Case: Themi P. Sidhwa &amp; Ors Vs. Shib Banerjee &amp; Sons Pvt. Ltd. &amp; Anr

ground their Lordship think exhibit AY did not require registration, and accordingly is admissible in evidence, so far as it goes.In Sheonarain Lal, v. Ramehswari Devi, (C. A. No. 296 of 1960 decided on 6-12-1962 (SC)) a Bench of the five Judges of this Court had to deal with a document the fifth clause of which read :"Shri Sheo Narain Lal and his beirs should execute as early as possible a registered document in respect of the shop let out on rent the Beli Sao Sukhdeo Prasad, in favour of Shri Prabhu Chand for which Shri Prabhu Chand will have to pay nothing as consideration .he will pay only costs of stamp etc.This Court observed :"Does this clause purport or operate to create declare, assign, limit or extinguish any right, title or interest in immovable properties? We are clearly of opinion that it does not. The award merely provides that some right in the shop should be created in the future by means of a document to be executed by Sheonarain Lal and his heirs. That document when executed would certainly operate to create a right in favour of Prabhu Chand in immovable properties and extinguish the right of Sheonarain Lal and his heirs in the same properties. That is why the arbitrators mention that the document should be registered, as admittedly, the value of that property would be more than Rupees 100/-. It is difficult to see however how the fact that such a document that might be executed in consequence of the direction in the awards, would operate to create or extinguish a right in immoveable properties, justifies the Court to say that the award itself purports or operates to create or extinguish such a right. The position would have been otherwise if the arbitrators had directed by the award itself that this shop would go to Prabbu Chand without any further document. In that case the award itself would have created in Prabhuchand a right to these properties. That is not, however, the provision in the award. In the absence of a registered document, Prabhu Chand would get no title on the award and Sheonarains title would remain in the shop. It is clear therefore that the award does not itself create or extinguish any right, title or interest in the immovable properties. It may be said that it creates a right to obtain another document which will, when executed, create or extinguish such right in immovable properties and so is a document falling within clause 5 of Section 17 (2) of the Registration Act. The award therefore does not require registration in law. We find it unnecessary to consider the further question which the High Court has considered on the assumption - wrongly made - that the award decided questions of title to immovable properties."In Satish Kumar v. Surinder Kumar, 1969-2 SCR 244 =(AIR 1970 SC 833 ) the concurring judgment of Hegde. J. brings out the matter very clearly. He observed :"For the purpose of Section 17 (1) (b) of the Registration Act, all that we have to see is whether the award in question purport or operate to create or declare, assign, limit or extinguish whether in present of future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property. If it does, it is compulsorily registrable...There is no gain saying the fact that the award with which are concerned in this case, at any rate, purported to create rights in immovable property of the value of rupees more than one hundred. Hence it is compulsorily registrable.The other two learned Judges quoted the observations in Sheonarain Lals case C. A. No. 296 of 1960, D/- 6-12-1962 (SC) that :The position would have been otherwise if the arbitrators had directed by the award itself that this shop would go to Prabhu Chand without itself would have created in Prabhuchand a right to these properties.Thus this decision does not in any way lay down any proposition contrary to the decision which we have so far referred to.7. We may finally refer to the latest decision of this Court, to which one of us was a party, in Ratan Lal Sharma v. Purushottam Harit, C. A. No. 1625 of 1967 decided on 11-1-1974 = (reported in AIR 1974 SC 1066 ). The relevant clause read as follows :"The factory and all assets and properties of New Bengal Engineering Works are excusive allotted to Dr. Ratan Lal Sharma, who is absolutely entitles to the same. He will pay all liabilities of the factory.This court observed :It expressly makes an exclusive allotment of the partnership assets including the factory and liabilities to the appellant. It goes further and makes him "absolutely entitled to the same.....So in express words it purports to create rights in immoveable property worth above Rs. 100/- in favour of the appellant. It would accordingly require registration under S. 17, Registration Act.8. The Full Bench decision of the Andhra Pradesh High Court relied upon by the learned Judge decided that an award that created a charge must be registered. That is undoubtedly correct. The question regarding the application of Section 17 (2) (v) of the Registration Act however did not arise there.9. The learned Judge does not refer to any of the decision which we have referred to, including those of this Court because he proceeded to decide the matter on the assumption that the award itself created a right in immovable property of the value of over one hundred rupees. We are clearly of opinion that the award in this case fails under Section 17 (2) (v) and is, therefore, not registrable.10. As regards the question of stamp duty, we do not propose to express any opinion as it would appear that the learned Judge of the High Court would himself have been ready to receive the stamp duty and penalty if he had held that the agreement was not compulsorily registrable.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It would be noticed that the award itself does not purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards in respect of the immoveable property, as contemplated under Section 17 (1) (b) of the Registration Act. It merely creates a right to obtain another document which will, when executed. create, declare, assign. limit or extinguish any such right, title or interest. The award directs Shib Banerjee and Sons Private Ltd. to execute such documents as may be necessary for declaring the one-fourth share of the appellants in the said property and also to execute such documents as may be necessary for transferring the said property and the lease from the Delhi Improvement Trust to the Joint names of themselves and the appellants. It, therefore, squarely falls under Section 17 (2) (v) of the Registration Act.The Full Bench decision of the Andhra Pradesh High Court relied upon by the learned Judge decided that an award that created a charge must be registered. That is undoubtedly correct. The question regarding the application of Section 17 (2) (v) of the Registration Act however did not arise there.9. The learned Judge does not refer to any of the decision which we have referred to, including those of this Court because he proceeded to decide the matter on the assumption that the award itself created a right in immovable property of the value of over one hundred rupees. We are clearly of opinion that the award in this case fails under Section 17 (2) (v) and is, therefore, not registrable.10. As regards the question of stamp duty, we do not propose to express any opinion as it would appear that the learned Judge of the High Court would himself have been ready to receive the stamp duty and penalty if he had held that the agreement was not compulsorily registrable.