1. This is a defendant's appeal from an order filing an award which was delivered in an arbitration proceeding without the intervention of the Court. On behalf of the respondents the first objection taken was that in view of the provisions of para. 21, Sub-section (2), no appeal would lie from a decree incorporating the award. This contention overlooks the express provision of Section 104(1)(f) which specifically provides an appeal from an order filling an award as distinct from a decree incorporating the award. There is accordingly no force whatsoever in this objection. The award is dated 11th March 1931, and the application for filing it was made on 7th May 1931. The award was therefore governed by the amended T.P. Act, 1929, and the amended Registration Act, 1929.
2. Before the amendment, Section 17(6), Registration Act, 1908, made an exception in favour of any decree or order of a Court and any award. Accordingly an award even though it divided up immovable properties was not compulsorily registrable. By Section 10, T.P. (amendment) Supplementary Act, 1929, the words 'and an award' have been deleted from the section in the Registration Act. The result therefore is that an award is no longer excepted and if it amounts to a nontestamentary instrument purporting to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of Rs. 100 or upwards to or in immovable property it is compulsorily registrable. There is no doubt that the award in dispute in this case amounts in substance to a deed of partition purporting to divide up considerable moveable and immovable property and to allot them to the parties named therein, creating and extinguishing the rights of the other parties in the shares allotted. The document therefore required registration and apparently owing to some oversight or ignorance of the new amendment it was not presented for registration within the time, allowed by law. Under Section 49, Registration Act, a document, which is compulsorily registrable, if not registered, cannot be received as evidence of any transaction affecting such property. The Court below therefore should not have acted upon it and should not have accepted it; in evidence. The point that it was not admissible in evidence was raised in the Court below, but the Court held that registration was not necessary. Apparently its attention was not drawn to the recent amendment. We must accordingly hold that the document is not admissible.
3. The learned Advocate for the respondent has next urged before us that the award is separable and that that portion of it which deals with moveable properties should be enforced. There is no doubt that where part of an award is found to be invalid as being in excess of the arbitrator's powers and is separable from the rest, the remainder of the award, being good, can be maintained: Amir Begam v. Badruddin Husain A.I.R. 1914 P.C. 105. But in the present case we find that it is not possible to split up the award into two parts. In the first place, Mt. Savitri, a daughter of the deceased, who has been given some: rights under it, was no party to the: proceedings and she and her heirs have been given interest in some cash and she: has been given property in lieu of maintenance and a house for her residence. The immovable and moveable properties have been divided among the parties to the arbitration and compensations have been given by the arbitrators in cash for the differences in the values of the properties allotted to the parties. Similarly some maintenance allowance has been provided for Mt. Plum do, another widow, and she also has been given a right of residence in the house, although she is not a party to the proceedings. It is obvious that the arbitrators, in making the partition, must have taken into account the value of the immovable properties as well as the' amount, of cash available and distributed them treating the entire property as forming part of one estate. It would not be fair to the parties to split up the, award and to make a new award in favour of the respondents. We must treat the award as one inseparable document, and being inadmissible in evidence for want of registration we must reject it. The result is that this appeal is allowed, the order of the Court below is set aside and the application of the contesting respondents for the filing of the award is dismissed with costs in both Courts including in this Court-fees on the higher scale.