Lord Russell of Killowen:-

This is an appeal from a decree of the High Court of Judicature at Patna by which it was ordered that the award hereinafter mentioned should be filed and made a decree of the Court. The relevant facts leading up to this litigation are as follows: The appellant, one Upendra Nath Bose, had in the year 1908 purchased in execution sale the proprietary right in the village Raitar in the Patna district subject to incumbrances. In the year 1912 his friend, Ishwari Prasad, advanced to him a sum of Rs. 50,000 for the purpose of partially clearing off the incumbrances and upon the terms that he should have an option to acquire a half share in the village in lieu of the repayment of his loan. This option he exercised in or about the year 1914. No conveyance was executed; the matter continued to rest on contract, but thenceforward he enjoyed a half share of the profits of the village. This state of affairs continued until the death of Ishwari which occurred in the year 1924. He left him surviving three sons, viz., the respondents Het Lall, Debi Prasad, and Shyam Lall, and a grandson the respondent Parbhakar Prakash. On 26th April 1925, the appellant executed a document addressed to the respondents in which he set out the facts relating to Ishwari's loan, and his half interest in the village. The appellant also stated his willingness to account, and that be claimed no personal interest in more than half the estate. Cl. 6 of this document ran thus:

I also hereby agree that as soon as accounts are made up and settled I shall execute such proper instrument as you may unanimously wish, or in case of difference of opinion among you, as the person you refer may reasonably require.

Ultimately the parties referred to two arbitrators differences which had arisen, as stated in the agreement of reference, “regarding the accounts and transfer of Raitar property.” In the course of the arbitration it was suggested and agreed between the parties that a sum should be fixed upon the payment of which the respondents should have no claim to share in the village. This course was adopted by the arbitrators, who made their award on 1st August, 1930. By para. 1 thereof they dealt with the accounts between the parties, finding the amounts due and directing payment with interest. By para. 2 they dealt with “the transfer of Raitar property,” in the following terms:

(2) That Babu Upendra Nath Basu requested us that instead of transferring the above said Raitar property to the second party he may be allowed to pay any sum fixed by us in lieu thereof so as to save the property from being ruined and we were asked by the parties to fix the sum to be so paid by the first party to the second party. We accordingly direct that the said Babu Upendra Nath Basu do pay rupees fifteen thousand, three hundred and fifty to each of the four gentlemen of the second party, that is to say a total sum of rupees sixty-one thousand and four hundred as the equivalent of the share of the second party in the said property, with interest at six per cent. per annum accruing from 1st October 1930. If the said amount is not paid by 1st October 1931, the rate of interest thereafter shall be seven and a half per cent. per annum on whole or any balance left unpaid.

The ownership of the second party in one-half of Raitar property shall not cease till after the above sum of rupees sixty-one thousand and four hundred as well as the amounts mentioned in the statement exhibit B together with interest specified in respect of both be fully paid up.

The award was registered before the sub-registrar of Beneras, and in Book 4. It is conceded that this registration was made before the official of the wrong district and entered in the wrong book, with the result (which is common ground) that the award has never been registered at all. In January 1931, the respondent Het Lall applied, under para. 20 of sch. 2, Civil P. C., to the Subordinate Judge of Benares that the award be filed in Cour