S.K.MAL LODHA, J. - (1.) THESE two appeals under section 39 of the Arbitration Act (No. XX of 1940) (here in after referred to as 'the Act') are directed against the common order dated November 9,1976 passed by the District Judge, Pratabgarh (Camp Chitorgarh) in Civil Original Suit No. 11 of 1975. As both the appeals are directed against the same order and were heard together, I consider it proper to dispose them of by a common judgment.
(2.) AHMED Admani, who is appellant in Civil Misc. Appeal No. 11 of 1977 and M.A. Admani who is appellant in Civil Misc. Appeal No. 194 of 1976 are real brothers. They were partners in the partnership firm M/s Mewar Bone Mills, Gosunda. The firm was dissolved by the aforesaid partners with mutual consent by Partnership Dissolution Deed Ex. A8 dated April 4, 1974. The dissolution of the aforesaid partnership took effect from April 1, 1974. Under clause 12 of Ex. A8, the matter was referred to the arbitrators. The arbitrators gave their award on June 3, 1975. Tile arbitrators gave notice under Section 14(1) of the Act to the parties on the same day. The Award was filed on July 9, 1975 vide application dated June 30, 1975 by the arbitrators Ahmed Hussain, Noor Mohamad and R.L. Shah. The learned District Judge, Pratabgarh (Camp Chiltorgarh) issued notices to the parties. It may be stated here that A. Admani will here in after be described as the petitioner and M.A. Admani as non -petitioner The date fixed for filing of the objections, if any, by the learned District Judge was October 11, 1975. A Admani filed his objections in writing on August 16, 1975. The objections were filed within the period of 30 days. The award was sought to be set aside on the ground of misconduct etc. A. Admani also filed objections on October 11, 1975 M.A. Admani filed his objections on August 18, 1975. He also filed reply to the objections of A. Admani. The learned District Judge framed issues in the light of the objections. I am only concerned with the issues no. 1,3 and 5 which are as under: (1) Whether the award requires registration; if not what is the effect: (2) Whether the award made by the arbitrators is within limitation ? (3) Whether the arbitrators were within their jurisdiction to pass the award as referred ? The learned District Judge by his order dated November 9, 1976 decided issue no. 1 in favour of the petitioner A. Admani and against non petitioner M.A. Admani. He held that (1) the Award requires registration and (2) that the Award made by the arbitrators is within limitation. The learned District Judge, in view of the finding arrived at by him on issue no. 1, rejected the Award and looking to the facts of the case, directed the parties to bear their own costs. M.A. Admani has filed Civil Misc. Appeal No. 194 of 1976, inter alia, on the ground challenging the rejection of the Award on the ground that as it was not registered. A. Admani has filed the appeal praying that the decision on issues no. 3 and 5 may be set aside. In other words, he has challenged the order by which the Award was held to be within limitation. I have heard Mr. M.C. Bhandari, learned Counsel for M.A. Admani and Mr. D.S, Shishodia, learned Counsel for A. Admani and have also gone through the record.
(3.) I take up S.B. Civil Misc Appeal No. 194 of 1976 first. In support of the Appeal, Mr. M.C. Bhandari, learned Counsel for M.A. Admani has raised only one contention and that is, that the learned District Judge has committed a serious error of law when he held that the Award requires registration and so, the consequences of the non -registration will follow. He submitted that the Award does not require registration. Mr. Shishodia supported the finding of the learned District Judge on issue No. 1. The agreement dated August 24, 1973 has been marked as Ex. A.9. Paras 1 and 2 of Ex. A.9 are as follows: 1. That the pieces of Agricultural lands, animals, catties, Agricultural Equipments and accessories as per part 1 and part 2, as described in APPENDIX 'A' attached here with and at present registred at Government records in any of the above two brother's name and belonging and owned jointly by them till this day, Dot equal in area of measurement but mutually agreed as equal for the purpose of drawing lots to decide the separate ownership It was further agreed that the lots should be drawn for the said part 1 and part 2 and the results should be recorded in this agreement. 2. That the lots were drawn in the presence of above mentioned three witnesses and the results were recorded as under: (a) Part 1. Shri A. Admani was declared as per the result of the lot, as the owner of the portion of Agricultural lands, animals, catties, Agricultural equipments, and accessories as described in APPENDIX 'A' attached here with. (b) Part 2. Shri M.A. Admani was declared as per the result of the lot, as the owner of the portion of Agricultural lands, animals, catties, Agricultural equipmentes and acessories as described in APPENDIX 'A' attached here with. The agreement Ex. A9 is unregistered. The Partnership Dissolution Deed Ex. A.8 dated April 4, 1974 is also unregistered. In Ex. A8 M.A. Admani and A. Admani have been described as first party and second party respectively. Para 2 of Ex. A8 is as under: That all the assets and liabilities (as shown in clause 7 of this deed) of the firm M/S Mewar Bone Mills Gosunda, along with goodwill of the business have been allotted and assigned to the first party except those given to the second party as described below: (1) Vacant place of land lying on the western side of the residence of the second party up to public road on the west parallel to the boundary wall of the bunglow (2) A godown in a size of 10 x 40 - -400 Sft. shall be built at the expenses of the first party in lime and stone with Chittor stone flooring covered with C.G.I. sheets or stone slabs with doors and windows as suggested by the second party. This will be built within 4 months from today. The site of this godown will be the vacant land lying worth (a) to the second party's residence bunglow (1). (c) For the clarification it is mentioned that the first party and the second party are real brothers and owned other properties jointly. The same has been divided by us and memorandum of partition signed by both of us was drawn on 24th August, 1975, with a rough sketch made and signed by both of us on 23 -10 -73. The same division stands. (d) The first party shall pay a sum of Rs. 45,000/ - (Rupees forty five thousand only) to the second party. As the first party has no ready cash to pay the second party has agreed to accept the payment of this amount in monthly instalments of 12,00/ -(Rupees twelve hundred only) first instalment payable on 1 -11 -1974. In case the first party makes regular payments of instalments, with out any default for not more than 3 instalments on continuation, the second party will only be entitled to Rs. 40,0J0/ - (Rupees forty thousand only) in total. Para 6 of the Ex. A8 reads as follows: The second party hereby relinquishes releases assigns disclaims and convey all his rights and interest in the partnership properties, outstandings privileges, trade names, trade marks etc. in favour of first party. It is also relevent to refer to para 12, which is as under: That if at any time there arises any dispute between the parties regarding the interpretation or implementation of this deed of dissolution, the same shall be referred to three arbitrators (i) Shri Abdul Aziz Paniwala of Bombay and (ii) Shri Noor Mohamed Mansoori contractor of Udaipur and (iii) Shri Ahmed Hussaein contractor r/o Udaipur whose decision whether unanimous or by majority shall be final and binding upon both the parties. If any of the arbitrator is unable to arbitrate, the remainining arbitrators shall appoint the third one. The relevant portions of the Award dated June 3, 1975, given by the Arbitrators is as under: In his counter -claims filed on 10 -2 -1975 the respondent has claimed that this Karkhanawali Pati bearing khasra No. 291/2 measuring 3 bighas, residential bungalow and cow shed are the assets of the Mewar Bone mill by virtue of para 2 there of. As such the petitioner is not entitled to hold the possession of the karkhanawali pati, the portion of the residential building in which the petitioner is living at present and this cow shed. The respondent has, therefore, urged that since the petitioner has failed to carry out and implement the terms of the deed of dissolution this tribunal is required to get them implemented and possession of the same delivered to him. The respondent has based this claim on the ground that according to the deed of dissolution of the Mewar Bone Mill and its' assets become the property of the respondent, except those given to the petitioner vide para 2(a), (b), (c), (d). It is contended that theMewar Bone Mills consists of all the lands and building including the factory situated at Gosunda and these are the assets of the Mewar Bone Mills.... We are therefore, unable to accept this claim of the respondent. It is, therefore, rejected, The claim with regard to rent of the residential bungalow in possession of the petitioner and damages for loss of produce of the agricultural land is also rejected.... The well in the factory area exclusively belongs to the Mewar Bone Mills as it forms the part of its assests. The petitioner is not entitled to irrigate his fields or use its water for any other purpose. There is absolutely no question of sharing its water between the parties. The petitioner Shri A. Admani is hence forth stopped from making use of the well water for irrigation or any other purpose He may make his own arrangement of irrigating his share of the lands and the residenrial bungalow.... The respondent shall construct a godown in a size of 10 x 40 x 400 sq. ft. for the petitioner on the vacant land lying south to the petitioner's residence bungalow in terms of para 2 (a) of the deed of dissolution and according to the specifications laid down there in at his (respondents') own expenses. The respondent shall remain in sole and exclusive possession of the well of the Mewar Bone Mill and the petitioner is here after restrained from using its water for irrigation and house -hold purposes and he is prohibited from interfering in the possession of the respondent in any manner.... The learned District Judge has found that the Award requires registration as it creates right in immovable property under Section 17(1)(a) of the Registration Act and as it was unregistered, he rejected it. Section 17(1)(b) of the Registration Act reads as follows: 17. (1) The following documents shall be registred, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act, No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely : - (a).... (b) Other non -testamentary instruments which purportor operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contigent, of the value of one hundred rupees and upwards, to or in immoveable property; (c) .... (d) .... (e) ....;