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PETITIONER: NARAINDAS LILARAM ADNANI

       Vs.

RESPONDENT: NARSINGDAS NARAINDAS ADNANI & ORS.

DATE OF JUDGMENT16/12/1994

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) AHMADI A.M. (CJ) MOHAN, S. (J)

CITATION:  1995 AIR  763            1995 SCC  Supl.  (1) 312  JT 1995 (1)   257        1994 SCALE  (5)310

ACT:

HEADNOTE:

JUDGMENT: 1.   The deceased appellant Naraindas Lilaram Adnani was the original  petitioner.  Respondents 1 and 2 are his  sons  by his  first wife.  The 5th respondent is also the son of  the appellant  by his first wife.  Respondent No. 3 is the  wife of  the  first  respondent.   The  6th  respondent   Devibai Naraindas  Adnani  is  the second  wife  of  the  appellant. Respondents  7  and 9 are the sons of the appellant  by  his second Wife. 2.After  filing of the Special Leave Petition the  appellant died  on 15.4.1988. The 9th respondent has filed IA  No.  1/ 1989 for  being substituted as the appellant in place of the original appellant.  In the said application which is  under Order  22  Rule 3 of the Code of Civil Procedure  read  with relevant rules of this Court, the 9th respondent has  stated that  the  deceased appellant has left a  Will  under  which respondent  no. 9 is the sole executor of the  Will.   Under the  said Will the appellant has left his entire  estate  to respondent  no. 6 i.e. his second wife.  Respondents  no.  9 has,  therefore, prayed that he should be impleaded  in  his capacity  as  the  executor  of the  Will  of  the  deceased appellant  and as his legal representative.  The Will,  how- ever, has not been probated so far.  In view of Section  213 of  the  Indian  Succession Act, respondent  no.  9  cannot, therefore  be, impleaded in his capacity as the executor  of the  will  of the deceased appellant.  It  is,  however,  an accepted  position  that the legal  representatives  of  the original appellant are already on record.  We therefore,  do not  see an,,, difficulty in transposing respondent  no.  9, one  of the legal representative of the deceased  appellant, as the appellant.  For the sake of convenience, however, the original  appellant will be hereinafter referred to  as  the appellant  and the transposed appellant will be referred  to as respondent no. 9. 3.   At  all times material to these proceedings there  were

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three  partnership firms of which the appellant and some  of his  family  members  were partners.  One was  the  firm  of ’Naraindas  Sons’.   The second firm was  ’N.   Sukhdev  and Company’ and the third firm was ’Lilaram Kewalram  (India)’. On account of differences and disputes between the appellant and the various members of his family, the parties agreed to refer  their disputes to the sole arbitration of  Shri  D.N. Abhichandani, Advocate, under a Deed of Reference dated 17th of  September, 1973.  The Deed of Reference states that  all disputes and differences between the parties are referred to the arbitration of Shri D.N. Abhichandani.  Pursuant to  the Deed  of  Reference  the said Arbitrator  entered  upon  the reference,  heard  the parties and made  and  published  his Award  dated 15th of March, 1979.  The award has been  filed in the Bombay High Court being Award No. 46/1979. 4.   Four petitions were filed in the Bombay High      Court challenging this Award. The 6th respondent, Devibai 260 Naraindas  Adnani, filed Arbitration Petition No.  102/1979. Respondent  no. 7 filed Arbitration Petition  No.  103/1979. The  9th respondent filed Arbitration Petition No.  104/1979 and  the appellant filed Arbitration Petition No.  105/1979, All these petitions were heard and disposed of by a  learned Single  Judge by his common judgment and order  dated  April 20/21,  1983,  under  which  all  the  four  petitions  were dismissed.   Being  aggrieved by this  order  the  appellant preferred  an  appeal before a Division Bench  of  the  High Court  being Appeal No. 563/83.  No appeal was filed in  the other three petitions which were also dismissed by the  said judgment and order.  The Division Bench has, by its judgment and order dated 10th of November, 1987 dismissed the appeal. Hence  the appellant filed a special leave  petition  before this Court which has been granted. 5.   The  grievance of the appellant relates to the  failure of  the Arbitrator to give certain consequential reliefs  in his  Award.   One of the properties which was  the  subject- matter of dispute before the Arbitrator was a property known as Narain Niwas situated at Vile Parle.  Respondents 1 and 2 contended  that this was a partnership property of the  firm of  Lilaram Kewalram (India).  They claimed a 1/3rd  or  28% share  in  the said property as partners of the  said  firm. Their  contention was negatived by the Arbitrator  who  held that  Narain Niwas at Vile Parle was the exclusive  personal property  of the appellant Naraindas.  Having held  so,  the Arbitrator  considered  what  should  be  the  consequential relief  which  could  be  granted  to  the  appellant.   The Arbitrator  noted  that a part of this property was  in  the possession  of  respondents  1 and  2  while  the  remaining property  was  in  the possession  of  the  appellant.   The Arbitrator  has  stated  in his Award  at  paragraph  61  as follows:               "With  my  aforesaid decision  that  the  said               "Narain  Niwas"  is  the  exclusive   personal               property  of  the  Naraindas  my  jurisdiction               stops   there  as  the  relationship   between               Naraindas,  Narsingdas  and  Parshotamdas   as               regards the said possession of Narsingdas  and               Parshotamdas   will   be   governed   by   the               provisions  of  the  Bombay  Rent  Act   which               possession  however,  shall not  be  disturbed               except by due process of law.  " The appellant contends that the Arbitrator, having held that Narain  Niwas  was his exclusive personal  property,  should have granted the consequential relief of possession.  It  is submitted by the appellant that there is no question of  the

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provisions  of  Bombay  Rent Hotel  &  Lodging  House  Rates Control  Act  (hereinafter referred to as the  ’Bombay  Rent Act’)  being  attracted in this case.  It is  nobody’s  case that  either the 1st or the 2nd respondent  (Narsingdas  and Parshotamdas) are tenants in respect of the portions of  the said  property  in their possession.  Nor was  it  anybody’s case  that either the 1st or 2nd respondent  were  protected licensees  in  respect  of it.  It was  also  not  contended before the Arbitration that any rent or any compensation was being  paid by the 1st and/or the 2nd respondent in  respect of  their occupation of portions of the said property.   The only case of respondents 1 and 2 was that this property  was a partnership property; and because respondents 1 and 2 were partners  in  the  partnership  firm  of  Lilaram   Kewalram (India), they had a 1/3rd or 28% share in the said property. This having been negatived by the Arbitrator, the Arbitrator ought to have granted the consequential relief possession. 261 6.   There  is  much force in this  contention.   The  above passage  in the Award clearly indicates the reasons why  the Arbitrator has not granted possession to the appellant.  The learned  Arbitrator  seems  to have been  under  a  mistaken impression  that the right to possession of the portions  of the  property  occupied  by respondents 1  and  2  would  be governed by the provisions of the Bombay Rent Act.  He  has, therefore,  observed  that  their possession  shall  not  be disturbed  except by due process of law.  Since it is  clear that  the  provisions of the said Act are not  attracted  at all, the Arbitrator ought to have granted the  consequential relief  of  possession  to  make  his  Award  complete   and effective. 7.   During  the pendency of the appeal before the  Division Bench of the High Court, the appellant, in view of the above quoted  observations of the Arbitrator, filed two suits  for possession  of the portions of the said Vile Parle  property in  the possession of respondents 1 and 2, being  Suit  nos. 1338/83 and 1339/83.  In the Memorandum of Appeal in  Appeal No.  563/83 filed by the appellant it has been  stated  that these suits are being filed without prejudice to the  rights and contentions of the appellant in the appeal.  Even other- wise, in the context in which the suits have been filed,  it is  clear that these suits have been filed by the  appellant ex abundanti cautela. 8.   The Division Bench of the High Court, however, declined to  grant  the consequential relief of possession  as  these suits for possession had been already filed.  In the present case, the Arbitration Award was made as far back as on  15th of  March,  1979.  It would not now be fair  to  direct  the appellant  to seek his remedy of possession through the  two suits  which  he has filed and which may  take  considerable time  to  be  finally disposed of,  when  the  consequential relief  of possession could have been granted to  him  under the Award itself 9.   Under  Section 15(b) of the Arbitration Act, 1940,  the Court  may, by order, modify or correct an Award inter  alia where  the  Award  is imperfect in  form,  or  contains  any obvious  error which can be amended without  affecting  such decision.   Obviously  the court cannot substitute  its  own order  for  the Award of the Arbitrator.   But  any  obvious error in the Award can be corrected by the court provided it does  not affect the decision given by the  Arbitrator.   In the  present case the decision of the Arbitrator  is  clear, namely,  that the Narain Niwas property is  exclusively  the personal  property of the appellant Naraindas.  It  is  also clear  that respondents 1 and 2 cannot claim any part of  it

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by  virtue  of their being partners in the firm  of  Lilaram Kewalram  (India).  The only reason why the  Arbitrator  has not  granted  any  consequential  relief  seems  to  be  his impression  that the possession of respondents 1 and  2  was governed  by  the provisions of the Bombay Rent  Act.   This being clearly a mistake, it is possible to correct the  same without  affecting  the decision of the  Arbitrator.   After all, the Award must be couched in a form which would lead to finality.   It  should not be in a form  which  compels  the parties  to embark upon further litigation.  If the  mistake of  the  Arbitrator is allowed to stand as it is,  it  would clearly  lead  to  further litigation  between  the  parties although their rights, inter se, are clearly decided by  the Arbitrator.  The mistake, therefore, can be corrected  under Section 15(b) of the Arbitration Act 1940. 262 10.  It was contended by learned Advocate for respondent no. 1 that the Award should be remitted to the Arbitrator  under Section 16 of the Arbitration Act.  In the first place,  the learned  Arbitrator has also expired.  Secondly,  the  Award has  not  left  any matter  undetermined.   It  has  clearly decided the rights of the appellant and respondents 1 and  2 in  the  Narain  Niwas property.  Hence  the  provisions  of Section  16  are not required to be invoked in  the  present case.  The appellant being entitled exclusively to the  said property,   is   entitled  to   possession   thereof   since respondents 1 and 2 do not have nay right, title or interest in  the said property or any part thereof and have no  right to  possession  thereof.   The respondents  1  and  2  shall accordingly hand over possession of the portions of the said property in their occupation to the present appellant  i.e., respondent  No. 9 who shall hold the same for and on  behalf of the estate of the deceased appellant. respondents 1 and 2 have  asked for time to hand over  possession.   Considering the  period  that has elapsed since the Award  during  which period  respondents 1 and 2 have enjoyed possession  of  the portions of the said property, we are not inclined to  grant a long time but we direct that each of them shall hand  over possession of the portions of Narain Niwas in his possession within 6 months from today. 11.  The  next  property  which  is  the  subject-matter  of dispute  in this appeal is a tenanted property,  being  room no.  13 of the second floor of Vasantwadi,  Kalbadevi  road, Bombay.  The appellant had contended that the tenancy rights in the said room belonged to him exclusively.  Respondents 1 and 2, however, claimed the tenancy rights in the said  room as a partnership asset of Lilaram Kewalram (India). 12.  At  the time when Appeal no. 563/ 83 was heard  by  the Division Bench of the High Court, learned counsel  appearing for  respondents 1 and 2 had stated that in order to put  an end to the dispute relating to this property, respondents  1 and 2 were agreeable either (a) to buy out the share of  the appellant or (b) to get the property valued by a Valuer  and to  pay off the appellant’s share or (c) that  the  property may  be auctioned inter se and be taken over by the  highest bidder.  Learned Advocate for the appellant, however, stated that he was unable to express any view in the matter. 13.  It  is necessary to note that the first respondent  has 40%  share in this property, the second respondent  has  17% share in this property while the appellant has 43% share  in the  said property.  Respondent No. 1 in possession  of  the said  room.  The respondents 1 and 2 have stated  before  us that  the present appellant i.e. respondent no. 9 may  state the  value of the said property and respondents 1  and/or  2 should  be given the first option either to accept the  said

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property  on the valuation as made by the present  appellant and pay off the share of the present appellant on the  basis of the said valuation, or in the alternative, they or either of  them would be free to accept their respective shares  in the said property in monetary terms on the basis of the said valuation.  On such amounts being paid they would hand  over the   possession  of  the  said  property  to  the   present appellant.  In our view, this seems to be a very fair offer. We, therefore, direct the par-ties to act accordingly.   The present  appellant, i.e., respondent No. 9 shall  state  his valuation of the said property in monetary terms in  writing and convey the same to respondent nos.  1 and 2 263 the same in writing to the present appellant or his advocate within 8 weeks thereafter.  The consequential payments shall be  made  within 2 weeks thereafter and  the  possession  be either retained by respondents 1 and/or 2 or handed over  to respondent  no.  9 as heir and legal representative  of  the original appellant, as the case may be.  In the latter  case respondent  no.  9  shall  retain  possession  of  the  said property  for  and on behalf of the estate of  the  deceased appellant. 14.The last property which is required to be ’considered  is the  property at Ganeshpuri.  The present appellant  has  no objection to handing over possession of the portion of  this property  originally in the occupation of the  appellant  to respondents  1 and 2, although the Arbitrator has held  that the   appellant,  the  first  respondent  and   the   second respondent  are owners of the said property having an  equal share therein.  He shall, therefore, do so within 4, weeks. 15.The  appeal is, therefore, allowed to the  above  extent. There will be no order as to costs. 264