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Allahabad High Court
Mangali Pershad And Anr. vs Babu Ram And Ors. on 25 January, 1929
Equivalent citations: AIR 1929 All 365


1. This appeal arises out of a suit for possession of one-third share of a house. The house originally belonged to Mulu and on his death his three sons, Narpat, Ram Sahai and Alkhi became joint owners of one-third share each. Narpat mortgaged his one-third share in 1901 to his brother, Ram Sahai for Rs. 150, with possession. The plaintiffs are the son and grandson of Narpat. They allege that they redeemed the mortgage in 1922 by payment of the mortgage money to Anokhey Lal, son of Ram Sahai. They alleged that in spite of the redemption Anokhey Lal and defendants 2 to 4, who are the sons of Alkhi, refused to allow the plaintiffs to take possession; hence the suit.

2. The defence set up by defendants 2 to 4 was that in 1909 there was a partition of the house between the three brothers. The partition was in accordance with an arbitration award. According to the terms of the award Narpat relinquished his one-third share in the house in consideration of release from liability to pay the mortgage money, and the two brothers Ram Sahai and Alkhi were allotted a half share each in the house. It is pleaded, therefore, that Narpat surrendered his equity of redemption and the plaintiffs had no right to make the so-called “redemption” in 1922 and are not entitled to recover possession of Narpat’s share.

3. The plaintiffs contend that they are not bound by the award of the arbitrators since they were no parties to it. Their father signed the award but his action is not binding upon them since it amounted to a relinquishment of his interests without legal necessity and without any benefit to the family It was also pleaded that the arbitration award was inadmissible in evidence for want of registration.

4. The Court of first instance repelled the pleas raised in defence and decreed the plaintiffs’ claim. The lower appellate Court took the view that the arbitration award was valid and binding upon the plaintiffs and therefore dismissed their claim in to. Three principal points are raised by the learned advocate for the appellants.

5. The first point is that the award is inadmissible in evidence for want of registration since it amounts to a deed of partition. He relies upon the ruling of the Calcutta High Court reported in Tek Lal Singh v. Sripati Chawdhury [1913] 19 C.L.J. 123. In that ruling it was observed that a document which purports to be an award may amount to something more than an award. If the parties to the reference affix their signatures to the award in token of their acceptance of the decision of the arbitrators the award may become thereupon a deed of partition and may as such become compulsorily registrable. These observations, however, were obiter dicta. The Court held that the document in question was an award, and as such was not compulsorily registrable.

6. On the other side we have been referred to a decision of the Punjab Chief Court in the case of Wazir Ali v. Mahbub Ali [1914] 10 P.R. 1917 which case is very much on all fours with the case before us. In that case also some brothers divided the family property between them and appointed arbitrators to carry out the partition. The award was signed not only by the arbitrators but also by the four brothers. It was contended in that case also that the award was inadmissible for want of registration as it amounted to a deed of partition. It was held that the document signed by arbitrators as their award does not cease to be an award merely because the settlement was arrived at by the parties and was also signed by them. As an award it did not require registration. In our opinion the reasoning of the learned Judges who decided this case was sound and we agree with the view that an award does not require registration merely because it is signed by the parties to the reference and purports to partition the property. The award is therefore admissible in evidence.

7. The next contention is that the sons, namely, the plaintiffs, are not bound by their father’s acceptance of this award. On this point we are in agreement with the learned advocate for the appellants. In the first place, it is clear that there was no substantial consideration for Narpat’s relinquishment of his interests in the family property. He was not under any personal liability to pay the mortgage money as the mortgage was for possession. He gained nothing by relinquishment of his right of redemption and such relinquishment must be regarded as without consideration.

8. In the next place, it is clear that the relinquishment was not made for legal necessity or for the benefit of the family and in that view of the case also it is not binding on the sons. The next point raised is that in any case the plaintiffs’ suit should have been decreed as against Anokhey, defendant 1, since he had admitted the alleged redemption of the mortgage in 1922 by receipt of the mortgage money. Here again we agree with the contention of the appellant. Anokhey Lal is the son of the original mortgagee and ho is admittedly in possession of half the house in dispute. Ho admits that the plaintiffs have not lost their right of redemption by reason of the family partition in 1909 and that they have in fact redeemed the mortgage by payment of the mortgage money to him. We see no reason whatever why their claim for one-third of the house should not be decreed as against Anokhey Lal His father accepted liability for the plaintiffs’ mortgaged share by receiving Rs. 75 (half the mortgage money) from Alkhi at the time of the partition in 1909, and Anokhey Lal admittedly received the whole of the mortgage money from the plaintiffs in 1922. The plaintiffs are therefore en-titled to recover possession of the one-third share out of the half-share which is in the possession of Anokhey Lal.

9. We accordingly allow the appeal as against Anokhey Lal and decree the plaintiffs’ suit for possession of one-third share in the house as against Anokhey Lal only. The appeal as against the other defendants is dismissed with costs throughout. Anokhey Lal never contested the suit or appeals, so no costs are awarded against him.

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