Judgement

SABYASACHI MUKHARJI, J. :- Special leave is granted. The appeal arises from the judgment and order of the High Court of Delhi dated 16th May, 1986 whereby the award of the Arbitrator was adjudged incapable of being made rule of the Court and no decree in terms thereof was passed under S. 17 of the Arbitration Act, 1940, (hereinafter called the Act). The High Court, however, held that the award was not liable to be set aside but only that it could not be made a rule of the Court.

2. In order to appreciate the contentions urged, it is necessary to note few facts. The father of the parties involved in the matter, Shri S. Lal, died on 13th November, 1975 leaving behind him his two daughters, Mrs. Sudha Vasisht and Miss Shail and Capt. (now Major) Ashok Kshyap, the son. The wife of the said deceased Shri S. Lal pre-deceased him. Mrs. Sudha Vasisht is the eldest child and Major Kshyap is the youngest, who is the son. Mrs. Sudha Vasisht is married, Miss Shail is a spinster and Major Kshyap is also married. The said S. Lal left only one immovable property, namely, premises No. F-4, Green Park, New Delhi and some movables including about Rs. 8,000/- in the Punjab National Bank, Green Park, New Delhi. It was claimed that Miss Shail was not capable of managing her affairs. Indeed one of the objections against the award was that Miss Shail who was the unmarried sister of Major Kshyap and Mrs. Sudha Vasisht was of unsound mind and due to her mental incapacity the arbitration agreement, arbitration proceedings and the resultant award were all bad in the eye of law. The arbitration agreement was, however, signed by all the three parties. It may be noted that disputes and differences arose between the parties and arbitration agreement, was entered into by the three parties to settle these on 9th June, 1976, soon after the death of their father, Shri S. Lal. The arbitration agreement recited that their father died intestate leaving behind him premises No. F-4, Green Park, New Delhi and the sum of Rs. 8,000/- in the Punjab National Bank. Further it was recited that disputes and differences had arisen in between them with regard to the immovable as well as movable property left by their father, and Shri S. Lal died without making any will and the parties were desirous to get their disputes and differences settled through arbitration to maintain family peace, harmony and goodwill amongst themselves and to avoid unnecessary litigation by arriving at a "family settlement" through arbitration. The agreement, thereafter nominated and appointed one Shri D. C. Singhania, Advocate, as the arbitrator and to enter upon the reference and to decide all the disputes and differences existing between them "pertaining to or relating to or in any manner touching upon the matter of inheritance and/or division of all movable and immovable property left behind by their late father, Shri S. Lal. The agreement, further recited that the parties undertook that the decision given by the arbitrator would be accepted as final. The arbitration proceedings have been filed before this Court. The son, the appellant gave evidence and stated that two houses, one at Meerut and one at Hapur were inherited by him from his mother Smt. Sarla Devi, which she got from her parents without leaving any male issue behind them. These houses were sold for Rs. 21,000/- which sum according to Major Kshyap was invested by the father in the construction of the house in question. Major Kshyap further claimed that he had invested a further amount of Rs. 10,000 out of his savings of his service as a Commissioned Officer. This amount, according to him, was spent on wood work painting of two rooms etc. The father, Shri S. Lal was a teacher in a school and in order to realise his pension, according to Major Kshyap, he paid to his father a sum of Rs.4,440.93 which the father had drawn to build the house. Major Kshyap further claimed that he had purchased a geyser for Rs. 887/- and he had spen