ORDER
1. Heard the learned Counsel on both sides.
2. The short question, which arises for decision in this CRP, is whether (he award dated 20-2-1993 passed by the arbitrators is inadmissible in evidence for non-payment of requisite stamp duty and for want of registration. The facts leading to the Revision Petition may be briefly stated :
The petitioners herein and the respondent are brothers. There was a partition of (heir family properties in the year 1985 during the life-time of their father Gangaiah. In the said division the father was allotted one house property situated in Devi Road, Nizambad. The father subsequently died in June, 1991. After the death of the father, the respondent herein came to be in sole occupation and possession of the house property which was allotted to the father in the earlier partition. After the death of the father, disputes arose between the brothers regarding the partition of their properties. The disputes were referred by (hem to arbitrators on 16-7-1992. The arbitrators passed their award on 20-2-1993. The arbitrators decided that it was not desirable to disturb the partition made in 1985. So far as the house property belonging
to the father, which was in the sole occupation of the respondent, is concerned, the arbitrators decided Ihat the value of the said property is to the tune of Rs.13,00,000/-. In the award passed by them the arbitrators directed the respondent to pay Rs.6,00,000/- to the first petitioner, Rs.6,00,000/- to the second petitioner and Rs.1,00,000/- to the third petitioner within three months from the date of the award if the respondent wanted to retain the said house property for himself. If the respondent failed to pay the said amount within the stipulated time, he was to deliver possession of the said house to petitioners I and 2 herein who shall be entitled to enjoy the same with equal rights and petitioners I and 2, in turn, were directed to pay a sum of Rs.1,00,000/- to the third petitioner. On an application filed by the petitioners, the arbitrators filed the award into the Court. Thereafter the petitioners filed OP No.14 of 1993 to make the award rule of the Court. At the time of trial when the award was sought (o be marked, the respondent raised an objection with regard to the admissibility of the award since it is not properly stamped and it is also not registered. After hearing bolh the parties, the lower Court, by the impugned order dated 8th September, 1998, held that the award is inadmissible in evidence for want of stamp duty and registration.
3. Sri P.S. Murthy, the learned Counsel for the petitioners has contended that the award, by itself, did not create or purport to create or extinguish righls in immoveable property, that the award was merely for payment of a sum of Rs.13,00,000/- by the respondent to the petitioners herein and as such it did not require registration and no stamp duty also is required to be paid thereon. He further contended that the main intention of the arbitrators was only to award a sum of Rs. 13,00,000/- and the ultimate consequence of non-payment of the said sum is immaterial. In support of his submissions, the learned Counsel for the petitioners placed reliance on the full Bench judgment of this Court in
Venkataratnam v. Chelamayya, , which was confirmed by the Supreme Court in M Chelamayya v. M Venkataratnam, , and a judgment of this Court in G. Satyanarayana v. G. Venkalachalapathi, .
4. On the other hand Sri S. Venkateswara Rao learned Counsel for the respondent, tried to sustain the order of the lower Court by placing reliance on the judgment of the Supreme Court in Ratan Lal v. Parushottam, .
5. The question whether the award is admissible or not has to be decided primari ly on the basis of the recitals and the terms and conditions of the award itself. Indisputably if the award by itself creates or extinguishes rights in immoveable property of the value of more than Rs.100/-, it requires registration and also stamp duty. In deciding this question the terms of the award have to be looked into as a whole. In the instant case, the arbitrators were of the view that it was not desirable to disturb the partition made earlier in 1985. Since the arbitrators found mat the respondent herein was in exclusive possession and enjoyment of the house property, which was allotted to the father in the earlier partition and the value of the said property was estimated by the arbitrators at Rs. 13,00,000/-the arbitrators directed the respondent herein to pay a sum of Rs.13,00,000/- to the petitioners for retaining the said property for himself. On the other hand if the respondent was not willing to pay the said sum of Rs,13,00,000/- to the petitioners, he was to deliver possession of the said property to the petitioners 1 and 2 herein who should enjoy the same with equal rights and who, in turn, should pay a sum of Rs.1,00,000/- to the third petitioner. It must be remembered that as this property belonged to their father, all the petitioners as well as the respondent were entitled to shares therein. It may not be necessary for the purpose of disposing of this revision petition to go into the question
whether the mother and sisters are also entitled to shares in the said property since they are not parties to (his proceeding. The fact, however, remains that the properly in question is, in law, the joint property of the petitioners and the respondent. In substance, by the impugned award the arbitrators allotted this properly to the respondent exclusively subject to payment of Rs.13,00,000/- by him to the petitioners. In that sense the award clearly purported to create exclusive rights in the property in favour of the respondent. On the other hand, if the respondent failed to pay the sum of Rs.13,00,000/- to the petitioners, the arbitrators decided that the respondent should deliver possession of the property to petitioners 1 and 2 to be enjoyed by them with equal rights and they, in their turn, were directed to pay a sum of Rs.1,00,000/- to the third petitioner. Thus the award of the arbitrators purported to extinguish the rights of the respondent in the same and create rights in favour of the petitioners 1 and 2. Viewed in any manner, the award purported to create/extinguish rights in immoveable property worth more than Rs.100/- and as such it requires registration. The decision reported in Ratan Lal v. Purushottam (supra) is a direct case where the arbitrators passed an award allotting the partnership assets and liabilities to one partner making him absolutely entitled to the same in consideration of a specified sum of money to be paid by him to the other partner. The Supreme Court held that the award thus purported to create rights in immoveable property of the firm worth above Rs. 100/-and the award is compulsorily registerable under Section 17 of the Registration Act and, if unregistered, cannot be looked into and the Court could not pronounce judgment in terms of the award under Section 17 of the Arbitration Act which presupposes the existence of an award which can be validly looked into by the Court. The Supreme Court further observed in the said case that the award, being an inseparable tangle of several clauses, cannot be enforced as to the part not dealing with immoveable property. This case
answers the contention of the (earned Counsel for the petitioner that the clause directing payment of Rs.13,00,000/- in the award in question is sevarable from the other clauses and the same can be enforced as it docs not require registration. For the self-same reason, the submission of the learned Counsel for the petitioners that the immediale intention of the document only is material and not the ultimate consequences or its collateral effects, cannot be accepted. The award must be read as a whole and the effect of the recitals has to be taken into consideration. I am, therefore, of the view that the two decisions cited by the learned Counsel for the petitioners cannot render any assistance to him.
6. For the aforesaid reasons, I do not find any infirmity in the order passed by the lower Court. The CRP is, therefore, dismissed but without costs.