The Arbitration Act, 1940 does not apply to awards made before the Act came into force.

Das, J.

1. Lachhuman Singh, defendant 1, is the appellant before us. The appeal arises out of a suit for partition. According to the plaintiffs-respondents, village Badgunda, which is the subject of partition, was given in khorposh to one Deyal Singh by Khem Narain Singh. Deyal Singh had six sons. Subsequently, Deyal Singh made a mukarrari khorposh grant on 14-11-1895, in favour of one Mod Narain Singh in respect of 428 and odd acres of land of village Badgunda. Mod Narain had four sons, namely, Lachhuman Singh, Meghlal Singh, Guru Prasad Singh and Makar Singh. A tenure-holders khewat, no. 5, was prepared in respect of 428 and odd acres of land in the names of Lachhuman Singh, Meghlal Singh and Guru Prasad Singh, Makar Singh plaintiff 1, being a minor at the time. It was alleged that the parties had been messing separately for more than fifteen years before the suit and were also cultivating the bakasht lands separately according to convenience of cultivation, but there was no partition by metes and bounds. Makar Singh and the sons of Guru Prosad Singh were the plaintiffs who brought the suit, each claiming 4 annas share.

2. Lachhuman Singh, the eldest Son of Mod Narain, was the principal defendant who contested the suit. The heirs of Meghlal Singh, who were also ranged as defendants, supported the case of the plaintiffs. The Substantial defence of Lachhuman Singh was that there was a previous partition of the property by metes and bounds as a result of an award made by certain arbitrators on 3-6-1925. It was alleged that Lachhuman Singh was entitled to 6 annas share on the strength of a custom in the family under which the eldest son got a large share. It was alleged that as there had already been a partition of the property which was binding on the parties, the suit for a second partition was not maintainable.

3. The learned Subordinate Judge framed several issues, some of which are of no importance at this stage. On the question as to whether there was a previous partition, the learned Subordinate Judge found that the award on which the appellant relied was an invalid award which was never acted upon. He further found that there was no previous partition in fact, though the lands were being cultivated separately for convenience of cultivation. He also found that the appellant had failed to prove a family custom under which the eldest son was entitled to a larger share. On these findings he decreed the suit for partition, holding that plaintiffs 1 and 2 were entitled to 4 annas share each.

4. The award on which the appellant relied was not marked as an exhibit in the Court below, because the appellant failed to pay the necessary stamp duty and penalty. Learned counsel for the appellant has stated that the necessary stamp duty and penalty have now been paid and he has based one of his main arguments on the award, an English translation whereof has been placed before us. We have heard learned counsel for the parties on the basis of the award and the appeal will be disposed of on that basis.

5. The first and foremost argument of learned counsel for the appellant is that the award is binding on the parties and Sections 31 and 32, Arbitration Act, 1940, are a bar to the suit. Sec.31 (2), on which reliance has been placed by learned counsel for the appellant, is in these terms:

"31 (2). Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be filed, and by no other Court."

6. Sec.32, which is more important, states:

"32. Bar to suit contesting arbitration agreement or award: Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, eff