3 S.C.R.

SUPREi\IE COURT REPORTS 779

MALLESAPP A BAN DEPP A DESAI AND OTHERS

DESAI MALLAPPA AND OTHERS. (P. B. GA.TENDRAGADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.)

Hindu Law-Doctrine of blending-If applies fv property held by female in limited riRht.

The rule of blending in Hindu Law as ernlved by judicial decisions can have no application to a property held by a Hindu female as a limited owner. That rule p0stulates a coparcener deliberately and intentionally throwing his independently acquired property into the joint family stock so as to form a part of it.

Although it is unnecessary now to investigate whether there is any other text on which that rule could be founded, it is quite clear that the text of Yagnavalkya in a different context and the commentary thereupon by Vijnyaneshwara, relied on by the Privy Council in this connection, can have no relation to the said rule.

Shiba Prasad Singh v. Rani Prayag Kumari Debi (1932) L.R. 59 I.A. 331, disapproved.

Rajanikanta Pal v. ]aga Mohan Pal (1923) L.R. 50 I.A. 173, relied on. Consequently, where in a partition suit certain immovable properties acquired by a Hindu female from her father as a limited owner were claimed to form part of the joint family property of her husband by virtueof the said rule : Held, that the claim must fail.

Held, further, that a Hindu female owning a limited estate cannot circumvent the rules of surrender and allow the-members of her husband's family to treat her limited estate as part of the joint family property of her husband.

Before the said rule can be invoked, it must be shown that the owner wanted to extinguish his title to the property in question and impress upon it the character of joint family property.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 263 of 1956.

Appeal from the judgment and decree dated January 6, 1953, of the Madras High Court in A. S. Appeal No. 7 of 1949.

M. C. Setalvad, Attorney.General of Jndia and Naunit Lal, for the appellants,

z96r

February 9.

A. V. Viswanatha Sastri and B. K. B. Naidu, for

Mallesappa respondent No. 1.

Bandeppa Desai M. R. K. Pillai, for respondent No. 2. v.

Desai Mallappa

1961. February 9. The Judgment of the Court was delivered by Gajendragadkar J.

GAJENDRAGADKAR, J.--This appeal has been brought to this Court with a certificate granted by the_ Madras High Court and it arises from a suit filed by the ::Lppellants l\fallesappa and Chenna Basappa ::1gainst their uncle Mallappa, respondent 1 and grnndunck Honnappn., respondent 2, for partition. According to the plaint, the family of the appellants and respondent 1 was an undivir!ed Hindu family until the d111 e of the suit, and respondent I was its manager.

Tbn inccstor of thn family was Desai M,.,, Jiappa.

He h:i, d three sons, Kari l{amappa who died in 1933, Virupalrnhapp::L who <lied long ago and Honn11ppa, respomlent 2.

Kari Ramappa had four sons Gurushantappa (dierl 1913), Bandappa(died 1931), Mallappa (respondent I) anrl Veerabhadrappa (died 1927).

Guruslrnntappa nrnrried Parvat!?.amma; the two appellants are the sons of Bandappa, their mothPr being Neclarnrna.

They were born in 1926 11nd 1921! respectively. Their case was that respondent I who has been the manager of the family for many years has been trying to deprive them of their legitimate share in the property and refused their request for partition, and so they had to file the present suit.

According to them, in the property of the family they and respondent I were en tit.led to half share each: To the plaint were attached the schedules describing the several items of property.

Schedule A consisted of items I to 163 which included hous0s and lands at Jonnagiri. Schedule B described the movables while

Schedule C included items 1 to 35 all of which h"'d been acquired by the family under a document Ex. B-32.

It is in respect of all these properties that the appellants claimed their half share and'Mked for a partition in that 'behalf.

This claim was resisted by respondent I principally on the ground that in 1929 Ra.ma.ppa, the father of

respondent 1 and the grandfather of the appellants r96r had effected a partition of the joint family properties Mallesappa between respondent 1 and his elder brother Bandappa Bandeppa Desai who is the appellants' father. That is how, according v. to respondent l, the appellants' claim for partition Desai Mallappa was untenable.

In this way he pleaded separate - title to all the properties in suit.

Gajendragadkar J.

On these pleadings the learned District Judge, who tried the suit, framed eight issues; two of these related to the question regarding the status of the family.

He found that the plea of partition made by respondent 1 was not proved, and accordingly he declared that the appellants were entitled to half share in the properties of the family and passed a preliminary

dean~ for partition. According to the learned judge, the appellants were entitled to their half share in the items of property described in Schedule A excluding items 63, 64, 65, 86 and 151 and items in paragraph' 14(d) of the written statement of respondent 1 as well as items of property described in Schedules B and C.

This decree was passed on November 22, 1948.

The said decree was challenged by respon<lent 1 by his appeal before the Madras High Court. He urged that the trial court's finding as to the status of the family was erroneous, and he pleaded that in any case the appellants were not entitled to any share in the properties at J onnagiri, items 4 to 61, as well as the properties acquired under Ex. B-32. The first argument was rejected by the High Court, but the second was upheld. In the result the decree passed by the trial court was confirmed except in regard to the said two categories of properties. It is this appellate decree which is challenged before us by the

learned Attorney-General on behalf of the appellants.

In order to appreciate the contentions raised before us it would be necessary to recapitulate briefly the findings concurrently recorded by the courts below in respect of the plea of partition set up by respondent 1.

These findings afford a background in the light of which the pleas raised before us would have to be considered. It appears that respondent 1 relied on several documents iB support of his plea that there

1961 was a partition effected by Ramappa in 1929. The

Mallesappa trial court repelled this argument and observed that Bandeppa Desai irom 1937 respondent began to do mischief. The v. transfer of patta in 1937 on which respondent 1 relied Desai Mallappa was entirely his work and the appellants' mother - Neelamma had not been consulted and had given no Gajend•agadka, J. consent to it. In the opinion of the trial court respondent 1 through his agents whom he examined as witnesses in the suit (D. Ws. 2 and 14) managed the family lands, arr.H1ged to pay cist for them and manipulated entries in the revenue record purporting to show that N eelamma had paid the said cist as pattadar. X eelamma was an illiterate and Gosha woman and it appeared that a certain amount of coercion had been practised on her as well as deception in persuading her to execute the original of Ex. B-10 which contained the recital that the house there described had fallen to the share of . .N' eelamma's husband at a prior partition. The trial court was satisfied that the said recital had been fraudulently made and the document had not been read to Neelamma at all. The deme<1-nour of respondent 1 in the witness box was also criticised by the trial judge when he observed that he did not impress the trial judge as a truthful witness, and in his opinion he was a powerfu!and influential man in the village who was able to do a number of things as he wished and so it was not surprising that hu wa.s able to get a number of witnesses to speak to separate enjoyment of a few items of land by the appellants' mother.

'When the question of status of the family was rea<ritated before the High Court it felt no hesita.tion in confirming , the conclusionR of the trial court in regard to the general conduct of respondent 1, the documents brought into existence by him, arid the unfair manner in which he had dealt with the appellants' mother. }'or the reasons set out by the High Court in its judgment "and also for the various reas!Jn~ put forward by the learned District Judge in his exhaustive judgment" the High Court agreed with the learned judge that the alleged partition of 1929 had not been proved. Th us the dispute between the parties has to be considered

3 S.C.l{.

SUPREME COUHT J{EPORTS 783

on the basis that until the date of the institution of the suit the family was an undivided Hindu family Maltesappo wit, h respondent 1 as its manager.

IJand, ppa pesai The first point which has been raiserl before us by v. the learned Attorney-General relates to items 4 to 61 Deoai Mallappa at Jonnagiri. These properties originally belonged to Gajendragadkar J.

Karnam Channappa. He died in 1904, and in dne course the said property devo!lerl upon his widow Bassamma who <lied in 1920.

Bctssamma left behind her three daughters Channamma, Nagamma and Veeramma. Channamma married lfamappa, and as we have already indicated the couple had four sons including the appellants' father Bandappa and the first respondent Mallappa. It is common ground that the properties at Jonnagiri httd been obtained by Channamma by succession from her father and were held by her as a limited owner. The appellants' case was that after Channamma obtained these properties by succession she allowed the said properties to be thrown into the common stock of other properties belonging to her husband's family, and so by virtue of blending her properties acquired the character of the properties belonging to her husband's family; in other words, the appellants' claim in respect of this property is based on the principle of blending or throwing into the common stock which is recognised by Hindu law. The trial court relied on some transactions adduced by the appellants and upheld the plea that Channamma's properties had become joint family properties in which the appellants had a half share. The High Court has reversed this finding, and it has held that the transactions on which the appellants relied do not prove blending as known to Hindu law. That is why the appellants' claim to these properties has been rejected by the High Court.

Before considering the appellants' case in regard to these properties it is necessary to enquire whether the doctrine of blending can be invoked in such a case. Is this doctrine based on any Sanskrit Text of Hindu Law? According to the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi('),

(I) (1932) L.R . .19 I.A. 331.

19 61 this doctrine is based on the text of Yagna valkya and Mallesappa the commentary of Mitakshara; the text of Y agna- Bandeppa Desai valkya reads thus: "In cases where the common v. stock undergoes an increase, an equal division is Desai Mallappa obtained" (1). In his commentary on this text

G . d -- k Vijnyaneshwara has observed as follows: "Among •; en ragad •r f. unseparated brothers, if the common stock be improved or augmented by any one of them through agriculture, commerce or similar means, an equal distribution nevertheless takes place; and a double share is not allotted to the acquirer" ('). Sir Dinshah Mulla, who delivered the judgment of the Privy Council in the case of Shiba Prasad Singh (') has observed that the words of Yagnavalkya mean that "if a member of a joint family augments jofat property, whatever may be the mode of augmentation, the property which goes to augment the joint family property becomes part of the joint family property, and he is entitled on a partition to an equal share with the other members of the family, and not to a double share, as in some other cases dealt with in the preceding verses. This is the placitum on which the whole doctrine of merger of estates by the blending of income is founded" (p. 349).

It would thus be seen that according to this decision the doctrine of blending or throwing into the common stock is based on the text just quoted.

With very great respect, however, the text of Yagnavalkya and the comments made by Vijnyaneshwara on it do not appear to have any relation to the doctrine of blending as it has been judicially evolved. The context of the discussion both in the text of Yagnavalkya and in the commentary clearly shows that what is being discussed is the acquisition of property by a coparcener with the use of the family stock ; in other words, taking the benefit of the family stock and making its use if a coparcener through trade, agriculture or any other means augments the initial or or1gmal family stock, the augmentation thus made is treated as forming part of the original stock and an accretion to it, and in this augmentation the acquirer is not given a.ny extra share for his special exertions.

(1) Ch. t, sect. 4, 30.

(2) Mitaksb.ara., ch. 1. sect. 4, p!. 31. (31 (1932) L.R. 59 l.A. 331.

This position is clarified by the comm en ts made by

I96I Sulapani. Sa.ys Sulapani: "that au equal division is Mallesappa here specifically ordained; for in a partnership with a IJandeppa Desai common stock, the difference in the gains of each v. individual memlwr is not to be taken into account at Desai Mallappa the time of partition." Vijnyaneshwara observes that - th. t t .. t d d t b t' t th t t f Gajendragadkarj i;; ex rn rn en e o e an excep 1011 o e ex o

Vasihtha which allows two shares to the acquirer and which is cited in the Mayukha (1). It would thus be clear that the relevant text and the commentary are not dealing with a case where the separate property of a coparcener independently acquired by him is thrown into the common stock with the deliberate intention of extingui; hing its separate character am! impressing upon it the character of the joint family property.

The subject-matter of the di"cussion is addition to the common stock made by the efforts of a copareener with the assistance of the common stock itself. Therefore, in our opinion, the said text cannot be treated as the basis for the doctrine of blending 11s it h11s been judicially evolved.

It is, we think, unnecessary to investigate whether any other text can be treated as the foundation of the said doctrine since the said doctrine h:i, s been recognised in several decisions and has now become a part of Hindu law. In Raj1mi Kanta Pal v. Jaga Mohan Pal(') the Privy Council held that "Where a member of a joint Hindu family blends his self-acquired property with prop0rty of the joint family, either by bringipg his self-acquired property into a joint family account, or by bringing joint family property into his separate account, the effect is that all the property so blended becomes a joint family property."

The question which falls for our decision is: Does this priuciple apply in regard to a property held by a Hindu female as a limited owner? In our opinion, it is difficult to answer this question in favour of the appellants. The rnle of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may

(r) The Vyava.hara Mayukha, Pt. I, by Vishvanath Narayan Mandlik, p. 215.

(2) (1923) L.R. 50 I.A. 173.

z96z by deliberate and intentional conduct treat his separate

Mal/esappa property as forming part of the coparcenary property.

Randeppa Desai If it appears that property which is separately acquirv. ed has been deliberatrly and voluntarily thrown by Desai Mallappa the owner into the joint stock with the clear intention . -- of abandoning his claim on the said property and with Ga1endragadkar J. the object of assimilating it to the joint family pro. perty, then the said propert.y becomes a part uf the joint family est ate; in other words, the separate property of a coparcener loses its separate character by reason of the owner's conduct and get thrown into the common stock of which it becomes a part. This doctrine therefore inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener.

How this doctrine can be applied to the case of a Hindu female who has acquired immovable property from her father as a limited owner it is difficult to understand. Such a Hindu female is not a coparcener and as such has no interest in coparcenary property.

She holds the property as a limited owner, and on her death the property has to devolve on the next reversioner.

Under Hindu law it is open to a limited owner like a Hindu female succeeding to her mother's estate as in Madras, or a Hindu widow succeeding to her husband's estate, to efface herself and accelerate the reversion by surrender ; but, as is well known, surrender has to be effected according to the rules recognised in that behalf. A Hindu female owning a Jjmited estate cannot circumvent the rules of surrender

and allow the members of her husband's family to z96z treat her limited estate as part of the joint property Malles•PP• belonging to the said family. On first principles such Ban4eppa Duel a. result would be inconsistent with the basic notion v. of blending and the basic character of a limited Des•i Mallappa owners' title to the property held by her. This aspect . dk 1 of the matter has apparently not been argued before G•1endrag• "' • the courts below and has not been considered by them. Thus, if the doctrine of blending cannot be invoked in regard to the property held by Channamma, the appellants' claim in respect of the said property can and must be rejected on this preliminary ground alone.

However, we will briefly indicate the nature of the evidence on which the plea of blending was sought to be supported. It appears that in 1921 a deed of maintenance was executed in favour of Gurushantappa's widow Parvathamma by the three surviving brothers of Gurushantappa. This deed was attested by their father Karr Ramappa.. It is clear that this deed includes some of the lands which Channamma. had acquired by succession to her father (Ex. A-10).

Subsequently, on July 5, 1923, some additional properties belonging to Channamma were charged to the said maintenance (Ex. A-11). It also appears that pattas in respect of the same lands belonging to Cha.nn11.mma. were obtained in the names of the members of the family ; and consequently, the said patta.s were shown in the relevant revenue papers. Broadly stated, that is the nature of the evidence on which the plea. of blending rests. It is obvious that even if the doctrine of blending were applicable it would be im- . possible to hold that the transactions on which it is sought to be supported can lead to the inference that Cha.nna.mma did any act from which her deliberate intention to give up her title over the properties in favour of the members of her husband's family can be inferred. It is not difficult to imagine Cha.nna.mma.'s position in the family. If her husband and her sons dealt with her property as they thought fit to do Channa.mma may not know about it, and even if she knew a.bout it, may n<1t think it necessary to object

JOI

' 96' because she would not be averse to giving some Malluappa income from her property to her sons or to her B•xd•PP• Desai widowed daughter-in-law. As we havl) already pointed

. •· out, the conduct of the owner on which the plea of .D•sas M•ll•PP• merger can be invoked must he clear and unequivocal,

G•i•Kd•agadkar J. and the evidenc~ ab?ut it ust be of such a strong character as to iust1f:v an mference that the owner wanted to extinguish his title over the property and impress upon it the character of the joint family property. Besides, as we will later point out, Channamma executed a deed of surrender in 1938 and the said document is wholly inconsistent with the plea that she intended to give up her title to the property in favour of her husband's joint family. However, this discussion is purely academic since we have already held that the principle of blending cannot be invoked in respect of the limited estate held by Channamma. Therefore, we must hold that the High Court was right in rejecting the appellants' claim in respect of the properties in J onnagiri.

That takes us to the properties in Schedule C in respect of which the trial court had decreed the appellants' claim and the High Court has rejected it.

This property has been obtained by respondent 1 as a result of the decree passed in 0. S. No. 5 of 1940. The property originally belonged to Virupakshappa, and in

0. S. No. 5 of 1940 respondents 2 and 1 claiwed a declaration against the two widows of Virupakshappa, their daughter and certain alienees. The declaration claimed was that the wills of Virupakshappa therein specified were invalid and inoperative and that the respondents had reversionery right to Virupakshappa's estate after the lifetime of his wiaows an.d daughter. A further declaration was also claimed that alienations and gifts specified in the plaint were invalid beyond tqe lifetime of the widows. and the daughter of Virupakshappa. This suit ended in a compromise decree, and it is common ground that the properties in Schedule C came to the share of res!>ondent 1 by this compromise decree. The question which has been argued before us in respect of theve properties is whether or not the appellants

are entitled to a share in these properties. The z96z appellants contend that respondent 1 had joined respondent 2 in the said suit as representing their MoUuof>P• undivided family and the properties acquired by him B•tiMppo Dei•i under the compromise decree passed in the said suit Duai ;~Uappa has been allotted to him as representing the whole of the family. On the other hand, respondent 1 con- Gajerulragadl.., J. tends that he joined respondent 2 in his individual character and the decree must enure for his individual benefit. .

It is clear that at the time when the said suit was filed respondent 2 was a presumptive reversioner and not respondent 1 ; but it appears that respondent 2 wanted the help of respondent 1 to fight the litigation, and both of them joined in bringing the said suit. It is common ground that respondent 2 asked Neelamma whether she would like to join he litigation. Respondent 2 has stated in his evicfence that N eelamma was not willing to join the said litigation and respondent 1 has supported this version. The High Court thought that the evidence of Neelamma was also consistent with the story set up by respondent 1.

That is one of the main reasons why the High Court held that the decree passed in the said suit did not enure for the benefit of the family. In assuming that Neelamma supported the version of respondent 1 the High Court has obviously misread her evidence. This is what Neelamma has stated in her evidence : "Defendants 1 and 2 came to me at the time of filing their suit and said that the expenses are likely to be heavy and that minors' properties would not be wasted. I said I had no objection and gave my consent." The High Court has read her evidence to mean that she was not prepared to waste the properties of her minor sons and so she refused to join the adventure, and in doing so it thought that the statement of respondent 2 was that the minors' properties should not be wasted, whereas according to the witness the said statement was that the minors' properties " would " not be wasted. It would be noticed that it makes substantial difference whether the words used were "would not" or "should not."

790 SUPREME COURT REPOR'i'S tl!l61]

t96z We have no doubt that on the evidence as it stands the inference is wholly unjustified that N eelamma Mallesappa refused to i"oin respondents 1 and 2.

Besides, as we B'nideppa Desai

v. have already pointed out, the evidence of respond.

Desai Mallappa ents 1 and 2 have been disbelieved by both the courts, -- and in fact the conduct of respondent 1 whereby he Gajondraga<lk•• J. wanted to defeat the claims of his nephews has been very strongly criticised by both the courts. Therefore, we feel no hesitation in holding that the trial court was right in coming to the conclusion that respondents 1 and 2 consulted Neelamma and with her consent the suit was filed and was intended to be fought by the two respondents not for themselves individually but with the knowledge that respondent 1 represented the undivided family of which he was the manager ... If that be so, then it must follow that the decree which was passed in favour of respondent 1 was not for his personal benefit but for the benefit of the whole family.

In this connection it is necessary to bear in mind that respondent 1 has not shown by any reliable evidence that the expenses for the said litigation were borne by him out of his pocket. It is true that both the courts have found that respondent 1 purchased certain properties for Rs. 600/- in 1925 (Ex. B-4).

We do not know what the income of the said prO, l).lJr.- ties was; obviously it could not be of any significant order; but, in our opinion, there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners. But, apart from the question of onus, the evidence given by respondent 1 in this case has been disbelieved, and in the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend that the expenses incurred for the litigation in question were not borne by the joint

family income. Therefore, apart from the fact that z96z Neelamma was consulted and agreed to join the adventure on behalf of her sons, it is clear that the 8::::.:1;; a"'fi~.; expenses for the litigation were borne by the whole v. family from its own joint fuuds. This fact also shows Desai Mallappa that the property acquired by respondent I under the . - compromise decree was acquir!'ld by him as represent. Ga; end.agadkar J. ing the family of which he was the manager. The result is that the view taken by the High Court in respect of the properties in Schedule C must be reversed and that of the trial court restored.

That leaves a minor point about three items of property, Serial Nos. 63, 64 and 65, in Schedule A. These items of property form part of Jonnagiri pllOperty, and we have already held tilat the appellants cannot make any claim to the whole of this property. It appears that though the trial judge paRsed a decree in favour of the appellants in respect of Serial Nos. 4 to 61 in Schedule A, he did not recognise the appellants' share in the three serial numbers in question because he held that they were not part of the joint family property but belonged exclusively to respondent I. It also appears that these properties originally belonged to the joint family of the parties but they were sold by Kari Ramappa and his two brothers to Channappa as long ago as 1898. That is how they formed part of Channappa's estate. Both the courts have found that the sale deed in question was a. real and genuine transaction, and they ha.:¢ rejected the appellants' case to the contrary. Respondent 1 claims these items under a ded of surrender executed in his favour by Channamma (Ex. B. 3) on December 5,

1938. This document is accepted as genuine by both the courts and it is not disputed that the surrender effected by it is valid under Hindu law. Indeed this document is wholly inconsistent with the appellants' case that Channa.mm& wanted to convert her separate properties into properties of the joint family of her husband. Therefore, there is no substance in the appellants' argument that they should be given a share in these three items of property.

1961 The result is the appeal is partly allowed and the decree passed by the High Court is modified by giving

M•llesapp~ the appellants their half share in the properties B•nd•P:.• Desai described in Schedule C. The rest of the decree passed

Des•i Mall•PP• by the High Court is confirmed. In the circumstances of this case the parties should bear their own costs.

Gaj•ndragadkar J • Appeal allowed in part.

February Io.

KASHINATHSA YAMOSA KABADI, ETC.

NARSINGSA BHASKARSA KABADI, ETC. (J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)

Hindu Law-Partition-Reference to arbitration out of Court- Arbilrator actually dividing some properties and giving possession to parties-Revocation of reference-Suit for partition, maintainability of-Documents recording division by arlntrator-Registration, if necessary-Arbitration Act .. r940 (roof r940), s. 3z-Registration Act, r908 (r6 of r908), s. r7.

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 a.nd with the consent of the parties they appointed cne 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 :he 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 registered;

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

DESAI MALLAPPA AND OTHERS

K. N. WANCHOO

K. c. DAS GUPTA, JJ.

Yagnavalkya

Vijnyaneshwara

(1932) L.R. 59 I.A. 331

(1923) L.R. 50 I.A. 173

Madras High Court

M. C. Setalvad

Naunit Lal

A. V. Viswanatha Sastri

B. K. B. Naidu

Bandeppa Desai M. R. K. Pillai

Desai Mallappa

Gajendragadkar

GAJENDRAGADKAR

Chenna Basappa

Kari Ramappa

Mallappa

Guruslrnntappa

Jonnagiri

Schedule C

Ra.ma.ppa,

Bandappa Bandeppa Desai

November 22, 1948

Ramappa

Mallesappa

Bandeppa Desai irom 1937

Desai Mallappa

Neelamma

Gajend•agadka

N eelamma

X eelamma

Gosha

.N' eelamma

Bassamma

Bctssamma

Channamma

Nagamma

Veeramma

lfamappa

Bandappa

Yagna valkya

Mallesappa

Mitakshara

Y agna- Bandeppa Desai valkya

Desai Mallappa

Dinshah Mulla

Shiba Prasad Singh

Mitaksb.ara

Sulapani. Sa.ys Sulapani

IJandeppa Desai

Gajendragadkarj

Vyava.hara Mayukha

Vishvanath Narayan Mandlik

(1923) L.R. 50 I.A. 173

Randeppa Desai

Desai Mallappa

Madras

Gurushantappa

Parvathamma

Karr Ramappa

July 5, 1923

Cha.nna.mma did

Cha.nna.mma.

G•i•Kd•agadkar

Schedule C

Virupakshappa

Schedule C

Gajerulragadl

Neelamma

eelamma

N eelamma Mallesappa

B'nideppa Desai

Schedule C

Kari Ramappa

Channappa

December 5,

1938

Channa.mm&

Schedule C

Gaj•ndragadkar

KASHINATHSA YAMOSA KABADI

NARSINGSA BHASKARSA KABADI

J. L. KAPUR

M. HIDAYATULLAH

J. C. SHAH

s. 3

Registration Act


SUPREME COURT REPORTS [1961]

1961 The result is the appeal is partly allowed and the decree passed by the High Court is modified by giving

M•llesapp~ the appellants their half share in the properties B•nd•P:.• Desai described in Schedule C. The rest of the decree passed

Des•i Mall•PP• by the High Court is confirmed. In the circumstances of this case the parties should bear their own costs.

Gaj•ndragadkar J • Appeal allowed in part.

February Io.

KASHINATHSA YAMOSA KABADI, ETC.

NARSINGSA BHASKARSA KABADI, ETC. (J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)

Hindu Law-Partition-Reference to arbitration out of Court- Arbilrator actually dividing some properties and giving possession to parties-Revocation of reference-Suit for partition, maintainability of-Documents recording division by arlntrator-Registration, if necessary-Arbitration Act .. r940 (roof r940), s. 3z-Registration Act, r908 (r6 of r908), s. r7.

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 a.nd with the consent of the parties they appointed cne 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 :he 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 registered;

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

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 Kashinathsa h d h d' 'd 1 Yamosa Kabadi by the par!Ies, t e properties came un er t em 1v1 ua ownerships of the parties to whom they were allotted; and in respect of v .. the remaining properties they became tenants-in-common. The Narsingsa d. proceedings taken by the Panchas were not revoked by the order Bhaskaisa Kaba 1 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 i~ 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 223of1959.

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 Decrees.

R. 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 22J 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 of 59).

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)'tp 3(c) (In C. A. No. 221of59) and Respondents Nos. 6(:1:) to 6(c) (In C. A. No. 223 of 59),

Kashinathsa

1961. February IO. The Judgment of the Court was delivered by

Yamosa Kabadi SHAH, J.-These six appeals are filed with certifi. v: cates under Art. 133 of the Constitution granted by

Bl~"""~'~ a the High Court of Judicature at Bombay. The appeals

0:a_ "a' arise out of the judgments and decrees in suits Nos. 47

shah J. of 1948 and 36 of 1949 in the court of the Civil Judge, Senior Division, Dharwar. The following geneolugy set out in the plaint in Suit No. 47 of 1948 explains the relationship between the parties:

Kashinathsa

(D 1)

Yamosa

I Bhaskarsa

Dongarsa

Murarsa

(0 2)

I I I I Narsingsa Pandurangsa Benakosa Hanmantsa

(P1)

(P2)

(P3)

(P4)

Ramaknsbnasa

I Hanmantsa

I Bhimasa

ID 3)

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, he 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 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 thP plaintiffs and Ramakrishnasa and

38.C.R.

SUPREME COURT REPORTR 795

z96r Hanmantsa grandfather and father respectively of defendant No. 3 had expired, and the first defendant f Kashinathsa was the senio-rmoot member o the family. In 1946, Yainosa Kabadi disputes arose between the members of the family and v. defendant No. 3 declined to continue in jointness with Narsiugsa the other members of the family and demanded that Bhaskarsa Kabadi 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 1 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-(whorn we will collectively refer as the Panchas) with authority to determine what shares should be allotted to the different branches of the familv 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 f the family business as the "Pa.nchas 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 thA

Panchas ..

. 102

Shah].

z96z The Panchas then proceeded to award to each of

Kashina:hsa the parties gold ornaments weighing 167 tolas 15 as. I Yamosa Kabadi and silver 481 tolas and 4 as. On September 24, 1946, it v. is the case of defendant No. 1 that the Panchas decided Namngsa to give him an additional share of the value of Bhaskarsa K•badi Rs. 40,000/- out of the property for bringing the family - " to the present prosperous conditions" and the Shah 1 Panchas directed that defenda.nt 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 he 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 Pancha~ 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 Y amosa Dongarsa Kabadi and the entry was duly signed in token of acknowledgment of the correctness by all the parties. It is the case of

defondant No. l 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 centred round the truth of the story about the division of this amount.

On October 20, 1946, the "four empty safes" and the warehouses and fands 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 IO, 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,

the agricultural lands, cattle and agricultural imple- '96' ments were divided. On February 22, 1947, Rs. 24,000/- Kashi .. tlls• as the accumulated cash on hand in the money Yamos• Kabadi lending business were divided into four equal shares. v.

Divisions made on October 20, 1946, October 21, Narsings• 1946, February 7 and February 22, 1947, were duly BhaskarsaKabaai entered in the " partition books " and the entries 5;;;;:1, 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 !ietween 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 Rs.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 remain. ing assets. On February 9, 1948, the first plaintiff served a notice cancelling the authority of the Panch&a to

798 SUPREME COURT REPOR'rS [1961]

'96' divide the properties of the family and on August . 19, 1948, he filed Suit No. 47 of 1948 in the court of the Kashinathsa Yamos• Kabadi Civil Judge, Senior Division, Dharwar, for partition of v. the properties remaining to be divided and for accounts

Nasings• of the joint family properties. By his plaint, the.

Bhasharsa Kabadi plaintiffs admitted that the parties had agreed to divide the property into four equal shares. In para. 6 Shah l 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 outstarnlings 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 their authority.

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 t~1e family and the money lending dealings, he claimed a declaration that the authority given to the Pane J.as 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.

:l S.C.R.

SUPREME COURT H-EPORTS 799

In both the suits, defendant No. 1 contended that '96' the Panchas had divided the properties in four equal Kashi,..ths~ shares after their decision to divide the same in that Yamosa Kabadi manner was accepted, that the Panchas from time to v. time had made actual division of the properties with Narsingsa h f h t . h th d" · fth HhaskarsaKabadi t e qonsent o t e par ies, t at e 1v1s10n o e pro- _ perties in each case was acted upon and properties Shah 1. 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 th3.t 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

x96x Panchas were not binding because they were not pro-

Kashinathsa perly stamped and those that affected immoveable Yamosa Kabadi properties were not registered. But the High Court

.v. held that the division of the moveables such as gold Narsingsa . and silver ornaments made on September 23, 1946, Bhaskarsa Kaba" could not be reopened. They further held that the

Shah 1. "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 tar 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. ::! and the plaintiffs at Hs. 4,00,000/- and which was stated by defendant .No. I to be Rs. 3,20,000/-

was divided on October 19, 1946. On these two qnestions, the parties are differently arrayed.· On the first question, defendant No. 1 is supported by the plaintiffs and defendant No. 2. On the second question, defendant No. l 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 sbares shall be allotted to the different. branches and also to decide what may appear to be proper for providing an "extra share" to defendant No. 1.

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

status is severed and it is not postponed until the 1961 division of the property by metes and bounds.

Kashinathsa To appreciate the contentions, it is necessary to Yamosa Kabadi follo"'.' the method adopted by the Panchas in dividv. ing the properties. The decision of the Panchas to Narsingsa allot to each branch a fourth share was accepted by Bhaskarsa Kabadi all the panies. Thereafter the Panchas proceeded to Shah J. allot shares in the properties moveable and immoveable. 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 writing :

"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 t share, that N arasingsa Bhaskarsa Kabadi should be given a t share, and that Bhimasa Hanumantasa Kabadi should be given a t 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 ma.de as evidencing the division actually ma.de 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 a.greed 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 joiut Hind11 family. If thereafter the

SUPREME GOURT REPORTS [1961]

1961 assets of the family were divided and that division was accepted by the parties, the properties reduced Kashinathsa b Yamosa Kabadi Y the parties to their possession must be deemed to v. be of the individual ownership of the parties to whom . Narsingsa . they were allotted, and the remaining properties as of Bhaskarsa 1'abadi their tenancy-in-common. Evidently in this case, the

Sha--; J.

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 different sections.

The plea raised in his plaint by defendant No. 3 that his consent to the referenee was obtained by coercion .and undue influence is somewhat vague and indefinite. He merely stated that he had recently attained the age of majority, ti:J.at defendant No. 1 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. l 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 mere fourth share and that be "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 be would be given that share he did not immediately raise any objection, He also stated that he had been promised

by defendant No. 1 that he would be given his z96z share in the property. The learned trial judge reject- Kashinatbsa ed this plea holding that Defendant No. 3 failed to Yamosa Kabadi prove that he was "compelled by exercise of undue v. influenee and coercion to agree to the reference to Narsingsa . the Panchas, and th11t he had been promised by Bhask•:abad• defendant No. 1 that he would be given a. half share." Shah J.

In the High Court, the plea. ra, ised by defendant No. a about coercion and undue influence and the promise made by defendant No. 1 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 2elief 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 di vision 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 Pancha.s 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 Pa.nch 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 ha. ve effect with respect to the difference referred. If the decisions of the Pa.ncha.s had not been accepted by the parties with the revocation of the reference, a.II proceedings which they had adopted might have fa.lien 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 ma.de.

We a.re unable to agree with the view of the trial judge that the caneJ)a.tion had the effect of

' 961 nullifying all the interim divisions and that they must Kashinatis• be deemed to have been impliedly set aside. y...,,,. K•b•di It is unnecessary to consider whether these decisions v. may be regarded as "interim awa; rds" within the Narsings• meaning of s. 27 of the Arbitration Act. The decisionM 'haslars• Kabadi • d d · • d t ) ' _ given an 1v1s10ns ma e were no mere y tentative Slah J. 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, tlie 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 divided thereby.

We are of the view that it was open to defendant No. 1 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 ma.de 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,

{I) (1891) L.~ 18 i.A. 7J

1961 Since the enactment of the Arbitration Act, 1940, there has arisen wide divergence of judicial opinion Ka.shitfllthsa among the High Courts on the question whether an v ...... Ka-Oo4i award made in a reference out of court can be' set up v. as a defence to an action filed by a party thereof on Na,.ingsa the original cause of action when the award is not filed BAaskarsa Kabadl in court. Section 31, sub-a. (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 questioos 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 'talidity of an arbitration agreemEµIt 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 ma.king it a rule of court lies.

In Babui 8. K. Kuer v. B. N. Sinha('), 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 Bait Pamandass v. T. 8. Manikyam Pillai('), Bhimavarapu Venkatasubbayya v. Addanki Bapadu (") and Firm Gulzarimal GheesalaJ, v. Firm Rameshchandra

Radhyeshyam ('). On the other hand, in Pamudurthi Suryanarayana Reddy v. Pamudurthi Venkata Reddi('), it was held that ss. 32 and 33 of the Indian Arbitration Act, 1940, did not preclude a defendant from

(1) (>951) I L.R. 31 Pat. 686.

(3) A.I. R. 1951 Mad. 458.

(2) A.l.R. 1960 And. Pia. 59.

(4) l.L.R. Ll959] Raj. 515.

(s) l.L.R. (1949] Mad. III.

Shah].

806 SUPREM~ cotJR'l' R~POR'l'S [1961]

setting forth an award which had been fully performed by him but which was not filed in Court under s. 14 Kashinathsa. h h Yamosa Kabadi and on w ic a judgment was not pronounced or a

v. decree given under s. 17 of the Act,. in answer to the Narsingsa plaintiff's claim which was the subject inatter of the Bhaskars• K•b•di reference and the award. That view was accepted in

Shah].

Rajamanickam Pillai v. Swaminatha Pillai (died) (1). 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 cortrt 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. 1 is not seeking to obtain a decision upon the existence, effect or validity of an award. He is merely seeking to set up 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 .. •4

divisions already made and on the facts proved ' 96' in this case, their validity depends upon the accept- J(., hinathsa ance by the parties. The records made by the Panchas Yamos• Kab"4i were documents which merely acknowledged partitions v. already made and were not by law required to be Narsingsa . regist.ered. On a perusal of Ex. 456A which is a Bh., karsa Kabadi

translation of the tip pan book in which are recorded Shah]. 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 pro

perty 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 9f

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

of properties made from time to tie was also accepted by the parties, and subsequently, when the Panchas Kashinathsa b Yamosa Kabadi were una le to proceed with the division, the matter v. was referred by consent of the parties to Godkhindi Narsingsa and Godkhindi divided with the consent of the Bhaskarsa Kabadi parties the outst.andings, but he was unable to divide

Shah]. 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 partit.ioned 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. 1 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 Huchappaclerk of the family shop. Defendant No. 3 examined the other Panch Devendrasa.

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

formal record which ma.y ultim&tely be produced in 1961 court was likely to involve the members of the family Kashinaihsa in proceedings for concealment of income, no record Yamosa Kabadi was maintained of the division thereof. The High v.

Court also relied upon the testimony of Parappa, Narsingsa Huchappa and defendant No. I and upon the circum- Bhaskatsa Kabad;, st.ance 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. I 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 bounted 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. 1 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. l 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 lare family

and that he had made reat etforts and that qe s)loulq

Shah].

x96x be given more property, otherwise he would not allow division of the " unaccounted cash " and the other Kashinathsa Yamosa Kabadi property. The Panchas then told him that they had

v.. decided upon the share each should be given and no Narsingsa . further proposal would be entertained by plaintiff Bhaskarsa Kabadi No. 1. The witness then said that he left for Gadag.

Shah J.

In cross-examination, he stated that he and the other Panchas had told defendant No. I 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 o. I 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 sm~Jl 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. 1 knew about the existence of the " unaccountp, n cash " in the safe, it was not

expressly mentioned in the plaint. We would have 1961 expected the plaintiffs to state expressly that on or Kashinathsa about October 19, 1947, "unaccounted cash" was yamosa Kabadi found in the safe and that even though defendant v.

No. 1 was asked to divide the same by the remaining Narsing:• . parties as well as the Panchas, he declined to accede Bhaskarsa J, abadi to that demand. The conduct of defendant No. 3 in not setting out this item in his plaint renders the story that defendant No. 1 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 attitute 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 matterA which had

Shah].

'96' remained to be settled, and in the statement made .Kashinathsa before him which was recorded in writing, there Yamosa Kabodi was no reference to the claim that the amount of v: Rs. 3,20,000/- had remained to be divided. Plaintiff Namngsa N 1 d 'l d t f h .

Bh k K b d' o. gave a eta1 e sta ement o t e properties as • • ' which remained to be divided and that document is Sh•hf. 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 plaintiffs 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 deliveted 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

3 s.c.R.

SUPREME COURT HEPORTS 813

the amount of Rs. 3,20,000/- must have been divided. '96' In that view of the case, the decree passed by the Kashuiaths• High Court will be modified as follows: - Yamosa Kabadi The properties of the joint family except the prov. perties divided on September 23, 1946, October 12, Narsings• . 1946, October 19, 1946, including the amount of Bhask•rs• K•b•d• Rs. 3,20,000/-, October 20, 1946, October 21, 1946, Shah J. including the stock-in-trade, silks and sarees and cupboards, and on November 10, 1946, February 7, 1947, February 22, 194 7, February 24, 194 7, February 25, 1947, and the furniture, utensils and other movables between May and June, 1947, and the property divided on July 13, 194 7, and the outstandings divided between February 5, 1948, and February 9, Hl48, shall be partitiuned between the parties. The partition will be made on the footing that defendant No. 3 is entitled to a half share and defendant No. l, the

plainWfs collectively and defenda.nt No. 2 are each entitled to a 1/6 share. Defendant No. l 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.

0. As. Nos. 218 and 219 of 1959 allowed.

0. As. Nos. 220 to 223 of 1959 dismissed.

GANGA DUTT MURARKA v.

KARTIK CHANDRA DAS AND OTHERS. (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)

Tenant, Eviction of-Determination of lease by efflux of time-Tenant continuing in possession on payment of rent fixed bi'. rent control Acts-Landlord accepting the same-Nelli tenartey, if created-Transfer of Property Act, z882 (4 of z882), ss. zo6, IC6.

The appellant was a contractual tenant of certain premises in the town of Calcutta of which the respondents were the owners. The respondents called upon the appellant to vacate and deliver possession of the premises on the expiration of the perioJ of tenancy but possession was not delivered and the respondents were unable to obtain possession in view of the protection afforded to the tenants by the successive rent control Acts passed by the State. In the meantime the

x96z

February zo.

Schedule C

KASHINATHSA YAMOSA KABADI, ETC

NARSINGSA BHASKARSA KABADI, ETC

L. KAPUR

M. HIDAYATULLAH

C. SHAH, JJ.

s. 3

Registration Act

Bhaskaisa Kaba

s. 32

Bombay High Court

S. N. Andley

J. B. Dadachanji

Rameshwar Nath

P. L. Vohra

W. S. Barlingay

A.G. Ratnaparkhi

Naunit Lal

Naunit Lal, for the appellants (In C. As.

R. Gopalakrishnan

Kashinathsa

Yamosa Kabadi SHAH

Art. 133

Kashinathsa

Yamosa

Ramaknsbnasa

Bhimasa

Dongarsa

Kashinathsa Kabadi

Bhaskarsa

Ramakrishnasa

Hanmantsa

Kashinathsa

Yainosa Kabadi

Narsiugsa

Bhaskarsa Kabadi

August 17, 1946

-Vithaldas Devidas Vajreshwari

Betegiri

Devindrasa Tuljansa

Parappa Nagappa Jagalur

September 23, 1946

September 24, 1946

Bhaskarsa K•badi

October 12, 1946

October 19, 1946

Y amosa Dongarsa Kabadi

October 20, 1946

Betgiri

October 21, 1946

November IO, 1946

Gadag

Hubli Cotton Market

February 7, 1947

February 22, 1947

BhaskarsaKabaai

February 24, 1947

February 25, 1947

April 10, 1947

Bhim Rao Godkhindi

Gadag Bar

November 3, 1947

Godkhindi

December 5, 1947

February 5 and February 9, 1948

February 9, 1948

August . 19, 1948

Bhasharsa Kabadi

Kashinathsa Yamosa Kabadi

H. R. Kabadi

August 19, 1948

August 16, 1949

High Court at Bombay

Yamosa Kabadi

Narsingsa

Shah

N arasingsa Bhaskarsa Kabadi

Bhimasa Hanumantasa Kabadi

Kashinathsa b Yamosa Kabadi

Kashinatbsa

Pa.nch Devendrasa

s. 12

s. 27

s. 32

s. 32

Before the Arbitration Act, 1940

Since the enactment of the Arbitration Act, 1940

Section 31

Since the enactment of the Arbitration Act, 1940

Since the enactment of the Arbitration Act, 1940

s. 33

Patna High Court

s. 32

Arbitration Act, 1940

ss. 32 and 33

Indian Arbitration Act, 1940

s. 14

s. 17

Narsingsa

s. 17

Registration Act

s. 36

November 10, 1946

Kashinathsa b Yamosa Kabadi

Godkhindi Narsingsa

Parappa

Huchappaclerk

Huchappa

Kashinaihsa

Narsingsa Huchappa

August 19, 1947

Bhaskarsa Kabadi

October 19, 1947

Bhaskarsa

Bombay

Art. 17

.Kashinathsa

Yamosa Kabodi

Namngsa

Godkhindi

July 13, 194 7

February 5, 1948

February 9, Hl48

J.C. SHAH

J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)

Transfer of Property Act

Calcutta