J. M. SHETH, J. ( 1 ) THESE two revision petitions are filed against the common order passed by the learned Joint Civil Judge Senior Division Nadiad in Special Civil Suit No. 98 of 1969 and Miscellaneous Application No. 104 of 1969 dated 9-10-1972 negativing the contention of the present petitioner that the private award in question which was sought to be filed in the Court was compulsorily registrable as it created or declared rights in immoveable properties of value of more than hundred rupees. ( 2 ) CIVIL Revision Application No. 1579 of 1972 has been filed by the petitioner (original defendant No. 1 ). Opponents Nos. 1 and 2 were original defendants Nos. 1 and 2. Opponent No. 1 having died during the pendency of this revision petition his legal representatives have been brought on the record in his place as opponents Nos. 1/a to 1/c. Opponents Nos. 3 to 6 and 7 were arbitrators who filed the said award in the Court and that proceeding was registered as Special Suit No. 98 of 196 9 Opponent No. 7s name has been deleted. Similarly? Civil Revision Application No. 1580 of 1972 has been filed by the very petitioner against the said common order passed in Miscellaneous Application No. 104 of 1969 which he had filed for setting aside the aforesaid award on the ground of misconduct of the arbitrators and on the ground of want of registration etc. Parties are similarly arrayed in that revision petition. ( 3 ) THE main contention in the trial Court and this Court was that the private award which the arbitrators gave on 12-9-1969 on referring the disputes by the petitioner and his two brothers opponents Nos. 1 and 2 to five arbitrators by reference Ex. 3/1 dated 16-7-1969 was compul- sorily registrable under sec. 17 (1) (b) of the Registration Act 1908 (which will be hereinafter referred to as the Act) as it purported or operated to create declare or extinguish right title or interest of the value of one hundred rupees and upwards to or in immoveable property it being a non-testamentary instrument. In view of the provisions of section 49 of the Act it cannot be admitted into evidence and cannot affect any immoveable property comprised therein and be received as evidence of any transaction affecting such property. In view of the provisions of section 49 of the Act it cannot be admitted into evidence and cannot affect any immoveable property comprised therein and be received as evidence of any transaction affecting such property. Furthermore it cannot be looked into for any purpose even as regards distribution of assets and outstandings etc. as it is one indivisible document and no part of it can be separated as they are all inextricably mixed up. The parts are not severable. If they are severed prejudice would be caused to one side or the other. ( 4 ) THE learned trial Judge relying upon the decision of the Supreme Court in ADDANKI NARAYANAPPA V. BHASKARA KRISHNAPPA AIR 1966 SUPREME COURT 1300 reached the conclusion that the immoveable property viz. the shop in which the rights of petitioner and opponents Nos. 1 and 2 were created or declared being the assets of the partnership property even though partnership property included the immoveable property therein did not require registration. In that view of the matter he has passed the impugned common order and directed to proceed further with the aforesaid two proceedings. The petitioner being dissatisfied with that common order has preferred these two revision petitions. ( 5 ) MR. M. C. Shah appearing for the petitioner has contended that for finding out what is intended to be conveyed under the award in question mark 3/2 one has to look not merely to the award but also to the reference. In support of that submission of his he has invited my attention to the observations made by a Division Bench of the Calcutta High Court in ADITYA KUMAR DE CHOWDHURY V. NARAYANDAS DE CHOWDHURY AIR 1971 CALCUTTA 65. At page 66 it is observed:in the present case also the Award does recount that by a written Ekrarnama the parties appointed the Arbitrator for partitioning their joint immoveable properties by metes and bounds. That agreement itself clearly indicates that parties had intended that Award of the Arbitrator will be the effective document for separation of their title and for giving exclusive title to the separate allotments. In other words the Award itself would have effect on their title. We therefore hold that the decision of the learned Subordinate Judge that the Award of the present case was com- pulsorily registrable in view of sec. In other words the Award itself would have effect on their title. We therefore hold that the decision of the learned Subordinate Judge that the Award of the present case was com- pulsorily registrable in view of sec. 17 (1) (b) of the Indian Registration Act is correct ant unassailable. MR. Shahs submission in this behalf is in my opinion well founded. In the present award also there is reference regarding the agreement of reference dated 16-7-1969. It is stated in the award itself that these three brothers Suthar Dahyabhai Girdharbhai Suthar Purshottamdas Girdharbhai and Suthar Ambalal Girdharbhai had referred their disputes to five persons named therein for arbitration. They had to decide their business run in partnership about their common immoveable proper. ties about cash ornaments furniture vessels etc. and to decide as to share those properties were to be allotted etc. ( 6 ) CLAUSE 3 of it which is important for our purpose relates to the partition of the shop and godown. It reads that the partition of the building of the shop run under the name of Dahyabhai and Brothers and the godown appurtenant to it is effected in the following manner: Shop which is running is to be divided half-to-half by erecting a partition wall and the expenses to be incurred for that are to be debited in the account of Dahyabhai and Brothers and on effecting such partition the eastern portion of the shop is to be taken by Dahyabhai and in that portion no interest or share of any other partner has been kept therein and the remaining western portion would go to Purshottamdas and Ambalal and they both would use it. These recitals in this first part of clause (3) leave no doubt that this shop was to be divided in the aforesaid manner and the eastern half portion was allotted to Dahyabhai and the western half portion was allotted to other two brothers. It is therefore evident that by this clause itself right was created in the immoveable property. In the portion allotted to Dahyabhai Dahyabhais right was created and the right of other two brothers was extinguished. Similarly in the western portion right of other two brothers was created and the right of Dahyabhai was extinguished. Admittedly the value of each of them was more than hundred rupees. It is therefore evident that so far as this clause is concerned. Similarly in the western portion right of other two brothers was created and the right of Dahyabhai was extinguished. Admittedly the value of each of them was more than hundred rupees. It is therefore evident that so far as this clause is concerned. interest was created as well as interest was extinguished as said earlier and the value of that interest was more than hundred rupees. It cannot therefore be gainsaid that in creating or extinguishing such interest in immoveable property of value of more than hundred rupees required registration as contemplated in sec. 17 (1) (b) of the Act. Mr. Vyas appearing for the two opponents brothers also could not support the view of the learned trial Judge in this behalf. ( 7 ) THE second part of clause (3) recites that in the land of the godown in some portion cement is stacked. That portion is to be continued for stacking the cement of Dahyabhai and Brothers. Dahyabhai and Brothers are directed to find out another suitable place for stacking the cement and construct a cement godown there. Till such land for constructing the godown is acquired present cement godown is to be continued for stacking the cement. On obtaining such suitable land for cement godown the godown in question is to be divided half to half suitably and one portion of it is to be used by Dahyabhai and other half portion of it is to be used by Purshottamdas and Ambalal. It cannot be necessarily concluded that the title was created in those two equal halves to be made in future. It can also be reasonably said that it only contemplated exclusive user of one portion by one side and exclusive user of the other portion by other two brothers. ( 8 ) CLAUSE (6) deals with the land purchased in the name of five brothers by sale deed dated 3-12-1951 for Rs. 1 800 near the Pioneer High School. It was acquired in the name of five brothers and each of the five brothers had one-fifth share therein. But subsequently two brothers Dahyabhai and Ambalal had expressed a desire to construct their own separate houses thereon to other brothers. Thereupon other three brothers had consented and those three brothers sold their three-fifth share therein for a sum of Rs. It was acquired in the name of five brothers and each of the five brothers had one-fifth share therein. But subsequently two brothers Dahyabhai and Ambalal had expressed a desire to construct their own separate houses thereon to other brothers. Thereupon other three brothers had consented and those three brothers sold their three-fifth share therein for a sum of Rs. 1 0 on 9-5-1961 by registered sale-deed to Dahyabhai and Ambalal and thereafter the said two brothers had constructed their own separate houses on the said land. The important recitals which are material for our purposes and which follow thereafter are set out in Gujarati as the controversy is raised in regard to that part:the English rendering of it will be that the owners of the said two buildings will be those two brothers. Rest of the three brothers had no interest whatsoever in the land covered under those buildings as well as those buildings and there is no enjoyment or possession of theirs. It is contended by Mr. Vyas that the land was already used for the purpose of construction of two separate houses of two brothers viz. Dahyabhai and Ambalal. Three other brothers had given up their three-fifth share on land on which the buildings came to be constructed for the consideration of Rs. 1 0 and registered sale document had been executed by them on 9 It was therefore merely a recital of fact which had already taken place. it cannot therefore be said that any right was created or any right was declared in favour of two brothers Dahyabhai and Ambalal. In view of it that part of the award did not require registration under sec. 17 (1) (b) of the Act. Mr. Vyas has invited my attention in this behalf to the decision of the Privy Council in THAKUR BHAGESHWARI CHARAN SINGH V. THAKURAIN JAGARNATH KUARI. AIR 1932 PRIVY COUNCIL 55 wherein the pertinent observations made are:the word declare in sec. 17 of the Registration Act 1908 implies a definite change of legal relation to the property by an expression of will embodied in the document referred to and does not contemplate a mere statement of fact. Consequently a document containing an admission direct or inferential that an alienation once took place does not declare a right within the meaning of sec. 17 and it exempt from registration. If only amounts to an acknowledgment. Consequently a document containing an admission direct or inferential that an alienation once took place does not declare a right within the meaning of sec. 17 and it exempt from registration. If only amounts to an acknowledgment. DECISION of the Bombay High Court in SAKHA RAM KRISHNAJI V. MADAN KRISHNAJI I. L. R. 5 BOMBAY 232 has been approved. In the aforesaid Bombay decision West J. has observed in relation to a document which was in the following words:our eldest brother M has built houses and is building new houses on property appertaining to his share. . . . . To the same we three persons and our heirs and representatives have no interest of any kind whatever. If we or they should prefer any claim then the same is to be null. This release paper we have duly passed in writing jointly and severally and in sound mindit was held that the document was admissible for that purpose as it was not a document which itself declared a right in immoveable property in the sense intended by sec. 17 of the Registration Act III of 1877. It was an acknowledgment that there had in time past been a partition between. the brothers who signed it and the defendant M but it was not itself the instrument or partition. THAT an acknowledgment of a partition is distinct from the instrument of partition is to be gathered from clause (c) or sec. 17 of the Registration Act III of 1877 Had the terms of clause (b) of that section been satisfied by a mere acknowledgment clause (c) would have been superfluous. Its operation is to require an acknowledgment in the form of a receipt to be registered but not an acknowledgment in any other shape as distinguished from the instrument of the transaction. THE word declare in sec. 17 of the Registration Act III of 1877 is to be taken in the same sense as the words create assign and c. used in the same section viz. as plying a definite change of legal relation to the property by an expression of will embodied in the document referred to. THE word declare in sec. 17 of the Registration Act III of 1877 is to be taken in the same sense as the words create assign and c. used in the same section viz. as plying a definite change of legal relation to the property by an expression of will embodied in the document referred to. It implies a declaration of will not a mere statement of a fact and thus a deed of partition which causes a change of legal relation to the property divided amongst all the parties to it is a declaration in the intended sense; but a letter containing an admission direct or inferential that a partition once took place does not declare a right within the meaning of the section. It is not the expression or declaration of will by which the right is constituted. I am in agreement with the principles enunciated in the aforesaid decisions. But in the instant case if one examines critically these recitals they indicate that both the brothers i. e. Dahyabhai and Ambalal are declared to be the owners of the said two buildings. Looking to the plain meaning of the language used it cannot be gainsaid that the statement is that both the brothers are owners of the said two buildings. It cannot be culled out that one brother is the owner of one building and another brother is the owner of another building. If it was so intended each of those buildings would have been separately described and it would have been stated that one is the owner of a building of particular description and other is the owner of a building of particular description. It is further significant to note that it does not state that the land covered by those two buildings is divided amongst the brothers. It therefore appears that both the brothers became the owners of the land covered by these buildings and they are also declared to be the owners of those two buildings and further it is stated that in the land covered by those two buildings as well as in those two buildings those three brothers had no share whatsoever and they have no enjoyment and possession of it. It may be that so far as three brothers are concerned their right had already been passed so far as the land is concerned by sale-deed dated 9-5-1961 and it was only that the two brothers had constructed those two buildings. So it may be a state of past fact. But so far as the two brothers are concerned it is by this document declared that they are the owners of the said two buildings and the land covered under them. I am therefore of the opinion that Mr. Shah is right that this part also purports or operates to declare or create interest in favour of these two brothers and the value of it being more than one hundred rupees the document required registration. ( 9 ) AS said by me earlier the two clauses part of clause (3) and clause (6) purported or operated to create or declare interest in the immoveable property valued at more than one hundred rupees the award became compulsorily registrable in view of the provisions of sec. 17 (1) (b) of the Act. The question therefore that arises for consideration is whether this award could be made a rule of the Court and whether a part of this award including the two portions which created or declared interest in the immoveable properties was severable and consequently that portion could be made a rule of the Court. ( 10 ) I will first deal with the question whether the award was com- pulsorily registrable as it declared or created interest in the shop building and the partition of it was effected as stated therein required registration as the partnership business was run thereon. ( 11 ) MR. M. C. Shah appearing for the petitioner has contended that it was a case of the petitioner even before the arbitrators that this shop belonged to him and was not the partnership property. He also urged that in the reference agreement itself there was no statement made that these shop and godown were the partnership properties. On the contrary reference suggested that the parties left their disputes to the arbitration for decision in relation to whatever properties they claimed to be their self-acquired properties. In short Mr. He also urged that in the reference agreement itself there was no statement made that these shop and godown were the partnership properties. On the contrary reference suggested that the parties left their disputes to the arbitration for decision in relation to whatever properties they claimed to be their self-acquired properties. In short Mr. Shah has submitted that all disputes - regarding partnership regarding their immoveable properties which they claim to be theirs regarding the joint immoveable properties of five brothers two of whom were not even parties to this reference were intended to be partitioned by settling their disputes. This was one integrated scheme of partition to be effected. Mr. Shah has submitted that it is difficult to ascertain what weighed with the arbitrators in deciding all these questions referred to in the aforesaid different clauses to which I have already made reference. They are all inextricably mixed up. It is therefore not possible to severe any part. If that is done it will work out inequities. Present case is a case submitted Mr. Shah Which relates to entire process of partition which was one integrated process. If one part of it fails other must fail. It is not a case where certain portion can be severed from the other without causing any injustice or prejudice to the other side. Such an award therefore cannot be made a rule of the Court and it cannot be admitted into evidence and cannot be considered for the purpose of making a rule of the Court. Mr. Shah has submitted that the ratio of the decision of the Supreme Court in ADDANKI NARAYANAPPA V. BHASKARA KRISHNAPPA (SUPRA) has been explained in the latest decision by the Supreme Court in RATANLAL SHARMA V. PURSHOTTAM HARIT 1974 (1) SUPREME COURT CASES 671. He has therefore contended that the learned trial Judge was not justified in relying upon the earlier decision of the Supreme Court and in reaching the conclusion that such partition of the shop building amongst the partners did not require registration on the basis that it will form a part of the assets of the partnership and consequently moveable property. Mr. Vyas has strongly relied upon the earlier decision of the Supreme Court. ( 12 ) IT cannot be gainsaid that the relevant sections of the Partnership Act 1932 viz. secs. Mr. Vyas has strongly relied upon the earlier decision of the Supreme Court. ( 12 ) IT cannot be gainsaid that the relevant sections of the Partnership Act 1932 viz. secs. 14 15 29 32 37 38 and 48 have been referred to in the earlier decision of the Supreme Court ill Addankis case and the following pertinent observations have been made:the provisions of secs 14 15 29 32 37 38 and 48 make it clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profits if any according to the partnership from the realisation of this propety and upon dissolution of the partnership to a share in the money representing the value of the property. No doubt since a firm has no legal existence the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership however no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to any one. His right is to obtain such profits if any as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities set out in clause (a) and sub-clauses (i) (ii) and (iii) of clause (b) of sec. 48. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immoveable property Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would therefore not be able to claim or exercise any exclusive right over any property which he has brought in much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. It is true that even during the subsistence of the partnership a partner may assign his share to another. In that case what the assignee would get would be only that which is permitted by sec. 29 (1) that is to say the tight to receive the share of profits of the assignor and accept the account of profits agreed to by the partners. LINDLEY on Partnership 12 Edition page 375 and several English and Indian decisions have also been referred to. It is further observed the members of two joint Hindu families A and B had entered into partner- ship business of hulling rice etc. Subsequently a document styled as Karar was executed between the two families. This document was unregistered and recorded the fact that the partnership had come to end and that A family had given up their share in the machines etc. and in the business and that they had made over the same to B above completely by way of adjustment. In a subsequent suit for dissolution of partnership and accounts brought by the members of A family it was contended that since the partnership assets included immoveable property and the document recorded relinquishment by the members of the (A family of their interest in those assets this document was compulsorily registrable under sec. 17 (1) (c) of the Registration Act and that as it was not registered it was inadmissible in evidence to prove the dissolution of the partnership as well as the settlement of accounts. It was in that context held:the interest of the partners of A family in the partnership assets was moveable property and the document evidencing the relinquishment of that interest was not compulsorily registrable under sec. 17 (1) Registration Act. It was in that context held:the interest of the partners of A family in the partnership assets was moveable property and the document evidencing the relinquishment of that interest was not compulsorily registrable under sec. 17 (1) Registration Act. IT is significant to note that the view taken by the Madras High Court in AIR 1931 Madras 580 which was contrary to the view taken regarding the nature of the partnership assets which included the immoveable pro- perty was over-ruled by the Supreme Court. It was only on that point that the aforesaid decision of the Madras High Court has been over-ruled. I have made the aforesaid observations at this stage as that decisions has been relied upon by Mr. Shah in support of his submission that such an award cannot be severed in parts as has been suggested by Mr. Vyas. ( 13 ) IN Ratanlals case (supra) the Supreme Court has considered the aforesaid decision relied upon by Mr. Vyas and relied upon by the trial Court and has in terms stated in para 4 at page 673:it is well-settled now that the share of a partner in the assets of the partnership which has also immoveable properties is moveable property and the assignment of the share does not require registration under sec. 17 Registration Act. (See AJUDHIA PERSHAD RAM PERSHAD V. SHAM SUNDER AND OTHERS AIR 1947 LAHORE 13 ADDANKI NARAYANAPPA V. BHASKYRA KRISHNAPPA AIR 1966 SUPREME COURT 1300 and COMMISSIONER OF INCOME-TAX WEST BENGAL CALCUTTA V. JUGGILAL KAMALAPAT. AIR 1967 SUPREME COURT 401 ). But the award with which we are concerned does not seek to assign the share of the respondent to the appellant either in express words or by necessary implication. We set out the relevant portion of the award:we make our award as follows: (1) The factory and all assets and properties of New Bengal Engineering Works are exclusively allotted to Dr. Ratan Lal Sharma who is absolutely entitled to the same. He will pay all liabilities of the factory. (2) Dr. Ratan Lal Sharma shall have no claim for the receipts signed by Sri Purshottam Harit. (3) Payment of all cheques issued by Dr. Ratan Lal Sharma on behalf of Modern Processors to Shri Purshottam Harit shall be treated invalid. (4) Dr. Ratan Lal Sharma shall pay Rs. 17 0 (Rupees seventeen thousand only) to Shri Purshottam Harit. (2) Dr. Ratan Lal Sharma shall have no claim for the receipts signed by Sri Purshottam Harit. (3) Payment of all cheques issued by Dr. Ratan Lal Sharma on behalf of Modern Processors to Shri Purshottam Harit shall be treated invalid. (4) Dr. Ratan Lal Sharma shall pay Rs. 17 0 (Rupees seventeen thousand only) to Shri Purshottam Harit. (5) Shri Purshottam Harit shall render all assistance to Dr. Ratanlal Sharma for realising all the dues of the said firm as and when necessary and for transfer of tenancy right of the factory in favour of Dr. Ratan Lal Sharma. (6) All papers and documents in respect of the said business shall be made over to Dr. Ratan Lal Sharma. (7) The following sums when realised shall be divided equally between Dr. Ratan Lal Sharma and Shri Purshottam Harit. Name of Debtors amount In Rs. 1 Associated Engineering Corpn. 284. 17 2 Link Machinery Ltd. 1,079. 28 3 Clendent Products 47. 25 4 Minerva Engineering Works. 514. 18 1,924. 88n. B. (8) The factory should not be run by Dr. Ratan Lal Sharma until and unless the payment of the award is not made to Shri Purshottam Harit. It is further observed in para 5:the word not is slip here. The parties conceded before the learned Single Judge that the award deals with immoveable property worth above Rs. 100/ -. So if it is found by us that the award purports to create rights in the appellant over immoveable property it would require registration under sec. 17 Registration Act. (See SATISH KUMAR AND OTHERS V. SURINDER KUMAR AND OTHERS AIR 1970 SC 833 ). On the dissolution of the partnership or with the retirement of a partner from the partner ship the share of the partner in the partnership assets is equal to the value of his share in the net partnership assets after deduction of all liabilities and prior charges. Even during the subsistence of the partnership he may assign his share to another partner. In that event the assignee partner would get only the right to receive the share of profits of the assignor. (See Narayanappa case at p. 407 ). In para 6 it is observed:now the award does not transfer the share of the respondent interpreted in the aforesaid sense to the appellant in express words. No such is the necessary intendment of the award. (See Narayanappa case at p. 407 ). In para 6 it is observed:now the award does not transfer the share of the respondent interpreted in the aforesaid sense to the appellant in express words. No such is the necessary intendment of the award. It expressly makes an exclusive allotment of the partnership assets including the factory and liabilities to the appellant. It goes further and makes him absolutely entitled to the same in consideration of a sum of Rs. 17 0 (see clause (4)) plus half of the amount of Rs. 1 924. 88 p. to the respondent and the appellants renouncement of the right to share in the amounts already received by the respondent. So in express. . . . . words it purports to create rights in immoveable property worth above Rs. 100. 00 in favour of the appellant. It would accordingly require registration under sec. 17 Registration Act. As it is unregistered the Court could not look into it. if the Court could not as we hold look into it the Court could not pronounce judgment in accordance with it. Sec. 17 Arbi tration Act presupposes an award which can be validly looked into by the Court. The appellant cannot successfully invoke sec. 17. IN view of this latest decision of the Supreme Court and the ratio in the earlier decision in Addanki Narayanappas case. AIR 1966 Supreme Court 1300 explained by it it is not open to this Court to take any other view of the matter. It is therefore evident that the learned trial Judge has committed a mistake in relying upon the earlier decision of the Supreme and in reaching its conclusion in this behalf. In the instant case as said earlier by me the shop was to be divided in equal halves after effecting partition The eastern half portion was allotted to Dahyabhai and the western half portion was allotted to Ambalal and Purshottamdas. There were such separate allotments made. Right of one was created and right of other was extinguished in that particular portion. In view of the decision of the Supreme Court in Ratan Lals case such right having been purported or operated to be created or declared in immoveable property valued more than at Rs. 100. 00 would require registration under sec. 17 (1) (b) of the Act. In view of the decision of the Supreme Court in Ratan Lals case such right having been purported or operated to be created or declared in immoveable property valued more than at Rs. 100. 00 would require registration under sec. 17 (1) (b) of the Act. Furthermore in the instant case there is nothing in the reference or in the award to show that it was the common case of the parties that the shop and godown were admittedly the partnership properties. On the contrary as Mr. Shah submitted and wanted to show from the arbitration proceedings this shop was claimed to be his own exclusive and independent property by Dahyabhai. Furthermore in the instant case right of two brothers Dahyabhai and Ambalal was declared in land situated near Pioneer High School and the two buildings constructed thereon by them stating that they were of the ownership of those two brothers and other three brothers had no interest whatsoever therein it also requires registration. It cannot therefore be gainsaid that from examining the award from any view point it requires registration compulsorily That being the position Court cannot look into it and the Court cannot pronounce judgment as has been held by the Supreme Court in Ratan Lals Case as well as in SATISH KUMAR V. SURINDER KUMAR AIR 1970 SUPREME COURT 833. It is observed in Satish Kumars case:an award given under the Arbitration Act on a private reference requires registration under sec. 17 (1) (b) of the Registration Act if the award effects partition of immoveable property exceeding the value of Rs. 100. 00. ( 14 ) THE next important question that requires serious consideration is whether the award is severable as has been vehemently contended by Mr. Vyas before me so that the part which does not suffer from any infirmity on account of nonregistration can be made a rule of the Court. In support of his submission that such a course can be adopted Mr. Vyas has laid considerable emphasis on the decision of the Supreme Court in MATTAPALLI CHELAMAYYA V. MATTAPALLI VENKATARATNAM AIR 1972 SUPREME COURT 1121. In support of his submission that such a course can be adopted Mr. Vyas has laid considerable emphasis on the decision of the Supreme Court in MATTAPALLI CHELAMAYYA V. MATTAPALLI VENKATARATNAM AIR 1972 SUPREME COURT 1121. It is observed therein at page 1125 in para 12:it was further contented for the appellants that an award is one and indivisible and to direct that effect be given to a part of the award and not to the whole of the award would amount to modifying the award and that was impermissible We do not think that there is any substance in this contention also. Where a severable part of an award cannot be given effect to for a lawful reason there is no bar to enforce the part to which effect could be justly given. See MT. AMIR BEGAM V. BADRUDDIN HUSSAIN AIR 1914 PC 105 where as a general principle it is laid down that when a separable portion of an award is bad the remainder of the award if good can be maintained. By giving effect to a part of the award in this case no prejudice is caused to the appellants. In fact they stand to benefit. As the award stands the appellants would have been responsible not only to pay the amounts personally but also form the property which was charged. Since the charge part is eliminated for want of registration they are freed from the additional liability. It is true that judgment should be pronounced according to the award but that does not bar giving effect to the severable part of the award if it could be justly done. Departure from the award or a part of the award is barred only in those cases where the award or a severable part of it is lawful and capable of being given effect to. THIS decision in terms lays down that such an award could be separated in part and given effect to if it could be justly done. It is significant to note that in that case there was personal obligation. Additional security was to be given by creating a charge over the immoveabie property specified therein. No other term was likely to be affected. Person against whom that award was to be enforced by severance was to gain thereby as only personal liability remained and he was freed from the additional liability regarding the charge. Additional security was to be given by creating a charge over the immoveabie property specified therein. No other term was likely to be affected. Person against whom that award was to be enforced by severance was to gain thereby as only personal liability remained and he was freed from the additional liability regarding the charge. He was therefore not in any way to suffer and was on the contrary to gain. This case therefore will not afford any assistance to us in deciding the question that is posed before me except to the position of law that an award could be separated in part and given effect to if it could be justly done. ( 15 ) MR. Shah appearing for the petitioner has laid considerable reliance upon the observations made by the Supreme Court in Ratan Lal Sharmas case in para 7 at page 675:the award is an inseparable tangle of several clauses and cannot be enforced as to the part not dealing with immoveable property. As already stated various other relevant clauses constitute consideration for clause (1) that is for the creation of absolute rights in the factory and other properties in favour of the appellant. This is perfectly clear from the note of the arbitrators appended to the award as clause (8 ). The appellant is not given a right to run the factory unless he has paid the awarded consideration to the respondent. MR. Vyas has urged that in that case the appellant was given the rights in the factory and other assets. All other clauses related to his liability in consideration of it and that is why the Supreme Court stated that there was an inseparable tangle of several clauses and consequently it could not be enforced as to the part not dealing with immoveable property. That argument of Vyas is quite well founded. We have therefore to find out whether in the present case the award in question could be separated in part and given effect to without doing any injustice to the other side. ( 16 ) MR. Shah has invited my attention to the two decisions of Madras High Court in support of his submission. We have therefore to find out whether in the present case the award in question could be separated in part and given effect to without doing any injustice to the other side. ( 16 ) MR. Shah has invited my attention to the two decisions of Madras High Court in support of his submission. In R. N. SAMUVIER V. R. N. RAMASUBBIER I. L. R. 55 MADRAS 72=air 1931 MADRAS 560 to which reference has been made earlier by me while considering the decision of the Supreme Court in Addanki Narayanappas case. At pages 78 and 79 Curgenven J. has observed:the appellant next contends that we may take the terms of the agreement piecemeal and enforce any not directly effecting immoveable property among these latter being the suit claim. The question first arising here is does it even operate to dissolve the two partnerships ? Analogy sought the severance of joint status among the members of a Hindu family is I think likely to be fallacious. We are here dealing not with status but with contract. In Gray v. Smith (1889) 43 Ch. D. 208 Kekewich J. held that an agreement by one of the partners to retire and to assign his share in the partnership assets including immoveable property is an agreement to assign an interest in land and falls within the Statute of Frauds a decision which although not argued was approved by the Court of Appeal. But it does not seem necessary here to settle this point because I think that the authorities are clear that where a contract comprises a number of counter-balancing terms some affecting immoveable property and some not designed as an indivisible whole to effect a fair distribution of assets you cannot pick out such of those terms as do not relate to immoveable property and enforce them regardless of the consequences of such a course. . . . . . . . . In THANDAVAN V. VALLIAMMA (1892) I. L. R. 15 MADRAS 336 a partition of moveables effected by an unregistered instrument which dealt also with the immoveable property was held to be valid but it will be found that the one-third share claimed in the moveables was quite separable from and independent of the share in the immoveable property. . . In THANDAVAN V. VALLIAMMA (1892) I. L. R. 15 MADRAS 336 a partition of moveables effected by an unregistered instrument which dealt also with the immoveable property was held to be valid but it will be found that the one-third share claimed in the moveables was quite separable from and independent of the share in the immoveable property. The Court has it is said to ascertain whether the part which is void be in its own nature separable and divisible. Another case dealing with separable moveable property and citing the case last referred to with approval is HANMANT V. RAMABAI 21 BOMBAY LAW REPORTER 716. So too where there is a lien or charge upon property partly moveable and partly immoveable effected by an unregistered document the charge may be enforced upon the moveable property see PASUPATI VENKATAPARHIRAJU GARU V. VATSAVAYA VENKATA SUBHADRAYYAMMA (1918) 47 I. C. 563. These cases are merely illustrations of contracts with separable tern s. In VYRAVAN CHETTI V. SUBRAMANIAN CHETTI I. L. R. 43 MADRAS 660 (P. C.) which related to an agreement to divide equally the proceeds of a first and second mortgage all that their Lordships of the Privy Council decided was that for the purpose of a claim to half the proceeds the document although unregistered could be given. in evidence. No question of the inherent divisibility or indivisibility of a transaction into its component parts really arose. As instance of a document effecting partition of moveables and immoveables which was considered not to be enforceable as regards moveables only is afforded by a Full Bench case of this Court POTHI NAICKAN V. NAGANNA NAICKER 30 MADRAS LAW JOURNAL 62 (F. B. ). The principle accepted was that. WHEN there is an entire contract and part of it cannot be enforced the whole goes whereas it is otherwise when an instrument contains two or more distinct contracts in which case they are severable. After referring to these cases at page 81 the learned Judge observes:the conclusion to be derived from these cases is that no hard and fast rule can be drawn as to the divisibility and therefore the enforceability of some terms in a contract apart from the remainder. If justice can be done between the parties by a partial enforcement the court will enforce and not otherwise. If justice can be done between the parties by a partial enforcement the court will enforce and not otherwise. AFTER enunciating the principle the recitals of the document with which the Division Bench of the Madras High Court was concerned were con- sidered and it is observed:. . . . . The plaintiff was to have all the outstanding and to meet the liabilities of another business known as the Munirpallam business hitherto jointly owned. There were several assignments of property some of it immoveable which I need not particularise. It is evident therefore that if on the footing of this agreement the defendant is held solely liable for the suit item as a liability of the R. S. firm assumed by him under it it must be in entire disregard of the consideration which led him to assume that liability. In the case of such a contract as this the terms of which are inextricably united the only course in my view is to regard it as a single transaction affecting immoveable property within the meaning of sec. 49 of the Registration Act and to decline to receive the document as evidence of any of its terms. IN the instant case similar is the position. I have referred to the terms of the document in question in extenso which clearly give an indication that the terms are inextricably united and the only course in my view open is to regard it as a single transaction affecting immoveable property within the meaning of sec. 49 of the Act and to decline to receive the document as evidence of any of its terms and consequently to make part of the award a rule of the Court. ( 17 ) IT is significant to note that several contentions were given up. Several Khatas were to be considered belonging to persons acquainted with the concerned partners. Partnership business so far as Grey and White cement regarding stockistship was concerned was to continue for ever. There are several other things dealt with. One does not know what weighed with the arbitrators for dividing all the assets of partnership other than the immoveable properties etc. in a particular manner. Even the last part of the award that certain matters were decided which the arbitrators thought it to be proper after taking the consent and some were given up at their instance. One does not know what weighed with the arbitrators for dividing all the assets of partnership other than the immoveable properties etc. in a particular manner. Even the last part of the award that certain matters were decided which the arbitrators thought it to be proper after taking the consent and some were given up at their instance. Several accounts were to be squared up. Taking into consideration all these clauses there is no escape from the conclusion that it is one indivisible part. Terms are so inextricably mixed up that it will not be possible to separate those parts ignoring the parts which created or purported to create or declare interest in the immoveable property and to make that part a rule of the Court. ( 18 ) IT is significant to note that in the aforesaid Madras decision in R. N. Samuviers case Cornish J. another member of the Bench also at page 85 observed:nor can I discover in Exhibit K an agreement to pay the money claimed by the plaintiff which is severable from the agreement transferring the immoveable property. If there were two distinct provisions the one relating to rights to the immoveable property and the other to the realisation and payment of money proof of the latter provision; could be given without the document requiring registration. In my opinion it is impossible to say that the part of the agreement upon which the plain tiff found his claim to the Rs. 18 0 is independent of the agreement relating to the transfer of the immoveable property. It is part and parcel of the same transaction and indivisible from it. IN the instant case as said by me earlier even it is not an undisputed position that the shop and godown were the partnership properties. ( 19 ) IN SUBBU NAIDU V. VARADARAJULU NAIDU AIR 1948 MADRAS 26 it is observed by Patanjali Sastri J. in para 11 at page 29; after holding that the Koorchit required registration and being unregistered cannot affect any immoveable property comprised therein nor be received as evidence of any transaction affecting such properly:it was however urged for the appellants that at any rate the Koorchit evidenced a valid partition of all the outstandings due to the family. Apart from the fact that most of these debts as appears from the evidence consisted of mortgages of lands and stood on the same footing as the immoveable properties comprised in the document their division cannot be regarded as a separable part of the transaction valid and operative so far as these assets are concerned. In a family partition no part of the transaction can be separated from the rest unless it appears that the parties intended that that part should stand even though the other part should prove ineffectual. Where an instrument of partition provided that:as we have in the presence of the under mentioned panchayatdars divided into equal moieties the cash moveables and immoveables etc. of which we are now possessed valued at Rs. 80 0 our connection shall hereafter be only by relationship but we shall have no monetary concern in respect of those properties a Full Bench of this Court held that the document being unregistered could effect neither the immoveable property nor in the absence of any clear intention expressed therein the moveables the reasons given being:when there is an entire contract and part of it cannot be enforced the whole goes whereas it is otherwise when an instrument contains two or more distinct contracts in which case they are severable 30 M. L. J. 62. THE view taken in I. L. R. 45 Madras 72 has been approved in this decision of the Division Bench of the Madras High Court. In my opinion keeping in mind the tests laid down in those decisions which in my opinion lay down the correct tests the present case is a case of a single indivisible transaction and no part of it can be severed as has been suggested by Mr. Vyas. ( 20 ) THE result is that such an award which requires registration compulsorily under sec. 17 (1) (b) of the Act cannot be made a rule of the Court in the absence of the registration of the award. The learned trial Judge has in my opinion committed an error in reaching the conclusion that it does not require registration and it can be made a rule of the Court. .