Themi P. Sidhwa & Ors Vs. Shib
Banerjee & Sons Pvt. Ltd. & ANR [1974] INSC 164 (3 September 1974)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 1912 1975 SCR (2) 1 1974
SCC (2) 574
ACT:
Indian Registration Act, 1908-S. 17(1)(b) and
2-Award of Arbitrator relating to partition of immovable property of value
exceeding Rs.100 If requires registration.
HEADNOTE:
Various disputes between the parties were
referred to a sole arbitrator. In an application under s. 151 C.P.C., the point
was raised before the High Court that as the award directed partition of
immovable property and the value of the immovable property was more than one
lakh rupees it required registration under s. 17(1)(b) of the Indian Registration
Act, 1908 and as it had not been registered, it was not admissible in evidence
and could not be enforced and could not confer any rights. A single judge of'
the High Court held that since the award had not been registered as required by
section 17(1)(b) of the Registration Act it could not be made a rule of the
court under s. 17 of the Arbitration Act.
Allowing the appeal,
HELD : The award falls under s. 17(2)(v) of
the Registration Act and is, therefore, not registerable.
The High Court has proceeded on the basis
that the award related to partition of immovable property of the value
exceeding Rs. 100/- and, therefore, came within the ambit of s. 17(1) (b) of
the Indian Registration Act. No doubt it did; but the High Court did not bestow
attention on the words of that section and see whether it operated to create
rights in the immovable property or whether it merely created a right to obtain
another document, which will, when executed create any such right. The award
itself did not purport or operate to create, declare, assign, limit or'
extinguish, whether in present or in future any right, title or interest
whether vested of continent of the value of Rs.
100/- and upwards in respect of immovable
property as contemplated under s. 17(1)(b) of the Registration Act. It merely
created a right to obtain another document which would when executed, create
declare, assign, limit or extinguish any such right, title or interest. [2E;
4B] Rajangam Ayyar v. Rajangam Ayyar, 50 I.A. 134, Sheonarain Lal v. Rameshwari
Devi, C.A. No 296 of 1960 decided on 6th December 1952 Satish Kumar v. Surinder
Kumar, [1969] 2 S.C.R. 244 and Ratan Lal Sharma v. Purshottam Harit C.A. No.1625
of 1967 decided on 11th January, 1974. referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1350 of 1968.
Appeal by special leave from the judgment and
order dated January 17, 1968 of the Delhi High Court in Suit No. 588 of 1966,
S. T. Desai, P. C. Bhartari and K. J. John, for the Appellants.
Brijbans Kishore, V. N. Ganpule and P. C.
Kapur, for respondent No. 1.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-The question for decision is whether the award made by the
arbitrator in this case is inadmissible in evidence and 2 therefore no decree
can be passed on the basis of that award as held by the Delhi High Court. The
short facts necessary for decision on this case are these :
By an agreement dated 25th April, 1961
various disputes and matters in difference between the parties were referred to
the sole arbitration of Mr. B. K. Daphtary. The arbitrator made his award on
25th April, 1962. It is not necessary to refer to the various stages the matter
went through except 'that the case came to be finally heard by the Delhi High
Court. Before that Court by an application filed under section 151 C.P.C. a
question was allowed to be raised that as "the award directs partition of
immovable property and the value of this immovable property is more than one
lakh it therefore requires registration under s. 17 (1) (b) of the, Registration
Act and the same is not admissible in evidence and cannot be enforced or confer
any rights." The learned Single Judge of the High Court who heard the
matter held that the award, not having been registered as required by S. 17 (1
) (b) of The Indian Registration Act, cannot be made a rule of the Court under
S. 17 of the Arbitration Act.
The learned Judge also held that he would
have had no hesitation to follow the course prescribed in s. 38 of the Stamp
Act and receive the stamp duty and penalty but for his decision that the
document requires registration.
The learned Judge proceeded on the basis that
the award relates to partition of immovable property of the value exceeding
rupees one hundred and therefore comes within the ambit of S. 17(1) (b) of the
Indian Registration Act, 1908.
No doubt it does but the learned Judge did
not bestow his attention on the words of that section and see whether it
operates to create rights in immovable property or whether it merely creates a
right to obtain another document which will, executed, create any such right.
The learned Judge purported to follow the decision of the Andhra Pradesh High
Court in M. Venkataratnam & Anr. v. M. Gheelammyya & Anr.(1) The award
insofar as it is relevant is in the following terms :
"1. I hold an award that the said Tehmi
Pheroze Sidhwa, Almitra Pheroze Sidhwa and Mani Rustom Sidhwa paid the total
contribution of Rs. 32,500.00 (Rupees thirty two thousand five hundred) as
their one fourth share in the cost of the land at Najafgarh Road, Delhi being
plot No. 71/5 of the Industrial Area Scheme of the Delhi Improvement Trust
admeasuring about 7246.67 square yards and the factory and other buildings and
compound wall constructed thereon and occupied by Delhi Floorings Private Ltd.
that the said Tehmi Pheroze Sidhwa, Almitra Pheroze Sidhwa and Mani Rustom
Sidhwa are between them entitled to a one fourth share or interest in the said
land and buildings and in the rents and profits thereof; that as between
themselves the (1) A. I. R. 1967 A. P. 257.
3 shards or interest of the said Tehmi
Pheroze Sidhwa, Almitra Pheroze Sidhwa and Mani Rustom Sidhwa are as follows
Tehmi Pheroze Sidhwa 3/32 share whole Almitra Pheroze Sidhwa 3/32 share }In the
hole Mani Rustom Sidhwa 2/32 share property.
2. A lease of the said property has been
granted by the Delhi Improvement Trust to Shib Banerjee and Sons Private Ltd.
and the said property stands in the name of Shib Banerjee & Sons Private
Ltd. I hold and award that Shib Banerjee & Sons Private Ltd. hold the said
property upon trust as to one fourth thereof for the said Tehmi Pheroze Sidhwa,
Almitra Pheroze Sidhwa, and Mani Rustom Sidhwa in the share as above mentioned
and that the said Tehmi Pheroze Sidhwa, Almitra Pheroze Sidhwa and Mani Rustom
Sidhwa are entitled to a one fourth share in the rent and profits of the said
property from 1st January 1960.
3. 1 award and direct that Shib Banerjee and
Sons Private Ltd. do pay to the said Tehmi Pheroze Sidhwa, Almitra Pheroze
Sidhwa and Mani Rustom Sidhwa the one fourth share of the rents and profits of
the said property at the rate of Rs.93.75 nP per month to Tehmi Pheroze Sidhwa.
Rs. 93.75 nP per month to Almitra Pheroze Sidhwa. Rs. 62.50 nP per month to
Mani Rustom Sidhwa. from 1st January 1960 to 30th April 1962 (both days inclusi
ve) and thereafter do pay to them one fourth share of the rents and profits of
the, said property in the aforesaid shares.
4. 1 award and direct that Shib Banerjee and
Sons Private Ltd. do forth with execute such documents as may be necessary for
declaring the one fourth share of the said Tehmi Pheroze Sidhwa, Almitra
Pheroze Sidhwa and Mani Rustom Sidhwa in the said property and do execute as
soon as possible such documents as, may be necessary for transfer- ring the,
said property and the lease from the, Delhi Improvement Trust (subject to the
existing tenancy of Delhi Floorings Private Ltd.) to the joint names of
themselves and the said Tehmi Pheroze Sidhwa, Almitra Pheroze Sidhwa and Mani
Rustom Sidhwa as tenants incommon in the following shares:-- Shib Banerjee and
Sons Private Ltd.24/32 share.
Tehmi Pheroze Sidhwa. 3/32 share.
Almitra Pheroze Sidhwa. 3/32 share.
Mani Rustom Sidhwa. 2/32 share.
The out of pocket expenses of such documents
(including amount payable for fee or costs to the Delhi Improvement Trust,
Stamp Duty, registration charges and expenses 4 for plans) shall be borne by
the aforesaid parties in proportion to their respective shares in the said
property. The professional charges of the lawyers of the parties in con-
nection with such documents shall be borne by the respective parties." It
would be noticed that the award itself does not purport or operate to create,
declare, assign, limit or extinguish, whether in present or in future any
right, title or interest, whether vested or contingent, of the value of one
hundred rupees and upwards, in respect of the immovable property, as
contemplated under s. 17(1)(b) of the Registration Act. It merely creates a
right to obtain another document which will, when executed, create, declare,
assign, limit or extinguish any such right, title or interest. The award
directs Shib Banerjee and Sons Private Ltd. to execute such documents as may be
necessary for declaring the one fourth share of the appellants in the said
property and also to execute such documents as may be necessary for
transferring the said property and the lease from the Delhi Improvement Trust
to the joint names of themselves and the appellants. It, therefore, squarely
falls under s. 1 7 (2) (v) of the Registration Act.
The question is amply covered by authority.
In Rajangam Ayyar v.Rajangam Ayyar(1) by a document (AY) the parties agreed to
divide their properties according to certain specified shares. It then went on
to provide :
"A partition deed in terms hereof shall
be executed and registered in the office of the Sub-Registrar of this place, as
also at Tinnevelly, as early as possible; that until then this shall itself be
inforce." The Privy Council observed:
"Exhibit AY is not a document by itself
creating, assigning, limiting, or extinguishing, any right or interest in imov-
able property; it merely creates a right to obtain another document which will,
when executed, create a right in the person claiming the relief, and on that
ground their Lordships think exhibit AY did not require registration, and accordingly
is admissible in evidence, so far as it goes." In Sheonarain Lal v.
Rameshwari Devi(2) a Bench of five Judges of this Court had to deal with a
document the fifth clause of which read :
"Shri Sheo Narain Lal and his heirs
should execute as early as possible a registered document in respect of the
shop let out on rent to Beli Sao Sukhdeo Prasad, in favour of Shri Prabhu Chand
for which Shri Prabhu Chand will have to pay nothing as consideration. He will
pay only costs of stamp etc." (1) 50 I. A. 134.
(2) C. A. No. 296 of 1960 decided on 6th
December 1952.
5 This Court observed "Does this clause,
purport or operate, to create, declare, assign, limit or extinguish any right,
title or interest in immovable properties ? We are clearly of opinion that it
does not. The award merely provides that some right in the shop should be
created in the future by means of a document to be executed by Sheonarain Lal
and his heirs. That document when executed would certainly operate to create a
right in favour of Prabhu Chand in immovable properties and extinguish the
right of Sheonarain Lal and his heirs in the same properties. That is why the
arbitrators mention that document should be registered, as admittedly, the
value of that property would be more than Rs. 100.00. It is difficult to see
however how the fact that such a document that might be executed in consequence
of the directions in the award, would operate to create or extinguish a right
in immovable properties, justifies the court to say that the award itself
purports or operates to create or extinguish such a right. The position would
have been otherwise if the arbitrators had directed by the award itself that
this shop would go to Prabhu Chand without any further document. In that case
the award itself would have created in Prabhuchand a right to these properties.
That is not, however, the provision in the award.
In the, absence of a registered document,
Prabhu Chand would get no title on the award and Sheonarain's title would
remain in the shop. It is clear therefore that the award does not itself create
or extinguish any right, title or interest in the immovable properties. It may
be said that it creates a right to obtain another document which will, when
executed, create or extinguish such right in immovable properties and so is a
document falling within cl. 5 of s. 17 (2) of the Registration Act. The award
therefore does not require registration in law. We find it unnecessary to
consider the further question which the High court has considered on the
assumption wrongly made that the award decided questions of title to immovable
properties." In Satish Kumar v. Surinder Kumar(1) the concurring judgment
of Hegde, J. brings out the matter very clearly. He observed "For the
purpose of s. 17(1)(b) of the Registration Act, all that we have to see is
whether the award in question purport or operate to create or declare, assign,
limit or extinguish whether in present or future any right, title or interest
whether vested or contingent of the value of one hundred rupees and upwards to
or in immovable property. If it does, it is compulsorily registrable. There is
no gain-saying the fact that the award with which we are concerned in this
case, at any rate, Purporter to creates rights in (1) [1969] 2 S. C. R. 244.
6 immovable property of the value of rupees
more than one hundred. Hence it is compulsorily registrable." The other
two learned Judges quoted the observations in Sheonarain Lal's case that :
"The position would have been otherwise
if the arbitrators had directed by the award itself that this shop would go to
Prabhu Chand without any other document. In that case the award itself would
have created in Prabhuchand a right to these properties." Thus this
decision does not in any way lay down any proposition contrary to the,
decisions which we have so far referred to.
We may finally refer to the latest decision
of this Court, to which one of us was a party, in Ratan Lal Sharma v.Purshottam
Harit(1). The relevant clause read as follows :
"The factory and all assets and
properties of New Bengal Engineering Works are exclusively allotted to Dr.
Rattan Lal Sharma, who is absolutely entitled to the same. He will pay all
liabilities of the factory." This Court observed :
"It expressly makes an exclusive
allotment of the partnership assets including the factory and liabilities to
the appellant. It goes further and makes him "absolutely entitled to the
same...... So in express words it purports to create rights in immovable
property worth above Rs. 100.00 in favour of the appellant.
It would accordingly require registration
under s. 17, Registration Act.
The Full Bench decision of the Andhra Pradesh
High Court relied upon by the learned Judge decided that an award that created
a charge must be registered. That is, undoubtedly correct. The question
regarding the application of section 17(2)(v) of the Registration Act however
did not arise there.
The learned Judge does not refer to any of
the decisions which we have referred to, including those of this Court because
he proceeded to decide the matter on the assumption that the award itself
created a right in immovable property of the value of over one hundred rupees.
We are clearly of opinion that the award in this case falls under s. 17(2) (v)
and is, therefore, not registrable.
As regards the question of stamp duty, we, do
not propose to express any opinion as it would appear that the learned Judge of
the High Court would himself have been ready to receive the stamp duty and
penalty if he had held that the agreement was not compulsorily registrable.
The appeal is allowed and the first
respondent should pay the appellants costs.
P.B.R. Appeal allowed (1) C. A. 1625 of 1967
decided on 11-1-1974.
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