AMIR BI BI Vs. AROKIAM

JUDGEMENT

(1.) This is a suit on a hypothecation bond. The plaintiff alleges that in a family settlement between herself, her mother-in-law and brothers-in-law, the arbitrators chosen by them are alleged to have given an oral award under which this bond and some other bonds were allotted for her share. The hypothecation bond was originally executed to her father-in-law. She now sues on it.

(2.) The only plea of the defendant with which we are concerned, relates to the unsustainability of the suit on the ground that even if the award was true, as it was not followed by the execution of a conveyance, plaintiff is not entitled to maintain a suit to recover the money due under the bond. The learned District Judge has accepted this plea and has dismissed the suit. I am unable to agree with him.

(3.) There are two aspects of the question; one is that the award itself operates to vest the property in the plaintiff, and the other, an a ward not being one of the instruments specially dealt with in the Transfer of Property Act no writing or registration is necessary to give validity to the award. Upon the first question it may now be taken as settled law that an award may be oral. Kula Naghabushanam v. Kula Seshachalam (1863) 1 M.H.C.R. 178 at p. 180, Savlappa v. Devchand (1901) I.L.R. 26 B. 132 at p. 185, and Second Appeal 837 of 1916 have held that an oral award is as binding upon the parties as a written award. The further question is whether the award of an arbitrator is only a contract between the parties who submitted their disputes to his decision, or whether it has the attributes of a judgment as well. There are no doubt dicta in certain cases that an award of the arbitrators must be regarded as in the nature of a contract. These are cases in which it was held that the award can be varied like a consent judgment, in certain particulars. I do not think that these authorities lay down that an award has no greater effect than a contract of the parties, It is true that under the English law, as pointed by Russell on Awards at page 311, "An award of the arbitrators must be followed up by execution of the necessary documents to give efficacy to it." As Mr. Krishnaswami Iyer pointed out, an examination of the cases cited as authorities for this proposition do not fully bear out this statement of the law, "For example the case of Johnson v. Wilson (1740) Willes 248 : 25 Eng. Rep 1156, was one in which a further act would have been required to give validity to the decision even if it had been regarded as one passed by a Court of law. But there are some cases which bear out the view enunciated. I do not think that these decisions should be followed in India. In this country, decisions by Panchayats have been accepted as binding long before the regular Courts were established by the British Government and there is nothing in the second schedule to the Code of Civil Procedure to suggest that the decisions of the arbitrators are not valid until they are followed by the execution of documents. Of course in cases relating to specific performance or where one of the parties sues another for the enforcement of a particular act the decree of the Court would still leave the parties under an obligation to perform the directions given in the judgment of the Court. But where a complete adjudication of the rights of the parties is given by the judgment, the parties are concluded by it and it is not incumbent upon either of them to take further steps unless they be the modes prescribed by processual law to give effect to the decree of the court. This is undoubtedly the position so fact as the judgments of the ordinary tribunals of the country are concerned. Is the position of the arbitrators different ? In my opinion the fact that the parties have chosen to invoke the aid of a private tribunal to settle their differences should not make any difference as regards the efficacy of the decision come to by such a tribunal. So long as the resort to such a tribunal is authorised by the law of the country, I can find no justification for not giving the same finality to the pronouncement of such a tribunal as is accorded to that of the ordinary tribunals. The fact that in submitting reference to arbitration no court-fee is paid does not in the least affect the question. There are authorities which support the conclusion at which I have arrived. In Muhammad Newazkhan v. Alain Khan (1891) I.L.R. 18 Cal. 414 the question related to the applicability of the principle of res-judicata to awards of arbitrators. Their Lordships of the Judicial Committee point out that the fact that no application was made to make the award a decree of court did not render the award any the less valid. The logical result of this conclusion is to regard the award as binding in its nature as a judgment of court. In Sornavalliammal v. Muthayya Sastrigal (1900) I.L.R. 23 M. 598 the learned judges point out that the award is not simply a contract between the parties but had the effect of conferring title upon them. In Jadunath Choudry v. Kaileschandra Bhatta-charya (1909) I. L. B. 37 C. 68 it was held that the award can be pleaded in bar to a suit relating to the subject-matter covered by the award. Sheo Narain v. Beni Madho (1901) I.L.R. 23 A. 285 is also to the same effect. See also Krishna Panda v. Balarama Panda (1896) I.L.R. 19 M. 290 and Subbaraya Chetti v. Sadasiva Chetti (1897) I.L.R. 20 M. 490. In Bhau Rao v. Radhabai (1909) I.L.R. 33 B. 401, the learned Judges relying upon the dictum of the Judicial Committee in Muhammad Newazkhan v. Alam Khan (1891) I.L.R. 18 C. 414 came to the conclusion that no further instrument need be executed to give validity to the award of the arbitrators. I am prepared to follow this decision. As regards Talwar Singh v. Bahori Singh (1904) I.L.R. 26 A. 497 the learned Judges themselves point out that something had to be done in pursuance of the decision of the arbitrators. It is upon that ground they distinguish Sornavalliammal v. Muthayya Sastrigal (1900) I.L.R. 23 M. 593,1 am therefore of opinion that by virtue of the award of the arbitrators the right to recover upon the mortgage bond accrued to the plaintiff.