Tehmi P. Sidhwa v. Shib Bannerjee and Sons Pvt. Ltd., (SC) BS107050
SUPREME COURT OF INDIA

Before:- P. Jaganmohan Reddy, M.H. Beg and A. Alagiriswami, JJ.

Civil Appeal No. 1350 of 1968. D/d. 3.9.1974.

Mrs. Tehmi P. Sidhwa and others - Appellant

Versus

Shib Bannerjee and Sons Pvt. Ltd. and another - Respondents

Registration Act, 1908, Sections 17(1)(b) and 17(2)(v) - Partition - Arbitration award relating to partition of immovable property of the value exceeding Rs. 100/- - Parties declared to execute certain other documents - Such award fell under Section 17(2)(v) and under Section 17(1)(b) was, therefore not registerable.

[Paras 5 and 9]

Cases Referred :-

M. Venkataratnam v. M. Chelamayya, AIR 1967 Andhra Pradesh 257 (FB).

Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134.

Sheonarain Lal, v. Ramehswari Devi, (C. A. No. 296 of 1960 decided on 6-12-1962 (SC).

Satish Kumar v. Surinder Kumar, 1969-2 SCR 244.

JUDGMENT

Alagiriswami, J. - The question for decision is whether the award made by the arbitrator in this case is inadmissible in evidence and therefore no decree can be passed on the basis of that award as held by the Delhi High Court. The short facts necessary for decision on this case are these :

2. By an agreement dated 25th April 1961 various disputes and matters in difference between the parties were referred to the sole arbitration of Mr. B. K. Daphtary. The arbitrator made his award on 25th April 1962. it is not necessary to refer to the various stages the matter went through except that the case came to be finally beard by the Delhi High Court. Before that Court by an application filed under Section 151. Civil Procedure Code a question was allowed to be raised that as the award directs partition of immovable property and the value of this immovable property is more than one lakh it therefore requires registration under Section 17(1) (b) of the Registration Act and the same is not admissible in evidence and cannot be enforced or confer any rights." The learned single Judge of the High Court who heard the matter held that the award, not having been registered as required by Section 17(1) (b) of the Indian Registration Act cannot be made a rule of the Court Under Section 17 of the Arbitration Act. The learned Judge also held that he would have had no hesitation to follow the course prescribed in Section 38 of the Stamp Act and receive the stamp duty and penalty but for his decision that the document requires registration.

3. The learned Judge proceeded on the basis that the award relates to partition of immovable property of the value exceeding rupees one hundred and therefore comes within the ambit of Section 17(1) (b) of the Indian Registration Act, 1908. No doubt it does but the learned Judge did not bestow his attention on the words of that section and are whether it operates to create rights in immoveable property or whether it merely creates a right to obtain another document which will, when executed create any such right. The learned Judge purported to follow the decision of the Andhra Pradesh High Court in M. Venkataratnam v. M. Chelamayya, AIR 1967 Andhra Pradesh 257 (FB).

4. The award in so far as it is relevant is in the following terms :-

5. 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 immoveable 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 interest. The award directs Shib Banerjee and Sons Private Ltd. to execute such documents as may be necessary for declaring the one-fourth share of the appellants in the said property and also to execute such documents as may be necessary for transferring the said property and the lease from the Delhi Improvement Trust to the Joint names of themselves and the appellants. It, therefore, squarely falls under Section 17(2) (v) of the Registration Act.

6. The question is amply covered by authority. In Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134 by a document (AY) the parties agreed to divide their properties according to certain specified shares. It then went on to provide :

The privy Council observed :

In Sheonarain Lal, v. Ramehswari Devi, (C. A. No. 296 of 1960 decided on 6-12-1962 (SC)) a Bench of the five Judges of this Court had to deal with a document the fifth clause of which read :

This Court observed :

The other two learned Judges quoted the observations in Sheonarain Lal's case C. A. No. 296 of 1960, decided on 6-12-1962 (SC) that :

Thus this decision does not in any way lay down any proposition contrary to the decision which we have so far referred to.

7. We may finally refer to the latest decision of this Court, to which one of us was a party, in Ratan Lal Sharma v. Purushottam Harit, C. A. No. 1625 of 1967 decided on 11-1-1974 = (reported in AIR 1974 Supreme Court 1066). The relevant clause read as follows :

This court observed :

8. The Full Bench decision of the Andhra Pradesh High Court relied upon by the learned Judge decided that an award that created a charge must be registered. That is undoubtedly correct. The question regarding the application of Section 17(2) (v) of the Registration Act however did not arise there.

9. The learned Judge does not refer to any of the decision which we have referred to, including those of this Court because he proceeded to decide the matter on the assumption that the award itself created a right in immovable property of the value of over one hundred rupees. We are clearly of opinion that the award in this case fails under Section 17(2) (v) and is, therefore, not registrable.

10. As regards the question of stamp duty, we do not propose to express any opinion as it would appear that the learned Judge of the High Court would himself have been ready to receive the stamp duty and penalty if he had held that the agreement was not compulsorily registrable.

11. The appeal is allowed and the 1st respondent should pay the appellant's costs.

Appeal allowed.