Balwant Singh (D) Thr. Lrs. vs Dungar Singh (D) Thr. Lrs.

,,,,

R. Banumathi, J",,,,

This appeal has been filed by the appellant against the final order and judgment dated 01.06.2006 passed by the High Court of Rajasthan at Jodhpur,,,,

in SB Civil Miscellaneous Appeal No.180 of 1989 in and by which the High Court allowed the appeal of the respondents and made the arbitral award,,,,

between the parties the rule of the court.,,,,

Balwant Singh and Dungar Singh are real brothers. After the death of their father-Jeet Mal Jain, disputes arose between them regarding partition of",,,,

family properties. The parties decided to settle their dispute amicably through arbitration proceedings. Vide agreement dated 23.11.1981, they have",,,,

appointed Shri Fateh Lal, Kiran Mal and Sensh Mal as arbitrators for partitioning immovable properties, shares and jewellery. These arbitrators were",,,,

also close relatives of the parties. The arbitrators Shesh Mal Pagaria is brother-in-law of Dungar Singh, Shri Kiranmal Swansukha is co-brother of",,,,

Balwant Singh and Fateh Lal Hingad is a close relative of the parties. The arbitrators passed award dated 23.11.1981 mentioning therein that the,,,,

decision given unanimously by the three of them will be binding on both the parties. By this award, the arbitrators had given the following decisions:-",,,,

· “In the house situated at Babelon Ki Sehri, except for the one house which is on the left side of the pole and is known as Popat Wala House, all",,,,

other houses will belong to Shri Dungar Singh Ji Babel.,,,,

· After giving the benefit of all the houses to Dungar Singh Ji, plot admeasuring 80× 40 situated in Mehtaji Ki Badi and Papat Wala House and",,,,

plot located in Babelon Ki Sehri will remain with Shri Balwant Singh Ji. Whole agricultural land will remain with Shri Dungar Singh Ji and Shri Dungar,,,,

Singh Ji will give Rs.9,000/- to Balwant Singh Ji.",,,,

· According to the list of jewellery placed in bank locker, “Baju†will remain with Shri Dungar Singh Ji and “Kangania†â€" (two) will",,,,

remain with Shri Balwant Singh Ji. The remaining gold and silver jewellery will be given to both of them in equal parts.,,,,

· Capital that has been received from the shop by Shri Jeetmal Ji and his wife by Notice Munju dated 13.06.1973 comes to a total amount of,,,,

Rs.20,381/- + Rs.4281.17 = Rs.2466.17 (Rupees Twenty Four Thousand Six Hundred Sixty Eight and Paise Seventeen Only) and from that both will",,,,

get fifty â€" fifty share and accordingly Shri Dungar Singh Ji will give Rs.12,334/- (Twelve Thousand Three Hundred Thirty Four Only) to Balwant",,,,

Singh Ji.,,,,

· Both will get equal share of the share certificates that are in the name of Shri Jeetmal Ji Babel.,,,,

· Utensils that are given in the list will be distributed equally between them.,,,,

· In the above decision, demands made by both of you and whatever is possessed by each of you is maintained on as is where is basis. And this",,,,

decision is taken that all other demands are over. Meaning both of them has nothing to do with each other.â€​,,,,

On 10.12.1982, Collector (Stamps), Udaipur registered the award.",,,,

On 07.04.1983, Dungar Singh filed an application before the District Judge to make the award rule of the court. Along with the application,",,,,

acceptance of both the parties and award given by the arbitrators were also presented. Appellant Balwant Singh raised objection assailing the award.,,,,

The court called for evidence of both the parties. The application for making the award rule of the court was dismissed by the District Judge, Udaipur.",,,,

The District Judge held that the panch had conducted the whole proceedings in their own way and such an award cannot be considered valid in law.,,,,

The court noted that on examining the award, it was found that the award was written on 23.11.1981 and the respondent Dungar Singh had signed the",,,,

award after a long time on 26.07.1982. The court also noted that on 26.07.1982 itself, one panch Sheshmal Pagaria produced the award before the",,,,

arbitration judge where stamp deficiency was removed and on the very same day i.e. 26.07.1982, the same was produced before the Deputy",,,,

Registrar, Udaipur for registration. It was observed that it is not clarified as to where was the original award from 23.11.1981 to 26.07.1982. The",,,,

District Judge further held that though allegations of misconduct by any panch was not established but it was found that the three panchas completed,,,,

the proceedings quite hurriedly and probably have not given enough time to Balwant Singh to put forth his side. The court therefore observed that,,,,

making the award rule of the court does not appear to be safe and justifiable because the award by the panch is not fully clear on the basis of which,,,,

the dispute between the parties could be finally settled.,,,,

Aggrieved, the respondents filed appeal before the High Court under Section 39(1)(6) of the Arbitration Act, 1940. The High Court by impugned",,,,

judgment dated 01.06.2006 opined that on going through the award, it is seen that the award was given unanimously by the arbitrators. The High Court",,,,

further held that no misconduct was found on the part of the arbitrators and the award is based on the materials supplied by the parties and after due,,,,

deliberation and discussion. The High Court held that the arbitrators are the close relatives of the parties and one of the arbitrators Shri Kiran Mal is,,,,

the brother-in-law of Balwant Singh and as per Ex.-7, the arbitrators were appointed by mutual consent. Pointing out that mere passing of the award",,,,

on the same day in one sitting does not give rise to any suspicion and would not raise any doubt or ambiguity and that no misconduct has been alleged,,,,

against the arbitrators, the High Court set aside the order of the learned District Judge and concluded that the award deserves to be made rule of the",,,,

court and accordingly, declared to be so. Being aggrieved, the appellant has preferred this appeal.",,,,

We have heard Mr. Prashanto Chandra Sen, learned Senior counsel appearing for the appellant and Mr. Puneet Jain, learned counsel appearing for",,,,

the respondents and also perused the impugned judgment and materials on record.,,,,

It can be seen from the terms of reference dated 23.11.1981 that the parties had agreed that the arbitral award would be passed unanimously by,,,,

the arbitrators and the same would bind the parties. As pointed out by the High Court, the parties had by mutual consent agreed to the appointment of",,,,

all the three arbitrators and they had submitted their respective claims before the arbitrators. As pointed out earlier, the arbitrators are the close",,,,

relatives of the parties and no misconduct is alleged against the arbitrators. They have also filed the will made by their father Jeetmal Singh before the,,,,

arbitrators. Both the parties were present and gave their consent in writing. That apart, the parties have also submitted their respective claims in the",,,,

properties and the arbitrators after hearing the parties, passed the award. Having regard to the fact that the parties have consented for the arbitrators",,,,

to consider their claims and pass the award, the High Court rightly set aside the order of the District Judge holding that the award has been passed",,,,

after due consideration.,,,,

With a view to further amicably settle the matter, the parties have negotiated and agreed that on Item No.8-Jewellery, in lieu of 50% of the",,,,

jewellery which the LRs of Dungar Singh are entitled i.e. 40 tolas, LRs of Balwant Singh shall pay the amount of Rs.10,00,000/- to the LRs of Dungar",,,,

Singh within a period of nine months. The parties have further agreed that insofar as the land falling in Khasra No.15/1Ka which has been sold by,,,,

Balwant Singh which is the subject matter of litigation against the third party, LRs of Dungar Singh shall continue the litigation with the third party.",,,,

Sl. No.,"Description of

Property","Assigned to as per

the Award",Party in Possession,

,,,Who is in possession,Stand of the parties

1.,"House at Babelon Ki

Sehri",Dungar Singh,"L R s of Dungar

Singh","L R s of Dungar

Singh continue to

remain in possession

of the house.

2.,"Popat Wala House,

Old House",Balwant Singh,"L R s of Dungar

Singh","L R s of Dungar

Singh are ready to

hand over

possession of the

said house.

Possession of house

shall be handed over

on or before

31.05.2020.

3.,Remaining House,Dungar Singh,"L R s of Dungar

Singh","L R s of Dungar

Singh continue to

remain in

possession.

4.,"Plot ad measuring

80*40 situated in

Mehtaji ki Badi","Rs.9,000/- payable

by LRs of Dunga

Singh to LRs o

Balwant Singh","Balwant Singh

r

f","I n view of the

compromise,

payment of amount

of Rs.10,00,000/- by

LRs of Balwan

Singh qua Item No.8

â€" Jewellery to be

paid to LRs of

Dungar Singh within

a period of nine

months. The amount

of Rs.9,000/- is not

payable by LRs of

Dungar Singh to

LRs of Balwan

Singh.

5.,Agriculture Land,Dungar Singh,"The said agriculture

land falls in Khasra

No.15/1Ka and 13/3

Vallabh Nagar,

Udaipur. Land

falling in Khasra

No.15/1Ka has been

sold by Balwant

Singh.","L a n d falling in

Khasra No.15/1Ka

,has been sold by

Balwant Singh

regarding which

litigation is pending

against third party.

LRs of Dunga

Singh are at liberty

to continue the

litigation with the

third party at their

cost.

6.,"Money from Shop

Owned by Late Shr

Jeetmal and Wife

(20,381+4281.17

=24668.17)","To be split equally

i","A mount payable

Rs.12,334/- by LRs

of Dungar Singh to

LRs of Balwan

Singh.","I n view of the

amount of

Rs.10,00,000/-

tagreed to be paid by

LRs of Balwan

Singh qua item No.8

â€" Jewellery, this

amount of

Rs.12,334/- is not

payable by the LRs

of Dungar Singh.

Sl. No.,"Description of

Property","Assigned to as per

the Award",Party in Possession,

,,,Who is in possession,Stand of the parties

7.,"Share certificate in

the name of Jeetmal

Ji Babel",To be split equally,"L R s of Dungar

Singh","L R s of Dungar

Singh are ready to

equally divide the

shares amongst

themselves and LRs

of Balwant Singh.

Shares shall be

divided within a

period of three

months.

8.,"Jewellery:

i. Baju

ii. Kangan*2

iii.Remaining gold

and silver","Dungar Singh

Dungar Singh To be

distributed in equal

share","L R s of Balwant

Singh","The said jewelleries

are said to have

been taken or

withdrawn by

Balwant Singh from

Bank Locker of

Bank of Rajasthan

on 21.08.1991.

Weight of the said

jewelleries is 80

tolas (800 gms) and

the LRs of Dunga

Singh are entitled to

50% i.e. 40 tolas of

the same.

In lieu of 50% of the

jewellery, LRs of

Balwant Singh

agreed to pay an

amount of

Rs.10,00,000/- to

LRs of Dunga

Singh. Amount of

Rs.10,00,000/- is

payable within a

period of nine

months.