Supreme Court of India

Kashinathsa Yamosa Kabadi, Etc vs Narsingsa Bhaskarsa Kabadi, Etc on 10 February, 1961

Equivalent citations: 1961 AIR 1077, 1961 SCR (3) 792, AIR 1961 SUPREME COURT 1077, (1961) 3 SCR 792, 1962 2 SCJ 597, 1963 BOM LR 659

Author:
J.C. Shah

Bench:
J.C. Shah
,
J.L. Kapur
,
M. Hidayatullah

PETITIONER:
KASHINATHSA YAMOSA KABADI, ETC.

Vs.

RESPONDENT:
NARSINGSA BHASKARSA KABADI, ETC.

DATE OF JUDGMENT:
10/02/1961

BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
KAPUR, J.L.
HIDAYATULLAH, M.

CITATION:
1961 AIR 1077 1961 SCR (3) 792
CITATOR INFO :
R 1970 SC 833 (12)
R 1972 SC1121 (9)

ACT:
Hindu Law-Partition-Reference to arbitration out of Court-
Arbitrator actually dividing some Properties and giving
possession to parties-Revocation of reference-Suit for
Partition, maintainability of-Documents recording division
by arbitrator-Registration, if necessary--
Arbitration Act,
(10 of 1940), s. 32-
Registration Act, 1908
(16 of
1908), s. 17.

HEADNOTE:
The parties were members of a joint Hindu family possessed
of considerable property movable and immovable. They volun-
tarily appointed Panchas to determine the shares of the
parties and to divide the property. The Panchas first
determined the shares of the parties and reduced the
determination to writing. It was accepted by the parties
and was signed by all of them and the Panchas. Thereafter,
on various dates the Panchas divided several items of
movable and immovable properties and the parties entered
into possession of their shares. These divisions were duly
entered in the " partition books " and were signed by the
parties and the Panchas. The Panchas were unable to divide
the remaining properties and with the consent of the parties
they appointed one G to divide them. G divided some of the
properties but he too was unable to divide the remaining
properties. One of the parties served a notice cancelling
the authority of the Panchas and filed a suit for partition
of the remaining properties. Upon an application made by
the plaintiff for revoking the reference the Trial Court
cancelled the arbitration as one of the Panchas was
unwilling to proceed with the division. Another party filed
a suit for partition of all the properties contending that
the division made by the Panchas was not binding as the
award had not been made a rule of the court and the
reference had been revoked and as the award was not
registered.
Held, that the divisions already made by the Panchas were
binding on the parties and only the remaining properties
were liable to be partitioned. By the reference to the
Panchas, the
parties ceased to be members of the joint Hindu family.
Thereafter, by the division of the family assets which was
accepted by the parties and by the taking into possession of
their shares by the parties, the properties came under the
individual ownerships of the parties to whom they were
allotted; and in respect of the remaining properties they
became tenants-in-common. The proceedings taken by the
Panchas were not revoked by the order of the trial Court
revoking the reference as they had been accepted and acted
upon by the parties. Where an award made in arbitration out
of court is voluntarily accepted and acted upon by the
parties and a suit is thereafter filed by one of the parties
ignoring the acts done in pursuance of the acceptance of the
award, the defence that the suit is not maintainable is not
founded on the plea that there is an award which bars the
suit but that the parties have by mutual agreement settled
the dispute, and that the agreement and the subsequent
actings of the parties are binding. Such a plea is not
barred by
s. 32
of the Arbitration Act. The records made by
the Panchas were documents which merely acknowledged
partitions already made and were not required to be
registered.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 218 to 223
of 1959.

Appeals from the Judgment and Decree dated August 9, 1953,
of the Bombay High Court in Appeals Nos. 605 and 606 of 1952
from Original Decrees.

B....B. Kotwal, S. N. Andley, J. B. Dadachanji, Rameshwar
Nath and P. L. Vohra, for the appellant (In C. As. Nos.
218 and 219 of 59), Respondent No. 1 (In C. As. Nos. 220
and 222 of 59), Respondent No. 2 (In C. A. No. 221 of 59)
and Respondent No. 5 (In C. A. No. 223 of 59).

W....S. Barlingay and A. G. Ratnaparkhi, for the appellants
(In C. As. Nos. 220 and 221 of 59), Respondents Nos. 1 to 4
(In C. As. Nos. 218 and 223 of 59) and Respondents Nos. 3
to 6 (In C. As. Nos. 219 and 222 of 59).

Naunit Lal, for the appellants (In C. As. Nos. 222 and 223
of 59), Respondent No. 6 (In C. A. No. 218 of 59),
Respondent No. 1 (In C. As. Nos. 219 and 221 of 59) and
Respondent No. 3 (In C. A. No. 220 of 59).

R....Gopalakrishnan, for Respondents Nos. 5(a) to 5(c) (In
C. A. No. 218 of 59), Respondents Nos. 2(a) to 2(c) (In
C. As. Nos. 219, 220 and 222 of 59) and Respondents Nos.
3(a) to 3(c) (In C. A. No. 221 of 59) and Respondents Nos.
6(a) to 6(c) (In C. A. No. 223 of 59),
1961. February 10. The Judgment of the Court was delivered
by
SHAH, J.-These six appeals are filed with certificates under

Art. 133
of the Constitution granted by the High Court of
Judicature at Bombay. The appeals arise out of the
judgments and decrees in suits Nos. 47 of 1948 and 36 of
1949 in the court of the Civil Judge, Senior Division,
Dharwar. The following- geneology set out in the plaint in
Suit No. 47 of 1948 explains the relationship between the
parties:

Dongarsa

-------------|----------------------

| |
Yamosa Ramakrishnasa
| |
| |
------------- -----------
| | | Hanmantsa
Kashinathsa Bhaskarsa Murarsa |
(D 1) | (D 2) Bhimasa
| (D 3)
|

---------------------------------------

| | | |
Narsingsa Pandurangsa Benakosa Hanmantsa
(P 1) (P 2) (P 3) (P 4)

The principal contesting party in the suits was Kashinathsa,
eldest son of Yamosa, and he was the first defendant in both
the suits. For facility of reference, we propose to refer
to the parties as they were arrayed in Suit No. 47 of 1948.
Bhimasa the plaintiff in Suit No. 36 of 1949 will,
therefore, be referred in this judgment as defendant No. 3.
At a partition in 1893 between Dongarsa's branch and the
other branches, the former branch received property of the
aggregate value of Rs. 13,000/-. Members of that branch
thereafter carried on business of weaving silk garments and
also of sale and purchase of silk garments. In 1912,
defendant No. 1 started a cloth shop in the name of
Kashinathsa Kabadi. In 1916, be started a commission agency
business in the name of H. R. Kabadi Shop, and in 1920 he
started, business in money-lending and silk goods. Since
1912, defendant No. 1 was the principal earning member of of
the family and was attending to the various lines of
business and he was assisted by the other members of the
family. The family prospered and in course of time acquired
a large estate. Before 1946, Bhaskarsa father of the
plaintiffs and Ramakrishnasa and
Hanmantsa grandfather and father respectively of defendant
No. 3 had expired, and the first defendant was the senio-
rmost member of the family. In 1946, disputer, arose
between the members of the family and defendant No. 3
declined to continue in jointness with the other members of
the family and demanded that he be given his half share
after dividing the properties by metes and bounds. Claiming
that he alone was instrumental in amassing the vast estate
which exceeded in value to Rs. 14,00,000/-, defendant I
submitted that the estate be divided in four equal shares
and that one share be given to him and the remaining shares
to the heirs of Bhaskarsa, defendant No. 2 and defendant No.

3. On August 17,1946, the disputes were referred under a
deed in writing to three persons Vithaldas Devidas
Vajreshwari a merchant of Betegiri, Devindrasa Tuljansa a
common relation of the parties and Parappa Nagappa Jagalur a
clerk of the pleader acting for the family-(whom we will
collectively refer as the Panchas) with authority to
determine what shares should be allotted to the different
branches of the family and to determine the extra shares to
be given to defendant No. 1 for " special exertions made by
him in acquiring the property " and to divide the assets of
the money lending and other properties of the family_
business as the " Panchas thought fit and proper." The
Panchas accepted the reference and embarked initially upon
an enquiry for ascertaining what shares in the family
property should be allotted to the various contesting
parties. On September 23, 1946, the Panchas decided that
each of the four parties-defendant No. 1, defendant No. 2,
the plaintiffs collectively and defendant No. 3-should be
given a fourth share in the properties of the family. This
decision was reduced to writing: it was signed by the
Panchas and was accepted by the parties and in token of
acceptance, they subscribed their signatures thereto. On
the same day, gold ornaments of the value of Rs. 67,000/-

were divided by the Panchas in four equal shares. A record
thereof was made in the proceedings of the Panchas.
The Panchas then proceeded to award to each of the parties
gold ornaments weighing 167 tolas 15 as. and silver 481
tolas and 4 as. On September 24, 1946, it is the case of
defendant No. 1 that the Panchas decided to give him an
additional share of the value of Rs. 40,000/- out of the
property for bringing the family " to the present prosperous
conditions " and the Panchas directed that defendant No. 2
should for that purpose pay out of his share Rs. 30,000/- to
defendant No. 1 and the plaintiffs should pay Rs. 10,000/-
to him and the old house of the joint family be allotted to
him as his exclusive property. This was denied by the other
parties. On October 12, 1946, the Panchas divided the
residential houses and a record of this division was entered
in five separate books hereinafter referred to as "partition
books." In each of the " partition books the Panchas
subscribed their signatures under the record of the division
and allotment of the shares and the parties also signed
underneath the same in token of acceptance of that division.
On October 19, 1946, the Panchas divided an amount of Rs.
64,000/- entries regarding which had been posted in the
family books of account. Each party was given Rs. 16,000/-
and this division was entered in the account books of Yamosa
Dongarsa Kabadi and the entry was duly signed in token of
acknowledgment of the correctness by all the parties. It is
the case of defendant No. 1 that on that day another amount
of Rs. 3,20,000/. which was " the unaccounted cash lying in
the safe of the family but which was not entered in the
books of account and details whereof were set out in a
Tippan Book," was also divided and each party was given Rs.
80,000/-. of the two major contentions in this group of
appeals, one has centered round the truth of the story about
the division of this amount. 1 On October 20, 1946, the "

four empty safes " and the warehouses and lands at Betgiri
were divided. On October 21, 1946, the stock-in-trade of
the silk shop was divided in four equal shares and on
November 10, 1946, miscellaneous gold and pearl ornaments
and the houses at Gadag and plots of land in the Hubli
Cotton Market were similarly divided, On February 7, 1947,
the agricultural lands, cattle and agricultural implements
were divided. On February 22,1947, Rs. 24,000/as the
accumulated cash on hand in the money lending business were
divided into four equal shares. Divisions made on October
20, 1946, October 21, 1946, February 7 and February 22,
1947, were duly entered in the " partition books " and the
entries were signed by the Panchas and were also by the
parties in acknowledgment of the correctness of the
divisions. On February 24, 1947, acknowledgments were
obtained from the junior members of the family to the
reference to the Panchas and to the decision of the Panchas
dated September 23, 1946, whereby each branch was given a
four annas share and also to the subsequent divisions made
from time to time between September 23, 1946, and February
24, 1947. Between February 25, 1947, and April 10, 1947,
cotton bales belonging to the family of the value of Rs.
3,20,000/were divided into four equal shares. The record of
this division was not signed by the parties. After the
furniture and utensils of the family were divided, there
survived certain disputes about the outstandings of the
family and other properties especially a dispute about Rs.
16,000/- lying in cash with the family which could not be
decided. To resolve the disputes about these properties and
the outstandings of the family, the Panchas, with the
consent of the parties referred them for decision to one
Bhim Rao Godkhindi, a senior pleader of the Gadag Bar. On
November 3, 1947, the Panchas executed a writing in favour
of Godkhindi authorising him to complete the work of
partition of the estate. Godkhindi accepted the authority.
On December 5, 1947, Godkhindi asked the parties to "state
clearly " what according to them were the properties which
remained to be partitioned, and the plaintiffs gave a list
to Godkhindi of such properties. Between February 5 and
February 9, 1948, outstandings of the value of Rs.
1,20,000/- were divided by Godkhindi and this was accepted
by the parties. But Godkhindi was unable to proceed with
the division of the remaining assets. On February 9, 1948,
the first plaintiff served a notice canceling the authority
of the Panchas to
divide the properties of the family and on August 19, 1948,
he filed Suit No. 47 of 1948 in the court of the Civil
Judge, Senior Division, Dharwar, for partition of the
properties remaining to be divided and for accounts of the
joint family properties. By his plaint, the plaintiffs
admitted that the parties had agreed to divide the property
into four equal shares. in para. 6 of their plaint, they set
out the properties which they alleged had not been divided.
The plaintiffs claimed that they be awarded a fourth share
in the outstandings of the assets of " Kashinathsa Yamosa
Kabadi " and " H. R. Kabadi " shops, and in " a considerable
amount of money that has been there" since the time of the
ancestors the Tippan in respect of which it was alleged was
with defendants Nos. 1 and 2 and in certain gold and silver
articles, and lands and houses and rents which were
recovered. On August 19, 1948, the plaintiffs also filed a
petition in the court of the Civil Judge for leave to revoke
the authority of the Panchas. Notice of this petition was
served upon the Panchas, and the Panchas having expressed
unwillingness to function the court passed an order
cancelling their authority.

Thereafter defendant No. 3 filed Suit No. 36 of 1949 on
August 16, 1949, for partition and separate possession of a
half share in all the properties of the joint family. By
his plaint, he claimed that he " had been told " that
despite the decision of the Panchas dated September 23,
1946, he will be given a half share in the properties, that
his consent to the divisions made by the Panchas was
obtained by misrepresentation and that the Panchas were
guilty of partiality and therefore their decisions were not
binding on him. He averred that it was not possible for him
to give the descriptions of the properties other than those
described in the plaint and of all the movables belonging to
the family and the money lending dealings, he claimed a
declaration that the authority given to the Panchas had been
revoked and for a decree for partition and separate
possession of a half share in the property which may be
proved to belong to the joint family.
In both the suits, defendant No. 1 contended that the
Panchas had divided the properties in four equal shares
after their decision to divide the same in that manner was
accepted, that the Panchas from time to time had made actual
division of the properties with the consent of the parties,
that the division of the properties in each case was acted
upon and properties allotted to the parties were reduced
into possession by the parties to whom they were allotted,
and that on that account the division could not be reopened.
He also contended that the " unaccounted cash " had been
divided on October 19, 1946, and each party was given his
share therein, and that the Panchas had given to him an
extra share of the value of Rs. 40,000/- in cash payable by
the plaintiffs and defendant No. 2 and the residential
family house at Betgiri. Defendant No. 2 supported the
claim made by the plaintiffs.

The Civil Judge held that by virtue of the order passed in
the petition for revoking the reference to the Panchas their
authority as well as the proceedings and all the decisions
given by them ceased to bind the parties because " the
decisions stood cancelled." He also held that the decisions
were not binding upon the parties as they were not filed in
court; that the Panchas were not proved to have awarded to
defendant No. 1 any additional share in the property of the
family; and that the ,unaccounted cash" of the family which
amounted to Rs. 3,20,000/- was not divided. He accordingly
passed decrees in the two suits ordering that a fresh
partition be effected of all the joint family property
moveable and immoveable.

Against the decrees passed by the court of first instance
defendant No. 1 preferred Appeal No. 605 of 1952, against
the decree in Suit No. 47 of 1958 and Appeal No. 606 of
1952, against the decree in Suit No. 36 of 1949. In the two
appeals, the High Court at Bombay by a common judgment
modified the decrees passed by the court of first instance.
In the view of the High Court, there were in law no valid
awards made by the Panchas which could be set up in defence
by defendant No. 1 to the claim made by the third defendant.
They observed that the awards of the
Panchas were not binding because they were not properly
stamped and those that affected immoveable properties were
not registered. But the High Court held that the division
of the moveables such as gold and silver ornaments made on
September 23, 1946, could not be reopened. They further
held that the " unaccounted cash " amounting to Rs.
3,20,000/- was divided on October 19, 1946, and that each
branch had received Rs. 80,000/-. The High Court
accordingly modified the decree passed by the trial court in
so far as it related to the gold and silver ornaments
divided by the Panchas on September 23, 1946, and also in
respect of the amount of the unaccounted cash of Rs.
3,20,000/-. There were certain other modifications made in
the decrees which are not material for the purposes of these
appeals, as no arguments have been advanced at the bar
relating thereto.

In these appeals by defendant No. 1, the plaintiffs and
defendant No. 3, two principal questions fall to be
determined: (1) whether defendant No. 3 is entitled to a
half share in all the properties of the joint family
ignoring the division already made and (2) whether the
unaccounted cash which was estimated by defendant No. 3 and
the plaintiffs at Rs. 4,00,000/- and which was stated by
defendant No. 1 to be Rs. 3,20,000/was divided on October
19, 1946. On these two questions, the parties are
differently arrived. On the first question, defendant No. 1
is supported by the plaintiffs and defendant No. 2. On the
second question, defendant No. 1 is opposed by the
plaintiffs and defendants Nos. 2 and 3.

After setting out the contentions of the parties, it is
recited in the deed of reference that the parties had given
authority to the Panchas to peruse the written and oral
evidence and to decide what shares shall be allotted to the
different branches and also to decide what may appear to be
proper for providing an "extra share" to defendant No. 1.
The agreement between the members of the joint Hindu family
to appoint Panchas for dividing the family properties
amounts to severance of the joint family status from the
date of the agreement. Once reference is made, joint family
status is severed and it is not postponed until the division
of the property by metes and bounds.

To appreciate the contentions, it is necessary to follow the
method adopted by the Panchas in dividing the properties.
The decision of the Panchas to allot to each branch a fourth
share was accepted by all the parties. Thereafter the
Panchas proceeded to allot shares in the properties movable
and immovable. The distribution of the properties was set
out in writing and in acknowledgment of the fact that
distribution was made as described the parties signed the
writing:

" We have appointed these as the Panchas. In
accordance therewith all the Panchas heard all
the information (placed below them) and all
the Panchas unanimously decided on 23-9-1946
that Kashinathsa Yamosa Kabadi should be given
a 1/4 share, that Narasingsa Bhaskarsa Kabadi
should be given a 1/4 share, and that Bhimasa
Hanumantasa Kabadi should be given a I share,
and we all having consented to the said
decision of the Panchas, we all and all the
Panchas have put our respective signatures to
the said decision of the Panchas. The details
of the properties that have fallen to the
shares of the different shares as per the
decision effected in accordance with the said
decision are as follows:"

This acknowledgment was not merely an agreement not to
challenge the decision of the Panchas, but was made as
evidencing the division actually made and reduced to
writing. The trial court found that the properties
separately allotted to the various branches were reduced
into possession by the parties and the High Court agreed
with that view. If the consent of the parties was not
procured by fraud, misrepresentation or any other ground
which may vitiate a partition under the general law, the
division made by the Panchas and accepted by the parties
would be binding upon them. It is always open to the
members of a joint Hindu family to divide some properties of
the family and to keep the remaining undivided. By the
reference to the Panchas, the parties ceased, to be members
of the joint Hindu family. If thereafter the
assets of the family were divided and that division was
accepted by the parties, the properties reduced by the
parties to their possession must be deemed to be of the
individual ownership of the parties to whom they were
allotted, and the remaining properties as of their tenancy-
in-common. Evidently in this case, the Panchas suggested
what they regarded as a just and -convenient method of
partition and that method was accepted by the parties.
Originally it was intended to make a general division or
award in respect of all the properties and with that end in
view a stamp paper of the value of Rs. 30/- was purchased.
But in the course of the proceedings, effectuating a
division of all the properties by a single award was
apparently found inconvenient and a convenient method was
adopted and the properties were divided by stages. In the
first instance, the principle of division was discussed and
decided upon and that principle was accepted by the parties.
Thereafter the properties were divided in different
sections.

The plea raised in his plaint by defendant No. 3 that his
consent to the reference was obtained by coercion and undue
influence is somewhat vague and indefinite. He merely
stated that he had recently attained the age of majority,
that defendant No. I was the head of the family and that he
was not in a position ',either to say anything against him
(defendant No. 1) or to act against him." He also stated
that defendant No. I had threatened him that he (defendant
No. 3) would be given a share only if he acted according to
the behest of defendant No. 1 otherwise he would be driven
out of the house without anything and therefore he " became
helpless " and agreed to sign the " letter of authority
passed in favour of the Panchas." He pleaded in para. 5 of
the plaint that he had not agreed to take a more fourth
share and that he " had all along been insisting upon
receiving a half share," and that it was his intention to
take his legitimate half share " without dispute if that
could be managed " and as he believed that he would be given
that share he did not immediately raise any objections He
also stated that hill had been promised
by defendant No. 1 that he would be given his share in the
property. The learned trial judge rejected this plea
holding that Defendant No. 3 failed to prove that he was "

compelled by exercise of undue influence and coercion to
agree to the reference to the Panchas, and that he had been
promised by defendant No. I that he would be given a half
share." In the High Court, the plea raised by defendant No.
3 about coercion and undue influence and the promise made by
defendant No. I does not appear to have been seriously
pressed. The plea of defendant No. 3 that he subscribed his
signatures to the various decisions given by the Panchas
from time to time because he believed that he was bound by
the decision dated September 23,'1946, and that but for such
belief he would not have subscribed his signatures to those
decisions has in our judgment no force. Defendant No. 3, it
appears on the evidence, voluntarily accepted the decision
that each branch was to be given a fourth share and he
accepted the division of the properties allotted to him on
that footing.

Again by virtue of the order passed by the Civil Judge
cancelling the reference, the proceedings taken by the
Panchas including the division of the property which had
been accepted were not revoked. The plaintiffs filed Misc.
Application No. 15 of 1948 for an order revoking the
reference and as the Panch Devendrasa was found unwilling to
proceed with the work of dividing the property, the
arbitration was cancelled. Under
s. 12
, sub-s. (2) of the

Arbitration Act
, where the authority of an arbitrator or
arbitrators is revoked by leave of the court, the court may
order that the arbitration agreement shall cease to have
effect with respect to the difference referred. If the
decisions of the Panchas had not been accepted by the
parties with the revocation of the reference, all
proceedings which they had adopted might have fallen
through; but the parties did accept the decisions made from
time to time and the cancellation of the reference had not
the effect of vacating the divisions already made. We are
unable to agree with the view of the trial judge that the
cancellation had the effect of
nullifying all the interim divisions and that they must be
deemed to have been impliedly set aside.

It is unnecessary to consider whether these decisions may
be regarded as " interim awards " within the meaning of s.
27 of the
Arbitration Act
. The decisions given and
divisions made were not merely tentative arrangements liable
to be superseded at a later stage. The decisions were
treated as final and were carried out. We agree with the
High Court that whatever may be the original intention of
the parties, the Panchas having with the consent of the
parties proceeded to divide the properties in stages, each
decision must be regarded as final with regard to the
property divided thereby.

We are of the view that it was open to defendant No. I to
set up the division of the properties made from time to time
as a defence to the action filed by defendant No. 3. Even
assuming that the records of the divisions made by the
Panchas are awards strictly so called, what is set up in
defence is not the awards made by the Panchas, but the
partition of the property by agreement after accepting the
method of partition suggested by the Panchas. To such a
plea, there is in our judgment no bar of s. 32 of the

Arbitration Act
. By
s. 32
it is provided:

" Notwithstanding any law for the time being
in force, no suit shall lie on any ground
whatsoever for a decision upon the existence,
effect or validity of an arbitration agreement
or award nor shall any arbitration agreement
or award be set aside, amended, modified or in
any way affected otherwise than as provided in
this Act. "

Before the Arbitration Act, 1940
, was enacted, an award made
by arbitrators appointed out of court even if it was -not
made a rule of the court was regarded as equivalent to a
final judgment and any suit filed on the original cause of
action referred to the arbitrators was held barred.

In
Muhammad Nawaz Khan v. Alam Khan
it was held by the
Judicial Committee of the Privy Council that an award is
valid even if no party has sought to enforce it by the
summary procedure,
(1) (1891) L.R. 18 I.A. 73.
Since the enactment of the
Arbitration Act, 1940
,, there has
&risen wide divergence of judicial opinion among the High
Courts on the question whether an award made in a reference
out of court can be set up as a defence to an action filed
by a party thereof on, the original cause of action when the
award is not filed in court.
Section 31
, sub-s. (2) of the

Arbitration Act
provides:

" 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 "

and s. 33 sets out the procedure to be followed for
challenging the existence, effect or validity of an
arbitration agreement or an award or to have its effect
determined. It is manifest that questions relating to the
validity, effect or existence of an award can be decided by
the court to which an application making it a rule of court
lies.

In Babui S. K. Kuer v. B. N. Sinha (1), the Patna High Court
held that by virtue of
s. 32
of the Arbitration Act, 1940,
an award made on a private reference to arbitration is not
operative of its own force; it only becomes operative on
being made a rule of the court. It was held in that case
that an award cannot be set up as a defence to an action
unless it is filed in court and a decree is obtained
thereon.
Similar view was taken in
Sait Pamandass v. T. S.
Manikyam Pillai Bhimavarapu Venkatasubbauva
v. Addanki
Bapadu and Firm Gulzarimal Gheesdal v. Firm Rameshrhandra
Radhyeshyam (4).

On the other hand, in
Pamudurthi
Suryanarayana Reddy v. Pamudurthi Venkata Reddi
(1), it was
held that
ss. 32
and
of the Indian Arbitration Act, 1940,
did not preclude a defendant from
(1) (1952) l.L.R. 31 Pat. 886.

(2) A.I.R. 1960 And. Pra. 59.

(3) A.I.R. 1951 Mad. 458.

(4) I.L.R. [1959] Raj. 515.

(5) I.L.R. [1949] Mad. 11.
setting forth an award which had been fully performed by him
but which was not filed in Court under
s. 14
and on which a
judgment was not pronounced or a decree given under
s. 17
of
the Act, in answer to the plaintiff's claim which was the
subject matter of the reference and the award. That view
was accepted in
Rajamanickam Pillai v. Swaminatha Pillai

(died) (,). It is not necessary in this appeal to express a
considered opinion on this disputed question. It may be
sufficient to observe that where an award made in
arbitration out of court is accepted by the parties and it
is acted upon voluntarily and a suit is thereafter sought to
be filed by one of the parties ignoring the acts done in
pursuance of the acceptance of the award, the defence that
the suit is not maintainable is not founded on the plea that
there is an award which bars the suit but that the parties
have by mutual agreement settled the dispute, and that the
agreement and the subsequent actings of the parties are
binding. By setting up a defence in the present case that
there has been a division of the property and the parties
have entered into possession of the properties allotted,
defendant No. I is not seeking to obtain a decision upon the
existence, effect or validity of an award. He is merely
seeking to setup a plea that the property was divided by
consent of parties. Such a plea is in our judgment not
precluded by anything contained in the
Arbitration Act
.
The records made by the Panchas about the division of the
properties, it is true, were not stamped nor were they
registered. It is however clear that if the record made by
the Panchas in so far as it deals with immoveable properties
is regarded as a non-testamentary instrument purporting or
operating to create, declare, assign, limit or extinguish
any right, title or interest in immoveable property, it was
compulsorily registrable under
s. 17
of the Registration
Act, and would not in the absence of registration be
admissible in evidence. But in our judgment, the true
effect of what are called awards is not by their own force
to create any. interest in immoveable property they recorded
(1) A.I.R. 1952 Mad. 24.
divisions already made and on the facts proved in this case,
their validity depends upon the acceptance by the parties.
The records made by the Panchas were documents which merely
acknowledged partitions already made and were not by law
required to be registered. On a perusal of Ex. 456A which
is a translation of the tippan book in which are recorded
the decisions which are signed by the parties, it is evident
that the Panchas were merely recording what had been
actually divided and they were not seeking to set out their
decisions relating to division of property to be made. The
question whether the various decisions recorded in Ex. 456A
and in the, books of account were required by law to be
stamped need not be decided. The documents were admitted in
evidence by the trial court and no question of admissibility
of those documents can be raised at a later stage of the
suit or in appeal (see
s. 36
, Stamp Act).

We are unable to agree with the view of the High Court that
the decisions dated October 12, 1946, October 20,1946, and
November 10, 1946, were not intended to be final decisions.
There is no reliable evidence to support the view of the
High Court. Even if the divisions are not strictly in
conformity with the shares declared in the decision dated
September 23, 1946, the parties having accepted those
divisions and having reduced the shares allotted to their
possession, it is not open to them to seek to reopen the
same on the ground that the division was unequal.
Defendant No. 3 contended in the trial courts and the High
Court that he had not taken possession, of the property
allotted to his share. The trial court held that he had
taken possession of all the properties which had fallen to
his share and the plea that he has not obtained possession
was untrue. The High Court has accepted that view.
To sum up: on a consideration of the materials placed before
the court, the reference to Panchas is proved to be made
voluntarily by all the parties, that the Panchas had in the
first instance decided that each branch was to get a fourth
share in the properties and that decision was accepted by
the parties, that division
of properties made from time to time was also accepted by
the parties, and subsequently, when the Panchas were unable
to proceed with the division, the matter was referred by
consent of the parties to Godkhindi and Godkhindi divided
with the consent of the parties the outstandings. but he was
unable to divide the remaining properties. For reasons we
have already stated, the division made by the Panchas and by
Godkhindi is binding upon the parties. Such properties as
are not partitioned must of course be ordered to be divided
and the division will be made consistently with the rules of
Hindu law. To the division of such properties which have
not been divided, the decision of the Panchas dated
September 23, 1946, will not apply.

We may now turn to the second question whether on October
19, 1946, the amount of Rs. 3,20,000/- which was the "

unaccounted cash with the family " was partitioned. It was
the plea of defendant No. I that on that day after dividing
the amount of Rs. 64,000/- the " unaccounted cash " which
was found to be Rs. 3,20,000/- was actually divided and each
branch was given Rs. 80,000/-. Defendant No. 1 relied upon
his own testimony besides the testimony of Parappa (one of
the Panchas) and of Huchappa---clerk of the family shop.
Defendant No. 3 examined the other Panch Devendrasa.
The trial court held that the testimony of Huchappa and
Parappa was unreliable. Defendant No. 1 did admit that the
family possessed Rs. 3,20,000/- as " unaccounted cash "; and
the burden of proving that division was in fact made lay on
him. The trial court observed that there was no writing
evidencing the division of Rs. 3,20,000/-, no receipt was
taken from any person for payment of a share in that amount,
and that it was highly improbable that a person like
defendant No. 1 would part with substantial amounts without
taking receipts.

The High Court disagreed with this view., They pointed out
that there was no entry made in the books of account of this
large amount of cash, and apprehending that a division of
the property with a
formal record which may ultimately be produced in court
was likely to involve the members of the family in
proceedings for concealment of income, no record was
maintained of the division thereof. The High Court also
relied upon the testimony of Parappa, Huchappa and defendant
No. 1 and upon the circumstance that neither in the
plaintiffs' plaint nor in the plaint of defendant No. 3 was
any specific reference made to the refusal of defendant No.
1 to divide this amount. In our view, the High Court was
right in the conclusion to which it arrived.
It is true that it is difficult to rely upon the oral
testimony of either side. Defendant No. I and defendant No.
3 are evidently interested persons and their testimony may
not carry much weight. Parappa one of the Panchas deposed
that the amount of Rs. 3,20,000/- was divided on August 19,
1947, and each branch received its share. He stated that
the amount was not entered in the books of account. He
further stated that after the safes were opened, the Tippan
book was found together with the money and that the cash was
counted but it was not compared with the Tippan book, that
thereafter the amount was divided. According to this
witness, there was no documentary evidence about that amount
and he did not know whether the defendants had knowledge of
the extent thereof He explained that no receipts were taken
because defendant No. I did not demand the same, that he did
not press for a writing as the parties said that it was a "

secret arrangement ", and as the division was " with
complete concord ", he did not think it necessary to take a
writing or to record it in the books.

The testimony of Huchappa 'was similar. The other Panch
Devendrasa stated that plaintiff No. 1 and defendant No. 2
had pressed the Panchas to give them their share in the "

unaccounted cash ", saying that defendant No. I was "

indefinitely postponing " it, that the Panchas advised
defendant No. 1 to divide this amount, but he stated that he
would be " reduced to equality " with others when' he had a
large family and that he had made great efforts and that he
should
be given more property, otherwise he would not allow
division of the " unaccounted cash " and the other property.
The Panchas then told him that they had decided upon the
share each should be given and no further proposal would be
entertained by plaintiff No. 1. The witness then said that
he left for Gadag. In cross-examination, he stated that he
and the other Panchas had told defendant No.1 to give the
shares of the unaccounted cash to the other sharers.
The evidence of the witnesses clearly shows that the
question relating to the division of the "unaccounted cash "

was expressly discussed and the plaintiffs as well as
defendant No. 3 were fully aware of the existence of this
amount lying in the safe which was not entered in the books
of account. It is the case of defendant No. I that the
amount was divided on October 19, 1947. The first plaintiff
and defendant No. 3 have denied this on oath; defendant No.
2 did not enter the witness box. The burden certainly did
lie upon defendant No. 1 to establish the division of the
amount but there are several important circumstances which
go to prove that a partition must have been effected as
alleged by defendant No. 1. From the sequence in which
various properties were partitioned, it is clear that in the
first instance the principle of division was decided and
then the valuable properties like the immovable properties,
the cash, stock in trade of the shops, were divided and then
the division of properties of comparatively small value like
the agricultural implements, pots and furniture was taken in
hand. If there was a. large amount of Rs. 3,20,000/- in
cash lying undivided before dividing pots, pans and
furniture, the other parties would have insisted upon the
division of that amount.: - It is difficult to believe
especially having regard to the plea that defendant No. 1
had adopted a refractory attitude with the other parties
that defendant No. 3 accepted the division of properties of
comparatively small value without insisting upon division of
this large amount. There is also the circumstance that even
though plaintiff No. I know about the existence of the "

unacounted cash " in the safe, it was
expressly mentioned in the plaint. We would have expected
the plaintiffs to state expressly that on or about October
19, 1947, " unaccounted cash " was found in the safe and
that even though defendant No. I was asked to divide the
same by the remaining parties as well as the Panchas, he
declined to accede to that demand. The conduct of defendant
No. 3 in not setting out this item in his plaint renders the
story that defendant No. I refused to divide this amount
somewhat improbable. There is again no reference in the
plaint filed by defendant No. 3 that the amount that was
divisible was not divided on account of the attitude adopted
by defendant No. 1. Counsel for defendant No. 3 relied upon
the averments in para. 9 of the plaint that it was not
possible for defendant No. 3 to give a description of the
remaining properties and the movable articles belonging to
the family and the money lending dealings. But there is in
the plaint no reference to any cash amount. Schedules
appended to the plaint are very detailed and it is difficult
to believe that defendant No. 3 did not mention that this
amount of Rs. 3,20,000/- was not divided even after demands
were made and ignored. The plea that he apprehended that he
might be called upon to pay court fee ad valorem on the
amount if he specified it in the plaint is futile.
Consistently with the 'practice prevailing in the courts in
the Bombay Province, defendant No. 3 had paid Rs. 18,12,0 as
court fee under
Art. 17
, cl. VII, on the plea that he and
the other parties were in constructive possession of the
entire property, belonging to the family. Properties worth
lakhs of rupees were described in the schedules annexed to
the plaint and if court fee ad valorem was not payable
according to defendant No. 3 in respect of, those
properties, we fail to appreciate why he should have
apprehended that court fee ad valorem would still be payable
if he claimed a share -in the cash amount of Rs. 3,20,000/-.
There is also the other circumstances that with consent
of the parties reference was made to Godkhindi by the three
Panchas of all the matters which had
remained to be settled, and in the statement made before him
which was recorded in writing, there was no reference to
the claim that the amount of Rs. 3,20,000/- had remained to
be divided. Plaintiff No. 1 gave a detailed statement of
the properties which remained to be divided and that
document is dated December 5, 1947: Ex. D-482. Item 5 is "

cash balance in the Dalali shops and in the house should be
divided ", and again in cl. (12) it was stated " an account
of the amounts in suspense (parabhare) account should be
taken and the total of the said amount should be divided."

Counsel for the plain. tiffs and the third defendant
submitted that the original of this list was in Kannad which
was translated into Marathi and the Marathi word which is
translated into English as " suspense " was " parabhare ".
That word according to the plaintiffs and the third
defendant meant " unaccounted for ". It is difficult for us
to express any opinion on this argument. It may be observed
that the learned Judge of the High Court who delivered the
judgment was himself conversant with the Marathi language
and he was not prepared to accept that interpretation. But
that by itself may not be sufficient to reject the plea of
the plaintiffs. What is material is that in a detailed
statement consisting of as many as 24 items the plaintiffs
have not set out that this amount of Rs. 3,20,000/- which
was found in the family safe and which the Panchas wanted to
divide, was on account of the uncompromising attitude of the
first defendant not divided. If the amount had not been
divided, we have not the slightest doubt that in the
statement this amount would have been expressly included.
Godkhindi was examined as a witness in these suits. The
trial court found him to be a person who was wholly
disinterested. It appears from the evidence of Godkhindi
that no question about the division of Rs. 3,20,000/- was
mooted. If the amount had not been divided, we have no
doubt that this question would have been prominently brought
to his notice; but no such plea was even raised. We are of
the view having regard to these circumstances that
the amount of Rs. 3,20,000/- must have been divided.
In that view of the case, the decree passed by the High
Court will be modified as follows:--

The properties of the joint family except the properties
divided on September - 23, 1946, October 12, 1946, October
19, 1946, including the amount of Rs. 3,20,000/-, October
20, 1946, October 21, 1946, including the stock-in-trade,
silks and sarees and cupboards, and on November 10, 1946,
February 7, 1947, February 22, 1947, February 24, 1947,
February 25, 1947, and the furniture, utensils and other
movables between May and June, 1947, and the property
divided on July 13, 1947, and the outstandings divided be-
tween February 5, 1948, and February 9,1948, shall be
partitioned between the parties. The partition will be made
on the footing that defendant No. 3 is entitled to a half
shar and defendant No. 1, the plaintiffs collectively and
defendant No. 2 are each entitled to a 1/6 share. Defendant
No. I will be entitled to his costs in Appeals Nos. 218 of
1959 and 219 of 1959. The other appeals filed by the
plaintiffs and defendant No. 3 will be dismissed. One
hearing fee.

C. As. Nos. 218 and 219 of 1959 allowed.

C. As. Nos. 220 to 223 of 1959 dismissed.