{"id":59702,"date":"2009-04-08T00:00:00","date_gmt":"2009-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/john-vs-elikutty-on-8-april-2009"},"modified":"2017-06-01T10:16:43","modified_gmt":"2017-06-01T04:46:43","slug":"john-vs-elikutty-on-8-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/john-vs-elikutty-on-8-april-2009","title":{"rendered":"John vs Elikutty on 8 April, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
John vs Elikutty on 8 April, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAFA.No. 131 of 1991()\n\n\n\n1. JOHN\n                      ...  Petitioner\n\n                        Vs\n\n1. ELIKUTTY\n                       ...       Respondent\n\n                For Petitioner  :SRI.V.GIRI\n\n                For Respondent  :SRI.S.ANANTHASUBRAMANIAN\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice C.T.RAVIKUMAR\n\n Dated :08\/04\/2009\n\n O R D E R\n                P.R. RAMAN & C.T. RAVIKUMAR, JJ.\n              ---------------------------------------------------------\n                  A.F.A. NOS. 131, 160 & 161 OF 1991\n              ---------------------------------------------------------\n                     Dated this the 8th day of April, 2009\n\n                                  JUDGMENT\n<\/pre>\n
Ravikumar, J.\n<\/p>\n<\/p>\n
      These appeals are directed against the common judgment and<\/p>\n
decree in A.S. Nos.317 of 1990, 133 of 1990 and 316 of 1990 filed<\/p>\n
against the common judgment and decree dated 5.10.1983 in O.S. Nos.<\/p>\n
263 of 1979, 326 of 1982 and 16 of 1981, on the file of the First<\/p>\n
Additional Sub Court, Ernakulam.\n<\/p>\n<\/p>\n
      2.   Before going into the factual details of these appeals, it is<\/p>\n
relevant to look into the background of the case. The lis in these cases<\/p>\n
centered around two ladies involved in the life of one Mathai Markose,<\/p>\n
viz, one Smt. Sara and one Smt. Elykutty. The former is the estranged<\/p>\n
wife of the said Mathai Markose and she got five children in the said<\/p>\n
wedlock.     He had an equal number of children through the latter with<\/p>\n
whom he lived the rest of his life after the former started separate<\/p>\n
residence. Mathai Markose died intestate on 30.9.1978 and naturally the<\/p>\n
dispute for his estate began thenceforth. Initially, the parties attempted to<\/p>\n
A.F.A. NOS.131,160 & 161\/1991         2<\/span><\/p>\n
give a quietus to the dispute by making a private reference to certain<\/p>\n
Arbitrators who are the brothers and some close relatives of the deceased<\/p>\n
Mathai Markose, for effecting partition of the properties left behind by<\/p>\n
him.     For that purpose, the parties on either side,    executed Ext.A1<\/p>\n
agreement dated 6.7.1978 agreeing to refer the issue to the Arbitrators<\/p>\n
named therein and further agreeing to abide by the award to be passed<\/p>\n
pursuant to such arbitration.   Subsequently, the said Arbitrators passed<\/p>\n
Ext.X1 award on 15.10.1978 and in pursuance thereof, the parties took<\/p>\n
possession of the respective shares allotted to them in the property left<\/p>\n
behind by the deceased Mathai Markose. However, the issue did not attain<\/p>\n
quietus and the parties began to raise disputes ignoring the award of the<\/p>\n
Arbitrators\/mediators.\n<\/p>\n<\/p>\n
       3. O.S. No.263 of 1979 was filed by John, the son of deceased<\/p>\n
Mathai Markose through Smt. Sara and Smt.          Sara, the widow. Smt.<\/p>\n
Elykutty and her children through the said Mathai Markose were the<\/p>\n
defendants therein. It was a suit for recovery of possession of the plaint A<\/p>\n
schedule property therein with profits at the rate of Rs. 600 per annum.<\/p>\n
They had also filed O.S.No.16 of 1981 which was a suit for an injunction<\/p>\n
against the defendants, viz., Smt. Elykutty and her three elder daughters,<\/p>\n
from entering into plaint A schedule property therein and taking usufructs<\/p>\n
A.F.A. NOS.131,160 & 161\/1991          3<\/span><\/p>\n
from there and also from disturbing their possession over the same.<\/p>\n
O.S.326 of 1982 was then, filed by Smt. Elykutty and her children against<\/p>\n
Smt. Sara and her son Sri.John as also against one Kunjan Neelakandan<\/p>\n
who was the tenant in item No.1 of the plaint Schedule property therein. It<\/p>\n
was a suit for declaration of their title and possession over the plaint<\/p>\n
schedule property and for an injunction restraining the defendants from<\/p>\n
interfering with their and taking possession of the plaint schedule item<\/p>\n
No.1 therein or collecting the rent from the third defendant therein.<\/p>\n
      4. The following were the main issues framed by the trial court in<\/p>\n
the said suits:-\n<\/p>\n<\/p>\n
      O.S.No.16 of 1981:<\/p>\n
\n<\/blockquote>\n
             i. Whether the plaintiff was in possession of the
\n                 plaint A schedule property on the date of the
\n                 suit?\n<\/p><\/blockquote>\n
             ii. Reliefs and costs?\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      O.S.No.263 of 1979:\n<\/p><\/blockquote>\n
<\/blockquote>\n
             i. Whether the defendants have any title and
\n                right to hold the plaint schedule properties?<\/p>\n
A.F.A. NOS.131,160 & 161\/1991            4<\/span><\/p>\n
            ii. Is there any arbitration agreement and award in
\n                respect of the plaint schedule properties as
\n                alleged in paragraph 8 of the written
\n                statement? If so, is it binding on the plaintiffs?<\/p>\n
            iii.Is not the plaintiffs entitled to get recovery of
\n                the plaint schedule properties from the
\n                defendants, together with mesne profits?<\/p>\n
            iv.What is the mesne profits for which the
\n                plaintiffs are entitled to, if the defendants are
\n                liable?\n<\/p><\/blockquote>\n
            v. Regarding costs and other reliefs?<\/p>\n
            vi.Whether the trespass alleged is true?<\/p>\n
            vii.Whether the defendants are in possession of
\n                the properties in part performance of a
\n                contract?\n<\/p><\/blockquote>\n
            viii.Whether the plaintiffs are estopped from
\n                claiming rights over the plaint schedule
\n                properties?\n<\/p><\/blockquote>\n
<\/blockquote>\n
      O.S. No.326 of 1982:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                  i. Whether there is a legal and valid
\n                      arbitration ‘award’ as alleged in the plaint?
\n                      Whether it binds defendants 1 and 2?<\/p>\n
                  ii. Whether plaintiffs are in possession of the
\n                      property in part performance of the
\n                      award?\n<\/p><\/blockquote>\n
                  iii.Whether plaintiffs have            title and\n                      possession for         the plaint schedule\n                      properties?\n\nA.F.A. NOS.131,160 & 161\/1991           5<\/span>\n\n\n\n\n                  iv.Whether plaintiffs are entitled        to the\n                     declaration and injunction prayed for?\n\n                  v. Reliefs and costs?\n\n                  vi.Whether defendants 1 and 2 have accepted\n                     the award? Whether        they are estopped\n                     from claiming rights over properties\n                     allotted to the plaintiffs as per the award?\n\n\n\n<\/pre>\n
All the three suits were jointly tried by consent of the parties. O.S. No.326<\/p>\n
of 1982 was treated as the main suit and evidence was recorded therein. In<\/p>\n
the common judgment, the trial court made reference of the parties in<\/p>\n
accordance with their ranks in O.S. No.326 of 1982. PWs.1 to 4 were<\/p>\n
examined and Exts.A1 to A6 were marked on the side of the plaintiffs. On<\/p>\n
the side of the defendants, DWs.1 and 2 were examined, but no documents<\/p>\n
were produced on their side. Ext.X1 award dated 15.10.1978 passed by<\/p>\n
the Arbitrators\/mediators and produced by PW.2 was marked as court<\/p>\n
exhibit.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n<\/blockquote>\n
      5. The Arbitrators\/mediators appointed on private reference passed<\/p>\n
Ext.X1 award on 15.10.1978 making division and allotment of properties<\/p>\n
of deceased Mathai Markose between the first plaintiff and her children<\/p>\n
and the second defendant and her children. According to the plaintiffs<\/p>\n
viz., Elikutty and her Children, the parties are in possession of respective<\/p>\n
A.F.A. NOS.131,160 & 161\/1991          6<\/span><\/p>\n
properties allotted as their shares and except one of the Arbitrators all the<\/p>\n
others have signed the said award and it was accepted in writing by all the<\/p>\n
concerned parties including the second defendant(Smt.Sara) and her<\/p>\n
children and, therefore, the division and allotment of the properties as per<\/p>\n
Ext.X1 award are binding on all the parties. It is the case of the plaintiffs<\/p>\n
that the plaint schedule properties were allotted to them as per Ext.X1<\/p>\n
award and that since then, they were in possession of the said properties.<\/p>\n<\/blockquote>\n
Item No.1 therein is a shop room given on rental basis to the third<\/p>\n
defendant and that ignoring the Ext.X1award, the defendants have filed<\/p>\n
O.S. Nos.16 of 1981 and 263 of 1979 and another Succession O.P. in the<\/p>\n
Munsiff’s Court, Muvattupuzha.\n<\/p>\n<\/p>\n
      6.   Defendants 1 and 2 in O.S. No.326 of 1982 who were the<\/p>\n
plaintiffs in O.S. Nos.16 of 1981 and 263 of 1979,          filed a written<\/p>\n
statement contending that the first plaintiff came to their residence as a<\/p>\n
maid servant while they were living with the deceased Mathai Markose .<\/p>\n
According to the second defendant, the presence of the first plaintiff in the<\/p>\n
family created an unpleasant situation as a result of which she was<\/p>\n
constrained to leave the house along with her children and that thereafter,<\/p>\n
they started living in Nilgiri.    They also denied the alleged marriage<\/p>\n
between the deceased Mathai Markose and the first plaintiff and also the<\/p>\n
A.F.A. NOS.131,160 & 161\/1991          7<\/span><\/p>\n
factum of birth of plaintiffs 2 to 6 as children in the lawful wedlock<\/p>\n
between them. They also contended that on the death of Mathai Markose,<\/p>\n
the ownership and possession of the properties left behind by him<\/p>\n
devolved on them and at that point of time, the plaintiffs were not in<\/p>\n
possession of any portion of his properties. The factum of execution of an<\/p>\n
agreement for arbitration and the subsequent passing of the award and<\/p>\n
acceptance of the same were also denied by them. According to them, the<\/p>\n
plaintiffs did not derive any right over the plaint schedule properties based<\/p>\n
on the award and that they alone are exclusively entitled to all the<\/p>\n
properties left behind by deceased Mathai Markose.             Further, it is<\/p>\n
contended by the defendants that they had permitted the plaintiffs to reside<\/p>\n
temporarily in the building constructed in a portion of the plaint schedule<\/p>\n
property in item No.2 and that taking advantage of this humanitarian act,<\/p>\n
the plaintiffs trespassed into the nearby property which consequently led to<\/p>\n
the institution of O.S. Nos.16 of 1981 and 263 of 1979. They had also<\/p>\n
denied the alleged rental agreement in the plaint schedule property and<\/p>\n
alleged that the plaintiffs were not entitled to any relief and sought for<\/p>\n
dismissal of the suit.\n<\/p>\n<\/p>\n
      7. After a careful consideration of the entire matter, the trial court<\/p>\n
passed a common judgment in the said three suits, on 5.10.1983. A decree<\/p>\n
A.F.A. NOS.131,160 & 161\/1991          8<\/span><\/p>\n
was passed in favour of the plaintiffs in O.S. No.326 of 1982. O.S. Nos.16<\/p>\n
of 1981 and 263 of 1979 were dismissed. The trial court arrived at the<\/p>\n
conclusion that the parties had entered into Ext.A1 agreement and referred<\/p>\n
their disputes for a decision by the Arbitrators\/mediators and further that<\/p>\n
the Arbitrators\/mediators gave their decision vide Ext.X1 award which<\/p>\n
was accepted by all the parties. It was also found by the trial court that in<\/p>\n
pursuance thereof, the parties had taken possession of the properties as per<\/p>\n
the provisions contained in Ext.X1 award and that Ext.X1 award is thus<\/p>\n
binding on all the parties. Therefore, they are not entitled to question the<\/p>\n
claim for possession by the plaintiffs. It was based on the said conclusion<\/p>\n
that O.S.Nos.16 of 1981 and 263 of 1979 were dismissed and O.S. No.326<\/p>\n
of 1982 was decreed declaring the plaintiffs’ possession over the plaint<\/p>\n
schedule properties and granting injunction against defendants 1 and 2<\/p>\n
from interfering with the plaintiffs’ possession and enjoyment of the<\/p>\n
property and also from evicting the third defendant or realizing rent,<\/p>\n
arrears and future, from him from plaint item No.1.\n<\/p>\n<\/p>\n
      8. A.S. Nos.133 of 1984, 316 of 1990 and 317 of 1990 were then<\/p>\n
filed against the judgments in the respective suits       O.S. Nos.326\/82,<\/p>\n
16\/1981and 263\/79, viz., against the aforesaid common judgment and<\/p>\n
decree.   All the three appeals were also heard jointly and a common<\/p>\n
A.F.A. NOS.131,160 & 161\/1991           9<\/span><\/p>\n
judgment was passed in the said appeals by the learned Single Judge. As<\/p>\n
per the common judgment dated 6.6.1991, the learned Single Judge<\/p>\n
dismissed all the aforesaid three appeals.         The learned Single Judge<\/p>\n
elaborately dealt with the evidence and contentions raised on behalf of the<\/p>\n
parties regarding the agreement for arbitration and also the award passed<\/p>\n
by the Arbitrators\/mediators.      The said common judgment would also<\/p>\n
reveal that before the learned Single Judge, no serious attempt was made<\/p>\n
to prove that the first plaintiff was not the legally wedded wife of deceased<\/p>\n
Mathai Markose. However, none disputed that the plaintiffs were living<\/p>\n
with deceased Mathai Markose at the time of his death. After appreciating<\/p>\n
the entire oral and documentary evidence and considering the various<\/p>\n
decisions relied on by both sides, the learned Single Judge arrived at the<\/p>\n
conclusion that Ext.A1 agreement was produced to prove the agreement<\/p>\n
between the parties for division of the properties left behind by deceased<\/p>\n
Mathai Markose and Ext.X1 was produced as a collateral evidence to<\/p>\n
prove the division of properties. It was held that in such circumstances,<\/p>\n
Ext.X1 can be looked into for the limited purpose of ascertaining whether<\/p>\n
the division of properties alleged is true. It is a fact that in the other suits<\/p>\n
filed by defendants 1 and 2, they have only set up a defence that there was<\/p>\n
a division of properties as a result of settlement by Arbitrators\/mediators<\/p>\n
and that the parties have acted upon and accepted the mediation and most<\/p>\n
A.F.A. NOS.131,160 & 161\/1991        10<\/span><\/p>\n
importantly, took possession of the respective shares allotted to them.   In<\/p>\n
the circumstances, the learned Single Judge took the view that there is no<\/p>\n
bar in looking at Ext.X1 as a collateral evidence to find out as to how the<\/p>\n
parties came into possession of their respective share of the properties. As<\/p>\n
stated earlier, after such careful consideration, the learned Single Judge<\/p>\n
dismissed A.S.Nos.133 of 1984, 316 of 1990 and 317 of 1990 as per the<\/p>\n
common judgment dated 6.6.1994. These appeals are directed against the<\/p>\n
said common judgment of the learned Single Judge.\n<\/p>\n<\/p>\n
      9. Before us, A.F.A. No.160 of 1991 arising out of the judgment in<\/p>\n
A.S.No.133 of 1984 ie., the appeal against the judgment and decree in<\/p>\n
O.S.326 0f 1982, was taken as the leading case and arguments were<\/p>\n
advanced by both parties with reference to the status                therein.<\/p>\n
Accordingly, hereinafter in this judgment, the parties will be referred to in<\/p>\n
accordance with their ranks in the said appeal.        In this context, the<\/p>\n
following aspects also assume relevance.       The first appellant in A.S.<\/p>\n
Nos.133 of 1984 and 317 of 1990 viz., Sri. John was the sole appellant in<\/p>\n
A.F.A. No.160 of 1991 and A.F.A. No.131 of 1991 and on his death, his<\/p>\n
legal representatives were impleaded as additional appellants 2 to 5 as per<\/p>\n
order dated 27.1.2000 in C.M.P. Nos. 237, 238 and 239 of 2000 in A.F.A.<\/p>\n
No.160 of 1991 and as additional appellants 2 to 5 in A.F.A. No.131 of<\/p>\n
A.F.A. NOS.131,160 & 161\/1991         11<\/span><\/p>\n
1991 as per order dated 21.1.2003. The same procedure was followed in<\/p>\n
A.F.A. No.161 of 1991also.\n<\/p>\n<\/p>\n
      10. In all the three appeals, arguments were advanced on either side,<\/p>\n
recognizing Ext.A1 as an agreement executed for division and allotment<\/p>\n
of shares in the properties left behind by the deceased Mathai Markose and<\/p>\n
Ext.X1 as the award dated 15.10.1978 passed by the Arbitrators\/mediators<\/p>\n
appointed by the parties pursuant to Ext.A1 agreement.       Based on such<\/p>\n
consideration, the appellants mainly contended that Ext.X1 award is not<\/p>\n
legally enforceable on various grounds. It was contended that Ext.X1 was<\/p>\n
not written on a stamp paper and was not registered under Section 17 of<\/p>\n
the Registration Act and further that it was not made a rule of the court. It<\/p>\n
was also contended that one of the Arbitrators who was examined as DW.2<\/p>\n
had not signed Ext.X1 award based on the said aspects. The questions as<\/p>\n
to whether Ext.X1 award is a compulsorily registrable one, the effect of its<\/p>\n
non-registration and whether the same can be enforced without making it a<\/p>\n
rule of court were also argued. The respondents have raised arguments to<\/p>\n
sustain the award. In view of the rival contentions, mainly, the following<\/p>\n
points arise for our consideration:\n<\/p>\n<\/p>\n
             i. Whether Ext.X1 award is a compulsorily
\n                registrable one?\n<\/p><\/blockquote>\n
A.F.A. NOS.131,160 & 161\/1991          12<\/span><\/p>\n
             ii. What is the effect of its non-registration and
\n                 whether the same can be enforced without
\n                 making it a rule of court?\n<\/p><\/blockquote>\n
            iii. Whether the appellants are estopped from
\n                 challenging the same based on the salutory
\n                 doctrine of estoppal?<\/p><\/blockquote>\n
      11. Admittedly, Ext.X1 award was signed by all the Arbitrators\/<\/p>\n
mediators except DW.2 and the same was not written on a stamp paper. It<\/p>\n
was also not registered under Section 17 of the Registration Act. In such<\/p>\n
circumstances, the ancillary question regarding the effect of   non-signing<\/p>\n
of the same by all the Arbitrators also invites our consideration . Before<\/p>\n
scanning the evidence and arriving at a decision, we think it preferable and<\/p>\n
profitable to look into the general legal position in regard to the validity<\/p>\n
of a document like Ext.X1 award passed based on a private reference, the<\/p>\n
requirement or otherwise of its registration and the applicability of the<\/p>\n
doctrine of estoppel in such cases.        To substantiate their respective<\/p>\n
contentions in relation to the aforesaid questions, the parties relied on<\/p>\n
various decisions of this Court and also the Honourable Apex Court. We<\/p>\n
are adverting only to those decisions which are relevant for the purpose of<\/p>\n
deciding the legal issues involved in these appeals.<\/p>\n
A.F.A. NOS.131,160 & 161\/1991         13<\/span><\/p>\n
      12. On behalf of the appellants, the decisions reported in Bhagwan<\/p>\n
Das and Others v. Girja Shanker and Another, JT 2000(Suppl.1) S.C.<\/p>\n
246, Delhi Auto & General Finance (P) Ltd. v. Tax Recovery Officer<\/a><\/p>\n
(1998) 8 SCC 705, Pradeep Anand v. ITC Ltd. (2002) 6 SCC 437,<\/p>\n
Lachhman Dass v. Ram Lal and Another<\/a> (1989) 3 SCC 99 and Satish<\/p>\n
Kumar v. Surinder Kumar, AIR<\/a> 1970 SC 833 were relied on.             In the<\/p>\n
decision reported in Bhagwan Das and Others v. Girja Shanker and<\/p>\n
Another, JT 2000(Suppl.1) S.C. 246, the appellant claimed exclusive<\/p>\n
possession of property on the basis of an unregistered partition deed and<\/p>\n
the respondents therein claimed possession along with the appellants\/<\/p>\n
plaintiffs. The said unregistered partition deed was held to be inadmissible<\/p>\n
in evidence and the question was held in favour of the defendants\/<\/p>\n
respondents. In appeal, the Honourable Apex Court held that since the<\/p>\n
document relied on by the appellants therein was unregistered, it was<\/p>\n
rightly held by the High Court as inadmissible in evidence.          In the<\/p>\n
decision reported in Delhi Auto & General Finance (P) Ltd. v. Tax<\/p>\n
Recovery Officer<\/a> (1998) 8 SCC 705, the question was with respect to the<\/p>\n
effect of charge created pursuant to the Arbitrator’s award and it was held<\/p>\n
therein that unless the award was made a rule of the court, such a charge<\/p>\n
will be ineffective. In Pradeep Anand v. ITC Ltd. (2002) 6 SCC 437,<\/p>\n
considering the provisions of Section 34 of the Arbitration Act, 1940, it<\/p>\n
A.F.A. NOS.131,160 & 161\/1991          14<\/span><\/p>\n
was held that in case there is an arbitration agreement entered into between<\/p>\n
the parties, they should ordinarily be held by the agreement and they<\/p>\n
should not be permitted to initiate any legal proceedings other than the<\/p>\n
arbitration proceedings relating to any dispute coming within the<\/p>\n
arbitration clause. This position is also clear from the provisions under<\/p>\n
Section 18 of the Arbitration Act. The fact remains that no party will be<\/p>\n
entitled to get any benefit in any final award passed by the Arbitrator until<\/p>\n
the same is made rule of the court and before this is done, the court is duty<\/p>\n
bound to give notice to the parties and consider the objections, if any<\/p>\n
raised by any of the parties against the award. In the decision reported in<\/p>\n
Lachhman Dass v. Ram Lal and Another<\/a> (1989) 3 SCC 99 , it was held<\/p>\n
that for the purpose of registration of a document, Section 17 of the<\/p>\n
Registration Act has to be strictly construed and at the same time, it was<\/p>\n
held that the plea of invalidating the award on the ground of non-<\/p>\n
registration may not be open after the lapse of the prescribed period of<\/p>\n
limitation in an application under Sections 30 to 33 of the Registration<\/p>\n
Act. In the decision reported in Satish Kumar v. Surinder Kumar, AIR<\/a><\/p>\n
1970 SC 833, a reference to arbitration was made by the parties without<\/p>\n
intervention of the court and the award was not made a rule of the court.<\/p>\n
Based on the private award, partition of immovable properties worth more<\/p>\n
than Rs.100\/- was effected. Considering the question, the Honourable<\/p>\n
A.F.A. NOS.131,160 & 161\/1991          15<\/span><\/p>\n
Apex Court held that registration of the award, before making it a rule of<\/p>\n
the court, is necessary. It was further held that the award is in fact a final<\/p>\n
adjudication of a Court of the parties’ own choice, and until impeached<\/p>\n
upon sufficient grounds in an appropriate proceeding, an award, which is<\/p>\n
on the face of it regular, is conclusive upon the merits of the controversy<\/p>\n
submitted. As between the parties and their privies, and award is entitled<\/p>\n
to that respect which is due to judgment of court of last resort…. …… The<\/p>\n
award does create rights in property, but those rights cannot be enforced<\/p>\n
until the award is made a decree of the court. It is one thing to say that a<\/p>\n
right is not created, it is an entirely different thing to say that the right<\/p>\n
created cannot be enforced without further steps.” It was relying on the<\/p>\n
aforesaid decisions that the appellants canvassed the position that Ext.X1<\/p>\n
award is a compulsorily registrable one and it cannot be acted upon on<\/p>\n
account of its non-registration. Moreover, without making the award a<\/p>\n
rule of the court, it could not be enforced.\n<\/p>\n<\/p>\n
       13. The respondents relied on the decisions reported in Roshan<\/p>\n
Singh v. Zile Singh, AIR<\/a> 1988 SC 881, Ram Charan v. Girja Nandini,<\/p>\n
AIR 1966 SC 323, Kashinathsa v. Narsingsa, AIR 1961 SC 1077, B.L.<\/p>\n
Sreedhar v. K.M. Munireddy<\/a>(2003)2 SCC 355, Bondar Singh v. Nihal<\/p>\n
Singh<\/a> (2003)4 SCC 161, Kale v. Dy. Director of Consolidation, AIR<\/p>\n
A.F.A. NOS.131,160 &<\/span><\/a> 161\/1991         16<\/p>\n
1976 SC 807, 1968 Patna LJR 218 and Thayyullathil Kunhikannan v.<\/p>\n
Thayyullathil Kalliani, AIR<\/a> 1990 Kerala 226 to resist the contentions of<\/p>\n
the appellants and to canvass the point that non-registration of Ext.X1<\/p>\n
award and also the fact that it was not made a rule of the court would not<\/p>\n
and cannot make it impossible to be enforced and also that the appellants<\/p>\n
are stopped from resiling from the agreement and also from challenging<\/p>\n
the legality of Ext.X1.     In the decision reported in Kashinathsa v.<\/p>\n
Narsingsa, AIR 1961 SC 1077, the award of the court was accepted by the<\/p>\n
parties and subsequently ignoring such acceptance, a suit was instituted by<\/p>\n
one of the parties. Defence was set up on the basis of such acceptance. An<\/p>\n
award was passed by the Arbitrators regarding division of properties. In<\/p>\n
the circumstances, it was held that the award passed by the Arbitrators was<\/p>\n
not required to be registered under Section 17 of the Registration Act and<\/p>\n
that the partition thus effected based on the award dividing the family<\/p>\n
properties between the members of the family are binding on the parties.<\/p>\n
In the decision reported in Kale v. Dy. Director of Consolidation, AIR<\/a><\/p>\n
1976 SC 807, it was held that the compromise need not require any<\/p>\n
registration. In Ram Charan v. Girja Nandini, AIR 1966 SC 323,           it<\/p>\n
was held that the compromise between parties in a previous suit was<\/p>\n
family settlement and was binding on them and that every party who takes<\/p>\n
benefit under it need not necessarily be shown to have, under the law, a<\/p>\n
A.F.A. NOS.131,160 & 161\/1991         17<\/span><\/p>\n
claim to a share in the property. All that is necessary to show is that the<\/p>\n
parties are related to each other in some way and have a possible claim to<\/p>\n
the property or a claim or even a semblance of a claim on some other<\/p>\n
ground, as say affection.    In the decision reported in Roshan Singh v.<\/p>\n
Zile Singh, AIR<\/a> 1988 SC 881, partition of ancestral properties was<\/p>\n
effected and there was a subsequent memorandum of partition embodying<\/p>\n
the factum of partition. It was held therein that the memorandum was<\/p>\n
only a family arrangement and its registration was not necessary. As stated<\/p>\n
earlier, arguments were advanced considering Ext.A1 as the agreement<\/p>\n
between the parties and allotment of properties left behind by deceased<\/p>\n
Mathai Markose between the appellants and the respondents as per Ext.X1<\/p>\n
award passed by the Arbitrators\/mediators in pursuance of Ext.A1. The<\/p>\n
fact that the parties are in possession of the properties as allotted vide<\/p>\n
Ext.X1 has also not been disputed. The fact that the grandmother viz., the<\/p>\n
first plaintiff in O.S. No.326 of 1979 was living with the deceased Mathai<\/p>\n
Markose as his wife and that her children who were the other plaintiffs in<\/p>\n
the said suit were begotten through the said Mathai Markose also remains<\/p>\n
undisputed. The parties have also virtually admitted Ext.X1 as the award<\/p>\n
passed in terms of Ext.A1 agreement. Even otherwise Ext.X1 will have a<\/p>\n
binding effect on all the parties as it can be taken as a family settlement.<\/p>\n
In both the cases, the facts borne out from the records and not put under<\/p>\n
A.F.A. NOS.131,160 & 161\/1991         18<\/span><\/p>\n
dispute, are pointers to the fact that      allotment of the properties of<\/p>\n
deceased Mathai Markose was effected between the parties and that they<\/p>\n
are in possession of their allotted shares. In other words, the parties have<\/p>\n
already acted upon Ext.X1award and are in possession of their respective<\/p>\n
allotted shares.   In the circumstances, the parties cannot dispute the<\/p>\n
existence of Ext.A1 agreement and Ext.X1 award dated 15.10.1978 as well<\/p>\n
as division of properties and allotment of shares. That being the case, the<\/p>\n
nature of Ext.X1, whether it be an award or a family settlement, will not<\/p>\n
and cannot alter its binding effect between the parties and also it cannot<\/p>\n
have any adverse effect or impact on account of its non-registration. As<\/p>\n
held by the Honourable Apex Court, a party to such an award, after its<\/p>\n
acceptance, cannot be permitted to ignore the same, especially after<\/p>\n
division of the properties has been effected.\n<\/p>\n<\/p>\n
       14. In this context, in view of the aforesaid admitted facts, the<\/p>\n
question of application of the doctrine of estoppal also assumes relevance.<\/p>\n
In the decision reported in B.L. Sreedhar v. K.M.Munireddy<\/a>(2003)2<\/p>\n
SCC 355, the Honourable Apex Court held that if by words or conduct, a<\/p>\n
person consents to an act, which could not lawfully have been done<\/p>\n
without such consent, and others are thereby led to do that which they<\/p>\n
otherwise would not have done, such person cannot be permitted to<\/p>\n
A.F.A. NOS.131,160 & 161\/1991         19<\/span><\/p>\n
challenge the legality of the act he authorised, to the prejudice of others<\/p>\n
who have acted relying on the fair inference to be drawn from this conduct.<\/p>\n
Where rights are so involved, they are bound by the principle of estoppel.<\/p>\n
Estoppel may be described as a rule creating or defeating a right as well as<\/p>\n
a rule of evidence.         In the decision reported in Thayyullathil<\/p>\n
Kunhikannan v. Thayyullathil Kalliani, AIR<\/a> 1990 Kerala 226, it was<\/p>\n
held that any arrangement tending to preservation of peace and security in<\/p>\n
a family is family arrangment, it is valid and binding on the members.<\/p>\n
The party taking advantage under such agreement is estopped from resiling<\/p>\n
from the said arrangement or trying to revoke it. The combined effect of<\/p>\n
the decisions mentioned above would be that the parties to the appeals<\/p>\n
cannot be permitted to challenge Ext.A1 agreement and Ext.X1 award.<\/p>\n
Ext.X1 award, in the facts and circumstances of this case, cannot be said to<\/p>\n
be effected on account of non-registration under Section 17 of the<\/p>\n
Registration Act or on account of the failure of the parties to make it a rule<\/p>\n
of the court. In short, Ext.X1 award\/settlement is binding on all the parties<\/p>\n
to the suit and their privies. Therefore, the parties are entitled to continue<\/p>\n
with their possession over the allotted properties in terms of Ext.X1. Title<\/p>\n
to the said properties cannot be disputed or challenged by the parties or the<\/p>\n
beneficiaries of Ext.X1. The parties are also estopped from challenging<\/p>\n
the validity of the award in the circumstances already expatiated.<\/p>\n
A.F.A. NOS.131,160 & 161\/1991           20<\/span><\/p>\n
       15. Admittedly, there were ten Arbitrators appointed as per Ext.A1<\/p>\n
agreement. Ext.X1 award was passed by the said ten Arbitrators effecting<\/p>\n
partition and allotment of properties that belonged to the deceased Mathai<\/p>\n
Markose. Admittedly, one of the Arbitrators who was examined as DW.2<\/p>\n
did not sign Ext.X1. He would, however, depose that he too had taken part<\/p>\n
in the arbitration proceedings and it was in pursuance of such a meeting<\/p>\n
that Ext.X1 award was passed. In the circumstances, the mere fact that he<\/p>\n
had not signed Ext.X1 award cannot invalidate the same. To buttress this<\/p>\n
point, learned counsel for the respondents relied on the decision reported<\/p>\n
in 1968 Patna LJR 218. In that case it was held that as party had taken<\/p>\n
part in proceedings before five arbitrators he was estopped from<\/p>\n
challenging validity of award on the ground that all arbitrators had not<\/p>\n
taken part in the proceedings. In such circumstances, the challenge of the<\/p>\n
appellants against Ext.X1 on the ground that it was not signed by one of<\/p>\n
the ten Arbitrators must fail.\n<\/p>\n<\/p>\n
       16.   The inevitable conclusion which should follow the above<\/p>\n
discussions is that Ext.X1 award is binding on the parties and the<\/p>\n
appellants are liable to fail in their attempt to assail Ext.A1 agreement and<\/p>\n
Ext.X1 award.\n<\/p>\n
A.F.A. NOS.131,160 & 161\/1991         21<\/span><\/p>\n
       17. During the course of argument, a prayer was made that an<\/p>\n
injunction restraining the defendants from entering into the properties<\/p>\n
allotted towards the share of the appellants may be granted. Before the<\/p>\n
court below also, the predecessors of the appellants had made such a<\/p>\n
prayer and the same was declined to be granted. There is no material<\/p>\n
before us to arrive at a finding that the respondents herein are trying to<\/p>\n
encroach upon the properties of the appellants which were allotted as their<\/p>\n
share based on Ext.X1 award. In the absence of proper pleading to that<\/p>\n
effect and evidence in that regard, we are not persuaded to consider the<\/p>\n
said prayer.\n<\/p>\n<\/p>\n
       In the result, the appeals fail and they are accordingly dismissed.<\/p>\n
The parties shall bear their respective costs.\n<\/p>\n<\/p>\n
                                         (P.R. RAMAN)
\n                                              JUDGE<\/p>\n
                                      (C.T. RAVIKUMAR)
\n                                              JUDGE<\/p>\n
sp\/<\/p>\n
A.F.A. NOS.131,160 & 161\/1991   22<\/span><\/p>\n
                                               C.R.\n<\/p>\n
                                    P.R. RAMAN &
\n                                    C.T. RAVIKUMAR, JJ.\n<\/p>\n
                                    A.F.A. NOS.131, 160 & 161<\/span>\n<\/p>\n
                                           OF 1991<\/p>\n
                                    JUDGMENT<\/p>\n
                                    8th April, 2009<\/p>\n
A.F.A. NOS.131,160 & 161\/1991   23<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court John vs Elikutty on 8 April, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM AFA.No. 131 of 1991() 1. JOHN … Petitioner Vs 1. ELIKUTTY … Respondent For Petitioner :SRI.V.GIRI For Respondent :SRI.S.ANANTHASUBRAMANIAN The Hon’ble MR. Justice P.R.RAMAN The Hon’ble MR. Justice C.T.RAVIKUMAR Dated :08\/04\/2009 O R D E R P.R. […]<\/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":[8,21],"tags":[],"class_list":["post-59702","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJohn vs Elikutty on 8 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/john-vs-elikutty-on-8-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"John vs Elikutty on 8 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/john-vs-elikutty-on-8-april-2009\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2009-04-07T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-06-01T04:46:43+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"24 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/john-vs-elikutty-on-8-april-2009#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/john-vs-elikutty-on-8-april-2009\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"John vs Elikutty on 8 April, 2009\",\"datePublished\":\"2009-04-07T18:30:00+00:00\",\"dateModified\":\"2017-06-01T04:46:43+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/john-vs-elikutty-on-8-april-2009\"},\"wordCount\":4697,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"High Court\",\"Kerala High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/john-vs-elikutty-on-8-april-2009#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/john-vs-elikutty-on-8-april-2009\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/john-vs-elikutty-on-8-april-2009\",\"name\":\"John vs Elikutty on 8 April, 2009 - 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