( 1 ) THIS first appeal has been filed by the defendant against the decree obtained by the respondent from the Court of Civil Judge 1st Class, Durg, directing that the property in dispute be partitioned between the parties. The appellant and the respondent are respectively referred to in this judgment as defendant and plaintiff.

( 2 ) THE plaintiff Mst Bindabai is the widow of one Brijlal, who was the brother of the appellant Baratilal. It is not disputed that Brijlal and Barattlal were joint till the former died in 1952.

( 3 ) THE plaintiffs case was that the defendant turned her out of the house in July 1953 and refused to give her a share in family property to which she was entitled as the widow of Brijlal. The plaintiff has given a list in the schedule annexed to the plaint of the lands and moveables which she wanted to be divided. The plaintiff also stated that she had made an attempt to settle the dispute in 1952 by calling the village Fancfias to provide for her maintenance. The Panchas advised the defendant to give her 10 acres of land and some move-abfes, but the defendant did not act according to the Pancha's advice.

( 4 ) THE defendant stated that after the death of his brother Brijial in 1952, the plaintiff collected the Panchas of the village who gave an award in writing allotting 10 acres of land, two houses and some moveables to the plaintiff, but she herself resiled from the award. He pleaded that the plaintiff is not entitled to anything more than what was given to her by the Panchas. He filed his own list of moveables challenging the list filed by the plaintiff as incorrect.

( 5 ) THE learned judge of the trial court held that the award was inadmissible for want of registration. The advice of the Panchas was restricted to the question of awarding maintenance to the plaintiff and even if it amount ed to an award, it does not bar the present suit. He further found that the defendant did not give anything under the award to the plaintiff. Accordingly, he passed a preliminary decree for partition allotting half share in the lands and moveables to the plaintiff. The extent of moveables which were with the defendant was determined but we shall refer to the details of this finding later.

( 6 ) THE first contention of Shri R. K. Pandey for the appellant is that after the award had been given by the Panchas, the only remedy open to the plaintiff was to proceed under the Arbitration Act either to have it set aside or to make it a rule of the Court, and as the plaintiff has done neither, the suit for partition is not maintainable. ( 7 ) IN order appreciate this plea, we may refer to the pleadings of the parties. In paragraph 7 (Kh) of the plaint, the plaintiff stated as follows : "the defendant was not properly maintaining the plaintiff. The plaintiff then in the month of Pus 1952, collected the Panchas at Mehgaon, complaining to them that the defendant should be ordered to give her propar maintenance. The Panchas then told the defendant to allow separate maintenance, to the plaintiff by giving 8 acres Dhana and 2 acres Bharra land, 4 gadas of Dhan, one house, one pair of buffaloes and one cart and to give similar maintenance to Krishnabai, the other cowidow. The defendant accepted this and falsely assured the Panchas to act accordingly, The plaintiffs thumb mark was taken on a paper for this. The defendant did not pay heed to the decision of the Panchas till this date and did not give any land, house, grain or cattle to her. "

( 8 ) TO this, the defendant replied in paragraph 9 of the written statement as follows :

"that the plaintiff had collected Panchas In the village on 26-12-52 and had agreed to abide by their award in the matter of the dispute regarding family property. The defendant had consented to the settlement of the dispute as proposed by the Plaintiff. Thus with the consent of the parties the Panchas gave an award by which the plaintiff was given 10 acres of land, two houses, a pair of buffal