# KASHINATHSA YAMOSA KABADI, ETC v. NARSINGSA BHASKARSA KABADI, ETC

- **Citation:** [1961] 3 S.C.R. 792
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeals Nos. 218 to 223of1959
- **Bench:** J. L. Kapur, M. Hidayatullah, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kashinathsa-yamosa-kabadi-etc-v-narsingsa-bhaskarsa-kabadi-etc-1923
- **Pages:** 22

## Headnote

Hindu Law-Partition-Reference to arbitration out of CourtArbilrator actually dividing some properties and giving possession to
parties-Revocation of reference-Suit for partition, maintainability
of-Documents recording division by arlntrator-Registration, if
necessary-Arbitration Act .. r940 (roof r940), s. 3z-Registration
Act, r908 (r6 of r908), s. r7.
The parties were members of a joint Hindu family possessed
of considerable property movable and immovable. They voluntarily appointed Panchas to determine the shares of the parties
and to divide the property. The Panchas first determined the
shares of the parties and reduced the determination to writing.
It was accepted by the parties and was signed by all of them and
the Panchas. Thereafter, on various dates the Panchas divided
several items of movable and immovable properties and the parties entered into possession of their shares. These divisions were
duly entered in the "partition books" and were signed by the
parties and the Panchas. The Panchas were unable to divide the
remaining properties a.nd with the consent of the parties they
appointed cne G to divide them. G divided some of the properties but he too was unable to divide the remaining properties.
One of the parties served a notice cancelling the authority of the
Panchas and filed a suit for partition of the remaining properties.
Upon an application made by the plaintiff for revoking the reference the Trial Court cancelled :he arbitration as one of the
Panchas was unwilling to proceed with the division. Another
party filed a suit for partition of all the properties contending that
the division made by the Panchas was not binding as the award
had not been made a rule of the court and the reference had been
revoked and as the award was not registered;
Held, that the divisions already made by the Panchas were
binding on the parties and only the remaining properties were
liable to be partitioned. By the reference to the Panchas, the
3 S.C.R.
SUPREME COURT REPORTS
793
parties ceased to be members of the joint Hindu family. Thereafter, by the division of the family assets which was accepted
by the parties and by the taking into possession of their shares
Kashinathsa
·
h
d
h · d' 'd
1
Yamosa Kabadi
by the par!Ies, t e properties came un er t em 1v1 ua ownerships of the parties to whom they were allotted; and in respect of
v ..
the remaining properties they became tenants-in-common. The
Narsingsa d.
proceedings taken by the Panchas were not revoked by the order Bhaskaisa Kaba 1
of the trial Court revoking the reference as they had been accepted
and acted upon by the parties. Where an award made in arbitration out of court is voluntarily accepted and acted upon by the
parties and a suit is thereafter filed by one of the parties ignoring
the acts done in pursuance.of the acceptance of the award, the
defence that the suit is not maintainable is not founded on the
plea that there is an award which bars the suit but that the
parties have by mutual agreement settled the dispute, and that
the agreement and the subsequent actings of the parties are binding. Such a plea i~ not barred by s. 32 of the Arbitration Act.
The records made by the Panchas were documents which merely
acknowledged partitions already made and were not required to
be registered.

## Text

_Characters 0–39,973 of 49,688. This is a partial read: ask again with offset=39973 for what follows._

792
SUPREME COURT REPORTS
[1961]
1961
The result is the appeal is partly allowed and the
decree passed by the High Court is modified by giving
M•llesapp~
the appellants their half share in the properties
B•nd•P:.• Desai described in Schedule C. The rest of the decree passed
Des•i Mall•PP• by the High Court is confirmed. In the circumstances
of this case the parties should bear their own costs.
Gaj•ndragadkar J •
Appeal allowed in part.
February Io.
KASHINATHSA YAMOSA KABADI, ETC.
v.
NARSINGSA BHASKARSA KABADI, ETC.
(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)
Hindu Law-Partition-Reference to arbitration out of CourtArbilrator actually dividing some properties and giving possession to
parties-Revocation of reference-Suit for partition, maintainability
of-Documents recording division by arlntrator-Registration, if
necessary-Arbitration Act .. r940 (roof r940), s. 3z-Registration
Act, r908 (r6 of r908), s. r7.
The parties were members of a joint Hindu family possessed
of considerable property movable and immovable. They voluntarily appointed Panchas to determine the shares of the parties
and to divide the property. The Panchas first determined the
shares of the parties and reduced the determination to writing.
It was accepted by the parties and was signed by all of them and
the Panchas. Thereafter, on various dates the Panchas divided
several items of movable and immovable properties and the parties entered into possession of their shares. These divisions were
duly entered in the "partition books" and were signed by the
parties and the Panchas. The Panchas were unable to divide the
remaining properties a.nd with the consent of the parties they
appointed cne G to divide them. G divided some of the properties but he too was unable to divide the remaining properties.
One of the parties served a notice cancelling the authority of the
Panchas and filed a suit for partition of the remaining properties.
Upon an application made by the plaintiff for revoking the reference the Trial Court cancelled :he arbitration as one of the
Panchas was unwilling to proceed with the division. Another
party filed a suit for partition of all the properties contending that
the division made by the Panchas was not binding as the award
had not been made a rule of the court and the reference had been
revoked and as the award was not registered;
Held, that the divisions already made by the Panchas were
binding on the parties and only the remaining properties were
liable to be partitioned. By the reference to the Panchas, the
3 S.C.R.
SUPREME COURT REPORTS
793
parties ceased to be members of the joint Hindu family. Thereafter, by the division of the family assets which was accepted
by the parties and by the taking into possession of their shares
Kashinathsa
·
h
d
h · d' 'd
1
Yamosa Kabadi
by the par!Ies, t e properties came un er t em 1v1 ua ownerships of the parties to whom they were allotted; and in respect of
v ..
the remaining properties they became tenants-in-common. The
Narsingsa d.
proceedings taken by the Panchas were not revoked by the order Bhaskaisa Kaba 1
of the trial Court revoking the reference as they had been accepted
and acted upon by the parties. Where an award made in arbitration out of court is voluntarily accepted and acted upon by the
parties and a suit is thereafter filed by one of the parties ignoring
the acts done in pursuance.of the acceptance of the award, the
defence that the suit is not maintainable is not founded on the
plea that there is an award which bars the suit but that the
parties have by mutual agreement settled the dispute, and that
the agreement and the subsequent actings of the parties are binding. Such a plea i~ not barred by s. 32 of the Arbitration Act.
The records made by the Panchas were documents which merely
acknowledged partitions already made and were not required to
be registered.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
218 to 223of1959.
Appeals from the Judgment and Decree dated
August 9, 1953, of the Bombay High Court in Appeals
Nos. 605 and 606 of 1952 from Original Decrees.
R. B. Kotwal, S. N. Andley, J. B. Dadachanji,
Rameshwar Nath and P. L. Vohra, for the appellant (In
C. As. Nos. 218 and 219 of 59), Respondent No. 1 (In
C. As. Nos. 220 and 222 of 59), Respondent No. 2 (In
C. A. No. 221 of 59) and Respondent No. 5 (In C. A.
No. 223 of 59).
W. S. Barlingay and A.G. Ratnaparkhi, for the appellants (In C. As. Nos. 220 and 22J of 59), Respondents
Nos. 1 to 4 (In C. As. Nos. 218 and 223 of 59) and Respondents Nos. 3 to 6 (In C. As. Nos. 219 and 222 of 59).
Naunit Lal, for the appellants (In C. As. Nos. 222
and 223 of 59), Respondent No. 6 (In C. A. No. 218
of 59), Respondent No. 1 (In C. As. Nos. 219 and 221
of 59) and Respondent No. 3 (In C. A. No. 220 of 59).
R. Gopalakrishnan, for Respondents Nos. 5(a) to
5(c) (In C. A. No. 218 of 59), Respondents Nos. 2(a) to
2(c) (In C. As. Nos. 219, 220 and 222 of 59) and Respondents Nos. 3(a)'tp 3(c) (In C. A. No. 221of59) and
Respondents Nos. 6(:1:) to 6(c) (In C. A. No. 223 of 59),
Kashinathsa
794
SUPREME COURT REPORTS
[1961]
1961. February IO. The Judgment of the Court was
delivered by
Yamosa Kabadi
SHAH, J.-These six appeals are filed with certifi.
v:
cates under Art. 133 of the Constitution granted by
Bl~"""~'~ a· the High Court of Judicature at Bombay. The appeals
"'
0:a_ "a' arise out of the judgments and decrees in suits Nos. 47
shah J.
of 1948 and 36 of 1949 in the court of the Civil Judge,
Senior Division, Dharwar. The following geneolugy
set out in the plaint in Suit No. 47 of 1948 explains
the relationship between the parties:
Kashinathsa
(D 1)
Yamosa
I
I
Bhaskarsa
I
Dongarsa
I
Murarsa
(0 2)
I
I
I
I
Narsingsa
Pandurangsa Benakosa Hanmantsa
(P1)
(P2)
(P3)
(P4)
1.
Ramaknsbnasa
I
Hanmantsa
I
Bhimasa
ID 3)
The principal contesting party in the suits was
Kashinathsa, eldest son of Yamosa, and he was the
first defendant in both the suits. For facility of
reference, we propose to refer to the parties as they
were arrayed in Suit No. 47 of 1948. Bhimasa-the
plaintiff in Suit No. 36 of 1949 will, therefore, be
referred in this judgment as defendant No. 3.
At a partition in 1893 between Dongarsa's branch
and the other branches, the former branch received
property of the aggregate value of Rs. 13,000/-. Members of that branch thereafter carried on business of
weaving silk garments and also of sale and purchase
of silk garments. In 1912, defendant No. 1 started
a cloth shop in the name of Kashinathsa Kabadi. In
1916, he started a commission agency business in the
name of H. R. Kabadi Shop, and in 1920 he started
business in money.lending and silk goods. Since 1912,
defendant No. 1 was the principal earning member of
of the family and was attending to the various lines
of business and he was assisted by the other members
of the family. The family prospered and in course of
time acquired a large estate. Before 1946, Bhaskarsa
father of thP plaintiffs and Ramakrishnasa and
,
I
38.C.R.
SUPREME COURT REPORTR
795
z96r
Hanmantsa grandfather and father respectively of
defendant No. 3 had expired, and the first defendant
f
·Kashinathsa
was the senio-rmoot member o the family. In 1946, Yainosa Kabadi
disputes arose between the members of the family and
v.
defendant No. 3 declined to continue in jointness with
Narsiugsa
the other members of the family and demanded that Bhaskarsa Kabadi
he be given his half share after dividing the properties
by metes and bounds. Claiming that he alone was
instrumental in amassing the vast estate which exceeded in value to Rs. 14,00,000/-, defendant 1 submitted
that the estate be divided in four equal shares and
that one share be given to him and the remaining
shares to the heirs of Bhaskarsa, defendant No. 2 and
defendant No. 3. On August 17, 1946, the disputes
were referred under a deed in writing to three persons
-Vithaldas Devidas Vajreshwari a merchant of
Betegiri, Devindrasa Tuljansa a common relation of
the parties and Parappa Nagappa Jagalur a clerk of
the pleader acting for the family-(whorn we will
collectively refer as the Panchas) with authority to
determine what shares should be allotted to the
different branches of the familv and to determine the
extra shares to be given to" defendant No. 1 for
" special exertions made by him in acquiring the
property" and to divide .the assets of the money lending and other properties ~f the family business as the
"Pa.nchas thought fit and proper." The Panchas
accepted the reference and embarked initially upon an
enquiry for ascertaining what shares in the family
property should be allotted to the various contesting
parties. On September 23, 1946, the Panchas decided
that each of the four parties--defendant No. 1,
defendant No. 2, the plaintiffs collectively and defendant No. 3-should be given a fourth share in the properties of the family.
This decision was reduced to
writing: it was signed by the Panchas and was
accepted by the parties and in token of acceptance,
they subscribed their signatures thereto. On the same
day, gold ornaments of the value of Rs. 67,000/- were
divided by the Panchas in four equal shares. A
record thereof was made in the proceedings __ of thA
Panchas ..
. 102
Shah].
796
SUPREME COURT REPORTS
[1961]
z96z
The Panchas then proceeded to award to each of
Kashina:hsa
the parties gold ornaments weighing 167 tolas 15 as. I
Yamosa Kabadi and silver 481 tolas and 4 as. On September 24, 1946, it
v.
is the case of defendant No. 1 that the Panchas decided
Namngsa
to give him an additional share of the value of
Bhaskarsa K•badi Rs. 40,000/- out of the property for bringing the family
-
" to the present prosperous conditions" and the
Shah 1·
Panchas directed that defenda.nt No. 2 should for that
purpose pay out of his share Rs. 30,000/- to defendant
No. 1 and the plaintiffs should pay Rs. 10,000/- to him
and the old house of the joint family he allotted to
him as his exclusive property. This was denied by
the other parties. On October 12, 1946, the Panchas
divided the residential houses and a record of this
division was entered in five separate books hereinafter
referred to as " partition books. " In· each of the
"partition books", the Panchas subscribed their
signatures under the record of the division and allotment of the shares and the parties also signed underneath the same in token of acceptance of that division.
On October 19, 1946, the Pancha~ divided an amount
of Rs. 64,000/- entries regarding which had been posted
in the family books of account. Each party was given
Rs. 16,000/- and this division was entered in the
account books of Y amosa Dongarsa Kabadi and the
entry was duly signed in token of acknowledgment of
the correctness by all the parties. It is the case of
defondant No. l that on that day another amount of
Rs. 3,20,000/- which was "the unaccounted cash lying
in the safe of the family but which was not entered in
the books of account and details whereof were set out
in a Tippan Book," was also divided and each 'party
was given Rs. 80,000/--
Of the two major contentions
in this group of appeals, one has centred round the
truth of the story about the division of this amount.
On October 20, 1946, the "four empty safes" and
the warehouses and fands at Betgiri were divided. On
October 21, 1946, the stock-in-trade of the silk shop
was divided in four equal shares and on November IO,
1946, miscellaneous gold and pearl ornaments and the
houses at Gadag and plots of land in the Hubli Cotton
Market were similarly divided. On February 7, 1947,
•
3 S.C.R.
SUPREME COURT REPORTS
797
the agricultural lands, cattle and agricultural imple-
'96'
ments were divided. On February 22, 1947, Rs. 24,000/-
Kashi .. tlls•
as the accumulated cash on hand in the money Yamos• Kabadi
lending business were divided into four equal shares.
v.
Divisions made on October 20, 1946, October 21,
Narsings•
1946, February 7 and February 22, 1947, were duly BhaskarsaKabaai
entered in the " partition books " and the entries
5;;;;:1,
were· signed by the Panchas and were also by the
parties in acknowledgment of the correctness of the
divisions. On February 24, 1947, acknowledgments
were obtained from the junior members of the family
to the reference to the Panchas and to the decision of
the Panchas dated September 23, 1946, whereby each
branch was given a four annas share and also to the
subsequent divisions made from time to time !ietween
September 23, 1946, and February 24, 1947.
Between
February 25, 1947, and April 10, 1947, cotton bales
belonging to the family of the value of Rs. 3,20,000/-
were divided into four equal shares. The record of this
division was not signed by the parties. After the
furniture and utensils of the family were divided, there
survived certain disputes about the outstandings of the
family and other properties especially a dispute about
Rs.16,000/- lying in cash with the family which could
not be decided. To resolve the disputes about these
properties and the outstandings of the family, the
Panchas, with the consent of the parties referred them
for decision to one Bhim Rao Godkhindi, a senior
pleader of the Gadag Bar. On November 3, 1947, the
Panchas executed a writing in favour of Godkhindi
authorising him to complete the work of partition of
the estate.
Godkhindi accepted the authority.
On
December 5, 1947, Godkhindi asked the parties to "state
clearly" what according to them were the properties
which remained to be partitioned, and the plaintiffs
gave a list to Godkhindi of such properties. Between
February 5 and February 9, 1948, outstandings of
the value of Rs. 1,20,000/- were divided by Godkhindi
and this was accepted by the parties. But Godkhindi
was unable to proceed with the division of the remain.
ing assets. On February 9, 1948, the first plaintiff served
a notice cancelling the authority of the Panch&a to
798
SUPREME COURT REPOR'rS
[1961]
'96'
divide the properties of the family and on August . 19,
1948, he filed Suit No. 47 of 1948 in the court of the
Kashinathsa
Yamos• Kabadi Civil Judge, Senior Division, Dharwar, for partition of
v.
the properties remaining to be divided and for accounts
Na~sings•
of the joint family properties. By his plaint, the.
Bhasharsa Kabadi plaintiffs admitted that the parties had agreed to
divide the property into four equal shares. In para. 6
Shah l·
of their plaint, they set out the properties which they
alleged had not been divided. The plaintiffs claimed
that they be awarded a fourth share in the outstarnlings of the assets of "Kashinathsa Yamosa Kabadi"
and "H. R. Kabadi" shops, and in "a considerable
amount of money that has been there" since the time
of the ancestors the Tippan in respect of which it was
alleged was with defendants Nos. 1 and 2 and in certain
gold and silver articles, and lands and houses and
rents which were recovered. On August 19, 1948, the
plaintiffs also filed a petition in the court of the Civil
Judge for leave to revoke the authority of the
Panchas. Notice of this petition was served upon the
Panchas, and the Panchas having expressed unwillingness to function the court passed an order cancelling
their authority.
Thereafter defendant No. 3 filed Suit No. 36 of 1949
on August 16, 1949, for partition and separate possession of a half share in all the properties of the joint
family.
By his plaint, he claimed that he "had been
told " that despite the decision of the Panchas dated
September 23, 1946, he will be given a half share in
the properties, that his consent to the divisions made
by the Panchas was obtained by misrepresentation and
that the Panchas were guilty of partiality and therefore their decisions were not binding on him.
He
averred that it was not possible for him to give the
descriptions of the properties other than those described in the plaint and of all the movables belonging
to t~1e family and the money lending dealings, he
claimed a declaration that the authority given to the
Pane J.as had been revoked and for a decree for partition and separate possession of a half share in the
property which may be proved to belong to the joint
family.
:l S.C.R.
SUPREME COURT H-EPORTS
799
In both the suits, defendant No. 1 contended that
'96'
the Panchas had divided the properties in four equal
Kashi,..ths~
shares after their decision to divide the same in that Yamosa Kabadi
manner was accepted, that the Panchas from time to
v.
time had made actual division of the properties with
Narsingsa
h
f h
t .
h
th d" · ·
fth
HhaskarsaKabadi
t e qonsent o t e par ies, t at
e 1v1s10n o
e pro_
perties in each case was acted upon and properties
Shah 1.
allotted to the parties were reduced into possession by
the parties to whom they were allotted, and that on
that account the division could not be reopened.
He
also contended that the "unaccounted cash" had been
divided on October 19, 1946, and each party was given
his share therein, and that the Panchas had given to
him an extra share of the value of Rs. 40,000/- in cash
payable by the plaintiffs and defendant No. 2 and the
residential family house at Betgiri. Defendant No. 2
supported the claim made by the plaintiffs:
The Civil Judge held th3.t by virtue of the order
passed in the petition for revoking the reference to the
Panchas their authority as well as the proceedings
and all the decisions given by them ceased to bind the
parties because "the decisions stood cancelled."
He
also held that the decisions were not binding upon the
parties as they were not. filed in court ; that the
Panchas were not proved to have awarded to defendant No. 1 any additional share in the property of the
family ; and that the " unaccounted cash " of the
family which amounted to Rs. 3,20,000/- was not
divided. He accordingly passed decrees in the two
suits ordering that a fresh partition be effected of all
the joint family property moveable and immoveable.
Against the decrees passed by the court of first
instance defendant No. 1 preferred Appeal No. 605 of
1952, against the decree in Suit No. 47 of 1958 and
Appeal No. 606 of 1952, against the decree in Suit
No. 36 of 1949. In the two appeals, the High Court
at Bombay by a common judgment modified the decrees
passed by the court of first instance. In the view of
the High Court, there were in law no valid awards
made by the Panchas which could be set up in defence
by defendant No. 1 to the claim made by the third
defendant. They observed that the awards of the
800
SUPREME COURT REPORTS
[1961]
x96x
Panchas were not binding because they were not proKashinathsa
perly stamped and those that affected immoveable
Yamosa Kabadi properties were not registered. But the High Court
.v.
held that the division of the moveables such as gold
Narsingsa
. and silver ornaments made on September 23, 1946,
Bhaskarsa Kaba« could not be reopened. They further held that the
Shah 1.
"unaccounted cash,. amounting to Rs. 3,20,000/- was
divided on October 19, 1946, and that each branch had
received Rs. 80,000/-. The High Court accordingly
modified the decree passed by the trial court in so tar
as it related to the gold and silver ornaments divided
by the Panchas on September 23, 1946, and also in
respect of the amount of the unaccounted cash of
Rs. 3,20,000/-. There were certain other modifications
made in the decrees which are not material for the
purposes of these appeals, as no arguments have been
advanced at the bar relating thereto.
In these appeals by defendant No. 1, the plaintiffs
and defendant No. 3, two principal questions fall to
be determined: (1) whether defendant No. 3 is entitled
to a. half share in all the properties of the joint
family ignoring the division already made and (2) whether the unaccounted cash which was estimated by
defendant No. ::! and the plaintiffs at Hs. 4,00,000/- and
which was stated by defendant .No. I to be Rs. 3,20,000/-
was divided on October 19, 1946. On these two qnestions, the parties are differently arrayed.· On the first
question, defendant No. 1 is supported by the plaintiffs
and defendant No. 2. On the second question, defendant No. l ·is opposed by the plaintiffs and defendants
Nos. 2 and 3.
After setting out the contentions of the parties, it is
recited in the deed of reference that the parties had
given authority to the Panchas to peruse the written
and oral evidence and to decide what sbares shall be
allotted to the different. branches and also to decide
what may appear to be proper for providing an "extra
share" to defendant No. 1.
The agreement between
the members of the joint Hindu family to appoint
Panchas for dividing the family properties amounts to
severance of the joint family status from the date of
the agreement. Once reference is made, joint family
3 S.C.R.
SUPREME COURT REPORTS
801
status is severed and it is not postponed until the
1961
division of the property by metes and bounds.
Kashinathsa
To appreciate the contentions, it is necessary to Yamosa Kabadi
follo"'.' the method adopted by the Panchas in dividv.
ing the properties. The decision of the Panchas to
Narsingsa
allot to each branch a fourth share was accepted by Bhaskarsa Kabadi
all the panies. Thereafter the Panchas proceeded to
Shah J.
allot shares in the properties moveable and immoveable. The distribution of the properties was set out
in writing and in acknowledgment of the fact that
distribution was made as described the parties signed
the writing :
"We have appointed these as the Panchas. In
accordance therewith all the Panchas heard all the
information (placed below them) and all .the Panchas unanimously decided on 23-9.1946 that Kashinathsa Yamosa Kabadi should be given a t share,
that N arasingsa Bhaskarsa Kabadi should be given
a t share, and that Bhimasa Hanumantasa Kabadi
should be given a t share, and we all having consented to the said decision of the Panchas, we all and
all the Panchas have put our respective signatures
to the said decision of the Panchas. The details of
the properties that have fallen to the shares of the
different_ shares as per the decision effected in
accordance with the said decision are as follows : "
This acknowledgment was not merely an agreement
not to challenge the decision of the Panchas, but was
ma.de as evidencing the division actually ma.de and
reduced to writing. The trial court found that the
properties separately allotted to the various branches
were reduced into possession by the parties and the
High Court a.greed with that view. If the consent of
the parties was not procured by fraud, misrepresentation or any other ground which may vitiate a partition under the general law, the division made by the
Panchas and accepted by the parties would be binding
upon them. It is always open to the members of a
joint Hindu family to divide some properties of the
family and to' keep the remaining undivided. By the
reference to the Panchas, the parties ceased to be
members of the joiut Hind11 family. If thereafter the
802
SUPREME GOURT REPORTS
[1961]
1961
assets of the family were divided and that division
was accepted by the parties, the properties reduced
Kashinathsa
b
Yamosa Kabadi
Y the parties to their possession must be deemed to
v.
be of the individual ownership of the parties to whom
. Narsingsa
. they were allotted, and the remaining properties as of
Bhaskarsa 1'abadi their tenancy-in-common. Evidently in this case, the
Sha--;J.
Panchas suggested what they regarded as a just and
convenient method of partition and that method was
accepted by the parties. Originally it was intended to
make a general division or award in respect of all the
properties and with that end in view a stamp paper
of the value of Rs. 30/- was purchased. But in the
course of the proceedings, effectuating a division of
all the properties by a single award was apparently
found inconvenient and a convenient method was
adopted and the properties were divided by stages.
In the first instance, the principle of division was
discussed and decided upon and that principle was
accepted by the parties. Thereafter the properties
were divided in different sections.
The plea raised in his plaint by defendant No. 3
that his consent to the referenee was obtained by
coercion .and undue influence is somewhat vague
and indefinite. He merely stated that he had recently
attained the age of majority, ti:J.at defendant No. 1
was the head of the family and that he was not in a
position "either to say anything against him {defendant No. 1) or to act against him." He also stated that
defendant No. l had threatened him that he (defendant No. 3) would be given a share only if he acted
according to the behest of defendant No. 1 otherwise
he would be driven out of the house without anything
and therefore he "became helpless" and agreed to
sign the "letter of authority passed in favour of the
Panchas." He pleaded in para. 5 of the plaint that
he had not agreed to take a mere fourth share and
that be "had all along been insisting upon receiving
a half share," and that it was his intention to take
his legitimate half share "without dispute if that
could be managed" and as he believed that be would
be given that share he did not immediately raise any
objection, He also stated that he had been promised
38.C.R.
SUPREME COURT REPORTS
803
by defendant No. 1 that he would be given his
z96z
share in the property. The learned trial judge rejectKashinatbsa
ed this plea holding that Defendant No. 3 failed to Yamosa Kabadi
prove that he was "compelled by exercise of undue
v.
influenee and coercion to agree to the reference to
Narsingsa
.
the Panchas, and th11t he had been promised by Bhask•:~abad•
defendant No. 1 that he would be given a. half share."
Shah J.
In the High Court, the plea. ra,ised by defendant No. a
about coercion and undue influence and the promise
made by defendant No. 1 does not appear to have
been seriously pressed. The plea of defendant No. 3
that he subscribed his signatures to the various decisions given by the Panchas from time to time because
he believed that he was bound by the decision dated
September 23, 1946, and that but for such 2elief he
would not have subscribed his signatures to those
decisions has in our judgment no force.
Defendant
No. 3, it appears on the evidence, voluntarily accepted
the decision that each branch was to be given a fourth
share and he accepted the di vision of the properties
allotted to him on that footing.
Again by virtue of the order passed by the Civil
Judge cancelling the reference, the proceedings taken
by the Pancha.s including the division of the property
which had been accepted were not revoked. The
plaintiffs filed Misc. Application No. 15 of 1948 for an
order revoking the reference and as the Pa.nch
Devendrasa was found unwilling to proceed with the
work of dividing the property, the arbitration was
cancelled. Under s. 12, sub-s. (2) of the Arbitration
Act, where the authority of an arbitrator or arbitrators is revoked by leave of the court, the court may
order that the arbitration agreement shall cease to
ha. ve effect with respect to the difference referred. If
the decisions of the Pa.ncha.s had not been accepted by
the parties with the revocation of the reference, a.II
proceedings which they had adopted might have fa.lien
through; but the parties did accept the decisions made
from time to time and the cancellation of the reference
had not the effect of vacating the divisions already
ma.de.
We a.re unable to agree with the view of the
trial judge that the can~eJ)a.tion had the effect of
103
804
SUPREME COURT REPORTS
[1961]
' 961
nullifying all the interim divisions and that they must
Kashinatis•
be deemed to have been impliedly set aside.
y...,,,. K•b•di
It is unnecessary to consider whether these decisions
v.
may be regarded as "interim awa;rds" within the
Narsings•
meaning of s. 27 of the Arbitration Act. The decisionM
'haslars• Kabadi
•
d d · · •
d
t
)
'
_
given an
1v1s10ns ma e were no mere y tentative
Slah J.
arrangements liable to be superseded at a later stage.
The decisions were treated as final and were carried
out. We agree with the High Court that whatever
may be the original intention of the parties, tlie
Panchas having with the consent of the parties
proceeded to divide the properties in stages, each
decision must be regarded as final with regard to the
property divided thereby.
We are of the view that it was open to defendant
No. 1 to set up the division of the properties made
from time to time as a defence to the action filed by
defendant No. 3.
Even assuming that the records of
the divisions made by the Panchas are awards strictly
so called, what is set up in defence is not the awards
made by the Panchas, but the partition of the property by agreement after accepting the method of
partition suggested by the Panchas. To such a plea,
there is in our judgment no bar of s. 32 of the Arbitration Act. By s. 32 it is provided :
"Notwithstanding any law for the time being in
force, no suit shall lie on any ground whatsoever for
a decision upon the existence, effect or validity of
an arbitration agreement or award nor shall any
arbitration agreement or award be set aside,
amended, modified or in any way affected otherwise than as provided in this Act. "
Before the Arbitration Act, 1940, was enacted, an
award ma.de by arbitrators appointed out of court even
if it was not made a rule of the court was regarded
as equivalent to a final judgment and any suit filed on
the original cause of action referred to the arbitrators
was held barred.
In Muhammad Nawaz Khan v. Alam Khan('), it was
held by the Judicial Committee of the Privy Council
that an award is valid even if no party has sought to
enforce it by the summary procedure,
{I) (1891) L.~ 18 i.A. 7J·
I
3 S.C.R..
SUPREME COURT REPORTS
805
1961
Since the enactment of the Arbitration Act, 1940,
there has arisen wide divergence of judicial opinion
Ka.shitfllthsa
among the High Courts on the question whether an v ...... Ka-Oo4i
award made in a reference out of court can be' set up
v.
as a defence to an action filed by a party thereof on
Na,.ingsa
the original cause of action when the award is not filed BAaskarsa Kabadl
in court. Section 31, sub-a. (2) of the Arbitration Act
provides:
"Notwithstanding anything contained in any
other law for the time being in force and save as
otherwise provided in this Act, all questioos regarding the validity, effect or existence of an award or
an arbitration agreement between the parties to the
agreement or persons claiming under them shall be
decided by the Court in which the award under the
agreement has been, or may be, filed and by no other
court",
and s. 33 sets out the procedure to be followed for
challenging the existence, effect or 'talidity of an
arbitration agreemEμIt or an award or to have its effect
determined. It is manifest that questions relating to
the validity, effect or existence of an award can be
decided by the court to which an application ma.king
it a rule of court lies.
In Babui 8. K. Kuer v. B. N. Sinha('), the Patna
High Court held that by virtue of s. 32 of the Arbitration Act, 1940, an award made on a private reference
to arbitration is not operative of its own force; it only
becomes operative on being made a rule of the court.
It was held in that case that an award cannot be set
up as a defence to an action unless it is filed in court
and a decree is obtained thereon. Similar view was
taken in Bait Pamandass v. T. 8. Manikyam Pillai('),
Bhimavarapu Venkatasubbayya v. Addanki Bapadu (")
and Firm Gulzarimal GheesalaJ, v. Firm Rameshchandra
Radhyeshyam ('). On the other hand, in Pamudurthi
Suryanarayana Reddy v. Pamudurthi Venkata Reddi('),
it was held that ss. 32 and 33 of the Indian Arbitration Act, 1940, did not preclude a defendant from
(1) (>951) I L.R. 31 Pat. 686.
(3) A.I. R. 1951 Mad. 458.
(2) A.l.R. 1960 And. Pia. 59.
(4) l.L.R. Ll959] Raj. 515.
(s) l.L.R. (1949] Mad. III.
Shah].
806
SUPREM~ cotJR'l' R~POR'l'S
[1961]
setting forth an award which had been fully performed
by him but which was not filed in Court under s. 14
Kashinathsa.
h h
Yamosa Kabadi and on w ic a judgment was not pronounced or a
v.
decree given under s. 17 of the Act,. in answer to the
Narsingsa
plaintiff's claim which was the subject inatter of the
Bhaskars• K•b•di reference and the award. That view was accepted in
Shah].
Rajamanickam Pillai v. Swaminatha Pillai (died) (1). It
is not necessary in this appeal to express a considered
opinion on this disputed question. It may be sufficient
to observe that where an award made in arbitration
out of cortrt is accepted by the parties and it is acted
upon voluntarily and a suit is thereafter sought to be
filed by one of the parties ignoring the acts done in
pursuance of the acceptance of the award, the defence
that the suit is not maintainable is not founded on the
plea that there is an award which bars the suit but
that the parties have by mutual agreement settled the
dispute, and that the agreement and the subsequent
actings of the parties are binding. By setting up a
defence in the present case that there has been a division of the property and the parties have entered into
possession of the properties allotted, defendant No. 1
is not seeking to obtain a decision upon the existence,
effect or validity of an award. He is merely seeking
to set up a plea that the property was divided by
consent of parties. Such a plea is in our judgment not
precluded by anything contained in the Arbitration
Act.
The records made by the Panchas about the division of the properties, it is true, were. not stamped nor
were they registered. It is however clear that if the
record made by the Panchas in so far as it deals with
immoveable properties is regarded as a non-testamentary instrument purporting or operating to create,
declare, assign, limit or extinguish any right, title or
interest in immoveable property, it was compulsorily
registrable under s. 17 of the Registration Act, and
would not in the absence of registration be admissible in
evidence. But in our judgment, the true effect of what
are called awards is not by their own force to create
any interest in immoveable property ; they recorded
(1) A.I.R. 1952 Mad .. •4·
I
3 S.C.R.
SUPREME COURT REPORTS
807
divisions already made and on the facts proved
' 96'
in this case, their validity depends upon the acceptJ(.,hinathsa
ance by the parties. The records made by the Panchas Yamos• Kab"4i
were documents which merely acknowledged partitions
v.
already made and were not by law required to be
Narsingsa
.
regist.ered. On a perusal of Ex. 456A which is a Bh.,karsa Kabadi
translation of the tip pan book in which are recorded
Shah].
the decisions which are signed by the parties, it is
evident that the Panchas were merely recording what
had been actually divided and they were not seeking
to set out their decisions relating to division of pro·
perty to be made. The question whether the various
decisions recorded in Ex. 456A and in the books of
account were required by law to be stamped need not
be decided. The documents were admitted "in evidence
by the trial court and no question of admissibility 9f
those documents can be raised at a later stage of the
suit or in appeal (see s. 36, Stamp Act).
We are unable to agree with the view of the High
Court that the decisions dated October 12, 1946, October 20, 1946, and November 10, 1946, were not intended
to be final decisions: There is no reliable evidence to
support the view of the High Court. Even if the
divisions are not.strictly in conformity with the shares
declared in the decision dated September 23, 1946, the
parties having accepted those divisions and having
reduced the shares allotted to their possession, it is not
open to them to seek to reopen the same on the ground
that the division was unequal.
Defendant No. 3 contended in the trial courts and
the High Court that he had not taken possession of
the property allotted to his share. The trial court
held that he had taken possession of all the properties
which had fallen to his share and the plea that he has
not obtained possession was untrue. The High Court
has accepted that view.
To sum up : on a consideration of the materials
placed before the court, the reference to· Panchas is
proved to be made voluntarily by all the parties, that
the Panchas had in the first instance decided that each
branch was to get a fourth share in the properties and
that decision was accepted by the parties, that division
808
SUPREME COURT REPORTS
(1961)
of properties made from time to ti~e was also accepted
by the parties, and subsequently, when the Panchas
Kashinathsa
b
Yamosa Kabadi were una le to proceed with the division, the matter
v.
was referred by consent of the parties to Godkhindi
Narsingsa
and Godkhindi divided with the consent of the
·Bhaskarsa Kabadi parties the outst.andings, but he was unable to divide
Shah].
the remaining properties. For reasons we have already
stated, the division made by the Panchas and by
Godkhindi is binding upon the parties. Such properties as are not partit.ioned must of course be ordered
to be divided and the division will be made consistently with the rules of Hindu law. To the division
of such properties which have not been divided, the
decision of the Panchas dated September 23, 1946, will
not apply.
We may now turn to the second question whether
on October 19, 1946, the amount of Rs. 3,20,000/-
which was the "unaccounted cash with the family"
was partitioned. It was the plea of defendant No. 1
that on that day after dividing the amount of
Rs. 64,000/- the" unaccounted cash" which was found
to be Rs. 3,20,000/- was actually divided and each
branch was given Rs. 80,000/-. Defendant No. 1
relied upon his own testimony besides the testimony
of Parappa (one of the Panchas) and of Huchappaclerk of the family shop. Defendant No. 3 examined
the other Panch Devendrasa.
The trial court held that the testimony of Huchappa
and Parappa was unreliable. Defendant No. 1 did
admit that the family possessed Rs. 3,20,000/-
as
" unaccounted cash "; and the burden of proving that
division was in fact made lay on him. The trial
court observed that there was no writing evidencing
the division of Rs. 3,20,000/-, no receipt was taken from
any person for payment of a share in that amount,
and that it was highly improbable that a person like
defendant No. 1 would part with substantial amounts
without taking receipts.
The High Court disagreed with this view. They
pointed out that there was no entry made in the
books of account of this large amount of cash, and
apprehending that a division of the property with a
. 3 S.C.R.
SUPREME COURT REPORTS
809
formal record which ma.y ultim&tely be produced in
1961
court was likely to involve the members of the family
Kashinaihsa
in proceedings for concealment of income, no record Yamosa Kabadi
was maintained of the division thereof. The High
v.
Court also relied upon the testimony of Parappa,
Narsingsa
Huchappa and defendant No. I and upon the circum- Bhaskatsa Kabad;,
st.ance that neither in the plaintiffs' plaint nor in the
plaint of defendant No. 3 was any specific reference
made to the refusal of defendant No. I to divide this
amount. In our view, the High Court was right in
the conclusion to which it arrived.
It is true that it is difficult to rely upon the oral
testimony of either side. Defendant No. I and defendant No. 3 are evidently interested persons and their
testimony may not carry much weight. . Parappa
one of the Panchas deposed that the amount of
Rs. 3,20,000/- was divided on August 19, 1947, and
each branch received its share. He stated that the
amount was not entered in the books of account. He
further stated that after the safes were opened, the
Tippan book was found together with the money and
that the cash was bounted but it was not compared .
with the Tippan book, that thereafter the amount was
divided .. According to this witness, . there was no
documentary evidence about that amount and he did
not know. whether. the defendants had knowledge of
the. extent thereof.