JUDGMENT
P.K. Bahri, J.
(1) Mr. Tarlochan Singh Sarna, the sole arbitrator, had filed an application under Section 14 of the Arbitration Act. Along with the same he submitted the award dated September 5. 1988. and the proceedings recorded by him. "The notice of the filing of the award was given to all the parties but no objections had been filed to the award. It was brought to the notice of the learned, counsel for the parties Mr. G. S. Vohra that perhaps the award. was required to be registered 'compulsorily and he was required, to address the arguments on this point. I have heard him in detail. In order to appreciate 'this. point, it is necessary to refer to the facts." (2) The parties had entered into an arbitration agreement wherein it was recited' tha't house No. 10/57, Punjabi Bagh. New Delhi, was owned by Snil. Mohinder Kaur Bindra. the mother of the parties, who died on July 13. 1985. and thus the said house had devolved in equal shares on all the parties and as there had arisen some disputes between the parties with regard to the mode of partition of the said house, the parties agreed to nominate, Mr. Tarlochan Singh Sarna as sole arbitrator to settle the disputes arising between the parties with regard to the partition of the said property. The sole arbitrator has given the award to the following effect : (1)That Smt. Jasvinder Kaur Bhandari shall pay in all a sum of Rs. 1,50,000 to Shri Mahinder Pal Singh Bindra in full consideration of his share in the aforesaid house by Bank draft in my presence today ; (2) That Shri Gurbir Singh Bindra shall pay in all a sum of Rs. 50,000 to Smt. Ushpinder Kaur Gujral in full consideration of her share in the aforesaid house by post dated cheque No. 922351 dated 5-11-88 on Punjab National Bank. Punjabi Bagh, New Delhi, in my presence today ; (3) That Shri Mahinder Pal Singh Bindra and Smt. Ushpinder Kaur Gujral shall have no right, title or interest hereafter and the said property shall vest in Smt. Jasvinder Kaur Bhandari and Shri Gurbir Singh Bindra hereafter. (4) That the said house shall now onwards belong to Smt. Jasvinder Kaur Bhandari and Shri Gurbir Singh Bindra accordingly to the shares indicated in the Plan annexed hereto and marked as Annexure 'A'. The snare which has allotted to Smt. Jasvinder Kaur Bhandari is shown by red boundary lines and marked as Abcd (back portion). The rest of the house (front portion) is allotted to Shri Gurbir Singh Bindra. The entry, passage and staircase will be common between both the parties and they will not use by either of them for exclusive purposes. Respective portions of the property allotted to Smt. Jasvinder Kaur Bhandarii and Sri Gurbir Singh Bindra shall vest in them exclusively and Shri Mahinder Pal Singh Bindra and Smt. Ushpinder Kaur Gujrat shall have no right, title or interest in them. If, however, the aforesaid cheque is not encashed, on presentation, for any reason whatsoever them Smt. Ushpinder Kaur Gujral shall have the absolute and unfettered right to make such construction 'as she pleases over the front portion allotted to Shri Gurbir Singh Binlra i.e. she will be entitled to build the second storey (First Floor). Besides, Smt.Ushpinder Kaur Gujral will also be entitled to one--of the ground floor area and the buildings thereon towards the side of plot No. 8/57, adjacent to the house in question and in that case the entry, passage and as well as the staircase will be used by all of them. (3) The short question which arises for consideration is whether the award itself being a nun-testamentary instrument purports or operates to create, declare, assigns, 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 and covered by Sec. 17(1)(b) of the Registration Act ? There is no dispute about the legal proposition enunciated by the learned counsel for the parties based on different judgments that the whole of the award has to be read in order to see whether the award by itself creates or declares the rights in the immovable properties of the nature indicated above.
(4) Counsel for the parties Mr. Vohra has vehemently argued that the award by itself does not create or declare any such rights inasmuch as the payments to Jasvinder Kaur Bhandari and to Ushpinder Kaur Gujral were not made at the time of making of the award or prior thereto but were made after the award had been made and thus, the present document should be deemed to be not covered by the provisions of Section 17(1)(b) of the Registration Act so as to require its being registered compulsorily. He has placed reliance on Capt. (Now Major) Ashok Kshyap v. Mrs. Sudha Vasisht and Another . In the aforesaid case, the award laid down that Capt. Kashyap shall pay Rs. 40,800 to Mrs. Sudha by way of her share in the immovable property and on payment said amount Mrs. Sudha was to vacate the house but till the payment was to be made she was to live in the portion of the house already in her occupation and was not liable to pay any rent and it is only on payment of the amount she was to have no right to live in the house and also have no other interest left in the said property as legal heir of Shri S. Lal. Construing these particular provisions of the sward, the Supreme Court held that the award certainly declares the shares of the parties is the property but it enjoys that only upon payment of Rs. 40,800 Mrs. Vasisht would vacate the house and it further enjoins that she will be entitled to live in the house in the portion occupied by her till the full payment is made to her and she will not be liable to pay any rent and on the said payment she will not have any right and also no interest left in the said properly. It was opined that her right in the said property and her interest in the property ceases on payment of the amount of Rs. 40,800 and not otherwise. It was held that the numeration of the. document itself did not have the effect of cessation of her rights in the property and thus, document itself creates a right by itself to get Rs. 40,800 and right to obtain the payment and on payment the obligation of relinquishment of her right or interest in the property. So, it was held that document by itself does not purport to declare or create or assign, limit or extinguish any right in the immovable property which could require to be registered compulsorily. The wording of the award in the case before the Supreme Court was totally different. In the present case, in clause (1) of the award it is: emphatically stated that Jasvinder Kaur shall pay Rs. 1,50,000 to Mahinder Pal Singh Bindra in full consideration of his share in the aforesaid house by bank draft in presence of the arbitrator on that very day and clause (3) clearly unequivocally declares that Mahinder Pal Singh Bindra and Smt. Ushpinder Kaur Gujral shall have no right, title or interest hereafter and the said property shall vest in Smt. Jasvinder Kaur Bhandari and Shri Gurbir Singh Bindra hereafter and in clause (4) it was again declared by the arbitrator that the’ said house shall now onwards belong to Smt. Jasvinder Kaur Bhandari and Shri Gurbir Singh Bindra accordingly to the shares indicated in the Plan annexed there to and marked as Annexure ‘A’ and the share which was allotted to Smt. Jasvinder Kaur Bhandari is shown by red boundary lines and marked as Abcd (back portion) and the rest of the house (front portion) was allotted to Shri Gurbir Singh Bindra. In clause (2) of the award Gurbir Singh Bindra was to pay a sum of Rs. 50,000 to Ushpinder Kaur Gujral in full consideration of her share in the aforesaid house by postdated cheque No. 922351 dated November 5, 1988 drawn on the Punjab National Bank and it was provided that if the cheque was not encashed on presentation for any reason whatsoever, then Smt. Ushpinder Kaur Gujral shall have the absolute and unfettered right to make such construction as she pleases over the front portion allotted to Shri Gurbir Singh Bindra and she would be entitled to build the second storey and beside, she will also be entitled to one of the ground floor area. The arbitrator by perhaps some omission did not mention about as to what. did he mean by one. Most probably he meant one room. Be that ax it may, perusing the whole of the award as. it is, it is not possible to hold that the award by itself does not extinguish the rights of Mahinder Pal Siagh Bindra in the immovable property. The document clearly declares that Mahinder Pal Singh Bindra and Smt. Ushpinder Kaur Gujral shall have no right, title or interest in the said property and the said property shall vest only in Jasvinder Kaur Bhandari and Shri Gurbir Singh Bindra. Mere fact that payments by way of bank draft and by way of post dated cheque were to be made and in fact,were made after, the signing of the award does not mean that document by itself does not create or extinguish or declare the rights in the immovable property of the value of Rs. 100 “One hundred) or more.
(5) Counsel for the parties has cited (Thakur) Bageshwari Charan Singh v. Thakurain Jagamath Kuari & Another , wherein it has been laid down that the would ‘declare’ in Section 17 implies a definite change of legal relation to the property by an expression of will embodied in the document referred to and does not contemplate a mere statement of fact. Consequently a document containing an admission direct or inferential, that an alienation once took place, does not declare a right within the meaning of Section 17 and is exempt from registration and it only amounts to an acknowledgment. This judgment has no applicability to the facts of the present case. He has then referred to (Firm) Hassanand Naraindas v. Jodhomal Chengomal and others Air 1936 Sind 79, wherein a general principle of law has been enunciated that strict construction should be placed upon the prohibitory and penal sections of the Registration Act which impose serious disqualifications upon the non-observance of the rule of registration and unless a document is clearly brought within the purview of the Act, non-registration is no bar to its being acted upon or received in evidence and in case of doubt the benefit of the doubt should be given to the person who wants the Court to act “Upon or receive it in evidence. There is no dispute about this principle of law. In the present case, in my opinion, the reading of the award as a whole leaves no room for doubt that the said award is covered by Section 17(1)(b) of the Registration Act and was required to be registered compulsorily. This award has not been made in pursuance to am” reference filed in Court. This very Full Bench judgment of the Sind High Court lays down that if award is made without intervention of the court in respect of creating any rights in the immovable property of the value of Rs. 100 or above, the same is compulsorily registrable. Support was also sought to be drawn from certain observations made in K. Panchapagasa Ayyar & Another v. K. Kalyansundaram Ayyar and others , wherein it was opined that in constipating such documents for the purpose of determining whether or not there is a creation or declaration of a right or title in the sense contemplated by Section 17, undue emphasis should not be laid on isolated words and phrases in the document and the Court must read the document as a whole and take abroad view of the circumstances in which and the purpose for which it was written. It was also laid down that looking at the substance of the transaction the Court must arrive at the conclusion one way or the other whether the parties in fact intended the document to be an instrument of partition and the sole evidence of partition and as actually effecting a division of the property.
(6) Keeping in view the aforesaid principles it is not understood how the present award could not be considered an instrument of partition and the sole evidence of partition. Reference was made to the arbitrator for partitioning the immovable property and the arbitrator has given the award effecting the partition of the property. He has valued the interest of two partners in money and required the other two partners to pay the same and had allotted different portions of the house to the two co-owners.
(7) Lastly, reference was made to Garuda Satyanarayana v. Grandhi Venkatachalapathi Rao & Another , in which also a principle was laid down that Section 17 of the Registration Act being a disabling provision must receive a strict construction and unless a document is clearly brought within its purview its non-registration would be no bar to the admissibility of the document in evidence and if there is any doubt on the matter, the benefit of such doubt must obviously be given to the person who wants the Court to receive the document in evidence. Reading the document in question as a whole, I come to the conclusion that this document by itself partitions the immovable property and extinguishes the rights of co-owners and thus, was required to be registered compulsorily. Hence, this award cannot be taken into consideration and the same cannot be made rule of the Court. I dismiss the petition.