An unfiled arbitration award is unenforceable and does not extinguish antecedent rights. The binding nature of a pre-emption agreement on transferees with notice was also established.

1. Appellant was the second defendant in a suit for enforcement of a right of pre-emption, which has been decreed by the learned Subordinate Judge, Kasargod reversing its dismissal by the learned Munsiff, Kasargod.

2. Plaintiff is the brother of the first defendant. By an agreement (muchalika) Ext. XI dated 2101964 they and their two brothers and two sisters appointed PW. 3, an Advocate who is also their relation, as arbitrator to partition the properties which they had inherited from their father. On 2/8/1965 PW. 3 passed his award Ext. Al dividing the properties among the sharers and allotting the suit property, among other items, to the first defendant. The parties have accepted the partition and have taken their shares in terms of Ext. Al. Ext. Al which has been registered but has not been filed in court as required by the Arbitration Act, provides in Para.8 for a right of pre-emption in the following terms:

"Every sharer will have a right of preemption in respect of the properties allowed to the other sharer provided such sharer exercising the rights of pre-emption shall have the property allotted to him under the award contiguous to the property in respect of which such right of pre-emption is claimed by such sharer; provided further that such sharer claiming right of preemption must be prepared to pay the value of the property prevailing in the market at the time of sale".

By Ext. A2 dated 2151966 the first defendant sold the suit property to the second defendant-appellant for Rs. 3,000/-. The adjacent property covered by R. S. Nos. 562/3 and 562/4, which belonged to the sharers was sold, on their agreement and was purchased by the plaintiff, even before the award. Claiming that he was entitled to a pre-emptive right under Ext. Al, and that the sale deed Ext. A2 contravenes that right, the plaintiff brought the suit for directing the second defendant to surrender the suit property on receipt of Rs. 3.000/-or in the alternative to direct him or the first defendant whoever was liable to execute a transfer deed in favour of the plaintiff.

3. The defendants resisted the suit contending that as the muchalika contained no provision in that regard, the reservation of a pre-emption right in Ext. Al was beyond the powers of the Arbitrator and that Ext. Al was in any case unenforceable as it bad not been filed and made a rule of court. They also contended that it was with notice to the plaintiff that Ext. A2 was executed. The second defendant raised a further defence that he had no notice of the pre-emption clause and being a bona fide purchaser for value he should be protected.

4. The trial court on a former occasion decreed the suit in the plaintiff's favour, directing the second defendant to transfer the property by a sufficient instrument. In the appeal, A. S No. 19 of 1968, taken by the second defendant the lower appellate court held that the suit which as framed involved a decision upon the existence, effect and validity of the award Ext. Al was not maintainable as it had not been filed in court and made the subject of a decision. It however allowed an application made by the plaintiff to amend the plaint so as to incorporate a paragraph basing the suit on a pre-emption agreement alleged to have been reached by the parties in the course of the arbitration proceedings, before the award. In view of this amendment, the court set aside the decision and remanded the suit for fresh trial.

5. The defendants thereupon filed additional written statements denying the pre-award agreement on pre-emption, pleaded by the plaintiff.

6. The trial court upheld this contention and holding that the agreement was not true dismissed the suit. On appeal taken by the plaintiff the learned appellate judge came to a contrary conclusion and decided in favour of the plaintiff.

7. It was contended for the appellant in the first place that no suit would lie on the original agreement, even if one existed, for once an award was made, the prior agreem