{"id":59174,"date":"1987-02-04T00:00:00","date_gmt":"1987-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/capt-now-major-ashok-kshyap-vs-mrs-sudha-vasisht-anr-on-4-february-1987"},"modified":"2015-07-14T23:21:35","modified_gmt":"2015-07-14T17:51:35","slug":"capt-now-major-ashok-kshyap-vs-mrs-sudha-vasisht-anr-on-4-february-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/capt-now-major-ashok-kshyap-vs-mrs-sudha-vasisht-anr-on-4-february-1987","title":{"rendered":"Capt. (Now Major) Ashok Kshyap vs Mrs. Sudha Vasisht & Anr on 4 February, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Capt. (Now Major) Ashok Kshyap vs Mrs. Sudha Vasisht & Anr on 4 February, 1987<\/div>\n
Equivalent citations: 1987 AIR 841, \t\t 1987 SCR (2) 151<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nCAPT. (NOW MAJOR) ASHOK KSHYAP\n\n\tVs.\n\nRESPONDENT:\nMRS. SUDHA VASISHT & ANR.\n\nDATE OF JUDGMENT04\/02\/1987\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nNATRAJAN, S. (J)\n\nCITATION:\n 1987 AIR  841\t\t  1987 SCR  (2) 151\n 1987 SCC  (1) 717\t  JT 1987 (1)\t350\n 1987 SCALE  (1)265\n\n\nACT:\n    Registration   Act,\t  1908:\t  s.   17(1)(b)--Arbitration\naward--Not  creating  any right of  effecting  partition  in\nimmovable property-Whether required to be registered.\n    Arbitration\t  Act,\t 1940:\tss.  15(b),   16(1)(c)\t and\n17--Unregistered  award--Whether imperfect in  form--Whether\ncould be made a rule of the Court--Legality of the award not\nchallenged--Whether could be remitted to the Arbitrator.\n    Constitution of India: Article 136--Jurisdiction of\t the\nCourt-- To protect interests of all parties.\n\n\n\nHEADNOTE:\n    A  family  dispute\tbetween the  parties  pertaining  tO\nmovable\t and  immovable\t property left\tintestate  by  their\nfather\twas referred by them to arbitration. The award\tmade\non  February 12, 1977 stated: (i) that the appellant  should\npay  to\t the 1st respondent a specified sum, on\t payment  of\nwhich  she will have no right to live in the house and\talso\nhave  no  other interests in the said property\tas  a  legal\nheir;  (ii) that till the full amount was paid she would  be\nentitled to live in the portion of the house in her  occupa-\ntion  and not be liable to pay any rent; (iii) that the\t 2nd\nrespondent shall have right of residence in the said  house.\nplus right to receive from the appellant a specified sum per\nmonth  as maintenance for life or till she is  married;\t and\n(iv)  that in case of her marriage the appellant should\t pay\nher  the specified sum upon which she will have no right  to\nlive  in  the house or get any\tmaintenance.  The  aforesaid\naward  was filed in court on March 10, 1977 and accepted  by\nthe appellant and the 2nd respondent on May 11, 1977.\nThe  first  respondent filed her objection to the  award  on\nOctober 1977 on two grounds: (i) that being unregistered  it\nwas  incapable of being made the rule of the court in  terms\nof  s. 17 of the Arbitration Act, and (ii) that\t the  second\nrespondent  being mentally retarded could not be a party  to\nthe arbitration proceedings. The High Court upheld the first\nobjection but not the second.\n152\n    In this appeal by special leave it was contended for the\nappellant that even if the award was not properly registered\nas required under s. 17 of the Registration Act, in view  of\nthe  fact that it was filed within a period of one month  of\nits making and since four months time was there to have\t the\naward  registered  by the arbitrator the court\tshould\thave\nexercised  its powers under s. 15(b) and s. 16(1)(c) of\t the\nArbitration  Act,  1940.  For the first\t respondent  it\t was\ncontended  that\t the award effected partition  of  immovable\nproperty and having not been registered it could not be made\na rule of the court.\nAllowing the appeal,\n    HELD:  1.1\tThe award did not create any  right  in\t any\nimmovable  property,.  nor did it effect  partition  in\t any\nimmovable  property.  It was, therefore, not  compulsory  to\nregister the award. [162G]\n    1.2\t The award merely indicated the entitlement  of\t the\nrespondent in the property and the cessor of their  interest\nin the property on receipt of money. Their right and  inter-\nest  was to cease only on the payment of the amount and\t not\notherwise, not even by the operation of the document itself.\n[161B-C]\n    1.3 The award only declared that the right of the appel-\nlant  to get the immovable property was dependent  upon\t the\npayment\t of the amount by him. A right to the  property\t was\nnot created by the award itself, a right to certain property\nwas  declared. A right to get the property was\tdeclared  on\nthe payment of the money. The award did not create any right\nto the property, extinguish any right to the property, which\nwas not there. It quantified in terms of money the value  of\nthat  right  and declared the method of\t working  out  those\nrights. [162D-E]\n    Rajangam Ayyar v. Rajangam Ayyar, AIR 1922 Privy Council\np.  266;  Upendra Nath Bose v. Lall and\t Others,  AIR  1940,\nPrivy Council p. 222; Sheonarain Lal v. Rameshwari Devi\t and\nanother, Civil Appeal No. 296 of 1960 decided on  6.12.1962;\nSatish\tKumar & Ors. v. Surinder Kumar & Ors.,<\/a> [1969] 2\t SCR\np.  244 and Ratan Lal Sharma v. Purshottam Harit,<\/a>  [1974]  3\nSCR p. 109, referred to.\n    2.\tThe purpose of remitting the award under s.  16(D(c)\nof the Arbitration Act is to enable the arbitrator to recon-\nsider  his  decision where legality was connected  with\t the\ndecision as contained in the award. It must not relate to  a\nmatter which has no connection with the decision or  decree.\n[159H; 160A]\n153\n    In\tthe  instant  case, there was no  objection  to\t the\nlegality  of  the award. The factum of registration  of\t the\naward did not pertain to the decision of the arbitration  on\nits  merits and was de hors the award and for  this  purpose\nthe  award could not be remitted to the arbitrator under  s.\n16 of the Act. [159F-G]\n    Rikhabdass\tv. Ballabhdas and others., [1962]  suppl.  1\nSCR  475 and Nani Bala Saha v. Ram Gopal Saha  and  another,\nAIR (32) 1945 Calcutta 19, referred to.\n    3.\tThe award was not imperfect in terms of s. 15(b)  of\nthe  Arbitration Act. There was, therefore, no scope in\t the\nfacts  and  circumstances  of the case,\t of  exercising\t its\npowers\tby  the High Court under s. 15 of  the\tAct.  Powers\nunder  s. 151 of the Code of Civil Procedure could also\t not\nbe exercised in this case. [160A-B]\n    4.\tIt  could not be said that the\t2nd  respondent\t was\nmentally  incapable. Though she was not of a  very  cheerful\ndisposition,  she  was understanding what was  happening  in\nthis court. She knew what was good and what was bad for her,\nand  had  accepted  the award with a free  will.  She  could\nperform her duties satisfactorily, intelligently and social-\nly.  She had consciously participated in the award  proceed-\nings.  She was never given any ECT treatment. She was  never\nhospitalised. [159B-C]\n    5.\tIn an appeal under Article 136 of  the\tConstitution\nthe Court must in the interests of justice protect as far as\npracticable the interests of all the parties. [163A]\n    [Having regard to the present position of inflation\t and\nrise in price of life and living, the 2nd respondent will be\nentitled  to  a\t monthly maintenance of\t Rs.500\t instead  of\nRs.350 and this sum would form a charge on the share  allot-\nted  to\t the appellant. In the\tcontingencies  mentioned  in\ncls.(1)\t and (2) of the award the first respondent would  be\npaid  Rs.75,000\t instead  of Rs.40,800.\t Similarly,  in\t the\ncontingency  mentioned in d.(4) the 2nd respondent would  be\npaid  Rs.75,000 instead of Rs.40,800. The award as  modified\nis made a rule of the Court.] [163C-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  314  of
\n1987.\n<\/p>\n
    From  the  judgment and Order dated 16.5.  1986  of\t the
\nDelhi High Court in Suit No. 234-A of 1977
\n154<\/span>
\nS.K. Dholkia and P.C. Kapur for the Appellant.
\n    Manoj Swarup, Ms. Lalitha Kohli and Pramod Dayal for the
\nRespondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    SABYASACHI\tMUKHARJI, J. Special leave is  granted.\t The
\nappeal arises from the judgment and order of the High  Court
\nof  Delhi  dated  16th May, 1986 whereby the  award  of\t the
\nArbitrator was adjudged incapable of being made rule of\t the
\ncourt  and no decree in terms thereof was passed under\tsec-
\ntion  17 of the Arbitration Act, 1940,\t(hereinafter  called
\nthe ‘Act’). The High Court, however, held that the award was
\nnot  liable  to be set aside but only that it could  not  be
\nmade a rule of the court.\n<\/p>\n
    In\torder  to appreciate the contentions  urged,  it  is
\nnecessary  to  note  few facts. The father  of\tthe  parties
\ninvolved in the matter, Shri S. Lal, died; on 13th November,
\n1975  leaving behind him his two daughters, Mrs.  Sudha\t Va-
\nsisht and Miss Shail and Capt. (now Major) Ashok Kshyap, the
\nson.  The wife of the said deceased Shri S. Lal\t predeceased
\nhim. Mrs. Sudha Vasisht is the eldest child and Major Kshyap
\nis  the\t youngest,  who is the son. Mrs.  Sudha\t Vasisht  is
\nmarried,  Miss Shail is a spinster and Major Kshyap is\talso
\nmarried.  The said S. Lal left only one immovable  property,
\nnamely,\t premises  No.F-4, Green Park, New  Delhi  and\tsome
\nmovables  including  about Rs.8,000 in the  Punjab  National
\nBank, Green Park, New Delhi. It was claimed that Miss  Shail
\nwas  not capable of managing her affairs. Indeed one of\t the
\nobjections against the award was that Miss Shail who was the
\nunmarried sister of Major Kshyap and Mrs. Sudha Vasisht\t was
\nof  unsound mind and due to her mental incapacity the  arbi-
\ntration agreement, arbitration proceedings and the resultant
\naward were all bad in the eye of law. The arbitration agree-
\nment  was, however, signed by all the three parties. It\t may
\nbe  noted  that disputes and differences arose\tbetween\t the
\nparties\t and  arbitration agreement as entered into  by\t the
\nthree parties to settle these on 9th June, 1976, soon  after
\nthe  death  of their-father, Shri S.  Lal.  The\t arbitration
\nagreement  recited that their father died intestate  leaving
\nbehind him premises No. F-4, Green Park-, New Delhi and\t the
\nsum of Rs.8,000 in the Punjab National Bank. Further it\t was
\nrecited that disputes and  differences had arisen in between
\nthem with regard to the immovable as well as movable proper-
\nty left by their father and Shri S. Lal died without  making
\nany  will and the parties were desirous’ to get\t their\tdis-
\nputes and differences
\n155<\/span>
\nsettled through arbitration to maintain family peace, harmo-
\nny and goodwill amongst themselves and to avoid\t unnecessary
\nlitigation  by\tarriving at a  “family\tsettlement”  through
\narbitration.  The  agreement, thereafter nominated  and\t ap-
\npointed one Shri D.C. Singhania, Advocate, as the arbitrator
\nand  to enter upon reference and to decide all the  disputes
\nand  differences  existing between them\t “pertaining  to  or
\nrelating  to  or in any manner touching upon the  matter  of
\ninheritance  and\/or  division of all movable  and  immovable
\nproperty left behind by their late father, Shri S. Lal.\t The
\nagreement,  further recited that the parties undertook\tthat
\nthe  decision given by the arbitrator would be accepted\t as’
\nfinal.\tThe arbitration proceedings have been  filed  before
\nthis Court. The son, the appellant gave evidence and  stated
\nthat two houses, one at Meerut and one at Hapur were  inher-
\nited  by him from his mother Smt. Sarla Devi, which she\t got
\nfrom her parents without leaving any male issue behind them.
\nThese houses were sold for Rs.21,000 which sum according  to
\nMajor Kshyap was invested by the father in the\tconstruction
\nof the house in question. Major Kshyap further claimed\tthat
\nhe  had invested a further amount of Rs. 10,000 out  of\t his
\nsavings\t of  his  service as a\tCommissioned  Officer.\tThis
\namount,\t according to him; was spent on wood work,  painting
\nof two rooms etc. The father, Shri. S. Lal was a teacher  in
\na  school and in order to realise his pension, according  to
\nMajor  Kshyap,\the paid to his father a\t sum  of  Rs.4440.93
\nwhich the father had drawn to build the house. Major  Kshyap
\nfurther\t claimed that he had purchased a geyser\t for  Rs.887
\nand  he had spent certain amount of money for certain  other
\nexpenses. Mrs. Sudha Vasisht gave evidence stating that\t her
\nfather died without making any will and she was entitled  to
\n1\/3rd share in the house left behind him. Miss Shail deposed
\nbefore the arbitrator that during her life time, she was not
\nto  be\tfinancially  dependent upon anybody  but  after\t her
\ndeath, her share in the house should go to her brother.\t She
\nfurther\t asserted that she always wanted that  the  complete
\nhouse should go to her brother. It is not necessary to\tgive
\nthe break-up of the expenses of the houses as appearing from
\nthe  evidence. All the parties agreed, the arbitrator  noted
\nthat  there could be no exact and feasible division  of\t the
\nhouse. Mrs. Sudha expressed her desire that if she was given
\na fair share in money, she would not insist for the division
\nof the house, according to the arbitrator. Her other  alter-
\nnative\tsuggestion  was that the house has got 10  rooms  or
\nnine  rooms in the sense that one big room on Barsati  floor
\nhas  been  divided in two and as such each person  could  be
\ngiven  three rooms each. According to Miss Shail, the  divi-
\nsion of the house was not at all feasible, since there was a
\nlot  of bad blood and differences between the  parties.\t Ac-
\ncording\t to her, the deposition states, it is not at all  in
\nthe interest of anybody that all should live in one house.\n<\/p>\n
156<\/span><\/p>\n
    The\t other\timportant thing to note in  the\t arbitration
\nproceedings  was  that Capt. Kshyap stated  that  the  house
\ncould  not possibly be divided into three parts. It did\t not
\nhave three kitchens. Miss Shail stated that if the house was
\ndivided into three parts, there would aIways be quarrels and
\ndisputes  among\t them. She could not say whether  the  house
\ncould be divided into three parts or not. Miss Shail further
\nstated\tthat she would like to live with her  brother  Capt.
\nKshyap\tor whatever arrangement he made for her, that  would
\nbe  acceptable\tto her. Mrs. Sudha Vasisht stated  that\t she
\nwould  not like to live or associate with Miss Shail in\t any
\nmanner.\t Miss  Shail further stated that her  share  of\t the
\nproperty, if any, might be allotted to her brother or  what-
\never otherwise considered proper.\n<\/p>\n
    It is further noted that according to Major Kshyap,\t the
\nhouse could not be divided in three parts. He would not like
\nto  share it with his sister, Mrs. Sudha Vasisht who is\t now
\nmarried.  He further stated, at that time in the  deposition
\nthat he still had to serve in the army for about another  21
\nyears. He was prepared to have his share in the property  in
\ncash  also. He further asserted that he wanted to  keep\t and
\nmaintain his sister Miss Shail. He further asserted that  he
\nwas  also prepared to pay his sister Mrs. Sudha\t Vasisht  in
\ncash whatever share was considered to be due and payable  to
\nher. According to him, he was not in a position to pay\tboth
\nof his sisters in cash for their shares in the property. But
\nhe could pay her sister Shail, her share in cash  gradually.
\nMrs. Sudha Vasisht stated that she was not in a position  to
\npay the share either of her brother or her sister Miss Shail
\nin cash. She further
\nstated, she had no money nor any arrangement for the same.
\n    All this narration is necessary in order to judge wheth-
\ner  the\t award was just and fair because  a  contention\t was
\nadvanced  about the mental capacity of the unmarried  sister
\nMiss  Shail. The award made on 12th February,  1977,  stated
\nthat  the appellant should pay Rs.40,800 to Mrs.  Sudha\t Va-
\nsisht  and upon payment Mrs. Sudha Vasisht would vacate\t the
\nhouse. In view of the contentions raised, it is necessary to
\nset out the relevant part of the award which is as follows:\n<\/p>\n
\t      “NOW, THEREFORE, I hereby make and publish  my
\n\t      award as follows:-\n<\/p><\/blockquote>\n
\t\t   1.  Capt. A. Kshyap, shall pay an  amount
\n\t      of  Rs.40,800 to Mrs. Sudha Vasisht by way  of
\n\t      her share in the said property No. F.4,  Green
\n\t      Park and other assets left behind
\n\t      157<\/span>
\n\t      by  late\tShri S. Lal and on payment  of\tthis
\n\t      full amount she shall vacate the house.\n<\/p><\/blockquote>\n
\t\t  2. Mrs. Sudha Vasisht shall be entitled to
\n\t      live  in the portion of the house\t already
\n\t      in  her  occupation till the  full  amount  of
\n\t      Rs.40,800\t has been paid to her and  she\twill
\n\t      also not be liable to pay any rent for occupa-
\n\t      tion of the portion of the house so far  occu-
\n\t      pied by her and further until the total amount
\n\t      of Rs.40,800 is paid to her by Capt. A.Kshyap.
\n\t      On  payment  of this amount she will  have  no
\n\t      right  to live in the house and also  have  no
\n\t      other  interests left in the said property  as
\n\t      legal heir of Shri S. Lal.\n<\/p><\/blockquote>\n
\t\t   3.  Miss  Shail  shall have\ta  right  of
\n\t      residence\t in the said house, i.e.-F-4,  Green
\n\t      Park  throughout her life or till she iS\tmar-
\n\t      ried and in addition to her right in residence
\n\t      in the house, Capt. Kshyap shall also pay\t her
\n\t      an amount of Rs.350 per month for her  mainte-
\n\t      nance till she is married.\n<\/p><\/blockquote>\n
\t\t   4.  In case Miss Shail is married,  Capt.
\n\t      Kshyap  shall  pay  her a\t lumpsum  amount  of
\n\t      Rs.40,800 and thereafter she will also have no
\n\t      right to live in the house or get any  mainte-
\n\t      nance  from  Capt. Kshyap on full\t payment  of
\n\t      said
\n\t      amount.\n<\/p><\/blockquote>\n
\t\t   5. Capt. A. Kshyap shall be liable to pay
\n\t      all the outstanding amount of loan along\twith
\n\t      interest due thereon taken by late Shri S. Lal
\n\t      from L.I.C. and also bear Estate Duty, if any,
\n\t      already  paid or to be payable with regard  to
\n\t      the  movable and immovable assets left  behind
\n\t      by  Shri S. Lal. He shall also be entitled  to
\n\t      have  all other movable and  immovable  assets
\n\t      including\t withdrawal  of an amount  of  about
\n\t      Rs.8500 or so, along with interest if any\t due
\n\t      thereon, lying deposited to the credit of late
\n\t      Shri Lal in Punjab National Bank, Green Park.”
\n    The award was filed by the Arbitrator on th March, 1977.\n<\/p><\/blockquote>\n
The  respondent no. 1 filed objections to the same  on\t11th
\nOctober,  1977.\t Major Kshyap and Miss\tShail  accepted\t the
\naward before the Deputy Registrar, Delhi High Court on\t11th
\nMay,  1977.  This  position is stated in  the  petition\t for
\nspecial leave and this is not denied in the affidavit
\n158<\/span>
\nfiled  on’ behalf of Mrs. Sudha Vasisht. Mrs. Sudha  Vasisht
\nfiled  an objection on two grounds, namely, that  the  award
\nbeing’\tunregistered could not be made a rule of  the  court
\nand  the other Miss Shail being mentally retarded could\t not
\nbe’ a party to the arbitration proceedings. The’ High  Court
\nrejected  the contention about the invalidity of  the  Award
\non’  the  ground of mental capacity of Miss Shail  but\theld
\nthat  the award could not be made rule of the court  because
\nit was an unregistered Award.\n<\/p>\n
    In view of the submission made on behalf of the respond-
\nent that Miss Shail was of unsound mind and as this  conten-
\ntion  was advanced before us in support of the order of\t the
\nHigh’  COurt,  we may  briefly deal with it.  We  have\tgone
\nthrough\t the evidence considered by the learned judge  about
\nthe mental capacity of Miss Shail. It is an  unfortunatecase
\nof border line intellectual retardation which’ was one\tpart
\nof the diagnosis in respect of her and on the other hand the
\narbitrator  had\t noted that Major Kshyap had come  into\t the
\nwitness\t box and he had also examined one’ Brig. Dr.  Sangat
\nSingh Syalee who is a medical practitioner. The testimony of
\nCapt.  Kshyap  showed  that the\t arbitration  agreement\t was
\nexecuted in the office of the arbitrator and that the  arbi-
\ntration\t\tproceedings used to be attended by  himself,
\nMiss  Shail,  Mrs. Sudha Vasisht and her  husband,  and\t the
\nproceedings  used  to be signed by all the parties.  He\t had
\nfurther\t stated\t that Miss Shail’s case was of\tborder\tline
\nmental\tretardation but she could perform her duties  satis-
\nfactorily, intelligently and socially and she knew what\t was
\ngood and what was bad for her. She had been living all alone
\nin  house  F-4, Green,\t    Park from 1977 to 1980  and\t had
\nbeen doing everything for herself. It is true that story  of
\nthis  spinster\tliving alone in Green Park  house  in  Delhi
\nbelonging  to her late father, does not make pleasant  read-
\ning,  yet  from\t the evidence which the\t learned  judge\t has
\nexhaustively  examined,\t he found that\tthe  medical  record
\nobtained  from the All India Institute of  Medical  sciences
\nindicated  that Miss Shail was suffering from  schizophrenia
\nand even in the year 1974-1981 she was suffering from mental
\nretardation.  But the arbitrator noted that Miss  Shail\t was
\nnever  given any ECT treatment. She was\t never\thospitalised
\nand  Mrs. Vasisht did not at any point of time\tobjected  to
\nthe  arbitration because of Miss Shail’s mental\t capacities.
\nThe  arbitrator\t expressed his opinion\tthat  the  objection
\nagainst the mental capacity of Miss Shail during the  period
\nfrom  9th   June, 1976 to 12th February, 1977 could  not  be
\naccepted.\n<\/p>\n
    We may note that before us all the parties were present.
\nWe  had asked counsel for Miss Shail to ascertain  from\t her
\nwhether she
\n159<\/span>
\naccepted  the award with a free will? We did so not  because
\nwe  found any defect in the evidence or in the order of\t the
\nlearned\t judge of the High Court but being an appeal  under’
\narticle\t 136 of the Constitution even if there was no  legal
\nmaterial  in  these aspects, the court was  entitled  to  be
\nSatisfied.  Though it is difficult to hazard an\t opinion  on
\nthe  mental Capacity of a lady by her looks, it appeared  to
\nUs  that though she was not of a very cheerful\tdisposition,
\nit would perhaps be unfair to conclude that she was  mental-
\nly  incapable.\tWe watched her manner during  the  time\t the
\nproceedings were going on in the court and observed that she
\nWas  understanding what was happening in the court. We\thave
\nnot  any material to disagree with the views of the  learned
\njudge  on  this\t aspect. Therefore, we\tcannot\taccept\tthis
\nsubmission urged on behalf of respondent no. 1, Mrs. Vasisht
\nabout the mental capacity of Miss Shail.\n<\/p>\n
    The\t High  Court noted that apart from the\tquestion  of
\nregistration  and the question of mental Capacity, no  other
\ncontentions Were raised.  ……\n<\/p>\n
    Therefore the only other question is, was this award bad
\nhaving not been registered under the law under section 17 of
\nthe Registration Act, 1908? Before we deal  with that point,
\nwe might record that a submission was made that even if\t the
\naward was not properly registered as required under  section
\n17  of the Registration Act, in view of the’ facts and\tcir-
\ncumstances of the case and further in view of the facts that
\nthe award was filed within a  period of one month of  making
\nof  the\t award and further in view of the  ‘fact  that\tfour
\nmonths’\t time was there to have the award registered by\t the
\narbitrator when the award came to the court from the date of
\nmaking\tof  the award the court should\thave  exercised\t its
\npowers\tunder section 15(b) and under section 16(1).(c),  of
\nthe  Act.  We are unable to accept the submission  urged  on
\nbehalf\tof the appellant in this behalf. Section 16  of\t the
\nAct,  we are of the opinion, does not apply to the facts  of
\nthis  case,  There is no objection to the  legality  of\t the
\naward  apparantly,  We are in agreement with the  views\t ex-
\npressed\t by the learned judge on this aspect. The factum  of
\nregistration  of the award does not pertain to the  decision
\nof the arbitrator on its merits and is de bors the award and
\nfor this purpose the award can not be remitted to the  arbi-
\ntrator under section 16 of the Act. The principles enunciat-
\ned  by\tthis Court in Rikhabdass v. Ballabhdas\tand  others,
\n[1962] Suppl. 1 SCR 475 are applicable to the. facts of this
\ncase  The  purpose of remitting the award is to\t enable\t the
\narbitrator to reconsider the decision where the legality was
\nconnected  with\t the decision as contained in  the  award.It
\nmust not relate to a matter which has
\n160<\/span>
\nno  connection\twith  the decision or decree.  See  in\tthis
\nconnection  the observations of the Calcutta High  Court  in
\nthe  case of Nani Bain Saha v. Ram Gopal Saha  and  another,
\nAIR 32 1945 Calcutta 19. The award is also not imperfect  in
\nterms  of  section 15(b) of the Act as rightly held  by\t the
\nHigh  Court. Therefore, in our opinion, there was no  scope,
\nin  the facts and circumstances of the case,  of  exercising
\nits powers by the High Court under section 15 of the Act and
\npowers\tunder  section 15 1 of the Code of  Civil  Procedure
\ncould  also  not be exercised in this  case.  The  objection
\nagainst\t the award was filed by Mrs. Sudha Vasisht  on\t11th
\nOctober, 1977 after that more than eight months have expired
\nand there was no prayer to the court to extend the time\t for
\nregistration.\n<\/p>\n
    The\t main contention, however, that requires  considera-
\ntion  is whether the award could not be made a rule  of\t the
\ncourt because it affects the partition of immovable property
\nand  affects  rights in immovable property. We\tare  of\t the
\nopinion\t that  the High Court was not right in the  view  it
\ntook on this aspect of the matter. The document in  question
\ndid not effect the partition if read properly.
\n    Section  17(1)(b) of the Registration Act  enjoins\tthat
\nany nontestamentary instrument which purports or operates to
\ncreate,\t declare, assign, ‘limit or extinguish,\t whether  in
\npresent or in future, any fight, title or interest,  whether
\nvested or contingent, of the value of one hundred rupees and
\nupwards,  to or in immovable property should be\t registered.
\nTherefore, the question is, does the document itself  extin-
\nguish or purports to create or declare any right in  immova-
\nble property. It certainly declares the share of the parties
\nin  the property but. it enjoins that only upon\t payment  of
\nRs.40,800  Mrs. Vasisht would vacate the house.\t It  further
\nenjoins\t that “she will be entitled to live in the house  in
\nthe  portion  occupied\tby  her till  the  full\t payment  of
\nRs.40,800  is made to her and she will not be liable to\t pay
\nany  rent for the occupation of the portion and on the\tsaid
\npayment,  she will not have any right and also\tno  interest
\nleft in the said property”. So her right in the said proper-
\nty and her interest in the property ceases on payment of the
\namount\tof Rs.40,800 and not otherwise not by the  operation
\nof  document itself. The document itself creates a right  by
\nitself to get Rs.40,800 and right to obtain the payment\t and
\non payment the obligation or relinquishment of her right  or
\ninterest in the property. It does nothing more.
\n    A  similar position arose before the Judicial  Committee
\nin  the case of Rajangara Ayyar v. Rajangam Ayyar, AIR\t1922
\nPrivy Council
\n161<\/span>
\np. 266 where dealing with the document of similar nature the
\nJudicial  Committee  observed that that document was  not  a
\ndocument by itself creating, declaring, assigning,  limiting
\nor extinguishing any fight, title or interest in the immova-
\nble  property. It merely creates a right to  obtain  another
\ndocument  which will, when executed, create a right  in\t the
\nperson claiming the relief. There was a memorandum of agree-
\nment  which specified the shares and provided for a  further
\ndeed effectuating the partition. It was held that it did not
\nrequire to be registered. In our opinion, the entitlement of
\nthe members namely Miss Shail as well as Mrs. Vasisht in the
\nproperty  and  the cessor of interest in the  properties  on
\npayment\t of  the  money in case of Mrs.\t Vasisht  and  other
\nconditions  in\tcase  of Miss Shail were  indicated  in\t the
\nAward.\n<\/p>\n
    This  position  was\t again reiterated  by  the  Judicial
\nCommittee in Upendra Nath Bose v. Lall and Others, AIR 1940,
\nPrivy  Council p. 222. There the document recited  that\t the
\nownership  of  the second party in one half  of\t the  Raitar
\nwould  not  come till after the payment of a sum  of  Rupees
\nsixty  one thousand and four hundred as well as the  amounts
\nmentioned in the statement exhibit B together with  interest
\nspecified in respect of both be fully paid up. The  question
\nbefore the Judicial Committee was whether the last  sentence
\nof para 2 of the Award purported to confer upon “the  second
\nparty”\ta right, title or interest which commenced with\t the
\nAward  and  came to an end when the sum\t of  Rs.61,400\twith
\ninterest  was paid or whether it intended merely to  provide
\nthat  the  interest  which arose from the  exercise  of\t the
\noption should remain unaltered until Rs.61,400 and  interest
\nhad  been  paid or whether they intended merely\t to  provide
\nthat  the status quo should remain unaltered (i.e. the\tcon-
\ntractual  interest  which  arose from the  exercise  of\t the
\noption) would remain unaltered until Rs.61,400 and  interest
\nhad  been paid. The Judicial Committee was of the view\tthat
\nthe latter was the true view. The sentence was not framed as
\none  which purports to create or confer any  interest.\tThis
\nCourt  in  the unreported judgment which is in\tthe  Supreme
\nCourt  judgments  1962,\t in the case of\t Sheonarain  Lal  v.
\nRatneshwari Devi and another (Civil Appeal No. 296 of  1960)
\nhad  also  to  deal with a similar  situation.\tThere  fifth
\nclause of the Award was as follows:\n<\/p>\n
\t      “Shri  Sheo  Narain Lal and his  heirs  should
\n\t      execute  as  early as  possible  a  registered
\n\t      document\tin  respect of the shop let  out  on
\n\t      rent to Beli Sao Sukhdeo Prasad, in favour  of
\n\t      Shri Prabhu Chand for which Shri Prabhu  Chand
\n\t      will have to pay nothing as consideration.  He
\n\t      will pay only costs of stamp etc.”\n<\/p><\/blockquote>\n
162<\/span><\/p>\n
This Court had to deal with this clause and to consider\t the
\nquestion  whether  this clause purported or created  or\t de-
\nclared or assigned, limited or extinguished any right.\tThis
\nCourt  held that the award merely provided that\t some  right
\ncould  be  created in future by means of a  document  to  be
\nexecuted. Therefore, this Court was of the view that it\t did
\nnot  require  registration. We are of the opinion  that\t the
\nsame principle should be applicable here,
\n    Two decisions upon which reliance was placed by the High
\nCourt to which our attention was drawn by the learned  coun-
\nsel, firstly, Satish Kurnar & Ors. v. Surinder Kumar & Ors.,<\/a>
\n[1969] 2 SCR p. 244 and the second one was Ratan Lal  Sharma
\nv.  Purshottam\tHarit,<\/a> [1974] 3 SCR p. 109 do not  help\t the
\nrespondent.  1n the first case Hegde, J. observed  that\t for
\nthe purpose of section 17(1)(b) of the Registration Act,  it
\nwas  necessary to determine whether the Award  purported  to
\ncreate\trights in the immovable property. If it did, it\t was
\nnecessary  to  have it registered. As it was  found  by\t the
\ncourt  that it did, it needed compulsory  registration.\t But
\nthe  facts  of this case are entirely  different.  Here\t the
\naward did not create right to get the money, the award\tonly
\ndeclared  that the rights to get the immovable property\t was
\ndependent  upon\t the payment of the amount. A right  to\t the
\nproperty  was  not created by the award itself, a  right  to
\ncertain\t property was declared. A right to get the  property
\nwas declared on the payment of the money. The award did\t not
\ncreate any right to the property to extinguish any right  to
\nthe property, which was not there. It quantified in terms of
\nmoney  the  value of that right and declared the  method  of
\nworking out those rights.\n<\/p>\n
    In the second case, the question was whether  assignment
\nof  the share in the partnership required registration?\t The
\nshare of partner in the partnership which has also immovable
\nproperty  is movable property and assignment of\t that  share
\ndid not require registration under section 17 of the  Regis-
\ntration\t Act. But the award in that case expressly  made  an
\nexclusive  allottment  of the partnership  assets  including
\nfactory\t and liabilities over Rs., 100 to the  appellant  in
\nthat case. It went further and made the appellant absolutely
\nentitled  to the same. That is not the position in  the\t in-
\nstant  case. In that view of the matter, though there is  no
\ndispute about the propositions, these two decisions would be
\napplicable  to the facts of the instant case, we are of\t the
\nopinion\t on an analysis of award that it did not create\t any
\nright  in  any\timmovable property and as such\tit  was\t not
\ncompulsory to register it.\n<\/p>\n
Though\tthe  ,above should be sufficient to dispose  of\t the
\norder as
\n163<\/span>
\nit  iS an appeal under Article 136 of the  Constitution,  we
\nshould see in the interest of justice to the interest of all
\nthe  parties and we must protect as far as  practicable\t the
\ninterests  of  all  the parties. A submission  was  made  on
\nbehalf\tof Miss Shail that Rs.350 per month which  has\tbeen
\nfixed  for  the maintenance to be paid by Major\t Kshyap\t was
\ninadequate.  It was further submitted that  Rs.40,800  which
\nwas  the  share of the money to be allotted to\teither\tMrs.
\nVasisht and also to Miss Shail for getting their relinqhish-
\nment  of their property in the event mentioned in the  award
\nis also not proper.\n<\/p>\n
    In view of the present position of inflation and rise in
\nprice of life and living, we are of the opinion that so\t far
\nas  Miss  Shail is concerned, we would dismiss\tthis  appeal
\nwith  the  directions that she will be titled to  a  monthly
\nmaintenance  of Rs.500 instead of Rs.350 and that  this\t sum
\nshould form a charge on the share allotted to Major  Kshyap.
\nFurthermore we direct that in the contingencies mentioned in
\nclauses\t (1)  and (2) of the Award, Mrs. Vasisht  should  be
\npaid  Rs.75.000 instead of Rs.40,800. Similarly in the\tcon-
\ntingency  mentioned in clause (4) of the Award,\t Miss  Shail
\nshould be paid Rs.75,000 instead of Rs.40,800. The appeal is
\nallowed and the award as modified with the aforesaid  direc-
\ntion is made a rule of the court.\n<\/p>\n
    In the facts and circumstances of the case, the  parties
\nwill  pay and bear their own costs except that the  cost  on
\nbehalf of Miss Shail should be paid by Major Kshyap.\n<\/p>\n
P.S.S.\t\t\t\t\t\tAppeal\t al-\nlowed.\n164<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Capt. (Now Major) Ashok Kshyap vs Mrs. Sudha Vasisht & Anr on 4 February, 1987 Equivalent citations: 1987 AIR 841, 1987 SCR (2) 151 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: CAPT. (NOW MAJOR) ASHOK KSHYAP Vs. RESPONDENT: MRS. SUDHA VASISHT & ANR. DATE OF JUDGMENT04\/02\/1987 BENCH: MUKHARJI, SABYASACHI (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-59174","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCapt. 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