Case: Champalal Vs. Mst. Samarath Bai

2. The appellant in this case is Champalal and the respondent is Samarath Bai, the widow of Lal Chand. The parties who are Jains belong to Balapur in the district of Akola in the previous State of Madhya Pradesh. The relationship of the parties is shown by the following pedigree table:On September 14, 1944, Lal Chand made a will by which he authorised his wife Samarath Bai to adopt Champalal and made certain disposition of his property. Lal Chand died on September 26,On October20, 1944, the appellant made an application under S. 192 of the Succession Act to the First Additional District Judge of Akola for the appointment of a Curator. This was Misc. Judl. No. 3 ofNotices were issued to the respondent, Samarath Bai and her daughters. The will was registered on December 29,On January 10, 1945, an arbitration agreement was entered into between the appellant and the respondent and on January 16, 1945, both parties applied for stay of proceedings in the case (Misc. Judl. No. 3 of 1944) and the case was adjourned to March 28, 1945, and then was adjourned to June 18, 1945. On that date the arbitrators made an application to the First Additional District Judge for extension of time for four months for making the award. This application was opposed by the appellant but the court gave three months time on July 26, 1946. The award was made on October 18, 1946. On October 21, it was filed by the arbitrators in the court of the First Additional District Judge who on October 30, gave to the parties ten days time for objections. On November 15, 1946, the appellant filed objections to the award and on January 31, 1947, the respondent applied for a judgment in terms of the award and for a decree. The award was unregistered and therefore at the request of the respondent it was handed over for getting it registered to Mithulal who was an attorney of two of the arbitrators Magandas and Sakarchand. On February 7, 1947, he presented it for registration to the Sub-Registrar but the Sub-Registrar returned it as it was not accompanied by a list and particulars of the property covered by the award. On February 15, 1947, the list and particulars signed by Mithulal were supplied and the award was represented for registration by Mithulal. As he was an attorney of only two of the three arbitrators the Sub-Registrar registered the document on March 26, 1947, in regard to said arbitrators and refused it qua the third arbitrator, Bhogilal. But under the orders of the Registrar the document was registered in regard to Bhogilal also and it was refiled on July 21, 1948, in the Court of the First Additional District Judge. He ordered the two proceedings one under S. 192 of the Succession Act and the other under the Arbitration Act to be separated and the proceedings under the Arbitration Act were ordered to be registered as a suit on August 14, 1948, and on August 30, the court ordered a proper application as required under the High Court Rules to be filed. On September 15, 1948, an application under S. 14(2) of the Arbitration Act was filed. On October 14, 1948, the appellant filed an application for setting aside the award and therein raised various objections which were rejected and on November 22, 1949, a judgment was passed in accordance with the terms of the award followed by a decree. Against this order the appellant took an appeal to the High Court which was dismissed on February 19, 1954. The High Court held that the application filed by the respondent dated September 15, 1948, under S. 14(2) of the Arbitration Act was not within time but the original application filed by the arbitrators on October 21, 1946, was within time; that no objection could be taken to the award on the ground that there were two awards one by the arbitrators and the other by Mithulal who had added to the award by giving the list and particulars; that the First Additional District Judge was authorised to extend time for making an award on the application of the arbitrators and he was properly seized of the case; that no misconduct had been proved and that no illegality had been established and that the appellant did not get anything under the will except on adoption nor was he until then constituted an executor. Against this judgment this appeal has been filed on a certificate by the High Court.

Reasoning: 4. In our opinion points nos. 1, 2 and 3 are wholly without substance. The award was made on October 18, 1946, and the arbitrators filed it in the court of the First Additional District Judge and they also gave notice to the parties by registered post informing them of the making of the award. It has not been shown as to how the filing of the award is barred by limitation.Article 178 of the Limitation Act which was relied upon by the appellant applies to applications made by the parties and not to the filing of the award by the arbitrators.5. The second question that the award required registration and could not be filed by the arbitrators before it was registered is equally without substance. The filing of an unregistered award under S. 49 of the Registration Act is not prohibited; what is prohibited is that it cannot be taken into evidence so as to affect immoveable property falling under S. 17 of that Act.That the award required registration was rightly admitted by both parties.It was contended by counsel for the appellant that under S. 21 of the Registration Act and the rules made under S. 22 a description of the property was necessary and as that was supplied through Mithulal who, according to counsel, did not have the necessary authority to do so, the award must be taken to be an incomplete document which could not be registered. The High Court has found that in the circumstances of this case lists were not necessary and therefore anything done by Mithulal whether authorised or not will not affect the legality of the registration. The third point that the First Additional District Judge before whom the application was made for extending the time of making the award had no jurisdiction is also not sustainable. It so happened that the court which had jurisdiction to entertain application for the filing of awards was the same before whom the application under S. 192 of the Succession Act had been filed. If that court was the proper court in which such applications were to be made then no defect can be found in the application being made to that court or that court giving such extension.Points (ii) and (iii) may be taken up together. It was argued that the award is in excess of the power given to the arbitrators because it determined the rights of the appellant as an executor and because it was in excess of para. No. 1 of the arbitration agreement which provided that the arbitrators should maintain the gifts to charities and the gift in favour of the testators daughters and others. It is difficult to see how the award has lost sight of this paragraph. As a matter of fact the arbitrators have maintained the gifts to charities and other gifts made by the testator in the will and they have clearly stated that the person becoming the owner of the deceaseds property, will have to provide for the maintenance of the persons named in the will and pay the charities therein enumerated.9. Another objection raised was that according to the arbitration agreement the arbitrators had to enforce the will and not to act outside it and also they could not impose a limit of time for adoption. How they have acted de hors the will has not been shown. The contention raised was that according to the arbitration agreement the arbitrators had to decide in what proportion the parties to the dispute were to "enjoy" the estate of the testator and not that one of them will get nothing at all. As we read paragraph 10 of the will, and the High Court also so construed it, the appellant could get the property of the testator only if he was adopted by the testator or his widow, the respondent. It is not correct, therefore, to read the term of the arbitration agreement as meaning that the appellant was to get at least some portion of the property irrespective of his being adopted.