Judgement

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 P. C. 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 S. 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 AP 257 (FB).

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

"1. I hold and award that the said Tehmi Pheroze Sidhwa. Almitra Pheroze Sidhwa and Mani Rustom Sidhwa paid the total contribution of Rs. 32.500/-(Rupees thirty two thousand five hundred)as their one-fourth share in the cost of the land at Najafgarh road. Delhi being plot no. 71/5 of the Industrial Area Scheme of the Delhi Improvement. Trust admeasuring about 7246/67 square yards and the factory and other buildings and compound wall constructed thereon and occupied by Delhi floorings Private Ltd. that the said Tehmi Pheroze Sidhwa. Almitra Pheroze Sidhwa and Mani Rustom Sidhwa are between them entitled to a one-fourth share or interest in the said land and buildings and in the rents and profits thereof : that as between themselves the shares or interest of the said Tehmi Pheroze Sidhwa, Almitra Pheroze Sidhwa and Mani Rustom Sidhwa are as follows : Tehmi Pherozo Sidhwa 3/32 share on the Almitra Pheroze Sidwha 3/32 share whole Mani Rustom Sidhwa 2/32 share property.

2. A lease of the said property has been granted by the Delhi Improvement Trust to Shib Banerjee and Sons private Ltd. and the said property stands in the name of Shib Banerjee and Sons Private Ltd. I hold and award that Shib Banerjee and Sons private Ltd. hold the said property upon Trust as to one-fourth thereof for the said Tehmi Pheroze Sidhwa. Almitra Pheroze Sidhwa and Mani Rustom Sidhwa in the share as above mentioned and that the said Tehmi Pheroza Sidhwa. Almitra Pheroze Sidhwa and Mani Rustom Sidhwa are entitled to a one-fourth share in the rents and profits of the said property from 1st January, 1960.

3. I award and direct that Shib Banerjee and Sons private Ltd. do pay to the said Tehmi Pheroze. Sidhwa. Almitra Phiroze Sidhwa a