, stock in trade of the
shops, were divided and then the division of properties of comparatively small
value like the agricultural implements, pots and furniture was taken in hand.
If there was a. large amount of Rs. 3,20,000/in cash lying undivided before
dividing pots, pans and furniture, the other parties would have insisted upon
the division of that amount.: It is difficult to believe especially having
regard to the plea that defendant No. 1 had adopted a refractory attitude with
the other parties that defendant No. 3 accepted the division of properties of
comparatively small value without insisting upon division of this large amount.
There is also the circumstance that even though plaintiff No. I know about the
existence of the " un-accounted cash " in the safe, it was 811
expressly mentioned in the plaint. We would have expected the plaintiffs to
state expressly that on or about October 19, 1947, " unaccounted cash
" was found in the safe and that even though defendant No. I was asked to
divide the same by the remaining parties as well as the Panchas, he declined to
accede to that demand. The conduct of defendant No. 3 in not setting out this
item in his plaint renders the story that defendant No. I refused to divide
this amount somewhat improbable. There is again no reference in the plaint
filed by defendant No. 3 that the amount that was divisible was not divided on
account of the attitude adopted by defendant No. 1. Counsel for defendant No. 3
relied upon the averments in para. 9 of the plaint that it was not possible for
defendant No. 3 to give a description of the remaining properties and the
movable articles belonging to the family and the money lending dealings. But
there is in the plaint no reference to any cash amount. Schedules appended to
the plaint are very detailed and it is difficult to believe that defendant No.
3 did not mention that this amount of Rs. 3,20,000/was not divided even after
demands were made and ignored. The plea that he apprehended that he might be
called upon to pay court fee ad valorem on the amount if he specified it in the
plaint is futile.
Consistently with the 'practice prevailing in
the courts in the Bombay Province, defendant No. 3 had paid Rs. 18,12,0 as
court fee under Art. 17, cl. VII, on the plea that he and the other parties
were in constructive possession of the entire property, belonging to the
family. Properties worth lakhs of rupees were described in the schedules
annexed to the plaint and if court fee ad valorem was not payable according to
defendant No. 3 in respect of, those properties, we fail to appreciate why he
should have apprehended that court fee ad valorem would still be payable if he
claimed a share -in the cash amount of Rs. 3,20,000/-.
There is also the other circumstances that
with consent of the parties reference was made to Godkhindi by the three
Panchas of all the matters which had 812 remained to be settled, and in the
statement made before him which was recorded in writing, there was no reference
to the claim that the amount of Rs. 3,20,000/had remained to be divided.
Plaintiff No. 1 gave a detailed statement of the properties which remained to
be divided and that document is dated December 5, 1947: Ex. D-482. Item 5 is
" cash balance in the Dalali shops and in the house should be divided
", and again in cl. (12) it was stated " an account of the amounts in
suspense (parabhare) account should be taken and the total of the said amount
should be divided." Counsel for the plain. tiffs and the third defendant
submitted that the original of this list was in Kannad which was translated
into Marathi and the Marathi word which is translated into English as "
suspense " was " parabhare ".
That word according to the plaintiffs and the
third defendant meant " unaccounted for ". It is difficult for us to
express any opinion on this argument. It may be observed that the learned Judge
of the High Court who delivered the judgment was himself conversant with the
Marathi language and he was not prepared to accept that interpretation. But
that by itself may not be sufficient to reject the plea of the plaintiffs. What
is material is that in a detailed statement consisting of as many as 24 items
the plaintiffs have not set out that this amount of Rs. 3,20,000/which was
found in the family safe and which the Panchas wanted to divide, was on account
of the uncompromising attitude of the first defendant not divided. If the
amount had not been divided, we have not the slightest doubt that in the
statement this amount would have been expressly included.
Godkhindi was examined as a witness in these
suits. The trial court found him to be a person who was wholly disinterested.
It appears from the evidence of Godkhindi that no question about the division
of Rs. 3,20,000/was mooted. If the amount had not been divided, we have no
doubt that this question would have been prominently brought to his notice; but
no such plea was even raised. We are of the view having regard to these
circumstances that 813 the amount of Rs. 3,20,000/must have been divided.
In that view of the case, the decree passed
by the High Court will be modified as follows:-The properties of the joint
family except the properties divided on September 23, 1946, October 12, 1946,
October 19, 1946, including the amount of Rs. 3,20,000/-, October 20, 1946,
October 21, 1946, including the stock-in-trade, silks and sarees and cupboards,
and on November 10, 1946, February 7, 1947, February 22, 1947, February 24,
1947, February 25, 1947, and the furniture, utensils and other movables between
May and June, 1947, and the property divided on July 13, 1947, and the outstanding
divided between February 5, 1948, and February 9,1948, shall be partitioned
between the parties. The partition will be made on the footing that defendant
No. 3 is entitled to a half shar and defendant No. 1, the plaintiffs
collectively and defendant No. 2 are each entitled to a 1/6 share. Defendant
No. I will be entitled to his costs in Appeals Nos. 218 of 1959 and 219 of
1959. The other appeals filed by the plaintiffs and defendant No. 3 will be
dismissed. One hearing fee.
C. As. Nos. 218 and 219 of 1959 allowed.
C. As. Nos. 220 to 223 of 1959 dismissed.