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PETITIONER: KASHINATHSA YAMOSA KABADI, ETC.

       Vs.

RESPONDENT: NARSINGSA BHASKARSA KABADI, ETC.

DATE OF JUDGMENT: 10/02/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. KAPUR, J.L. HIDAYATULLAH, M.

CITATION:  1961 AIR 1077            1961 SCR  (3) 792  CITATOR INFO :  R          1970 SC 833  (12)  R          1972 SC1121  (9)

ACT: Hindu  Law-Partition-Reference to arbitration out of  Court- Arbitrator  actually  dividing some  Properties  and  giving possession  to  parties-Revocation  of  reference-Suit   for Partition,  maintainability of-Documents recording  division by  arbitrator-Registration, if necessary--Arbitration  Act, 1940  (10  of  1940), s. 32-Registration Act,  1908  (16  of 1908), s. 17.

HEADNOTE: The parties were members of a joint Hindu family  possessed of considerable property movable and immovable.  They volun- tarily  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 and with the consent of the parties they appointed one 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  the  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by the Panchas was not  binding  as  the award  had  not  been  made a rule  of  the  court  and  the reference  had  been  revoked  and  as  the  award  was  not registered.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

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were  liable  to be partitioned.  By the  reference  to  the Panchas, the 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 by the parties, the properties came under  the individual  ownerships  of  the parties to  whom  they  were allotted;  and in respect of the remaining  properties  they became  tenants-in-common.   The proceedings  taken  by  the Panchas  were  not revoked by the order 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  is  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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 218 to  223 of 1959. 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. B....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 221 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)  to 3(c) (In C. A. No. 221 of 59) and Respondents  Nos. 6(a) to 6(c) (In C. A. No. 223 of 59), 794 1961.  February 10.  The Judgment of the Court was delivered by SHAH, J.-These six appeals are filed with certificates under Art.  133 of the Constitution granted by the High  Court  of Judicature  at  Bombay.   The  appeals  arise  out  of   the judgments  and  decrees in suits Nos. 47 of 1948 and  36  of 1949  in  the  court of the Civil  Judge,  Senior  Division, Dharwar.  The following- geneology set out in the plaint  in Suit  No. 47 of 1948 explains the relationship  between  the parties:                     Dongarsa         -------------|----------------------

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      |                                     |      Yamosa                              Ramakrishnasa        |                                     |        |                                     |  ------------- ----------- |              |            |                Hanmantsa Kashinathsa Bhaskarsa    Murarsa             | (D 1)          |           (D 2)             Bhimasa                |                              (D 3)                | --------------------------------------- |              |         |            | Narsingsa Pandurangsa Benakosa      Hanmantsa (P 1)      (P 2)       (P 3)         (P 4) 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, be 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  the plaintiffs and Ramakrishnasa and 795 Hanmantsa  grandfather and father respectively of  defendant No.  3 had expired, and the first defendant was  the  senio- rmost  member  of  the family.   In  1946,  disputer,  arose between  the  members  of the family  and  defendant  No.  3 declined to continue in jointness with the other members  of the  family  and demanded that 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  I 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-(whom  we  will collectively  refer  as  the  Panchas)  with  authority   to determine  what shares should be allotted to  the  different branches of the family 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  of  the  family_ business  as  the  " Panchas 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,

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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 the Panchas. 102 796 The  Panchas then proceeded to award to each of the  parties gold  ornaments  weighing 167 tolas 15 as.  and  silver  481 tolas  and 4 as.  On September 24, 1946, it is the  case  of defendant  No.  1 that the Panchas decided to  give  him  an additional  share  of the value of Rs. 40,000/- out  of  the property for bringing the family " to the present prosperous conditions  " and the Panchas directed that defendant 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 be 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 Panchas 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 Yamosa Dongarsa  Kabadi and the entry was duly signed in  token  of acknowledgment of the correctness by all the parties.  It is the case of defendant No. 1 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 centered round the truth of the story about the  division of this amount.  1 On October 20, 1946, the  " four  empty safes " and the warehouses and lands 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  10, 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, 797 the  agricultural lands, cattle and agricultural  implements were  divided.   On  February  22,1947,  Rs.  24,000/as  the accumulated cash on hand in the money lending business  were divided  into four equal shares.  Divisions made on  October 20,  1946,  October 21, 1946, February 7  and  February  22, 1947,  were duly entered in the " partition books " and  the entries  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 between 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.

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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 remaining assets.  On February 9,  1948, the first plaintiff served a notice canceling the  authority of the Panchas to 798 divide the properties of the family and on August 19,  1948, he  filed  Suit  No. 47 of 1948 in the court  of  the  Civil Judge,  Senior  Division,  Dharwar,  for  partition  of  the properties  remaining to be divided and for accounts of  the joint  family  properties.  By his  plaint,  the  plaintiffs admitted that the parties had agreed to divide the  property into four equal shares. in para. 6 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 outstandings 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 the  family  and the money lending dealings,  he  claimed  a declaration that the authority given to the Panchas 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. 799 In  both  the  suits, defendant No.  1  contended  that  the Panchas  had  divided the properties in  four  equal  shares

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after  their decision to divide the same in that manner  was accepted, that the Panchas from time to time had made actual division of the properties with the consent of the  parties, that  the division of the properties in each case was  acted upon  and  properties 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 that 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 Panchas  were  not binding because they  were  not  properly stamped  and those that affected immoveable properties  were not  registered.  But the High Court held that the  division of  the moveables such as gold and silver ornaments made  on September  23,  1946, could not be reopened.   They  further held  that  the  "  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  far  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. 3  and the  plaintiffs  at Rs. 4,00,000/- and which was  stated  by defendant  No. 1 to be Rs. 3,20,000/was divided  on  October 19,   1946.   On  these  two  questions,  the  parties   are differently arrived.  On the first question, defendant No. 1 is  supported by the plaintiffs and defendant No. 2. On  the

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second   question,  defendant  No.  1  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 shares 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 801 status is severed and it is not postponed until the division of the property by metes and bounds. To appreciate the contentions, it is necessary to follow the method  adopted by the Panchas in dividing  the  properties. The decision of the Panchas to allot to each branch a fourth share  was  accepted  by all the  parties.   Thereafter  the Panchas proceeded to allot shares in the properties  movable and  immovable.  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 1/4 share, that Narasingsa Bhaskarsa  Kabadi               should be given a 1/4 share, and that  Bhimasa               Hanumantasa Kabadi should be given a I  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  made  as evidencing  the  division  actually  made  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  agreed 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 joint Hindu family.  If thereafter the 802 assets  of  the family were divided and  that  division  was accepted  by  the  parties, the properties  reduced  by  the parties  to  their possession must be deemed to  be  of  the individual  ownership  of  the parties  to  whom  they  were allotted, and the remaining properties as of their  tenancy- in-common.   Evidently in this case, the  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

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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 reference was obtained by coercion and  undue influence  is  somewhat  vague and  indefinite.   He  merely stated  that he had recently attained the age  of  majority, that defendant No. I 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. I 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  more  fourth share  and  that  he " 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 he would be given that  share he did not immediately raise any  objections  He also stated that hill had been promised 803 by  defendant No. 1 that he would be given his share in  the property.   The  learned  trial  judge  rejected  this  plea holding  that Defendant No. 3 failed to prove that he was  " compelled  by  exercise of undue influence and  coercion  to agree to the reference to the Panchas, and that he had  been promised  by defendant No. I that he would be given  a  half share." In the High Court, the plea raised by defendant  No. 3 about coercion and undue influence and the promise made by defendant  No.  I  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 belief 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 division 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 Panchas  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 Panch 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  have effect  with  respect to the difference  referred.   If  the decisions  of  the  Panchas had not  been  accepted  by  the parties   with   the  revocation  of  the   reference,   all proceedings  which  they  had  adopted  might  have   fallen

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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 made.  We  are unable  to agree with the view of the trial judge  that  the cancellation had the effect of 804 nullifying  all the interim divisions and that they must  be deemed to have been impliedly set aside.  It  is unnecessary to consider whether these decisions  may be  regarded as " interim awards " within the meaning of  s. 27  of  the  Arbitration  Act.   The  decisions  given   and divisions made were not merely tentative 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,  the 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.  I  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 made 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, (1)  (1891) L.R. 18 I.A. 73. 805 Since the enactment of the Arbitration Act, 1940,, there has &risen  wide divergence of judicial opinion among  the  High Courts on the question whether an award made in a  reference out  of court can be set up as a defence to an action  filed by a party thereof on, the original cause of action when the award is not filed in court.  Section 31, sub-s. (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               questions  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 "

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and  s.  33  sets  out the  procedure  to  be  followed  for challenging   the  existence,  effect  or  validity  of   an arbitration  agreement  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 making it a rule of  court lies. In Babui S. K. Kuer v. B. N. Sinha (1), 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 Sait Pamandass v. T.  S. Manikyam  Pillai  Bhimavarapu  Venkatasubbauva  v.   Addanki Bapadu  and Firm Gulzarimal Gheesdal v.  Firm  Rameshrhandra Radhyeshyam   (4).   On  the  other  hand,   in   Pamudurthi Suryanarayana Reddy v. Pamudurthi Venkata Reddi (1), it  was held that ss. 32 and 33 of the Indian Arbitration Act, 1940, did not preclude a defendant from (1)  (1952) l.L.R. 31 Pat. 886. (2)  A.I.R. 1960 And.  Pra. 59. (3)  A.I.R. 1951 Mad. 458. (4) I.L.R. [1959] Raj. 515. (5) I.L.R. [1949] Mad. 11. 806 setting forth an award which had been fully performed by him but which was not filed in Court under s. 14 and on which  a judgment was not pronounced or a decree given under s. 17 of the  Act, in answer to the plaintiff’s claim which  was  the subject  matter of the reference and the award.   That  view was  accepted  in Rajamanickam Pillai v.  Swaminatha  Pillai (died) (,).  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 court 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. I is not seeking to obtain a decision upon the existence,  effect  or validity of an award.  He  is  merely seeking  to  setup 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. 24.

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807 divisions already made and on the facts proved in this case, their  validity depends upon the acceptance by the  parties. The records made by the Panchas were documents which  merely acknowledged  partitions  already made and were not  by  law required  to be registered.  On a perusal of Ex. 456A  which is  a translation of the tippan book in which  are  recorded 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 property 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 of  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 of  properties made from time to time was also  accepted  by the parties, and subsequently, when the Panchas were  unable to  proceed  with the division, the matter was  referred  by consent  of the parties to Godkhindi and  Godkhindi  divided with the consent of the parties the outstandings. but he was unable  to divide 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 partitioned 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. I 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 Huchappa---clerk 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

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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 809    formal  record which may ultimately be produced in  court was  likely  to  involve  the  members  of  the  family   in proceedings  for  concealment  of  income,  no  record   was maintained  of  the division thereof.  The High  Court  also relied upon the testimony of Parappa, Huchappa and defendant No.  1  and  upon  the  circumstance  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. 1  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 counted  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 He explained that no receipts were  taken because defendant No. I did not demand the same, that he did not press for a writing as the parties said that it was a  " secret  arrangement  ",  and  as the  division  was  "  with complete concord ", he did not think it necessary to take  a writing or to record it in the books. The  testimony  of Huchappa ’was similar.  The  other  Panch Devendrasa  stated that plaintiff No. 1 and defendant No.  2 had  pressed the Panchas to give them their share in  the  " unaccounted  cash  ",  saying that defendant  No.  I  was  " indefinitely  postponing  "  it, that  the  Panchas  advised defendant No. 1 to divide this amount, but he stated that he would be " reduced to equality " with others when’ he had  a large family and that he had made great efforts and that  he should 810 be  given  more  property,  otherwise  he  would  not  allow division of the " unaccounted cash " and the other property. The  Panchas  then told him that they had decided  upon  the share each should be given and no further proposal would  be entertained  by plaintiff No. 1. The witness then said  that he left for Gadag.  In cross-examination, he stated that  he and  the other Panchas had told defendant No.1 to  give  the shares of the unaccounted cash to the other sharers. The  evidence   of  the witnesses  clearly  shows  that  the question relating to the division of the "unaccounted cash " was  expressly  discussed  and the  plaintiffs  as  well  as defendant  No. 3 were fully aware of the existence  of  this amount lying in the safe which was not entered in the  books

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of  account.   It is the case of defendant No.  I  that  the amount was divided on October 19, 1947.  The first plaintiff and defendant No. 3 have denied this on oath; defendant  No. 2  did not enter the witness box.  The burden certainly  did lie  upon defendant No. 1 to establish the division  of  the amount  but there are several important circumstances  which go  to  prove that a partition must have  been  effected  as alleged  by  defendant  No. 1. From the  sequence  in  which various properties were partitioned, it is clear that in the first  instance  the principle of division was  decided  and then the valuable properties like the immovable  properties, the cash, stock in trade of the shops, were divided and then the division of properties of comparatively small value like the agricultural implements, pots and furniture was taken in hand.   If  there was a. large amount of Rs.  3,20,000/-  in cash   lying  undivided  before  dividing  pots,  pans   and furniture,  the other parties would have insisted  upon  the division  of  that  amount.: - It is  difficult  to  believe especially  having regard to the plea that defendant  No.  1 had  adopted  a refractory attitude with the  other  parties that defendant No. 3 accepted the division of properties  of comparatively small value without insisting upon division of this large amount.  There is also the circumstance that even though  plaintiff  No. I know about the existence of  the  " unacounted cash " in the safe, it was 811 expressly  mentioned in the plaint.  We would have  expected the  plaintiffs to state expressly that on or about  October 19,  1947,  " unaccounted cash " was found in the  safe  and that  even  though defendant No. I was asked to  divide  the same  by  the remaining parties as well as the  Panchas,  he declined to accede to that demand.  The conduct of defendant No. 3 in not setting out this item in his plaint renders the story  that  defendant No. I refused to divide  this  amount somewhat  improbable.   There is again no reference  in  the plaint  filed  by defendant No. 3 that the amount  that  was divisible was not divided on account of the attitude adopted by defendant No. 1. Counsel for defendant No. 3 relied  upon the  averments  in  para. 9 of the plaint that  it  was  not possible  for defendant No. 3 to give a description  of  the remaining  properties and the movable articles belonging  to the family and the money lending dealings.  But there is  in the  plaint  no  reference to any  cash  amount.   Schedules appended to the plaint are very detailed and it is difficult to  believe that defendant No. 3 did not mention  that  this amount of Rs. 3,20,000/- was not divided even after  demands were made and ignored.  The plea that he apprehended that he might  be  called upon to pay court fee ad  valorem  on  the amount  if  he  specified  it  in  the  plaint  is   futile. Consistently with the ’practice prevailing in the courts  in the Bombay Province, defendant No. 3 had paid Rs. 18,12,0 as court  fee under Art. 17, cl.  VII, on the plea that he  and the  other  parties were in constructive possession  of  the entire property, belonging to the family.  Properties  worth lakhs  of rupees were described in the schedules annexed  to the  plaint  and  if court fee ad valorem  was  not  payable according   to  defendant  No.  3  in  respect   of,   those properties,  we  fail  to  appreciate  why  he  should  have apprehended that court fee ad valorem would still be payable if he claimed a share -in the cash amount of Rs. 3,20,000/-.     There is also the other circumstances that with  consent of the parties reference was made to Godkhindi by the  three Panchas of all the matters which had 812 remained to be settled, and in the statement made before him

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which was recorded in writing, there    was no  reference to the claim that the amount of Rs. 3,20,000/- had remained  to be  divided.  Plaintiff No. 1 gave a detailed  statement  of the  properties  which  remained  to  be  divided  and  that document is dated December 5, 1947: Ex.  D-482.  Item 5 is " cash balance in the Dalali shops and in the house should  be divided ", and again in cl. (12) it was stated " an  account of  the  amounts in suspense (parabhare) account  should  be taken  and the total of the said amount should be  divided." Counsel  for  the  plain.  tiffs  and  the  third  defendant submitted that the original of this list was in Kannad which was  translated into Marathi and the Marathi word  which  is translated  into English as " suspense " was " parabhare  ". That  word  according  to  the  plaintiffs  and  the   third defendant meant " unaccounted for ". It is difficult for  us to express any opinion on this argument.  It may be observed that  the learned Judge of the High Court who delivered  the judgment  was himself conversant with the  Marathi  language and he was not prepared to accept that interpretation.   But that  by itself may not be sufficient to reject the plea  of the  plaintiffs.   What is material is that  in  a  detailed statement  consisting of as many as 24 items the  plaintiffs have  not set out that this amount of Rs.  3,20,000/-  which was found in the family safe and which the Panchas wanted to divide, was on account of the uncompromising attitude of the first  defendant  not divided.  If the amount had  not  been divided,  we  have  not  the slightest  doubt  that  in  the statement  this amount would have been  expressly  included. Godkhindi  was  examined as a witness in these  suits.   The trial  court  found  him  to be  a  person  who  was  wholly disinterested.   It appears from the evidence  of  Godkhindi that  no question about the division of Rs.  3,20,000/-  was mooted.   If  the amount had not been divided,  we  have  no doubt that this question would have been prominently brought to his notice; but no such plea was even raised.  We are  of the view having regard to these circumstances that 813 the amount of Rs. 3,20,000/- must have been divided. In  that  view of the case, the decree passed  by  the  High Court will be modified as follows:-- The  properties  of the joint family except  the  properties divided  on September - 23, 1946, October 12, 1946,  October 19,  1946, including the amount of Rs.  3,20,000/-,  October 20,  1946, October 21, 1946, including  the  stock-in-trade, silks  and sarees and cupboards, and on November  10,  1946, February  7,  1947, February 22, 1947,  February  24,  1947, February  25,  1947, and the furniture, utensils  and  other movables  between  May  and June,  1947,  and  the  property divided  on July 13, 1947, and the outstandings divided  be- tween  February  5,  1948, and  February  9,1948,  shall  be partitioned between the parties.  The partition will be made on  the footing that defendant No. 3 is entitled to  a  half shar  and defendant No. 1, the plaintiffs  collectively  and defendant No. 2 are each entitled to a 1/6 share.  Defendant No.  I will be entitled to his costs in Appeals Nos. 218  of 1959  and  219  of 1959.  The other  appeals  filed  by  the plaintiffs  and  defendant  No. 3 will  be  dismissed.   One hearing fee.      C.   As. Nos. 218 and 219 of 1959 allowed.      C.   As. Nos. 220 to 223 of 1959 dismissed.