Judgement

PALEKAR, J.: - This is an appeal by special leave by the defendants arising out of the judgment of the High Court of Andhra Pradesh in A. S. 212 of 1962 from the decision of the Subordinate Judge, Kakinada, in Original Suit No. 15 of 1956.

2. The plaintiffs who are the respondents before this Court applied under Section 14 of the Arbitration Act for the filing of an award dated 10-11-1955 and for a decree in terms of that award. The application was registered as a suit being O.S. No.15 of 1956. The defendants filed their written statements contesting the suit and also applied by I. A. Nos. 597 and 598 of 1956 for setting aside the award under Section 30 and 33 of the Arbitration Act. Several contentions were raised by the defendants - one of them being that the award being unstamped and unregistered was inadmissible in evidence and hence a decree in terms of the award could not be passed.

3. The learned Subordinate Judge after framing a number of issues considered only the question with regard to the admissibility of the document. In his view the award dated 10-11-1955 embodied a partition of immovable properties worth more than Rupees 100/- and was, therefore, compulsorily registrable under Section 17 of the Indian Registration Act. Being compulsorily registrable the award could not be admitted in evidence for the purpose of passing a decree. He also held that the award was not duly stamped and for that reason also it was inadmissible in evidence. Accordingly, he dismissed the suit.

4. The plaintiffs went in appeal to the High Court. The appeal was placed before a Full Bench for disposal. The Court held that the award was not admissible on the ground that it embodied a partition. In its opinion it was admissible in evidence so far as it did not affect immovable property. It further held that a decree could be passed in terms of that part of the award which was severable from any other part of it which was invalid for any reason. As regards the contention that the document was unstamped the High Court held that the document was admissible in evidence on payment of necessary duty and penalty and since the same had been already paid the award was admissible in evidence.

5. Since the other points reised in the trial Court had not been considered, the case was remanded to the trial Court to be disposed of in accordance with law in the light of the decision of the High Court. An application for certificate under Article 132 and 133 of the Constitution of India was filed by the defendants in the High Court but the same was rejected. Thereafter the defendants came to this Court and obtained special leave.

6. The plaintiffs was brothers and appear to be the nephews of the defendants who are also brothers. They all formed a joint undivided Hindu family which owned many immovable properties and carried on money-lending business. On 20-5-1950 all four of them referred their dispute to three arbitrators by an agreement Ext., A. I. At that time one of them Venkataswamy, was a minor but he was represented by his uncle Chelamayya as his guardian. The relevant portion of this Arbitration Agreement is as follows:

"We, the 4 individuals are members of a Hindu joint family. The first individual of us had been acting as the manager of our joint family. While so, we could not pull on together amicably we entertained the idea of effecting we entertained the idea of effecting a partition of the family properties. Having separated our mess only, we have been living separately each by himself. We have executed this panchayath mutchilika in your favour after choosing all the 3 of you as panchayatdars, (Arbitrators) for ascertaining the accounts as to how much amount is remaining with each individual of us, as per the accounts, from out of the (joint) family income, for including that amounts to the common pool and for partitioning the entire movable and immovable properties belonging to our family into four (equal) shares with reference to good and