Simer Kaur vs Sucha Singh and another

N.K. Kapoor, J.—This revision petition is against the order of the Additional District Judge dated 2.4.1996 dismissing the appeal of the petitioner filed against the judgment and decree dated 14.8.1992 thereby making the award as Rule of the Court with a further direction to the petitioner to execute the sale deed on payment of Rs. 24,750/.

Briefly put, Dalip Kaur entered into an agreement to sell land in dispute with Sucha Singh through his father Gian Singh on 30.6.1978. Dalip Kaur received a sum of Rs. 6,750/ through her husband and general attorney Apar Singh as earnest money. Earlier to this agreement the land in dispute was in possession of Gian Singh as a mortgagee for a consideration of Rs. 6,000/. Mortgaged amount was to be adjusted in the sale price. As per agreement parties agreed to appoint Mangal Singh son of Bhag Singh as Arbitrator in case of any dispute between the parties regarding performance of the agreement. According to the case set up by Sucha Singh/Gian Singh, Dalip Kaur did not execute the sale deed as per the agreement to sell and so a petition was filed on 14.5.1981 for referring the matter to an Arbitrator. Mangal Singh refused to become the Arbitrator and so as agreed by the parties Shri S.P. Khetarpal, Advocate, Kurukshetra was appointed as Arbitrator. Arbitrator gave his award on 18.11.1985 in favour of Sucha Singh. Arbitrator directed Dalip Kaur to execute the sale deed on payment of balance price of Rs. 24,750/ within two months from the date the award becomes the Rule of the Court else Such Singh will become competent to get the sale deed executed through the process of the Court.

On 15.1.1986 Sucha Singh made a prayer to make the award dated 18.11.1985 as Rule of the Court. This claim was resisted by Dalip Kaur on the ground that the award as well as the subsequent proceedings were vitiated by fraud and concealment of facts and so the award is illegal, arbitrary and against the principle of natural justice. An objection was also raised to the fact that Sucha Singh was major and so Gian Singh had no right to take part in the proceedings and file application for appointment of Arbitrator. Meanwhile, Simer Kaur, wife of Bhajan Singh set up her claim on the basis of sale deed dated 11.4.1983. She was permitted to be impleaded in the pending petition who also filed objection to the petition.

On the pleadings of the parties, the Court framed the following issues:

(1) Whether the award dated 18.11.1985 is liable to be made the rule of the Court ? OPP.

(2) Whether the award is illegal, arbitrary and suffers from the vice of bias ? OPR.

(3) Whether Sucha Singh petitioner is major and as such the petition filed through his father is not maintainable ? OPR.

(4) Whether the petitioner is estopped from filing the petition ? OPR.

(5) Relief.

Issues 1, 2 and 3 were taken up together. Trial Court after discussing the evidence led by the parties in respect of these issues finally came to the conclusion that the award is valid and same is ordered to be made rule of the Court. Issue No. 4 was not pressed by the objectors and so it was decided against them. Resultantly, award dated 18.11.1985 was made rule of the Court and Dalip Kaur was directed to execute the sale deed in favour of Sucha Singh on payment of balance sale price of Rs. 24,750/ and in case Dalip Kaur fails to execute the sale deed Sucha Singh was held entitled to get the sale deed executed through the process of Court by depositing the balance sale price.

Simer Kaur yet preferred an appeal against the judgment and decree dated 14.8.1992. The Counsel for the appellant once again pressed the objection which somehow did not find favour with the Court below namely, that Sucha Singh was born on 19.11.1961 and so was major at the time of filing of application for appointment of Arbitrator. This way Gian Singh, father of Sucha Singh could not file an application for appointment of Arbitrator and so reference to an Arbitrator even as per compromise does not clothe such an Arbitrator with valid authority and consequently such an award even being defective from its inception could not be made rule of the Court. Secondly, the sale deed having been executed in favour of Simer Kaur, decree by the trial Court has become inexecutable.

The Court below in considering the matter found no substance in any of the two contentions raised by the appellant. According to the lower appellate Court even if it is taken that Sucha Singh was major at a particular date whereas his father Gian Singh had filed an application for appointment of an Arbitrator as Mangal Singh declined to arbitrate, at best, is an irregularity. Moreover, the arbitration was sought in terms of the agreement earlier executed for and on behalf of Sucha Singh through the instrumentality of his father. The Court also found no substance in the plea of the appellant that Simer Kaur having become owner the decree passed by the Court below is inexecutable. According to the lower appellate Court Dalip Kaur''s agreement with Sucha Singh is prior in time as so any decree suffered by her in favour of Simer Kaur at any subsequent time is hit by principle of lis pendens and so does not affect the rights of Sucha Singh in any manner.

Similarly, the Court found no substance that the award creates title in the immovable property exceeding Rs. 100/ and is thus compulsorily registerable. Resultantly, the appeal was dismissed.

With a view to seek reversal of the concurrent judgments of the Courts below, the counsel for the appellantpetitioner has once again reiterated almost the same objections which did not find favour with the Courts below. According to the counsel, since Sucha Sigh was major, reference to Arbitrator on the basis of agreement to sale could be initiated by him alone. This having been not done renders the award as well as the subsequent proceedings null and void. Both the Courts have not examined the matter in depth. Similarly, the Courts below for no valid reason have ignored the sale deed duly executed in favour of Simer Kaur. Since the rights of third party have intervened, the decree passed indeed in inexecutable. This aspect has also not been properly examined by the Courts below. Award creates a right in immovable property for the value of more than Rs. 100/ and so such an award is compulsorily registerable in terms of Section 17 of the Registration Act. This aspect of the matter has also not been taken into consideration. Lastly, the lower appellate Court erred in law in dismissing the application under Order 41 Rule 27 CPC whereby the order passed by this Court in C.R. No. 1702 of 1986 decided on 15.5.1987 has not been permitted to be adduced in evidence.

Counsel for the respondent on the other hand argued that all these objections have been examined by the lower appellate Court in all its details. The Court found the same to be devoid of substance. According to the counsel, admittedly, an agreement for the sale of the property in dispute was entered into by Dalip Kaur through her husband/general attorney Apar Singh with Sucha Singh through the agency of his father Gian Singh. A sum of Rs. 6000/ was received as earnest amount and as per agreement the parties agreed to refer to the arbitration of Mangal Singh in case of any dispute. Since Mangal Singh declined to arbitrate, Shri S.P. Khetarpal, Advocate, was appointed, as mutually agreed, to gave his award which has been made rule of the Court by the trial Court. Thus, in the context of the present case the objection raised by the present petitioner is frivolous. Such an objection does not go to the root of the matter and so has rightly been termed to be at best an irregularity not going to the root of the case. Similarly, the Courts below rightly ignored the sale deed executed by Dalip Kaur in favour of Simer Kaur as the same had been executed during the pendency of the proceedings regarding making the award rule of the Court. Even the objection raised by the counsel that such an award is to be compulsorily registerable is without any foundation. Award merely declares the rights of the parties pursuant to which a direction had been issued to Dalip Kaur to execute the sale deed in favour of Sucha Singh on receiving the remaining amount of sale consideration. Any such sale deed which is to be executed of course is to be registered according to law. Thus, any prior determination does not require registration under Section 17 of the Registration Act. Objections raised are wholly frivolous and the sole attempt is to delay the execution of the sale deed pending for the last so many years.

I have heard the learned counsel for the parties as well as perused the judgments of the Courts below and the award given by Shri S.P. Khetarpal. Broad facts have already been noticed. Dalip Kaur entered into an agreement for the sale of land measuring 13 kanals at the rate of Rs. 10,000/ per acre in favour of Sucha Singh (then minor) son of Shri Gian Singh and received an earnest amount of Rs. 6,750/. The land was under mortgage with Gian Singh for a sum of Rs. 6,000/. So, the remaining amount of Rs. 24,750/ was payable by Sucha Singh. Since Mangal Singh declined to arbitrate, parties mutually agreed to the name of Shri S.P. Khetarpal, who after taking into consideration the agreement of sale, exhibit P1 and the other attending circumstances finally gave an award in favour of Sucha Singh i.e. directing Dalip Kaur to execute the sale deed in favour of Sucha Singh on receiving the remaining amount of consideration of Rs. 24,750/ vide award dated 18.11.1985, which has been affirmed by the trial Court as well as by the lower appellate Court. Much emphasis has been laid by the appellant as to the majority of Sucha Singh and its effect upon filing of an application for appointment of Arbitrator by his father Gian Singh. The Courts blow have termed it to be a case of mere irregularity not affecting the merit of the controversy and rightly so. Admittedly, Sucha Singh was minor at the time of agreement and so the document was executed through Gian Singh, his father. It is pursuant to this agreement that Gian Singh filed an application for appointment of an Arbitrator, the sole intention being to pursue the matter in terms of agreement as entered into earlier. It was merely to apprise the other party of her commitment to execute the sale deed in favour of Sucha Singh. Sucha Singh has not contested the application filed by his father for appointment of an Arbitrator. No such objection was raised by Dalip Kaur at the initial stage as well. In fact, as mutually agreed the name of Shri S.P. Khetarpal, Advocate was approved as an Arbitrator. This way Dalip Kaur has no right to challenge the appointment of Shri Khetarpal as an Arbitrator. The judgment cited by the counsel for the appellant in M/s Khetu Ram Bashamber Dass v. Kashmiri Lal Rattan Lal, AIR 1959 Punjab 617 is not applicable on the facts of the present case.

It has been held in the aforesaid authority that there has to be an agreement between the parties to refer a dispute to an arbitrator, else any such reference is to be taken without jurisdiction and hence invalid. In the instant case parties in the first instance agreed to the arbitration of Mangal Singh and subsequently on this failure to arbitrate again agreed to the appointment of Shri S.P. Khetarpal as an Arbitrator. This being so, the objection raised by the appellant regarding reference of the dispute and the award is devoid of any merit.

Similarly, I find no substance in the contention of the appellant that award creates title in the immovable property of value exceeding Rs. 100/ and hence compulsorily registerable. The reliance by the counsel for the appellant upon the decision in Satish Kumar and others v. Surinder Kumar and others, AIR 1970 S.C. 833 is wholly misconceived. It has been held in the aforesaid judgment that in case the award creates rights in the property, in that case those rights cannot be enforced till the award is made a decree of the Court and as per Section 17(1)(b) of the Registration Act, when such an award purports or operates to create or 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 or upwards to or in immovable property the same is compulsorily registerable. In that case the Arbitrator had partitioned the land between the parties and so further act or writing was required to be executed.

In fact, decision in Mrs. Tehmi P. Sidhwa and others v. Shib Banerjee & Sons Pvt. Ltd. and another, AIR 1974 S.C. 1912 is fully applicable. It has held as under :

``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 Section 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 interests. The award directs Shib Banerjee & Sons Private Ltd. to execute such documents as may be necessary for declaring the onefourth 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 Section 17(2)(v) of the Registration Act.''''

Whether Simer Kaur has acquired any right in the property in dispute on the basis of sale deed dated 11.4.1983 is another question which needs to be answered. Sale deed of course has been executed during the pendency of the present proceedings. Earlier to the present litigation the precise objection was a matter of enquiry in the suit titled Gian Singh v. Gopal Singh and others wherein it was held that Simer Kaur has failed to prove that she has become mortgagee of the land in dispute and subsequently as owner of the property on the basis of sale deed dated 11.4.1983. Earlier judgment was upheld by this Court as well. Such being the position, the objection now again pressed by Simer Kaur and even by Dalip Kaur is wholly devoid of merit and has rightly been discarded by the Court below.

Even the decision in C.R. No. 1702 of 1986 decided on 15.5.1987 has no bearing upon the point in controversy. Precisely for his reason the Court below rightly declined to consider this document by way of additional evidence. No other point has been pressed or claimed. Petition being wholly devoid of merit is consequently dismissed.

Parties will, however, bear their own costs.