Satish Kumar & Ors. v. Surinder Kumar & Ors.

the same Bench which decided the case of Ml s. Uttam Singh Dugal v. The Union of lndia( 8 ). It is true that this Court in Sheonarain H Lal v. Rameshwari Devi(2 ) did not expressly rule on the validity (I) I.LR. 37 Pat. 252. (2) Civil appeal No. 296of1960-judgment delivered on December 6, 1962. (3) Civil Appeal No. 162 of 1962-judgment delivered on October 11, 1962. 2 Sup. CI/69-17 of the answer given by the Patna Full Bench in Sheonarain Lal v. A Prabhu Cl)and ( 1 ) that suc.h awards did not require registration, but decided the case on the point whether the award in dispute in that case in fact purported or operated to create a right, title or interest of the value of more than Rs. 100 in immovable pro­ perties. But, after holding that the document did not operate to create or extinguish any right in immovable property, this Court observed : "The position would have been otherwise if the arbitrators had directed by t11e award itself that this shop would go to Prabhu Chand without any further document. In that case the award itself would have created in Prabhuchand a right to ·these ptroperties. That is not, however, the provision in the award. In the absence of a registered document, Prabhu Chand would get no title on the award and Sheonarain's title would remain in the shop." In this connection we may mention two other decisions of this Court. In Champa/al v. Mst. Samarath Bai( 2 ), Kapur, J., speaking for the Court, observed as follows : "The second question that the award required registration and would not be filed by the arbitrators before it was registered is equally without substance. The filing of an unregistered award under s. 49 of the Registration Act is not prohibited; what is prohibited is that it cannot be taken into evidence so as to affect immovable property falling under s. 17 of the Act. That the award required registration was rightly admitted by both parties." Again in Kashi'nathsa Yamosa Kabadi v. Narsingsa Bhas­ Karsa Kabadi(') Shah J., speaking for the Court observed: "The records made by the Panchas about the divi­ sion 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 immovable properties is regarded as a non-testamen­ tary instrument purporting or operating to create, declare, assign, lintit or extinguish any right, title or interest in immovable property, it was compulsorily registerable under s. 17 of the Registration Act, and would not in the absence of registration be admissible in evidence." (1) I.L.R. 37 Pat. 252. (2) [1960] 2 S.C.R. 81(), 816. (3) (1961] 3 S.C.R. 792, 806. r- • I • • J- • c SAT!SH KUMAR v. SURINDER KUMAR (Hegde, J.) 251 In view of the above decisions it is not necessary to refute the other reasons given by both the Full Benches, but out of respect for the learned Judges we will deal with them. We may mention that no comment was made in these cases on the pro­ visions of para 7 of Schedule 1 to the Act. This para provides : "7. The award shall be final and binding on the parties and persons claiming under them respectively." If the award is final and binding on the parties it can hardly be said that it is a waste paper unless it is made a rule of the Court. We are unable to appreciate why t~e conferment of exclu­ sive jurisdiction on a court under the Act makes an award any the less binding than it was under the provisions of the Second Schedule of the Code of Civil Procedure. The Punjab Full Bench held that the registration does not in any manner add to its efficacy or give it any added competence. We cannot concur with these observations. If an award affects immovable pro­ perty over the value of Rs. 100, its registration does get rid of the disability created by s. 49 of the Registration Act. Regarding the difficulty poi111ted out by the Punjab Fu!l Bench that there may be many registrations we are not called upon to decide whether these difficulties would arise because the language of s. 17 of the Registration Act is plain. It may be that no such difficulties will arise because under s. 16 (2) of the Act what the arbitrator submits to the Court is his decision and E it may be that the decision may not be registerable under s. 17 of the Registration Act. But as we have said before we are not called upon to decide this point. In our opinion, Capoor, J., was right in dissenting from the Patna Full Bench in Sheonarain Lal v. Prabhu Chand (1) and holding that the award in dispute required registration. In the result the appeal fails and is dismissed with costs. We may make it clear that we are dealing only with an ~ward made on a reference by the parties without the interven­ !Ion of court. ~eg~e, J. I agree. But I would like to add few words. Arb1tration proceedings, broadly speaking may be divided into two stages. The first stage commences with arbitration agree­ ment and ends with the making of the award. And the second stage _relates to the enforcement of the award. Paragraph 7 of the Flfst Schedule to the Arbitration Act lays down that "the aw~r~ shall be final and binding on the parties and persons clamnng u~der them respectively". Therefore it is not possible to agree with the Full Bench decisions of the Patna High Court (1) I. L. R. 37 Part. 252. 252 SUPREME COURT REPORTS ( 1969] 2 S.C.R · and that of the Punjab and Haryana High Court that an award which is not made a decree of the Court has no existence in law. The learned Judges who decided those cases appea: to have proceeded on the basis that an award which cannot be enforced is not a valid award and the same does not create any rights in the property which is the subject matter of the award. This in my opinion is not a correct approach. The award does create rights in that property but those rights cannot be enforced until the award is made a decree of the Court. It is one thing to say that a right is not created, it is an entirely different thing to say tha~ the right created cannot be enforced without further steps. For the purpose of s. 17 (1 )(b) of the Registration Act, all that we have to see is whether the award in question 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 register­ able. In the aforementioned Full Bench decisions sufficient attention has not been given to s. 17 of the Registration Act. The focus was entirely on the provisions of the Arbitration Act and there again on the enforcement of the award and not in the making of the award. A document may validly create rights but those rights may not be enforceable for various reasons. Section 17 does not concern itself with the enforcement of rights. ·That Section is attracted as soon as its requiremeidts are satisfied. There is no gainsaying the fact that the award with which we are concerned in this case, at any rate, purported to create rights in immovable property of the value of rupees more than one hundred. Hence it is compulsorily registerable. Y.P. Appeal dismissed. ' >-·