Rajinder Parshad Sharma vs Ashok Sharma and Others

Hima Kohli, J.—The parties to the litigation, spanning over two decades, are brothers, and respondent No. 4 is the son of respondent No. 2. All the parties are in litigation with regard to the properties left by Late Sh. Raghunath Prasad Sharma. It is time to draw the curtains on the said litigation and it is hoped that this will bring a quietus to the long pending family dispute. The present objections are filed by respondent No. 2, Sh. Ramesh C. Sharma, under Sections 30 & 33 of the Arbitration Act, 1940 (in short ''the Act'') against an award dated 17.3.1988 passed by the joint Arbitrators, Lala Kanhaiya Lal and Sh. Madan Lal Ahuja. The aforesaid award came to be filed in the Court by the learned Arbitrators on a petition filed by the petitioner under Sections 14 & 17 of the Act praying, inter alia, for directions to the Arbitrators to file the original award and the original proceedings and make the award dated 17.3.1988, a rule of the Court. The facts of the case are that Sh. Raghunath Prasad Sharma, father of the petitioner and the respondents No. 1 to 3 and grandfather of respondent No. 4, executed a will dated 5.11.1986. He expired on 22.06.1987. As per the Will executed by late Sh. Raghunath Prasad Sharma, though he was survived by four sons and five daughters, he left his assets for the benefit of his four sons, namely, the petitioner and respondents No. 1 to 3 and his grandson, respondent No. 4. Thereafter, all the beneficiaries of the Will approached two persons to arbitrate in the matter of the Will and pass an award. An Agreement for Arbitration (hereinafter referred to as ''the Agreement'') dated 13.12.1987 (Ex.PW-1/7) was signed by all the beneficiaries of the Will and duly accepted by the named Arbitrators. However, subsequently, a Deed of Reference dated 3.3.1988 (hereinafter referred to as ''the Deed'') (Ex.PW-1/5) was executed by the beneficiaries. By virtue of the said Deed, the beneficiaries jointly appointed different Arbitrators, namely, Lala Kanhaiya Lal and Sh. Madan Lal Ahuja, both friends of late Raghunath Prasad Sharma and witnesses to his Will dated 5.11.1986, to resolve all the differences between the beneficiaries regarding distribution of the assets left by the deceased, as detailed in the Deed. It was mentioned in the aforesaid Deed that the Will of Late Raghunath Prasad Sharma was subject matter of a probate petition before the District Judge, Delhi. It was also mentioned that the Agreement dated 13.12.1987 appointing the earlier Arbitrators had been revoked and thereafter, the Deed was made. The aforesaid request made by the beneficiaries to the Will was accepted by the Arbitrators who rendered the impugned award. Objections have also been filed by the respondent No. 2 to the award.

It was submitted by the respondent No. 2, who appeared in person that the award is liable to be set aside on the ground that the Arbitrators dealt with the properties which were a subject matter of the Will dated 5.11.1986 and that the genuineness of the Will could not be a subject matter of consideration by the Arbitrators. He urged that the same could be considered only by the probate court and that this itself was sufficient ground to set aside the award. He contended that there was no arbitration agreement between the parties whereby all the parties agreed to get the properties distributed by the Arbitrators. The Deed was referred to state that the Arbitrators were not expected to distribute the assets, but to only resolve the differences regarding distribution of assets left by the deceased.

The respondent No. 2 argued that there was no arbitration agreement governing the parties and the Deed was executed on a blank piece of paper on which parties appended their signatures. He emphasized that the Deed could not be termed as an arbitration agreement and could not bind the parties and thus, the award was liable to be set aside. He further submitted that only the business of the deceased was an issue as the Will was accepted by all the parties and thus the Arbitrators could not have dealt with three residential properties, three plots situated at Gurgaon and other immovable assets left by the deceased, Sh. Raghunath Prasad Sharma.

The respondent No. 2 argued that since the authority of the Arbitrators appointed to make an award under the earlier Agreement dated 13.12.1987, was extended till 12.4.1988, and their power was not revoked, neither could the new Arbitrators been appointed, nor could have an award been rendered by them and on this ground also, the award is vitiated. It was submitted that the other legal heirs of the deceased, namely, sisters of the petitioner and the respondents No. 1 to 3 were affected by the award, but they were not heard or even impleaded in the arbitration proceedings. He contended that his sisters had a right to the properties of their deceased father under the Hindu Succession Act and such of the properties which were not subject matter of the Will had to devolve on the parties in terms of the Hindu Succession Act. It was lastly submitted by the respondent No. 2 that the impugned award was neither sufficiently stamped nor registered before being filed in the Court and thus Section 17 of the Registration Act, 1908 comes into play. Respondent No. 2 submitted that the award was mandatorily required to be registered and the Arbitrators having failed to do so, the same stands vitiated.

I have heard the counsels for the parties and have carefully considered the respective contentions of both the sides.

The first objection raised by the respondent No. 2 to challenge the impugned award is that the Arbitrators dealt with the properties which were subject matter of the Will dated 5.11.1986 executed by late Sh. Raghunath Prasad Sharma and that genuineness of the Will could not be a subject matter of consideration by the Arbitrators. For deciding the aforesaid objection, it is necessary to peruse the Deed dated 3.3.1988 recording the intention of the parties, relevant portion of which is reproduced as below:

BY THIS DEED we all appoint Shri Kanhiya Lal Jee and Shri Madan Lal Ahuja both friends of our respect father Late Shri Raghunath Prasad Sharma, as Joint Arbitrators and request them to resolve our differences regarding distribution of under mentioned Assets left by our father

Late Shri Raghunath Prasad Sharma, who expired on 22.6.1987.

Bungalow No. 60/15, Ramjas Road, Karol Bagh, New Delhi.

Ashoka Industries, 28/2, Rohtak Road, Karol Bagh, New Delhi.

Majestic Industries, 7/22, Rohtak Road, Karol Bagh, New Delhi.

Factory No. F-25/4, Okhla Phase II, New Delhi.

House No. 6596, Gali No. 3-4, Block No. 9, Dev Nagar, New Delhi.

House No. 103, Sanyas Marg, Kankhal (Hardwar).

Plot Hema Bandhi Nos. 2712.2937, Khasra No. 3630-1000 Sq.Yds. 2714/2939, Khasra No. 3632-1000 Sq.Yds. and 2716/2941, Khasra No. 3634-750 Sq.Yds. at Gurgaon.

Jewellery, Cash, F.D. Receipts of Banks, Bank Saving Accounts, and Cash in any other form, 1800 Shares, and Rs. 30,000/-invested in N.S.C. etc.

The aforesaid document does not indicate that the Arbitrators were called upon to decide the genuineness of the Will. Instead, the Deed mentioned certain assets which formed part of the Will of the deceased, and others, which did not. In such circumstances, the contention of the respondent No. 2 cannot be accepted. Counsel for the petitioner has relied on the judgment of the Calcutta High Court in the case of Mohanlal Dungarmal Futnani Vs. Vishanji Dungarmal Futnani and Others, In the said case, a Division Bench of the Calcutta High Court reiterated the consistent view that an un-probated Will could be looked into by the Court for the purpose of construction or for any other co-related purpose and also referred to the provisions of Section 213(1) of the Indian Succession Act and held that a reference to the Arbitrator for construction for an unprobated Will is not contrary to law. The relevant observations in this regard are reproduced hereinbelow:

34: We have already quoted above sub-section (1) of Section 213 of the Indian Succession Act. In our view, by no stretch of imagination can it be said that a reference to the Arbitrators for construction of an unprobated Will is contrary to law. Section 213 of the Indian Succession Act does not say that no person can claim as a legatee or as an executor unless he obtains probate or Letters of Administration of the Will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice unless probate or Letters of Administration had been obtained of the Will under which the right is claimed.

A perusal of the impugned award shows that the Arbitrators did not comment on the genuineness or otherwise of the Will of the deceased. Rather, it mentioned that the deceased had executed a Will to which both the Arbitrators were witnesses and all his sons and grandson who were beneficiaries in the Will had accepted the Will but found difficulties in pulling on together and thus approached the Arbitrators so that they could work together, independently, or jointly with any one of their own taste. The Arbitrators also mentioned in the recital of the award that they had studied the Will of late Sh. Raghunath Prasad Sharma carefully and discussed the matter with all the parties and gave their award. There is not a whisper in the award as to the genuineness or validity of the Will. Hence, the contention of the respondent No. 2 that the Arbitrators dealt with the genuineness of the Will, is devoid of merits and is rejected.

The second plea raised by the respondent No. 2 that there was no arbitration agreement governing the parties and the Deed was executed on a blank piece of paper on which the parties appended their signatures and thus the award could not bind the parties, there being no arbitration agreement, has to be seen in the light of the Deed. The Deed clearly sets out the intention of the parties to the effect that they desired the Arbitrators who were friends of Late Sh. Raghunath Prasad Sharma, to act as joint Arbitrators and resolve the differences between the signatories to the Deed, regarding distribution of certain assets left by the deceased as set out in the Deed.

In the case of Bihar State Mineral Dev. Corpn. and Another Vs. Encon Builders (I) Pvt. Ltd., , it was observed that for the purpose of construing the arbitration agreement, the term "arbitration" is not required to be specifically mentioned therein and what is to be seen is that the arbitration agreement must contain the broad consensus between the parties that the disputes and differences should be referred to a domestic tribunal. In other words, it is the form and not the substance which has to be seen. In this context, it is relevant to reproduce the following observations made by the Supreme Court in the aforesaid case:

The essential elements of an arbitration agreement are as follows:

(1) There must be a present or a future difference in connection with some contemplated affair.

(2) There must be the intention of the parties to settle such difference by a private tribunal.

(3) The parties must agree in writing to be bound by the decision of such tribunal.

(4) The parties must be ad idem.

There is no dispute with regard to the proposition that for the purpose of construing an arbitration agreement, the term "arbitration" is not required to be specifically mentioned therein. The High Court, however, proceeded on the basis that having regard to the facts and circumstances of this case, the arbitration agreement could have been given effect to. We may, therefore, proceed on the basis that clause 60 of the contract constitutes an arbitration agreement.

(emphasis added)

Testing the present case on the aforesaid touchstone, it cannot be denied by the respondent No. 2 that there was a Deed of Reference binding the parties. Merely because the word ''arbitration'' was not used in the Deed does not mean that there was no arbitration agreement governing the parties. The parties were ad idem about the fact that there were disputes between them as to the manner of distribution of the assets left by Late Sh. Raghunath Prasad Sharma, which were agreed to be resolved by the joint Arbitrators appointed by them.

Counsel for the petitioner is also justified in claiming that respondent No. 2 had given up his objection as to the existence of the arbitration agreement, by referring to the order dated 21.2.1994, passed in IA No. 7783/89 filed by the respondent No. 2, where he had challenged the existence of the arbitration clause. By the aforesaid order, the application filed by respondent No. 2 was dismissed by recording his statement that he did not press the objection that there was no arbitration clause admitted under the Arbitration Act.

The argument of the respondent No. 2 that the Arbitrators were not expected to distribute the assets, but only to resolve the disputes and differences regarding the business of the deceased, is also untenable as the said intention does not emerge from a reading of the Deed. Such a distinction as sought to be drawn by the respondent No. 2 between the distribution of business and resolving of disputes and differences regarding the assets, is highly ambiguous as a peaceful resolution of disputes between the parties would entail an expectation to distribute all the assets of the deceased in a manner found to be justified by the Arbitrators. There is no such limitation placed on the Arbitrators by the parties whereby it can be said that the business of the deceased were only required to be arbitrated upon and not the properties. Rather, the assets mentioned in the Deed not only refer to the properties but also to the business, namely, Ashok. Industries and Majestic Industries. Further, at item No. 8, the Deed also refers to the movable properties of the deceased in the form of jewellery, cash, FDRs and cash in any other form, shares etc.

It does not lie in the mouth of the respondent No. 2 to contend that the Arbitrators could not deal with the properties which were subject matter of the Will, as it was unprobated. Respondent No. 2 knowingly and consciously submitted to the jurisdiction of the Arbitrators, even during the pendency of the Probate Petition No. 344/87 titled "Munish Kumar Sharma Vs. State" which was filed by none other than the son of respondent No. 2, i.e. respondent No. 4. It is pertinent to note that the said petition was decided in the year 1994 and probate was not granted in respect of the Will. Thus, as far as the Arbitrators were concerned, the right of the deceased to execute the Will in respect of his assets was not a subject matter of consideration before them.

The Arbitrators were merely called upon to redistribute the assets of the deceased, not only some of the properties subject matter of the Will, but also those which were outside the scope of Will. In so far as the properties relating to the Will are concerned, the rights of the parties to those properties were already vested in them. No fresh rights were created. Some readjustments were made to accommodate all the parties, and that also, on their request. However, the same cannot be said with regard to the properties which were outside the scope of the Will, as in the process of making the award, the Arbitrators have created and extinguished rights of parties therein.

The respondent No. 2 urged the court to set aside the award on the ground that the other legal heirs of the deceased, namely, sisters of the petitioner and respondents No. 1 to 3 were affected by the award but were not impleaded in the arbitration proceedings, particularly when they had a right to the properties of their deceased father under the Hindu Succession Act and such of the properties, which were not subject matter of the Will could devolve on them only in terms of the said Act. The aforesaid argument of the respondent No. 2 was responded to by the counsel for the petitioner who stated that there is no mention of the sisters in the Will of the deceased and both the Deeds of Reference. Despite the same, the Arbitrators have directed that the sisters receive Rs. 3,50,000/- from the beneficiaries of the Will. Further, the sisters of the petitioner and respondents No. 1 to 3 did not participate in the proceedings in a suit instituted by respondent No. 1, being CS(OS) No. 1584/98, wherein partition of the properties of the deceased was sought. It is not denied that despite service, none of the sisters appeared to contest the said suit. In any case, such a plea, if at all, is available to the sisters, and none of them have challenged the award till date. The respondent No. 2 cannot seek to raise such a plea on behalf of the purportedly aggrieved parties when the parties themselves have not sought to assail the award by approaching the court of law.

The argument of the respondent No. 2 that since the authority of the Arbitrators appointed under the earlier agreement dated 13.12.1987 was extended upto 12.4.1988 and their powers were not revoked, the new Arbitrators could not have been appointed and could not have rendered an award, is also found to be devoid of merits. It is pertinent to note that it was recorded in the Deed itself that the signatories to the same, including the respondent No. 2, had rejected the earlier Agreement for Arbitration dated 13.12.1987, whereunder two arbitrators were appointed and thereafter, executed the subsequent Deed of Reference. Thus the earlier arbitration agreement got superseded by the subsequent Deed of Reference executed by the parties, to which the respondent No. 2 was also a signatory. All the parties voluntarily submitted themselves to the new set of Arbitrators. The Deed itself mentions that all the parties had revoked the authority of the earlier Arbitrators unanimously. Therefore, Section 5 of the Arbitration Act, 1940 does not have any application to the facts of the present case.

In the aforesaid context, counsel for the petitioner is justified in referring to the letter dated 15.2.1988 issued by the respondent No. 2 himself to the Arbitrators, appointed earlier in time. By the aforesaid letter, the respondent No. 2 informed the earlier Arbitrators that he had withdrawn from the Agreement for Arbitration dated 13.12.1987 under which the said Arbitrators were appointed by the parties to settle the issues relating to the Will of Late Sh. Raghunath Prasad Sharma. The records reflect that within a few days from the issuance of the aforesaid letter dated 15.2.1988 by the respondent No. 2, the Deed of Reference dated 3.3.1988 was executed by all the parties appointing the subsequent Arbitrators to adjudicate the disputes between the parties relating to the manner of distribution of the assets left by the deceased. Thereafter, all the parties submitted themselves to the newly appointed Arbitrators who interacted with the parties and rendered the award. Therefore, the respondent No. 2 is not justified in claiming that the powers of the earlier Arbitrators to make an award was not revoked and hence the newly appointed Arbitrators could not have entered upon the reference. The conduct of the respondent No. 2 speaks for itself.

The last objection raised by the respondent No. 2 is to the effect that the award is liable to be set aside on the ground of non- payment of adequate stamp duty and non-registration thereof. The respondent No. 2 relied on the provisions of Section 17 of the Registration Act in support of his submission that the award stands vitiated on account of its non-registration. He also relied on a judgment of the Supreme Court in the case of Lachhman Dass Vs. Ram Lal and Another, in this regard.

Per contra, Counsel for the petitioner submitted that the properties subject matter of the award were already vested in the parties by virtue of the Will and that under the award, only readjustment of rights was done. He further submitted that stamp duty is required to be paid in respect of the properties not a subject matter of the Will, when a decree is passed and as the award is yet to be made a rule of the Court, the said occasion had not arisen and that the stage of registration will come only after payment of stamp duty. In support of his submission, counsel for the petitioner relied on a judgment of the Supreme Court in the case of Capt. (Now Major) Ashok Kshyap Vs. Sudha Vasisht and Another,

Counsel for the petitioner also contended that as a photocopy of the award was exhibited by the petitioner as Ex.PW-1/6 during the course of cross-examination of the respondent No. 2, the provisions of Section 36 of the Indian Stamp Act, 1899 (hereinafter called as ''the Stamp Act'') come into play. Section 36 lays down that where an instrument has been admitted in evidence, such an admission shall not be called in question at any stage of the same suit on the ground that instrument has not been duly stamped. In support of the aforesaid submission, counsel for the petitioner relied on a judgment of the Supreme Court in the case of Shyamal Kumar Roy Vs. Sushil Kumar Agarwal, . It was further submitted on behalf of the petitioner that the award in question had been exhibited by the objector and the respondents No. 1 to 3 and therefore they were estopped from challenging the same. In response to the plea of the respondent No. 2 that there is no estoppel against law, counsel for the petitioner relied on a judgment of the Supreme Court in the case of Dhiyan Singh and Another Vs. Jugal Kishore and Another,

If an arbitration award is an unstamped one, it contravenes Article 12 of Schedule I of the Indian Stamp Act 1899. Article 12 of the Stamp Act stipulates as below:

The above Article thus mandates that an award by an arbitrator, other than an award directing a partition, on a reference made otherwise than by an order of the Court in the course of a suit, requires stamp duty. The award in the present case is made on a stamp paper worth Rs. 80/-. The award is of the year 1988, and as per the stamp duty applicable at the relevant time in Delhi, Rs. 75/- was payable on an award. Thus had the present award been a simpliciter award, not being one which directs a partition, on a reference made otherwise than by an order of the Court in the course of the suit, then it could have been held that the same was adequately stamped.

Even otherwise, the effect of non-stamping of an award has been considered by the Courts and it has been held that the same is a curable defect. In the case of Pradip Trading Co. Vs. The State of Bihar, , it was held that only because an award is not on a stamp paper, it will not be invalid within the meaning of Section 30 of the Act and that it is merely a defect in the award dehors the award or the decision of the Arbitrator. While the provision of Section 35 of the Stamp Act prohibits an instrument which is chargeable for being admitted in evidence for any purpose, Section 35(a) of the Stamp Act casts a duty on the Court in all cases to admit a document on payment of penalty subject to all just exceptions. Thus, a defect in the award can be cured by impounding the same and being brought on record and made rule of the Court. Same was the view expressed in the case of Harish Chander Sharma Vs. Priti Sharma etc., referred to by the counsel for respondent No. 1, where the Court was called upon to give a decision on two points which were as below:

(1) Whether an award on reference made in a pending suit dividing immovable property of the value of Rs. 100/- or more must be engrossed on a requisite stamp paper; and

(2) If it is not so done before filing in court, should it be impounded u/s 38 of the Stamp Act as unstamped instrument of partition.

After referring to the provision of Section 2(15) of the Stamp Act which defines an instrument of partition, Article 12 of Schedule I of the Stamp Act which specifies the amount payable on an award, not being an award directing partition, Article 45 of Schedule I of the Act which deals with an instrument of partition, the Court observed that the scope of Article 12 is to provide for private awards as chargeable with duty as specified therein. Awards made on a reference of an order of the Court do not fall within the same Article. But this did not mean that the awards which are made by an order of the Court in the course of the suit are exempt from payment of stamp duty, if otherwise covered by any other provision of the Schedule. The Court held that the award given by an arbitrator directing a partition becomes an instrument of partition chargeable with stamp duty, irrespective of the fact whether it was made in pursuance of an order of reference u/s 23(1) of the Arbitration Act, 1940 or made without intervention of the Court. On the second issue referred to the Court as to whether an award not engrossed on a requisite stamp paper should be impounded u/s 38 of the Stamp Act, the learned Single Judge held that it is obligatory on the persons specified in Section 33 of the Stamp Act that if the instrument in question is not stamped according to the Act and the instrument is produced or comes in the performance of his functions, impounding of the document is obligatory.

In the present case, admittedly the award is one which has not been made on a reference by an order of the Court in the course of a suit. However, a perusal of the award is necessary to establish whether it is an instrument of partition as defined in Section 2(15) of the Stamp Act. An instrument of partition has been defined to mean whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue authority or any Civil Court and an award passed by an arbitrator directing a partition. Thus an award by an arbitrator directing a partition is in fact an instrument of partition and it may be acted upon or filed in a Court for being made rule of the Court.

There is no quarrel with the proposition that a decree passed in an award directing partition is an instrument of partition and if an award directs partition of properties and a decree is passed in terms of the award, it will be required to be drawn up on payment of stamp duty in accordance with the provisions of Schedule I of the Stamp Act. The question however is whether in the present case award directs partition of properties or only determines the disputes as to the manner of distribution of the assets of Late Sh. Raghunath Prasad Sharma.

A perusal of the award shows that while rights already vested in the parties in respect of assets, subject matter of the Will, were merely readjusted to accommodate the parties, at their request, it also directed partition on its own force with respect to properties not a subject matter of the Will. While both the parties do not dispute the position that the immovable properties mentioned at items No. 3, 4 & 5 of the Deed are covered under the Will of Late Sh. Raghunath Prasad Sharma, those mentioned at item No. 2 (in part), items No. 6 & 7 are not covered under his Will. In the process, the Arbitrators created and extinguished rights in immovable properties. In other words, in respect of certain immovable properties, the award created on its own force and declared interest of parties in the properties left by the deceased. For example, the immovable property mentioned at item No. 6 of the Deed, situated at Kankhal, Hardwar is stated to have belonged to the wife of Late Sh. Raghunath Prasad Sharma, who predeceased him and died intestate. Under the award, the Arbitrators have allotted the said property jointly to the respondents No. 2 & 4. Similarly, the plot bearing hemabandi No. 2714/2939, in khasra No. 3632 at Gurgaon measuring 1000 sq.yds. mentioned at Item No. 7 of the Deed is stated to be in the name of respondent No. 2, but under the award, it has been allotted to the petitioner. The remaining two plots mentioned at item No. 7 of the Deed are also stated to be in the name of the wife of Late Sh. Raghunath Prasad Sharma. As per the petitioner, all the legal heirs executed relinquishment deeds in respect of the aforesaid two plots in favour of Sh. Raghunath Prasad Sharma, which position is disputed by the respondent No. 2. Under the award, the first plot mentioned at item No. 7 has been allotted by the arbitrators to respondent No. 1 and the third plot has been allotted to respondent No. 3. The immovable property mentioned at item No. 2 in the Deed belongs to the partnership firm, Ashoka Industries, of which Late Sh. Raghunath Prasad Sharma was 40% shareholder, while the petitioner, respondents No. 1 and 2 had 20% share each in the firm. Under the Will, out of 40% share of Late Sh. Raghunath Prasad Sharma, 20% share devolved on each of the respondents No. 3 and respondent No. 4 respectively. However under the award, the learned Arbitrators have given the entire immovable property mentioned at item No. 2 to the petitioner. In view of the above, in respect of such of the properties which do not find mention in the Will, the award given by the Arbitrators amounts to one directing partition and becomes an instrument of partition chargeable with stamp duty.

The executants of the award being the Arbitrators, a duty was cast upon them to direct the parties to provide them with necessary stamp papers for the said award to have been made and published. Further, after the award has been made and published by the Arbitrators, they become functus officio and thereafter, the award cannot be remitted back to them for re-writing on a stamp paper. In such circumstances, the defect in the award can be cured by impounding the same and sending the original to the Collector of Stamps who would be required to follow the procedure as specified u/s 40 of the Stamp Act, for the original instrument to be returned thereafter to the Court. In the above view of the matter, it cannot be held that Section 35 of the Stamp Act bars the Court from making an award Rule of the Court, even if the defect regarding the payment of stamp duty is cured by following the procedure prescribed under the Stamp Act. The Court is always empowered to make the award a rule of the Court with a direction that a decree be drawn in terms of the award, only after the same is forwarded to the Collector of Stamps for issuing a certificate as to the amount of duty and penalty leviable on the instrument and payment thereof being made in terms of the certificate.

The defence of estoppel raised by the counsel for the petitioner against the respondent No. 2 with respect to non-stamping of the award is liable to be turned down. The provisions of Section 36 of the Indian Stamp Act, 1899 do not come to the aid of the petitioner. The respondent No. 2 is right in stating that the instrument was never admitted in evidence and what was given an exhibit mark (Ex.PW 1/6) during the course of cross-examination of the respondent No. 2, was not the instrument, but the handwriting of the petitioner endorsed on the back of the document. Hence, the judgment referred to by the counsel for the petitioner in the case of Shyamal Kumar Roy(supra) cannot be of any assistance to him. Furthermore, the respondent No. 2 is justified in stating that vide order dated 26.5.1989, the petitioner was restrained from giving effect to the award and hence there was no question of any party acting on the award.

This leaves the issue with regard to non-registration of the award and the effect thereof. Section 17 of the Registration Act, 1908 refers to documents of which registration is compulsory. Section 17(1)(e) provides as below:

Documents of which registration is compulsory.-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:

Xxx

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates 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, to or in immovable property.

Section 23 provides as below:

Time for presenting documents-Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:

Provided that a copy of a decree or order may be presented within four months from the date on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.

Section 25 stipulates as below:

Provision where delay in presentation is unavoidable-(1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in [India] is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration.

(2) Any application for such direction may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

Section 49 of the Act states as below:

49 Effect of non-registration of documents required to be registered- No document required by section 17 [or by any provision of the Transfer of Property act, 1882 (4 of 1882)], to be registered shall-

(a) Affect any immovable property comprised therein, or

(b) Confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.]

As observed by the Supreme Court in the case of Lachhman Das (supra), the real purpose of registration is to secure that every person dealing with the property, where such document requires registration, may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected. As Section 17 is a disabling section, the same is required to be construed strictly and therefore unless a document is clearly brought within the four corners of the Section, merely because the same is not registered, would not be a bar on its being admitted in evidence. Section 17 enjoins registration in respect of any document which intends to create, declare, assign, limit or extinguish a right in an immovable property in present or in future.

In the present case as noted above, the award operates to create or declare or extinguish rights, title and interest of the value of Rs. 100/- and upwards in the immovable properties mentioned in the Deed which were not a subject matter of the Will executed by Late Sh. Raghunath Prasad Sharma and thus, the award was compulsorily registrable. The next question that arises is that since the award created rights in immovable property worth above Rs. 100/- which is required to be registered u/s 17 of the Act and was unregistered, could the Court look into it'' In this context, it is relevant to refer to the judgment of the Supreme Court in the case of Raj Kumar Dey and Others Vs. Tarapada Dey and Others, The Court examined the provisions of Sections 23 & 25 of the Registration Act and observed that when read together, they have the cumulative effect of fixing a period of eight months for registration of an award. In other words, a total period of eight months is available for registration of the award, if the conditions are fulfilled, i.e. four months from the date of its execution and additional four months thereafter on payment of fine.

In the present case, the award is dated 17.3.1988. A petition was filed under Sections 14 & 17 of the Arbitration Act, 1940 on 12.4.1988 for directions to the Arbitrators to file the original award and the original proceedings in the Court. Vide order dated 15.4.1988, notice was issued to the Arbitrators to file the award and the proceedings on or before 6.7.1988. Vide order dated 6.7.1988, it was recorded that the Arbitrators had filed the award as well as the proceedings and notice of filing of award was directed to be issued to the parties for 1.9.1988. Thus it can be seen that the Arbitrators under the directions of the Court, filed the award on the record, well within a period of four months from the date of executing the same. Objections came to be filed to the award by respondent No. 2 on 18.8.1988. By the said time, the period of four months had lapsed. Thereafter, the respondent No. 2 filed an application for staying the operation of the award, registered as IA No. 1736/89. Notice was issued on the aforesaid application on 2.3.1989. Vide order dated 26.5.1989, the petitioner was restrained from giving effect to the award and ever since then, the matter has been pending disposal before the Court. In the aforesaid circumstances, it is clear that the original award continued to remain in the custody of the Court since 4.7.1988 and that there has been a subsisting injunction restraining the petitioner from giving effect to the award. Thus, neither the Arbitrators, nor could the parties have presented the award for its registration in this duration. This being the position, the respondent No. 2 cannot claim that the award being an unregistered one, is void and cannot be acted upon. In such a scenario, the principles enunciated by the Supreme Court in the case of Raj Kumar Dey (supra) are applicable. In somewhat similar circumstances as those in the present case, the Supreme Court discussed the scope of Section 15 of the Limitation Act and observed as below:

We have to bear in mind two maxims of equity which are well settled, namely, "ACTUS CURIAE NEMINEM GRAVABIT" - An act of the Court shall prejudice no man. In Broom''s Legal Maxims, 10th edition, 1939 at page 73 this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The above maxim should, however, be applied with caution. The other maxim is "LEX NON COGIT AD IMPOSSIBILIA" (Broom''s Legal Maxims -P. 162) - The law does not compel a man to do that which he cannot possibly perform. The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases.

7: In this case indisputably during the period from 26th of July, 1978 to 20th December, 1982 there was subsisting injunction preventing the arbitrators from taking any steps. Furthermore, as noted before the award was in the custody of the court, that is to say, 28th of January, 1978 till the return of the award to the arbitrators on 24th of November, 1983, the arbitrators or the parties could not have presented the award for its registration during that time. The award as we have noted before was made on 28th of November, 1977 and before the expiry of the four months from 28th November, 1977, the award was filed in the court pursuant to the order of the court. It was argued that the order made by the court directing the arbitrators to keep the award in the custody of the court was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of doubtful jurisdiction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required. The aforesaid two legal maxims -the law does not compel a man to do that which he cannot possibly perform and an act of the Court shall prejudice no man would, apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub-Registrar, Arambagh on 25th November, 1983 the very next one day of getting possession of the award from the court. The Sub-Registrar pursuant to the order of the High Court on 24th of June, 1985 found that the award was presented within time as the period during which the judicial proceedings were pending that is to say, from 28th of January, 1978 to 24th of November, 1983 should be excluded in view of the principle laid down in Section 15 of the Limitation Act, 1963. The High Court, therefore, in our opinion, was wrong in holding that the only period which should be excluded was from 26th July, 1978 till 20th December, 1982...

(emphasis supplied)

In the present case also, the provisions of Section 15 of the Limitation Act would come into play to exclude the period during which the present proceedings have remained pending. Any other view taken in the matter would amount to travesty of justice as it would reduce to naught, an award rendered by joint Arbitrators appointed by parties to resolve their inter se family disputes, which has yet to be made Rule of Court and has remained pending for the past 20 years, on account of the present litigation. Now to declare the award as void on account of non-registration, for want of presentation within the time prescribed in the Statute, when all through the same has remained in the custody of the Court, and even been stayed on an application filed by respondent No. 2, would make a mockery of the principles of justice, fair play and good conscience.

In the light of the aforesaid discussion, the objections filed by the respondent No. 2 are rejected. In view of the fact that the award has been held to be an instrument of partition in respect of immovable properties not a subject matter of the Will of Late Sh. Raghunath Prasad Sharma, it is chargeable with stamp duty. The award is thus impounded and the Registry is directed to send the original thereof to the Collector of Stamps for assessment of proper stamp duty and penalty. After the Collector has dealt with the instrument in accordance with the provisions of the Indian Stamp Act, the same shall be returned to this Court with a Certificate indicating the amount of duty and penalty leviable on the instrument. Only after the amount specified in the Certificate is paid, shall the award be released from the custody of the Court for the purposes of its registration. It is further ordered that the award shall be made Rule of the Court subject to the conditions that the amount specified in the Certificate to be issued by the Collector of Stamps is paid and thereafter, the Award is got registered and returned to this Court for a decree to be drawn in accordance with law. Petition is disposed of while leaving the parties to bear their own costs.