REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7850 OF 2009

BALWANT SINGH (D) THR. LRS.                          ...Appellant

VERSUS

DUNGAR SINGH (D) THR. LRS.                     …Respondents

J U D G M E N T

R. BANUMATHI, J.

This appeal has been filed by the appellant against the final

order and judgment dated 01.06.2006 passed by the High Court of

Rajasthan at Jodhpur in SB Civil Miscellaneous Appeal No.180 of

1989 in  and by which the High Court  allowed the appeal  of  the

respondents and made the arbitral award between the parties the

rule of the court.

2. Balwant Singh and Dungar Singh are real brothers. After the

death of their  father-Jeet Mal Jain, disputes arose between them

regarding partition of family properties. The parties decided to settle

their  dispute  amicably  through  arbitration  proceedings.  Vide

agreement dated 23.11.1981, they have appointed Shri Fateh Lal,

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Kiran Mal and Sensh Mal as arbitrators for partitioning immovable

properties, shares and jewellery. These arbitrators were also close

relatives  of  the  parties.  The  arbitrators  Shesh  Mal  Pagaria  is

brother-in-law of  Dungar  Singh,  Shri  Kiranmal  Swansukha is  co-

brother of Balwant Singh and Fateh Lal Hingad is a close relative of

the  parties.  The  arbitrators  passed  award  dated  23.11.1981

mentioning therein that the decision given unanimously by the three

of  them will  be  binding  on  both  the  parties.  By  this  award,  the

arbitrators had given the following decisions:-

 “In the house situated at Babelon Ki Sehri, except for the one

house which is on the left side of the pole and is known as

Popat Wala House, all other houses will belong to Shri Dungar

Singh Ji Babel.

 After giving the benefit of all the houses to Dungar Singh Ji,

plot admeasuring 80× 40 situated in Mehtaji Ki Badi and Papat

Wala House and plot located in Babelon Ki Sehri will remain

with Shri Balwant Singh Ji.  Whole agricultural land will remain

with Shri Dungar Singh Ji and Shri Dungar Singh Ji will give

Rs.9,000/- to Balwant Singh Ji.

 According to the list of jewellery placed in bank locker, “Baju”

will remain with Shri Dungar Singh Ji and “Kangania” – (two)

will  remain with Shri  Balwant Singh Ji.   The remaining gold

and silver jewellery will be given to both of them in equal parts.

 Capital that has been received from the shop by Shri Jeetmal

Ji and his wife by Notice Munju dated 13.06.1973 comes to a

total  amount  of  Rs.20,381/-  +  Rs.4281.17  =  Rs.2466.17

(Rupees Twenty Four Thousand Six Hundred Sixty Eight and

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Paise Seventeen Only) and from that both will get fifty – fifty

share  and  accordingly  Shri  Dungar  Singh  Ji  will  give

Rs.12,334/-  (Twelve  Thousand  Three  Hundred  Thirty  Four

Only) to Balwant Singh Ji.

 Both will get equal share of the share certificates that are in

the name of Shri Jeetmal Ji Babel.  

 Utensils  that  are given in the list  will  be distributed equally

between them.

 In  the  above decision,  demands made by  both  of  you and

whatever is possessed by each of you is maintained on as is

where  is  basis.   And  this  decision  is  taken  that  all  other

demands are over.  Meaning both of them has nothing to do

with each other.”

On 10.12.1982, Collector (Stamps), Udaipur registered the award.

3. On 07.04.1983, Dungar Singh filed an application before the

District Judge to make the award rule of the court. Along with the

application, acceptance of both the parties and award given by the

arbitrators  were also presented.   Appellant  Balwant  Singh raised

objection assailing the award. The court called for evidence of both

the parties.  The application for making the award rule of the court

was dismissed by the District Judge, Udaipur.  The District Judge

held that the panch had conducted the whole proceedings in their

own way and such an award cannot be considered valid in law.  The

court  noted  that  on  examining  the  award,  it  was  found  that  the

award was written on 23.11.1981 and the respondent Dungar Singh

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had signed the award after a long time on 26.07.1982.  The court

also noted that on 26.07.1982 itself, one panch Sheshmal Pagaria

produced  the  award  before  the  arbitration  judge  where  stamp

deficiency was removed and on the very same day i.e. 26.07.1982,

the same was produced before the Deputy Registrar, Udaipur for

registration.  It was observed that it is not clarified as to where was

the  original  award  from 23.11.1981  to  26.07.1982.   The  District

Judge further  held  that  though allegations of  misconduct  by  any

panch was not established but it was found that the three panchas

completed the proceedings quite hurriedly and probably have not

given enough time to Balwant Singh to put forth his side.  The court

therefore observed that making the award rule of the court does not

appear to be safe and justifiable because the award by the panch is

not fully clear on the basis of which the dispute between the parties

could be finally settled.

4. Aggrieved, the respondents filed appeal before the High Court

under Section 39(1)(6) of the Arbitration Act, 1940.  The High Court

by  impugned  judgment  dated  01.06.2006  opined  that  on  going

through the award, it is seen that the award was given unanimously

by the arbitrators.  The High Court further held that no misconduct

was found on the part of the arbitrators and the award is based on

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the materials supplied by the parties and after due deliberation and

discussion. The High Court held that the arbitrators are the close

relatives of the parties and one of the arbitrators Shri Kiran Mal is

the brother-in-law of Balwant Singh and as per Ex.-7, the arbitrators

were appointed by mutual consent.  Pointing out that mere passing

of the award on the same day in one sitting does not give rise to

any suspicion and would not raise any doubt or ambiguity and that

no misconduct has been alleged against the arbitrators, the High

Court  set  aside  the  order  of  the  learned  District  Judge  and

concluded that the award deserves to be made rule of the court and

accordingly, declared to be so.  Being aggrieved, the appellant has

preferred this appeal.

5. We have heard Mr. Prashanto Chandra Sen, learned Senior

counsel appearing for the appellant and Mr. Puneet Jain, learned

counsel  appearing  for  the  respondents  and  also  perused  the

impugned judgment and materials on record.

6. It can be seen from the terms of reference dated 23.11.1981

that the parties had agreed that the arbitral award would be passed

unanimously by the arbitrators and the same would bind the parties.

As pointed out by the High Court, the parties had by mutual consent

agreed to the appointment of all the three arbitrators and they had

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submitted their respective claims before the arbitrators.  As pointed

out earlier, the arbitrators are the close relatives of the parties and

no misconduct  is  alleged against  the arbitrators.  They have also

filed  the  will  made  by  their  father  Jeetmal  Singh  before  the

arbitrators.  Both the parties were present and gave their consent in

writing.  That apart, the parties have also submitted their respective

claims in the properties and the arbitrators after hearing the parties,

passed the award.  Having regard to the fact that the parties have

consented for the arbitrators to consider their claims and pass the

award,  the  High  Court  rightly  set  aside  the  order  of  the  District

Judge  holding  that  the  award  has  been  passed  after  due

consideration.  

7. With a view to further amicably settle the matter, the parties

have negotiated and agreed that on Item No.8-Jewellery, in lieu of

50% of the jewellery which the LRs of Dungar Singh are entitled i.e.

40  tolas,  LRs  of  Balwant  Singh  shall  pay  the  amount  of

Rs.10,00,000/- to the LRs of Dungar Singh within a period of nine

months.  The parties have further agreed that insofar as the land

falling in Khasra No.15/1Ka which has been sold by Balwant Singh

which is the subject matter of litigation against the third party, LRs of

Dungar Singh shall continue the litigation with the third party.   

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8. In view of further settlement arrived at between the parties,

with the consent of the parties, the award shall stand modified as

under:-  

Description  of  Properties  involved  in  the  Arbitration  Award  and  stand  of  the parties

Sl. No.

Description of Property

Assigned to as per the Award

Party in Possession Who is in

possession Stand of the parties

1. House  at Babelon Ki Sehri

Dungar Singh LRs of Dungar Singh LRs  of  Dungar  Singh continue  to  remain  in possession of the house.

2. Popat  Wala House,  Old House

Balwant Singh LRs of Dungar Singh LRs of Dungar Singh are

ready  to  hand  over

possession  of  the  said

house.

Possession  of  house shall  be handed over  on or before 31.05.2020.

3. Remaining House

Dungar Singh LRs of Dungar Singh LRs  of  Dungar  Singh continue  to  remain  in possession.

4. Plot  ad measuring  80*40 situated  in Mehtaji ki Badi

Rs.9,000/- payable by LRs of  Dungar Singh to LRs of Balwant Singh

Balwant Singh In  view  of  the compromise,  payment of  amount  of Rs.10,00,000/- by LRs of Balwant Singh qua Item No.8  –  Jewellery  to  be paid  to  LRs  of  Dungar Singh within a period of nine  months.  The amount of  Rs.9,000/-  is not  payable  by  LRs  of Dungar Singh to LRs of Balwant Singh.

5. Agriculture Land Dungar Singh The  said  agriculture land  falls  in  Khasra No.15/1Ka and 13/3, Vallabh  Nagar, Udaipur.

Land falling in Khasra No.15/1Ka  has  been sold  by  Balwant Singh.

Land  falling  in  Khasra

No.15/1Ka has been sold

by  Balwant  Singh

regarding  which  litigation

is  pending  against  third

party.   

LRs of Dungar Singh are at  liberty  to  continue the litigation  with  the  third party at their cost.

6. Money from Shop Owned  by  Late Shri  Jeetmal and Wife  

To  be  split equally

Amount  payable Rs.12,334/-  by  LRs of  Dungar  Singh  to LRs  of  Balwant

In view of the amount of Rs.10,00,000/- agreed to be  paid  by  LRs  of Balwant Singh qua item

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(20,381+4281.17 =24668.17)

Singh. No.8  –  Jewellery,  this amount of Rs.12,334/- is not payable by the LRs of Dungar Singh.

Sl. No.

Description of Property

Assigned to as per the Award

Party in Possession Who is in

possession Stand of the parties

7. Share  certificate in  the  name  of Jeetmal Ji Babel

To  be  split equally

LRs of Dungar Singh LRs of Dungar Singh are

ready  to  equally  divide

the  shares  amongst

themselves  and  LRs  of

Balwant Singh.

Shares  shall  be  divided within  a  period  of  three months.

8. Jewellery: i. Baju  ii. Kangan*2  iii.Remaining

gold and silver

Dungar Singh

Dungar Singh

To be distributed in equal share

LRs of Balwant Singh The  said  jewelleries  are

said  to  have been taken

or  withdrawn by  Balwant

Singh  from Bank  Locker

of  Bank of  Rajasthan on

21.08.1991.

Weight  of  the  said

jewelleries  is  80  tolas

(800 gms) and the LRs of

Dungar Singh are entitled

to 50% i.e. 40 tolas of the

same.

In  lieu  of  50%  of  the jewellery,  LRs  of Balwant  Singh  agreed to  pay  an  amount  of Rs.10,00,000/- to LRs of Dungar Singh.  Amount of  Rs.10,00,000/-  is payable within a period of nine months.

9. LRs of Balwant Singh – Deepak B Jain s/o Balwant Singh has

filed an affidavit stating that the appellant shall pay an amount of

Rs.10,00,000/- within a period of nine months in lieu of the share of

gold of Lrs. of Dungar Singh in full and final settlement.  Mr. Deepak

B Jain, LRs of Dungar Singh has also filed an affidavit that in lieu of

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jewellery of 40 tolas, they are ready to receive Rs.10,00,000/-.  In

case, if the amount of Rs.10,00,000/- is not paid within a period of

nine months, the appellant is liable to pay an interest at the rate of

9% per annum on the said amount of Rs.10,00,000/-.

10. In terms of the above modified award as stated in Para No.

(8), the appeal shall stand disposed.  Registry is directed to draft the

decree accordingly.  The chart in Para No.(8) shall form part of the

decree.

………………………..J.                                                                         [R. BANUMATHI]

………………………..J.                                                                 [A.S. BOPANNA]

New Delhi; February 12, 2020.

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