A decision in writing by an arbitrator or umpire, not being an award directing a partition, on a reference made otherwise than by an order of the court in the course of a suit, is an award within the meaning of Article 12 of the Indian Stamp Act.

( 1 ) THIS civil revision petition gives rise to a short question of law, whether a decision in writing by the arbitrators without a written reference, directing the allotment of a family business asset to one of the two brothers and in lieu of it, ordering the payment of a sum of Rs. 10,000. 00 to the other brother is an award within the meaning of Article 12 of the Indian Stamp Act.

( 2 ) IN order to appreciate the scope of the question it is necessary to state the material facts which lie in a short compass. The petitioner filed O. S. No. 22 of 1967 on the file of the Sub-Court, Kavali, now renumbered as O. S. No. 45/1971 Sub-Court, Kandukur , against the respondent , his elder brother , for the recovery of Rs. 10,828. 00 on the foot of a family arrangement evidenced by an unstamped and unregistered document dated 2/10/1965. When the document was filed into the Court, it was treated as an agreement and stamp duty as well as penalty were levied on that basis. But, however , in the course of the trial and when the document was sought to be marked and exhibited, the defendant took an objection that it is an award passed by arbitrators and, therefore, liable to stamp duty and penalty. The contention advanced on behalf of the plaintiff that the suit document relates to only a family arrangement, but it is not an award did not find favour with the trial Court. It was found that the document is a decision given by the elders chosen by the parties to the suit and, therefore ,it is an award within the meaning of Article 12 of the Indian Stamp Act and it is liable to Stamp duty and penalty. Hench this civil Revision Petition.

( 3 ) MR. A. Venkata Ramana, the learned counsel for the petitioner, contended that the suit document is not an award within the meaning of Article 12 of the Stamp act , as it is not a decision of the arbitrators on a reference in writing and, in any event , it comes under the exception as it is award directing the partition of family trade or business (an item of property of the joint family ). This claim of the petitioner is resisted by Mr. B. Srinivasa Murty, the learned counsel for the defendant , contending interalia that the document is not an award directing partition of any family property but it is only a decision directing one party to pay a decision directing one party a specified sum of money on relinquishment by the other party of his right in the defendants business and, therefore , the Court below has rightly held the document to be an award libale to stamp duty and penalty.

( 4 ) IN order to appreciate the respective contentions of the parties, it is necessary to refer to Article 12 of the Indian Stamp Act. "award, that is to say, any decision in writing by an arbitrator or umpire , not being an award directing a partition, on a reference made otherwise than by an order of the court in this course of a suit. " the expression "award" is not defined under the Indian Stamp Act, We have, therefore , to look to the Arbitration Act , 1940. Section 2 (a) of the arbitration Act defines "arbitration agreement" as "a written agreement to submit present or future differences to arbitration. Whether an arbitrator is named therein or other an arbitrator is named therein or not. " Under Section 2 (b) , "award" means "an arbitration award". Section 47 read with Sections 2 (a) and 2 (b) defining "arbitration agreement" and "award" respectively, makes it abundantly clear that any arbitration proceeding is governed by the provisions of the Act. There can be no award within the meaning of Section 2 (b) without an agreement in writing, any decision given by the arbitrators cannot strictly be termed as an arbitration award within the meaning of Section 2 (b ). To put it differently, for any decision of the arbitrators or umpire to be called an arbitration award, there must have been an agreement in writing referring the matter in dispute between the contending parties, to the arbitrators , in other wor