( 1 ) THIS is a second defendant's appeal against the decree passed by the i Addl Dist Judge Dharwar, in CA. 191 of 1959 reversing the decree pased by the II Jt Civil Judge (JD) , Hubli in LC. 239/1957. ( 2 ) RESPONDENT 1 Hassan instituted the suit for a declaration that the sale effected in favour of defendant 2 is null and void, for a direction that the suit property be sold to the plaintiff by executing an appropriate sale deed for proper consideration and for delivery of possession of the suit property from the first defendant. The suit relates to property bearing CTS. 776/1 in Ward No. 5 of Hubli City. The plaintiff and the first defendant are brothers belonging to Muslim faith. Adjoining properties bearing CTS. Nos. 776|2 to 776/6 belonged to the plaintiff. On 15th May, 1957 the second defendant purchased the suit property from the first defendant. It has to be mentioned that on the 27th of August, 1949 defendant 1 has executed an agreement in favour of the plaintiff as per Ex. 46. According to the plaintiff the first defendant was under an obligation under the said agreement to offer the property to him in the first instance, as and when he decided to sell the suit property. As, in violation of the said agreement the 1st defendant has sold the property to the second defendant on 15th of May, 1957, the plaintiff came forward with the present suit. ( 3 ) THE suit was resisted principally by the second defendant on various grounds. It was inter alia contended by him that the agreement Ex. 46 is not a true and genuine ones and that the same has been secured by misrepresentation and committing fraud. It was also contended that the plaintiff is not entitled to claim any relief of pre-emption. The other contention of the second defendant was that under the agreement no rights flow in favour of the plaintiff on the basis of which the present suit can be maintained. ( 4 ) THE suit filed by the plaintiff was dismissed by the Joint Civil judge JD, Hubli. On appeal to the I Addl Dist Judge, Dharwar, the decree passed by the Court of first instance was set aside and the suit of the plaintiff was decreed. That decree was challenged by the second defendant in rsa. ( 4 ) THE suit filed by the plaintiff was dismissed by the Joint Civil judge JD, Hubli. On appeal to the I Addl Dist Judge, Dharwar, the decree passed by the Court of first instance was set aside and the suit of the plaintiff was decreed. That decree was challenged by the second defendant in rsa. 343/1969 in this Court. This Court set aside the decree passed by the: learned I Addl Dist Judge, Dharwar, and remanded the case to the lower appellate Court. The case was remanded with a specific direction to examine the question as to whether the plaintiff is entitled to any relief on the basis of the agreement Ex. 46 dated 27th August 1949. While remanding the case this Court affirmed the finding recorded by the learned I Addl Dist Judge to the effect that there is np customary law regarding pre-emption among Muslims preivailing in the Bombay Karnatak area of the New State, of Mysore where the suit property is situate. This court also affirmed the finding to the effect that the agreement under Ex. 46 is not vitiated by misrepresentation or fraud. After remand, the I Addl district Judge of Dharwar allowed the plaintiff's appeal and set aside the decree passed by the Court of first instance. The learned First Additional dist Judge directed that the parties shall get the suit property valued and the price thereof fixed in the execution proceedings. It has further directed that in case the parties refused to choose the panchas or if there is no agreement on this point, the Court shall follow the procedure laid down in S. 8 of the Arbitration Act and get the arbitrator appointed by the Court. It further directed that thereafter the plantiff shall deposit the said amount into Court and defendant 1 should execute a sale deed in favour of the plaintiff in respect of the suit property. In the event of the failure on the part of the first defendant to execute the sale deed, the Court directed that the plaintiff shall get the sale deed executed through Court. The Court also gave consequential direction regarding the delivery of possession from defendants 1 and 2. It is this decree of the learned I Addl Dist Judge, that is challenged by the second defendant in this second appeal. The Court also gave consequential direction regarding the delivery of possession from defendants 1 and 2. It is this decree of the learned I Addl Dist Judge, that is challenged by the second defendant in this second appeal. ( 5 ) SRI B. K. Ramachandra Rao, learned Counsel for the appellant contended that the agreement Ex. 46 d| 27th Aug 1949, the specific performance of which is decreed by the Court below, is void for uncertainty. The translation of Ex. 46, as extracted in the judgment of the I Addl Dist Judge dharwar reads as follows in Ward No. 5 CTS. 776/1 belongs to me. If in future I desire to sell the property I will sell the same to you for a price to be fixed by panchas. In case you sell the property you should sell the same to me for a price to ba fixed by the panchas. We should act according to law. " sec. 29 of the Contract Act provides that agreements the meaning of which is not certain or capable of being made certain, are void. The contention of Sri Ramachandra Rao is that there is uncertainty in regard to the essential term of the agreement, namely, the price to be paid to the property to be purchased in accordance with the agreement. The agreement itself does not fix the price of the property. The agreement makes it clear that the parties agreed to, a,bide by the price to ba fixed by the panchas. Though the price is not fixed by the agreement, if there is no uncertainty in regard to the manner or method of fixing the price, the agreement cannot be characterised as suffering from the vice of uncertainty. The contention of sri Ramachandra Rao is that though the agreement stipulates that the price should be fixed by the panchas there is uncertainty in the agreement in as much as the agreement does not provide for the number of panchas to be appointed for the fixation of price. It is clear from the scheme of the arbitration Act 1940, that in the event of parties failing to apipoint arbitrators in accordance with the agreement, the parties can approach the Court for getting arbitrators appointed. Ss. It is clear from the scheme of the arbitration Act 1940, that in the event of parties failing to apipoint arbitrators in accordance with the agreement, the parties can approach the Court for getting arbitrators appointed. Ss. 8 to 10 of the Arbitration Act make it clear that different procedures and consequences are prescribed by the act having regard to the number of arbitrators fixed under the arbitration agreements. The number of arbitrators is, therefore, of the essence of the matter. In the absence of a stipulation regarding the number of arbitrators all that can be gathered from the agreement is that it contemplates plurality. of arbitrators. It does not indicate whether the arbitrators should be 2, 3 or more. The absence of a clear stipulation in regard to the number of arbitrators for determination oi the price of the property to be sold makes the agreement uncertain. It therefore follows that there is uncertainty in regard to an essential term of the contract namely, the price or the consideration for the property to be soid and purchased. It is not possible to accept the contention of Mr. R. U. Goulay, the learned Counsel for the respondents, that the expression 'panchas' employed in the agreement clearly indicates that the number of arbitrators fixed is five. Though the word tancha' means number five' it is not in that context the said expression is used. The expression 'panchas' has acquired a well recognised meaning namely, to convey the idea of arbitrators. The word 'panchas' is used in the regional language to convey the meaning of the word 'arbitrator'. The said experssion has been used in several documents while referring to smaller or larger number cf panchas than five. It is, therefore not possible! to understand the expression 'panchas used in Ex. 46, as indicating that the number of arbitrators agreed was five in this case. Sri Goulay, the learned cuonsel for the respondents, invited my attention to a decision in Bai mangu V. Bai Vijli Justice Miabhoy held in that case that in order that ,s. 29 Contract Act, may apply, it is not enough to show that the meaning of the contract is uncertain, but it must further be shown that it is incapable of being made certain. So far as this proposition of law is concerned, I respectfully agree with the same. So far as this proposition of law is concerned, I respectfully agree with the same. In that case the terms of compromise which came for consideration were each party has to sell to the other, respective portions of the properties which have come to their share as above at a price fixed by two members of the panchas when either party wants to sell its share. The Court held that as the clause is capable of being enforced by resort to arbitration by getting the price fixed by arbitrators, it could not be said that the aforesaid contract was void on the ground that the price was incapable of being fixed. This decision of the gujarat High Court cannot come to the assistance of Mr. Goulay, because the agreement that was construed by the High Court of Gujarat, has fixed the number of arbitrators. In the present case, as already mentioned the number of arbitrators to be appointed for fixing the price is not at all fixed under Ex. 45. For the reasons stated above. I hold that the contract sought to be specifically enforced namely, Ex. 46 is void for uncertainty under section 29 of the Contract Act. ( 6 ) AS the contract is void, the suit of the plaintiff has to fail. For the reasons stated above, this appeal is allowed and the judgment and decree passed by the learned I Addl Dist Judge, Dharwar are set aside and those of the Court of the first instance are restored. Having regard to the circimstances of the case parties are directed tc. bear their respective costs in this Court as well as in the two Courts below. --- *** --- .