(1.)THE following Judgment of the court was delivered by :
(2.)THIS is an appeal against the judgment and order of the Nagpur High court and arises out of proceedings under the Indian Arbitration Act.
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 Se 14/09/1944, Lal Chand made a will by which he authorized his wife Samarath Bai to adopt Champalal and made certain disposition of his property. Lal Chand died on 26/09/1944. On 20/10/1944, 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 of 1944. Notices were issued to the respondent, Samarath Bai and her daughters, The will was registered on 29/12/1944. On 10/01/1945, an arbitration agreement was entered into between the appellant and the respondent and on 16/01/1945, both parties applied for stay of proceedings in the case (Misc. Judl. No. 3 of 1944) and the case was adjourned to 28/03/1945, and then was adjourned to 18/06/1945. 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 26/07/1946. The award was made on 18/10/1946. On October 21, it was f 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 15/11/1946, the appellant filed objections to the award and on 31/01/1947, 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 7/02/1947, he presented it for registration to the Sub-Registrar but the Sub-Registrar returned it as it was not accompanied by a listand particulars of the property covered by the award. On 15/02/1947, the listand 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 26/03/1947, 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 21/07/1948, 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 14/08/1948, and on August 30, the court ordered a proper application as required under the High court Rules to be filed. On 15/09/1948, an application under s. 14(2) of the Arbitration Act was filed. On 14/10/1948, the appellant filed an application for setting aside the award and therein raised various objections which were rejected and on 22/11/1949, 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 19/02/1954. The High court held that the application filed. by the respondent dated 15/09/1948, under s. 14(2) of the Arbitration Act was not within time but the original application filed by the arbitrators on 21/10/1946, 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 an 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.
In appeal before us counsel for the appellant raised six points: (1) the filing of the award was not within time as no application was made under s. 14 within the time allowed by the Limitation Act; (2) that the award required registration and was not registered in accordance with law and the mere fact that it was registered does not clothe it with legality ; (3) the First Additional District. Judge had no jurisdiction to grant three months' extension of time to the arbitrators for making the award which was granted on 26/07/1946 ; (4) that the arbitrators were guilty of misconduct; (5) that the award is in excess of the power given to the arbitrators under the agreement of arbitration and (6) even if the award was proper and legal the respondent had refused to adopt the appelant and therefore the decree should have been as provided by the award on the happening of that contingency and in the alternative the First Additional District Judge who passed the decree had no jurisdiction to take subsequent events into consideration.
(3.)IN our opinion points nos. 1, 2 and 3 are wholly without substance. The award was made on 18/10/1946, 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 Iimitation. Article 178 of the Limitation Act which was relied upon by the appellant applies to application,made by the parties and not to the filing of the award by the arbitrators.
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 tinder 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 for making the award had no jurisdiction is also not sustainable. It so happened that the court which had jurisdiction to entertain applications 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.