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Varisaimuthu Chettiar and ors. Vs. Samimuthu Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1938Mad55
AppellantVarisaimuthu Chettiar and ors.
RespondentSamimuthu Chettiar and ors.
Cases Referred and Badri Chowdhri v. Mt. Champa Chandharain
Excerpt:
- - though the word 'declare' might be given a wider meaning, they are satisfied that the view originally taken by west j......respondents sued to recover possession of certain immovable property. during the pendency of the suit, the parties agreed to refer their differences to arbitration, and did so. when they came before the arbitrator it was agreed that he should also settle disputes between them relating to three other pieces of land. the arbitrator in due course gave his award which decided the questions of ownership of the four parcels of land. the award was then filed in court with a view to its being made a decree. objections were however raised by the respondents who took advantage of the fact that the award dealt with matters outside the scope of the suit. district munsif decided that the award could be made a decree of the court, but only so far as it affected the piece of property in suit. he.....
Judgment:
ORDER

Leach, C.J.

1. This petition raises the question whether an award in arbitration proceedings without the intervention of the Court requires registration before it can be filed in Court. In O.S. No. 19 of 1927 of the Court of the District Munsif, Paramakudi, the respondents sued to recover possession of certain immovable property. During the pendency of the suit, the parties agreed to refer their differences to arbitration, and did so. When they came before the arbitrator it was agreed that he should also settle disputes between them relating to three other pieces of land. The arbitrator in due course gave his award which decided the questions of ownership of the four parcels of land. The award was then filed in Court with a view to its being made a decree. Objections were however raised by the respondents who took advantage of the fact that the award dealt with matters outside the scope of the suit. District Munsif decided that the award could be made a decree of the Court, but only so far as it affected the piece of property in suit. He refused to recognize its validity so far as the other three parcels of land were concerned. This decision was upheld by this Court in an application for revision. The petitioners then at tempted to file the award in Court under the provisions of Clause 20 of Schedule 2, Civil P.C. The respondents objected on the ground that the award had not been registered is accordance with the provisions of Section 17, Registration Act. The District Munsif upheld the objection, and refused to file it. An appeal followed to the Subordinate Judge, Ramnad, but was dismissed. This Court is now asked to exercise its powers under Section 115, Civil P.C., and to direct the District Munsif to file the award.

2. The only question for consideration is whether the award is a document within the purview of Section 17, Registration Act. Sub-section (1) sets out what documents shall be registered and they include non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Sub-section (2) gives a list of instruments which do not require registration. Clause (vi) of this sub-section exempts any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding. Before the passing of the Transfer of Property (Amendment) Supplementary Act, 1929, this clause also excepted awards, but the words 'and any award' which appeared in the Clause were deleted by that Act. Although the reference to awards has been deleted from the Clause, it is argued by the learned advocate for the petitioners that an award of the nature of the one in suit does not come within the purview of Sub-section (1).

3. The Sub-section says that a non testamentary document which 'declares' any right, title or interest in immovable property of the value of one hundred rupees and upwards does require registration and; the question resolves itself into whether the award does 'declare' a right of this nature. The word 'declare' has been the subject of much legal argument in the Courts of this country, but it has now been defined by the Privy Council. In the case in Bageshwari Charn Singh v. Jagarnath Kuari their Lordships accepted the definition, given by West J. in Sakharam Krishnaji v. Madan Krishnaji (1880) 5 B 232. West J. pointed out that the word 'declare' implies a declaration of will, not a mere statement of fact,' and went on to say:

A deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense; but a letter containing an admission, direct or inferential, that a partition once took place, does not 'declare' a right within the meaning of the section.

4. Viscount Dunedin in delivering the, judgment of their Lordships observed:

Though the word 'declare' might be given a wider meaning, they are satisfied that the view originally taken by West J. is right. The distinction is between a mere recital of a fact and something which in itself creates a title.

5. The judgment of West J. had been approved of by this Court in an earlier case, Ranganayaki Ammal v. Virupakshee Rao Naidu (1923) 10 A.I.R. Mad 621. The award under discussion declares that the petitioners are entitled to two plots of property and the respondent to the third plot. The relevant portion of the award is as follows:

On perusing the entire document produced by both the parties, and other witnesses, and also on hearing the oral representations made by both parties, and also on inspecting the locality as desired by both parties, my findings are as follows: (a) that the plots A and C in the sketch submitted herewith, belong to the Mangaputhur Chettis of this place and form part of the Nandavanam attached to Minakshi Sundareswaral temple at Paramakudi, to which defendants 6, 7, 8 and 10 are trustees; (b) that neither the plaintiff nor any other defendants have any right or interest in them (plots A and C); (c) that the plot B in the sketch belongs to the plaintiff, and that the defendants have no manner of right or interest in them.

6. There can be no doubt that the arbitrator is here declaring who are the owners of these particular plots. He was asked to decide the question of ownership and after hearing the evidence he gave his decision. His award therefore operates to declare the rights of the respective parties in these pieces of land. The award cannot be classified as a mere recital, but as something which in itself creates a title. In Jitendranath De v. Nagendranath De : AIR1934Cal816 a Bench of the Calcutta High Court held that registration of such an award is compulsory and that if it is not registered it is inadmissible in evidence Under Section 49, Registration Act. Similar decisions have been given by the Allahabad High Court and the Patna High Court: Ch. Bachchan Lai v. Narotham Datt : AIR1933All59 and Badri Chowdhri v. Mt. Champa Chandharain (1937) 24 A.I.R. Pat 183. There is therefore abundant authority in support of the decision challenged in this petition. The petition therefore fails and must be dismissed with costs.


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