# THEMI P. SIDHWA & ORS v. SHIB BANERJEE~ SONS PVT. LTD. &.ANR

- **Citation:** [1975] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1974-09-03
- **Bench:** P: ]Aganmohan Reddy, M. H. Beg, A. A~Agiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/themi-p-sidhwa-ors-v-shib-banerjee-sons-pvt-ltd-anr-6289
- **Pages:** 6

## Headnote

111dia11 Registration Act, 1908....,...S. 17( l)(b) a11d· 2-Award of Arbitrator
relating to partition. of imm?vable
property of val11e
exceeding Rs. 100-lf
r<•q11.ires registration.
Various disputes between the parties were referred to a sole arbitratc.r. In
an .applictaion under s. 1 S l C.P .C., the point was raised before the High Court
that as the award directed partition of immovable property and the va:'lle of
the immovable property was mo.-e than one lakh. rupees it required registration
under s. 17(1)(b) of the Indian Registration Act, 1908 and as it had not been
registered, it was not admissible in evidence and· could not be enforced and
9011ld not confer any rights. A single judge of the High Court held that since
the 11ward had not been registered as required by section 17 (I) (b) of
the
Registration . Act It could not be made a rule of the court under s. 17 of the
Arbitration Act.
Allowina the appeal,
HbLD: .The award falls under s. 17(2)(v) .of the Registration Act ani\ Is,
therefore, not ruisterable.
The High Court has- proceeded on the basis that the award
related to·
partition of immovable property of the value exceeding Rs. 100/- and, therefore,
came within the ambit of s. 17(1) (b) of the lnJian Registration Act. No doubt
it did; but the High Court did not bestow attention on the words of that section
and see whether it operated to create rights in the immovable property or whether
it 111erely created a right to obtain another document, which will, when llxecuted
create any such right. The uward itself did not purport or operate to create,
declare, anlan, · limit or' ~tinsuish, whether In presentl or in future any right,
title or interest whether vested of contigent of the· value of Rs. lOQ/. and UP'
. wards in respct' of immoyable property as contemplated under s. 17(1 )(b) of
the Registration Act.
It merely created a right to obtain another document
which would when executed, create declare, assign, limit or extinauiah any
such iaht, title or interest. (2E; 48)
.F .
Ra/an9am
Ayyar v. Ra/anRam
A.v.var, SO I.A. 134,
Sht.,naraln Lal v.
Rameslivlarl Dtvl, C.A. No. 296 of 1960 decided on: 6th December 1952, Sa1l.1/1
Ktimtir v. ,:Surlndtr Kumar, [1969) 2 S.C.R. 244
and Ratan Lal Sliarma v.
Purslwllaril Harli, C.A. No. 1625 of 1967 decided on 11th 1anuary, 1974. referred
to.
G
C1VlL APPELLATE JURISDICTION : avil Appeal No. 1350 of 1968.
Appeal by special leave from the· judgment and order dated
January 17, 1968 of the Delhi High Court in Suit No. 588 of 1966.
S. T. Desai, P. C. Bhartarl and K. /. John, for the Appellants.
Brljb~ Klshore, V. N. Ganpule and P. C. Kapur, for respondent
. No. 1.
ll
The fudgment of the Court was delivered by
· ALAGlRISWAMI, J .-The question for ·decision is whether the award
made by· th'l arbitrator in this case is inadmissible in evidence and
2-L25l~u:>Cl/75
2
SUPREME COURT REPORTS
[1975] 2 s.c.R.
therefore no decree can. be passed on tJ?-e basis of that award as held
by the Delhi High Court. The short facts necessary for decision on this
case are these :
By an agr,eement dated 25th April, 1961 various disputes and
matters in difference between th~ parties were referred to the sole arbi·
tration of Mr .. B. K. Daphtary. The arbitrator made his award on 25th
April, 1962. It is not necessary to refer to the various stages the matter
went through except that the case came to be finally heard by the
Delhi High Court. Before that Court by an application filed under
section 151 C.P.C. a qm:stion was allowed to be raised that as "the
award directs partition of immovable property and the value of this
immovable property is more than one lakh it theref.ore requires regis•
tration. under s. 17(1)(b) of the Registration Actandthesameis not
.admissible in evidence. and cannot be enforced or confer any rights."
The learned Single Judge of the High Court who heard the matter
held that the award, not having been registered _as required by
1'· 17 ( 1) (b) of the Indian Registration Act, cannot be ma

## Text

· ....
.·'
A
THEMI P. SIDHWA & ORS.
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SHIB BANERJEE~ SONS PVT. LTD. &.ANR.
September 3, 1974
[P: ]AGANMOHAN REDDY, M. H. BEG AND A. A~AGIRISWAMI, JJ.]
111dia11 Registration Act, 1908....,...S. 17( l)(b) a11d· 2-Award of Arbitrator
relating to partition. of imm?vable
property of val11e
exceeding Rs. 100-lf
r<•q11.ires registration.
Various disputes between the parties were referred to a sole arbitratc.r. In
an .applictaion under s. 1 S l C.P .C., the point was raised before the High Court
that as the award directed partition of immovable property and the va:'lle of
the immovable property was mo.-e than one lakh. rupees it required registration
under s. 17(1)(b) of the Indian Registration Act, 1908 and as it had not been
registered, it was not admissible in evidence and· could not be enforced and
9011ld not confer any rights. A single judge of the High Court held that since
the 11ward had not been registered as required by section 17 (I) (b) of
the
Registration . Act It could not be made a rule of the court under s. 17 of the
Arbitration Act.
Allowina the appeal,
HbLD: .The award falls under s. 17(2)(v) .of the Registration Act ani\ Is,
therefore, not ruisterable.
The High Court has- proceeded on the basis that the award
related to·
partition of immovable property of the value exceeding Rs. 100/- and, therefore,
came within the ambit of s. 17(1) (b) of the lnJian Registration Act. No doubt
it did; but the High Court did not bestow attention on the words of that section
and see whether it operated to create rights in the immovable property or whether
it 111erely created a right to obtain another document, which will, when llxecuted
create any such right. The uward itself did not purport or operate to create,
declare, anlan, · limit or' ~tinsuish, whether In presentl or in future any right,
title or interest whether vested of contigent of the· value of Rs. lOQ/. and UP'
. wards in respct' of immoyable property as contemplated under s. 17(1 )(b) of
the Registration Act.
It merely created a right to obtain another document
which would when executed, create declare, assign, limit or extinauiah any
such iaht, title or interest. (2E; 48)
.F .
Ra/an9am
Ayyar v. Ra/anRam
A.v.var, SO I.A. 134,
Sht.,naraln Lal v.
Rameslivlarl Dtvl, C.A. No. 296 of 1960 decided on: 6th December 1952, Sa1l.1/1
Ktimtir v. ,:Surlndtr Kumar, [1969) 2 S.C.R. 244
and Ratan Lal Sliarma v.
Purslwllaril Harli, C.A. No. 1625 of 1967 decided on 11th 1anuary, 1974. referred
to.
G
C1VlL APPELLATE JURISDICTION : avil Appeal No. 1350 of 1968.
Appeal by special leave from the· judgment and order dated
January 17, 1968 of the Delhi High Court in Suit No. 588 of 1966.
S. T. Desai, P. C. Bhartarl and K. /. John, for the Appellants.
Brljb~ Klshore, V. N. Ganpule and P. C. Kapur, for respondent
. No. 1.
ll
The fudgment of the Court was delivered by
· ALAGlRISWAMI, J .-The question for ·decision is whether the award
made by· th'l arbitrator in this case is inadmissible in evidence and
2-L25l~u:>Cl/75
2
SUPREME COURT REPORTS
[1975] 2 s.c.R.
therefore no decree can. be passed on tJ?-e basis of that award as held
by the Delhi High Court. The short facts necessary for decision on this
case are these :
By an agr,eement dated 25th April, 1961 various disputes and
matters in difference between th~ parties were referred to the sole arbi·
tration of Mr .. B. K. Daphtary. The arbitrator made his award on 25th
April, 1962. It is not necessary to refer to the various stages the matter
went through except that the case came to be finally heard by the
Delhi High Court. Before that Court by an application filed under
section 151 C.P.C. a qm:stion was allowed to be raised that as "the
award directs partition of immovable property and the value of this
immovable property is more than one lakh it theref.ore requires regis•
tration. under s. 17(1)(b) of the Registration Actandthesameis not
.admissible in evidence. and cannot be enforced or confer any rights."
The learned Single Judge of the High Court who heard the matter
held that the award, not having been registered _as required by
1'· 17 ( 1) (b) of the Indian Registration Act, cannot be made a rule
-of the Court under s. 17 of the Arbitration Act. The learned Judge
.also held that he would have had no hesitation to follow the cotirse
prescribed in s. 38 of the Stamp Act and receive the stamp duty and
penalty but for his decision that the document requires registration.
The learned Judge: procetlded on the basis that the award
relates to partition pf immovable property of the value exceeding
rupees one hundred and therefore comes within the ambit of s. 17 ( 1)
(b) of the Indian Registration Act, 1908. No doubt it does but the
learned Judge did not bestow his attention on the words of that
section and see whether it operates to create rights in immovable
property or whether it merely ere-ates a right to obtain another document which· will, executed, create any such right. • The learned
Judge purported to follow the decision of the Andhra Pradesh High
Court in M. Venkataratnam & Anr. v. M. Gheelamayya & Anr.(I)
The award insofar as it is relevant is in the following terms :
"1. I hold an award that the said Tehmi Pheroze Sidhwa,
Almitra Pheroze Sidhwa and Mani Rustom Sidhwa paid the
total contribution of Rs. 32,500.00 (Rupees thirty
two
thousand five hundred) as their one fourth share in the cost
of the land at Najafgarh Road, Delhi being plot No. 71/5 of
the Industrial Area. Scheme of the Delhi Improvement Trust
admeasuring about 7246,67 square yards and the factory
:and other buildings and compound wall constructed thereon
a11d occupied by Delhi Floorings Private Ltd. that the said
Tehmi Phero7.e Siclhwa, Almitra Pheroze Sidhwa and Mani
Rustom Sidhwa ar1~ between them entitled to a one fourth
share or interest in the said land and buildings and in the
renis and profits 1hereof; that as between themselves the
(1) A. I. R. 1967 A. l'' 257.
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T. P, SIDWA v. SHIB BANERJEE (Alagiriswami, J.)
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shares or interest of the said Tehmi Pheroze Sidhwa, Altnitra
Pheroze Sidhwa and Mani Rustom Sidhwa are as follows :-
Tehmi Pheroze Sidhwa 3/32 share
I
Altnitra Pheroze Sidhwa 3/32 share
)-.In the whoJe
Mani Rustom Sidhwa 2/32 share
j
property ..
2,. A lease of the said property has been granted by the
Delhi lmpl'oveme11t Trust to Shib Banerjee and Sons Private
Ltd. and the said property stands in the name of Shib
Banerjee & Sons Private Ltd. I hold and award that Shib
Banerjee & Sons Private .Ltd. hold the said property upon
trust as to one fourth thereof for the said Tehmi Pheroze
Sidhwa, Almitra Pheroze Sidhwa, and Mani Rustom Sid!iwa
in the share as above mentioned and that the said· Tehmi
Pheroze Sidhwii, Almitra Pheroze Sidhwa and Mani Rustom
Sidhwa are entitled to a one fourth share in the rent and
profits of the said property from 1st Jan.uary 1960.
3. I award and direct that Shib Banerjee and Sons.
Private Ltd. do pay to the s~id Tehmi Pheroze Sidhwa,
Almitra Pheroze Sidhwa and Mani Rustom Sidhwa the one
fourth share pf the rents and profits of the said property
at the ra~ of Rs. 93.75 nP per month to Tehmi Pheroze
Sidhwa. Rs. 93.75 nP per month to Almitra
Pheroze
Sidhwa. Rs. 62.50 nP per month to Mani Rustom Sidhwa.
ffom 1st January 1960 to 30th April 1962
(both days
ini:lusive) and thereafter do pay to them one fourth share of
the rents and profits of the said property in the aforesaid
,shares.
·
4. I award and direct that Shib Banerjee and Sons Private
Ltd. do forth with execute such documents
as
may be
necessary for declaring the one fourth share of the said
Tehmi Pberoze Sidhwa, Almitra Pheroze Sidhwa and Mani
Rustom Sidhwa in the said property .and do execute as soon
as possible such documents as may be necessary for transferring the, said property and the lease from the Delhi Improvement Trust (subject to the existing tenancy of Delhi Floor·
ings Private Ltd.) to. the joint names of themselves and the
said . Tehmi Pher02le Sidhwa, Almitra Pheroze Sidhwa and
Mani RW!tom Sidhwa as tenants in common in the follow·
ing shares:-
·
·
Shib Banerjee and Sons Private Ltd.
Tehmi Pheroze Sidhwa.
Almitta Pberoze Sidhwa.
Mani Rustom Sidhwa.
24/32 share.
3/32 share.
3/32 share.
2/32 share.
The out of p~ket ~nses of such documents (includ·
ing amount payable for fee or costs to the Delhi Improvement Trust, Stamp Duty, registration charges and expenses
4
SUPREME COURT REPORTS
[197512 s.c . .&.
for plans) shall be borne by the aforesaid parties in proportion to their rc:spective shares in the said property. The
professional charges of the lawyers of the parties in connection with such. documents shall be borne by the respective parties."
Xt would be noticed that the award itself does not purport or
operate to create, declare, assign, limit or extinguish, whether in
present or in future any right, title or interest, whether vested or
continge.nt, of the value of .one hund,red rupees and upwards, in respect
of .the immovable prop~uy, as contemplated under s: 17(l)(b) of
the Registration Act. It merely creates a right to qbtain another document which will, when executed; create, declare, assign, limit or
extinguish any such right, title or interest. The award directs Shib
B.anerjee and Sons Private J.td. to execute such documents as may
be necessary for declaring the one fourth share of the appellants in
the said property and also to execute such documents as may be
necessary for transferring the said property and the lease from the
Delhi Improvement Trust to the joint names of themselves and the
appellants. It, therefore, squarely falls under s.
17(2) (v)
of the
Registratiop Act.
·
The question is amply covered by authority. In Rajangam Ayyar
v.Rajangam Ayyar(') bv a document (AY)
the parties agreed to
divide their properties according to certain specified . shares. It then
went on to pr<>vide :
"A partition deed in terms hereof shall be executed and
registered in the office of the Sub-Registrar of ti)is place, as
l!lso at Tinnevclly, es early as possible; that until then this
shall itself' be in force."
The Privy Council observed :
"Exhibit A Y is not a document by itself creating, assigning, limiting, or extinguishing any right or interest in immov ·
able property; it merely creates a· right to obtain another
document which will, when executed, create a right in the
person claiming the relief, and on that ground their Lordships think exhibit A Y did not require registration, and
accordingly is admissible in evidence, .so far as it goes."
Jn Sheonaraiin Lal v. Rameshwari Devi(2) a Bench of five Jud~es
Of this Court had to detal with a document the filth clause of which
read:
·
"S.hri Sheo Narain Lal and his heirs should execute as
early as possible a registered document in respect of the
shop let out on rent to Beli Sao Sukhdeo Prasad, in favour
of Shri Prabhu C'hand for which Shri Prabhu Chand will
have to pay nothing as consideration. He will pay only costs
of sta1np etc." .
---·· ·"--·-·- :
(I) 50 I. A: 134.
(2) C. A. No. 296of1960 de:lded on 6th Docembor 1952.
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r. P. SIDWA- v. SHIB BANERJEE (Alagirisw~i, /.)
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This Court observed :
"Does this clause purport or operate to create, ·declare,
assign, limit or extinguish any right, title or interest in
·immovable properties ? We are clearly of opinion that it does
not. The award merely provides that some right in the shop
should be created in the future by means of a document to
be executed by Sheonarain Lal and his heirs. That document
. when executed would certainly opera~ to . create a right in
favour of Prabhu. Chand in immovable properties and extinguish the right of Sheonarain Lal and his hei,rs in the same
properties. That is why the arbitrators mention that that
document should be registered, as admittedly, the value of
that property would be more tnan Rs. 100.00. It is difficult
· to see however how the fact that such a document th~t might
be executed in consequence of the directions in the award,
would operate to create or extinguish a right .in immovable
·properties, justifies the court to s•y that the award itself
p~
or operates to.create or extinguish such a right .. The
position would have been ~
if the arbitrators had
directed by the award itself that this shop would go to
Prabhu Chand without any further document. "In that case
the award itseli would have created in Prabhuchand a right
to these properties. That is not, however, the provision in
the award. In the absence of a registered doc'1Illent, Prabhu
Chand would ~t. no titl.e Oil the award and Sheonarain's
title wonld remain in the shop. It is clear therefore that the
award does not itself czeate or extinguish any right, title or
interest in the immovable properties. It may be said that it
creates a_ right tO obtain. another document which will,· when
executed, ·create or extinguish such right in immovable
properties and so is a docunient falling within cl. S of s. 17 · .
.(2) of the Registration Act. The award. therefore does not
reqUire registration in law. We find it unnecessary to con•
sider the further question which the High court has con·
sidered on the assumJ>!ion wrongly made that the award
decided question8 of title to immovable properties."
In Satish Kumar v. Surinder Kumar(') the concurring judgment
of Hegde, J, brings out the matter very clearly. He observed:
''For the purpose of s. 17 ( 1) (b) of the Registration
Act, all that we liave to see is whether the award in ques·
tion purport or operate to create or declare, assign, limit
or extinguish whether in present or future any right, title or
interest whether vested or contingent of the value of one
hundred rupees and upwards to or in immovable property.
If it does, it is compulsorily registrable. . . There is no gain·
saying the fact that the award with which we are concerned
in this case, at ·any rate, purporter to creates rights in
(1) ti 9691] 2 S. C. R. 244.
6
SUPREME COURT REPORTS
[1975) 2 s.c.n.
immovable property of the value of rupees more than og.e
hundred. Hence it is compulsorily registrable."
The other two learned Judges
quoted
the
observations in
Sheonarain Lal' s ca~e that :
"The positi_on would have been otherwise if the arbitra·
tors had directed by the award itself that this shop would
go to Prabhu Chand wihout any other document. In that case
the award itself would have created in Prabhuchand a right
to these properties."
Thus this decision does not in any way lay down any proposition
contrary to the decisions which we have so far referred to.
We may finally refer to the latest decision of this Court, to which
one of us was i party, in Ratan Lal Sharma v. Purshottam Harit( 1).
The relevant clause read as follows :
"The factory and all assets and properties of New Bengal
Engineering Works are exclusively allotted to Dr. Rattan
Lal Sharma, who is absolutely entitled to the same. He will
pay all liabilities ~f the factory."
This Court observed :
"It expressly makes an exclusive allotment of the partner·
ship assets including the factory and liabilities to the appel·
lant. It goes further and makes him "absolutely entitled to
the same" .... So in express words it purports to create
rights in immovable property worth above Rs. 100.00 in
favour of the appellant. It would accordingly require regis·
!ration under s. 17, Registration Act.
The Full Bench decision of the Andhra Pradesh High Court relied
upon by the learned Judge decided that an award that . created a
charge must be registered. That is undoubtedly correct. The question
regarding the application of section 17(2) (v) of the Registration
Act however did not aris~~ there.
The learned Judge does not refer to any of the decisions which
we have referred to, including those of this Court because he pro·
ceeded to decide the matter on the assumption that the award itself
created a right in immovable property o_f the value of over one
hundred rupees. We are clearly of opinion that the award in this case
falls under s. 17 (2) (v) and is, therefore, not registrable.
As r~gards the question of stamp duty, we do not propose to ex·
press any opinion as it would appear that the learned Judge of the
High Court would himself have been ready to receive the stamp duty
and penalty if he had held that the agreement was not compulsorily
registrable.
The appeal is allowed and the first respondent should pay the appellants' costs.
P.B.R.
Appeal allowed.
(l) C. A. 1625 of 1967 decided on 11-1-1974.
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