S. Rangarajan, J.
(1) The appellants are the plaintiffs; the first plaintiff is the son of the second plaintiff (Smt. Ram Devi), who is the second wife of Chandra Mohan (deceased). Prithi Nath (defendant No. 2) and Vijay Kumar (defendant No. 3) are the husband and son, respectively, of his daughter Smt. Tarawati (through his first wife). Chandra Mohan had executed a gift deed (Ex. D-2), a day prior to his marrying Smt. Tarawati, in favor of his brother's son, Gian Chand Kapur (defendant No. 1). Chandra Mohan did not part with the possession of the original gift deed and filed a suit for its cancellation. During the pendency of that suit Chandra Mohan and Gian Chand agreed to refer the dispute to arbitration and the parties to the suit applied to the Court on 31-5-1938 in the following terms:
'IN the above noted case, the parties, of their own accord and free will appoint Rai Bahadur Mr. Harish Chander Advocate Chandni Mahal, Delhi, as the sole arbitrator for the decision of this case. Whatever decision given by the arbitrator, in this case, without any favor, will be acceptable to the parties. They will not raise any objection to it. Hence by means of this application it is prayed that this suit may be entrusted to the arbitrator for decision. The defendant is fully aware that Rai Bahadur Harish Chander. Advocate is the counsel for the plaintiff'.
(2) The Arbitrator, Shri Harish Chander, Advocate, passed an award on 20-6-1938 as follows:
'PAGE97 Award I was appointed an arbitrator under Schedule 2 Paragraph I of the Code of Civil Procedure in this suit by the parties. The Parties have compromised the matter as under : (i) That Chandra Mohan plaintiff should remain in possession of the house in dispute during his lifetime. He will be entitled to realise rents and liable to make repairs. But his interest in the house will be that of life time only and he shall not be entitled to alienate the said house in any manner. After his death the house shall be divided as under: (a) One-third of the house will go to his daughter Mst. Tara Wati who shall have a life interest only in the said one-third portion and after her death the said portion to go to her son absolutely. (b) One-third to go to Cyan Chand defendant. (c) And the remaining one-third to go to Prem Narain, Rup Narain and Kishan Narain Kapoor minor sons of Mahendra Mohan another brother of Chandra Mohan plaintiff. This compromise to be in the nature of a family arrangement binding on the parties. Page 99. A compromise duly signed by the parties is also submitted herewith. thereforee the plaintiff's suit may be decreed and a decree passed in the terms of the compromise. Parties to bear their costs. 20th June, 1938. (Sd.) Harish Chandra Arbitrator'
(3) On 20-6-1938 the learned Sub Judge 1st Class, before whom the suit was pending, directed the award to be attached to the decree and passed a decree in terms of the award, the parties having not assailed the award filed by the Arbitrator. But the fact remains that there was no possession as stated in the decree passed by the Court and the compromise was filed setting out the terms of the award as the compromise arrived by the parties. Chandra Mohan died on 21-5-1947. Smt. Tarawati pre-deceased Chandra Mohan but the exact date of her death is not known. A question was raised as to whether 1st plaintiff was the son of Chander Mohan on which question the finding has been in his favor.
(4) In June, 1953 Prem Narain, Rup Narain and Kishen Narain sons of Mohinder Mohan another brother of Chandra Mohan instituted a suit for accounts and recovery of one-third share in the rents and profits from the suit house which was in the exclusive possession of Gian Chand. Mohindar Mohan, Smt. Ram Devi, Rabinder Mohan and Vijay Kumar (son of Smt. Tarawati) were also defendants in the said suit. Gian Chand alone contested the suit and a preliminary decree for rendition of accounts was passed. This decision was set aside in appeal and the suit was remanded for a fresh decision after framing a number of issues. A preliminary decree for taking of accounts was again passed and it was held that the three plaintiffs in that suit were entitled to claim one-third' share of rents and profits of the property realised by Gian Chand after the death of Chandra Mohan. The claim of Rabindra Mohan and Smt. Ram Devi (defendants 3 and 4 in that suit) for one-third share of rents and profits realised by Gian Chand was disallowed. Gian Chand, on the one hand, and Rabindra Mohan and Smt. Ram Devi on the other, filed separate appeals. The appeal of Gian Chand was dismissed and the other appeal by Rabindra Mohan and Smt. Ram Devi was allowed; they were held entitled to recover one third share of rents and profits realised by Gian Chand. Gian Chand thereupon filed two appeals against the decision of the appellate Court in both the appeals. G. L. Chopra, J. (of the Punjab High Court) allowing the appeals by Gian Chand dismissed the suit as not being maintainable. The claim of Smt. Ram Devi and Rabindra Mohan that the plaintiffs could not succeed to the property in preference to Vijay Kumar, was not gone into. The suit was not held to be maintainable in the view that Prem Narain and others who were not parties to the award and the compromise could not claim any right in the award and that the award could not go beyond the agreement or bind the persons who were not parties to the reference or suit and was, thereforee a nullity so far as they were concerned.
(5) The present suit, out of which the appeal arises, was filed by Rabindra Mohan and his mother Smt. Ram Devi against Gian Chand, Prithi Nath and Vijay Kumar for partition and separate two third share in the suit property and for rendition of accounts etc. Prithi Nath and Vijay Kumar were added by the plaintiffs on the basis of objection taken by the defendant No. 1 that they were also necessary parties to the suit.
(6) It is needless to set out the issues which were framed by the trial Court; it is sufficient to notice the following findings :
(A)The judgment of Chopra, J. did not operate as rest judicata to bar the present suit. (b) Smt. Ram Devi was the legally wedded wife of Chandra Mohan, and Rabindra Mohan was the son by such marriage. (c) Defendant No. 1 was not in exclusive possession of the house; the plaintiffs also were in possession. (d) The right to sue accrued to the plaintiffs on the date of the judgment of Chopra, J. (1612-1959) and the present suit which was instituted on 6-4-1960 was in time. (e) The award was not compulsorily registerable. (f) The award was void and illegal and hence the gift deed was operative until it was set aside in accordance with law and the present suit had to fail.
(7) Discussion in this appeal, however, centered round mainly on the questions whether the award was valid and whether the present suit was maintainable without the gift deed of Chandra Mohan being set aside. Shri B. P. Maheshwari, learned counsel for Respondent No. 1, and Shri A. P. Jain who followed him on behalf of Respondent No. 1, attacked the award and the decree passed on such award on several grounds. They contended that the award went beyond the scope of the reference and the award was, thereforee, void. This submission is based primarily on the view that the gift deed alone was the subject matter of the suit but not the suit house. A perusal of the plaint (which is marked Ex. D-4 printed pages 131 to 133) shows that a prayer had been made for cancelling the gift deed which related to the suit house. It is mentioned therein that Chandra Mohan, who was a simpleton, became afraid that after the marriage of Smt. Tarawati she might lay claim to this house and that Gian Chand, helped by his father-in-law (Ram Narain), represented to Chandra Mohan that the gift deed of the suit house in favor of Gian Chand would serve the purpose. The gift deed was registered a day before the marriage of Smt. Tarawati (on 29-6-1957) and was got attested from her bridegroom (Prithi Nath). Chandra Mohan continued to be in possession of the whole property as well as the gift deed and the complaint was that Gian Chand did not have the gift deed cancelled in spite of his being asked to do so by Chander Mohan. The cause of action was mentioned as the failure on the part of Gian Chand to have the gift deed cancelled. The restricted view, contended for by Shri Maheshwari, that the said suit related only to the validity of the gift deed but not to the property in respect of which the deed had been executed does not commend itself to us. We hold that the subject matter of the suit was really the house concerning which a controversy had arisen on account of the execution of the gift deed. The reference, extracted above, had specifically mentioned 'the suit' having been entrusted to the arbitrator for decision. It was not, thereforee, a case of the arbitrator having merely to decide whether the gift deed should be cancelled or not. Not only the arbitrator but also the parties understood , the reference as involving the suit house; the parties agreed to the arbitrator giving the award in the above-said manner by way of a compromise, which fact has been specifically set out in the award. In addition the parties field a compromise before the Court setting out the terms of the award (itself based on a compromise) and asked for a decree to be passed in terms of the said compromise. That the decree referred to the award but not the compromise could not make any difference, having regard to not only the absence of any objection to the award by any of the parties to the suit but also by reason of their having specifically tiled a compromise setting out the terms of the award as the compromise arrived at by the parties.
(8) It was further contended on behalf of the respondent No. 1 that the whole award became invalid by reason of a provision having been made in the said award for one third of the suit property going to persons who were not parties to the reference: Prem Narain, Rup Narain and Kishen Narain, minor sons of Mohinder Mohan, another brother of Chander Mohan. As we understand the true legal position there could be no legal objection to persons not being parties to the said award or the compromise decree getting the benefit of the said compromise. The rule in Tweddle v.Atkinson 30 L.J. Q.B. 265 0, namely, that a stranger to a contract cannot sue, does not apply to India; the legal position has been discussed at length by a Full Bench of the Madras High Court in Subbu Chetti v. Arunachalam Chettiar A.I.R. 1930 Mad 382 O. All that has been possible for the learned counsel for Respondent No. 1 to contend before us was to invite our attention to a few decisions which do not hold anything more than a person not a party to the award or decree not being bound by the same. This is totally different. Even earlier than the above Full Bench decision, a Division Bench of the Madras High Court held in A. R. Arumugasamy Nadar v. Kumara Ettappaswami Maniagarar A.I.R. 1929 Mad 379 that where a decree, proceeding on the award of arbitrators, which itself only embodied the terms of a razinama between the parties, created a charge on immoveable property in favor of a third person, that person could enforce the charge although he was not a party to the transaction in which the charge was created. The Judicial Committee of the Privy Council held in Mt. Dan Kuer v. Mt. Sarla Devi (A.I.R. 1947 Pri C 8 that when in the course of effecting a partition of Joint Hindu Family property by arbitrators the award created a charge for maintenance of a family member over property allotted to a certain male member, the maintenance-holder can sue on a contract embodied in the award and enforce the charge even though she was a stranger to the contract.
(9) The decision of Chopra, J., that Prem Narain and his brothers could not file a suit claiming the benefit of this award, does no doubt technically speaking conclude this question concerning the parties to that suit. We have, nonetheless, referred to the true legal position because by reason of Prem Narain and his brothers having been given the benefit under the said award the decree based on the said award does not become illegal; Chopra, J. himself did not hold that the award or decree was illegal; No argument was advanced before us concerning the invalidity of the award, and the compromise decree on the ground parties to the suit but also by reason of their having specifically tiled a compromise setting out the terms of the award as the compromise arrived at by the parties. of want of registration when it was realised that the award and the terms related to the suit house which was the subject matter of that suit. Under Order XXIII Rule 3 of the Code of Civil Procedure the Court can refuse to incorporate in the decree any portion of the compromise which does not relate to the suit but the expression 'relates to suit' is wide enough to embrace such terms of compromise as consideration for the compromise, but the operative part of the decree should be confined to the subject matter of the suit which can be enforced as between parties under Section 47 of the Code of Civil Procedure (vide Vishnu Sitaram Auchat v. Ramchandra Govind Joshi Air 1932 Bom 466. The subject matter of that suit was the present suit) property.
(10) The learned Subordinate Judge has followed, in his judgment) under appeal, the decision of the Judicial Committee of the Privy Council in Ram Protap Chamria v. Durga Prosad Chamria and others (53 Indian Appeals page 1) as supporting the contention that the award was invalid. It is seen that in that case the award, passed on a reference made through court, did not discriminate between the matters in dispute which were subject matter of the suit and those which were not. That is not the case here.
(11) The learned Subordinate Judge had relied in this connection, upon Ladha Mal v. Sardari Lal and others A.I.R. 1935 Lah.30 where the award was held inadmissible because it was not registered when it was required to be registered concerning a part of the subject matter of the award, and that it was not possible to separate one part from the other. The said decision also has no application whatever.
(12) The learned Subordinate Judge had also relied upon Smt. Beherani v. Dhormu Gowdo : AIR1960Ori223 for holding that the award was 'otherwise invalid'. Mohapatra, J. held that the award which allotted property to a third person a widowed daughter) thus being beyond the terms of the referenced was bad. But he also made it clear that if the parties to the .award, that is, the father and two sons in that case, had on a subsequent arrangement amongst themselves made some allotments in favor of the plaintiff, the widowed sister of the defendant, it would be binding on the defendant.
(13) It was also contended, though somewhat feebly, that the reference to arbitration was itself invalid because the parties to the reference had expressly agreed, in advance not to raise any objection to the decision to be given by the arbitrator. In support of this submission reliance was placed on Parasram Gangandas v. Topandas Dholandas and others A.I.R. 1928 Sin 81. In that case there was an agreement to recognise an award even if it went beyond the scope of the dispute mentioned in the reference. This totally different. But this question is academic in view of the parties having themselves compromised before the A arbitrator and the compromise decree being passed in terms of the award without any objection being taken to the award. Any objection to the award or the terms of the award which were made the subject matter of the compromise on foot of which a decree was passed would be altogether futile.
(14) The next submission was that the gift deed had not been set aside and the appellants, thereforee, could not put forward any claim until the gift deed is set aside. This is the ground on which the learned Subordinate Judge proceeded.. But it is clear that the gift deed could not co-exist with the award and decree; if the latter are valid the gift deed would automatically be invalid. One of the terms of the disposition under the award and decree was that Chander Mohan should remain in possession of the suit house during his life-time though it was to be by way of a life-interest. If the gift deed was valid Chander Mohan would have no right to be in possession during his life-time even as a life tenant, for Gian Chand would get the entire suit property in presenti; he would not have had to remain content with one-third share and that too after the death of Chander Mohan. In these circumstances we are unable to agree with the learned Subordinate Judge who held that the gift deed was valid until it was set aside; we hold that the gift deed had been set aside by reason of the award (itself based on a compromise) and the decree (again based on a compromise).
(15) The further question that arises is one concerning the legal effect of the decision of Chopra, J. In the light of the finding that Prem Narain, Rup Narain and Kishen Narain (sons of Mohinder Mohan, brother of Chander Mohan) not being entitled to enforce the one-third interest in the house which they got under the compromise, award and decree and the gift deed having been set aside as held by us, the result is that the gift of one-third share to Prem Narain and his two brothers failed. That interest inhered in Chander Mohan himself. The first plaintiff and his mother (second plaintiff) would be entitled to that one-third share of Chander Mohan by succession. The finding of the learned Subordinate Judge is that the second plaintiff was the legally wedded wife of Chander Mohan and that the first plaintiff was their son. This finding itself could not be seriously challenged because it has been rested not only on the oral evidence which has been accepted by the learned Subordinate Judge but also on certain documents. Ex. P.2 (dated 16-10-1941) and Ex. P.3 (dated 25-10-1941) were direction-deed and letter, respectively, addressed, by Chander Mohan to his brother, refer to second plaintiff as his 'Gharwal' (wife). This admission was made ante litem motem. The learned Subordinate Judge also relied upon some judgments (Exs. P. 6, P. 7 and P. 9) where the second plaintiff was held to be the legally-wedded wife of Chander Mohan. In addition, there was a copy of the birth entry of the first plaintiff (dated 12-6-1942) wherein the plaintiff has been mentioned as the son of Chander Mohan. As against all these there was only the oral testimony on behalf of Gian Chand which has been rightly disbelieved by the learned Subordinate Judge. We are not referring to it at any length since this finding has not been seriously challenged. The plaintiffs/appellants, thereforee, are entitled to the one-third share in the suit house. There is - there could be - no dispute concerning the onethird, share of Gian Chand.
(16) The next question is whether Vijay Kumar would be entitled to the one-third life interest given to Smt. Tarawati or whether that share can also be claimed by plaintiffs/appellants or Gian Chand. The written statement filed by the garden ante litem (an officer of the Court) of Vijay Kumar consisted merely of denials of the allegations in the plaint. Despite this deficiency it is clear that Smt. Tarawati had only one-third share in the suit house for her life-time and her son got a vested-remainder in respect of the said one-third. This (one-third) share of Vijay Kumar could be claimed neither by the plaintiffs/appellants nor by Gian Chand.
(17) In the result the decree of the lower court dismissing the plaintiffs' suit in toto is set aside; the plaintiffs/appellants will be entitled to a preliminary decree for partition, separate possession of one-third share of the suit property (instead of two third which was claimed) and for rendition of accounts by defendant No. 1. Since neither the plaintiffs/appellants nor Gian Chand have succeeded fully there will be no order as to costs either in the lower court or in this Court. The Appeal is accepted accordingly. The parties will appear before the Distt. Judge on 17-7-72.