Taru Bala Biswas v. Prasanta Kumar Biswas — 1983 DIGILAW 254 (CAL)

JUDGMENT The present application has been filed by the petitioner under sections 30 and 33 of the Arbitration Act for setting aside the award dated 16.12.81. The fact s of the case is shortly as follows :- 2. The petitioner instituted a partition suit in this Court being Suit No. 24A of 1978 against the respondents praying, intir alia, a declaration that the properties mentioned in Annexures 'A' 'B' and 'c' to the plaint were joint family properties and the plaintiff had 1/3rd share therein partition of joint estate and allotment of her share in severalty, a decree against the respondent No. 1 for restoration of personal assets and jewelleries of the plaintiff mentioned in Annexure 'D' to the plaint and in default a decree for value thereof; rendition of accounts against the respondents Nos. 1 and 2 and a decree for the amount found due. There was also a prayer for adjudging the instruments dated 13. 12. 50. and 14. 9. 76 as void and/or voidable and directing delivery up and cancellation of the said documents. The relationship of the parties are as follows :- Chunilal Biswas (D. 13.4. 1943) Smt. Taru Bala Biswas (Plaintiff) Prasanta (defendant 1) (Ananta Defdt. 4) Jyotsna (defendant 2) Anjali Defdt. 5) Jyanta Smt. Sakuntala Sukanta (defendant 3) Smt. Utpala Neogi Kumar (married) (Defdt. 6) Jayashree (Married) (wife) defdt. No.7 3. At the time of the death of Chunilal, he left various movable and immovable properties including 1/3rd share in two businesses, K. C. Biswas & Co. and N. C. Dutta & Co. On the death of Chunilal, the said properties devolved on the petitioner and the respondents Nos. 1 and 4 in equal 1/3rd share each. The joint family continued with the respondent No. 1 as Karta. The aforesaid two businesses had gone out of the hands of the original parties in which the petitioner and the respondents Nos. 1 and 4 were partners representing the 1/3rd share of the deceased Chunilal. It is alleged in the present petition that in 1949 it was decided that a new Arms business would be started and licence would be taken in the name of the respondent No. 1 but the same was objected to by the other partners of the aforesaid businesses. According to the petitioner to avoid that difficulty, it was decided between her and the respondents Nos. According to the petitioner to avoid that difficulty, it was decided between her and the respondents Nos. 1 and 4 that a purported partition should be effected amoagst them showing that the interest of the petitioner and the respondent No. 1 were allotted to the respondent No.4 and thereafter a new business would be started by the respondent No. 1. Pursuant to the said arrangement a purported registered deed of partition was executed by and between these parties on 13. 12. 50. According to the petitioner the document was never acted upon and was void. On the .basis of this said document a licence was obtained from the State Government in the name of the respondent No.1 and a new business in Arms was started in 1951 under the name and style of East India .Arms which, in fact, was a joint family business. It is also alleged that to reduce the burden of income tax, this business was described as proprietory concern and/or partnership firm although the business through out has been a joint family business. It is further alleged that out of the joint family income, properties in the Annexures 'B' & 'C' to the petition were acquired. The joint family has four other businesses i. e. Chowringhee Camera Stores, Chowringhee Studio, Photo Cine. Suppliers and Biswas Chemical Suppliers. According to the petitioner, the respondent No. 1 has wrongfully taken possession of joint family jewelleries including petitioner's personal jewelleries. It is further alleged that the respondents Nos. 1 to 6 entered into an agreement dated 15. 9. 76 for partition of joint family properties without reference to her or without her consent or concurrence completely ignoring her right, title and interest therein. The said agreement is not binding on the petitioner and should be declared void. Under the circumstances, the petitioner had filed Suit No. 24A of 1978 for partition of these properties. The said suit was contested by the respondents Nos. 1 and 2 Prasanta and Jyotsna by filing a joint written Statement alleging, infer alia, that the plaintiff was set up by the respondent Ananta and that there was a complete disruption of the joint family by partition on 13th December, 1950 and the subsequent family arrangement dated 15. 9. 76. The partition deed dated 13. 12. 50 was acted upon by all the parties. Properties and businesses standing in the names of these respondents Nos. 9. 76. The partition deed dated 13. 12. 50 was acted upon by all the parties. Properties and businesses standing in the names of these respondents Nos. 1 and 2 are their personal properties. 4. The respondents Nos. 3 and 7, Jayanta and Jayashree as the defendants Nos. 3 and 7 in the said suit filed their joint written statement making similar allegations as Prasanta and Jyotsna. 5. The respondents Nos. 4, 5 and 6 Ananta, Anjali and Sukanta as defendants Nos. 4, 5 and 6 in that suit filed a joint written statement supporting the plaintiff. 6. During the pendency of this suit the parties agreed that all matters in disputes in the suit should be referred to the sole arbitration of Mr. J. N. Roy, Barrister-at-Law and an application was made to that effect on 31. 3. 78 containing prayers, inter alia, as follows :- i) The said sole Arbitrator shall have summary powers as mentioned in paragraph 4 thereof and he will also have power to make interim award and/or awards if he thinks fit and as mentioned in paragraphs 7 and 8 thereof; ii) The Arbitrator will make final a Nard within a period of four months from the date or the order to be passed herein; iii) Pending the making of the award and the reference to arbitration, the interim order is mentioned in paragraph 7 thereof will remain in force and will govern the relationship between the parties and their properties, businesses and assets. 7. Accordingly an order of reference was made in the said Suit No. 24A of 1978 on 31. 3. 78. 8. The Arbitrator held 87 sittings and the time to make the award was extended by mutual consent from time to time as well as by orders; of Court upto 17.12.81. The award was made and published on 16.12.81. The arbitrator submitted the award to the Registrar, Original Side by letter dated 17.12.81 for filing the same and informed the parties that he had filed the award. The parties, however, did not take any step for payment of the requisite stamp fees for filing the said award and as such the award alongwith all the records of the arbitrator remained in Court unfiled. In the meantime on 15. 1. 82 the petitioner took out this application for setting aside the award. The parties, however, did not take any step for payment of the requisite stamp fees for filing the said award and as such the award alongwith all the records of the arbitrator remained in Court unfiled. In the meantime on 15. 1. 82 the petitioner took out this application for setting aside the award. A similar application was taken out by the respondents Nos. 4 and 5, Ananta and Anjali for setting aside the said award. The petitioner Tarubala challenged the said award on the ground set out in paragraph 20 of her petition. 9. The main prayers in her petition are for taking the award off the file and/or for setting aside the award and for superseding the reference. During the pendency of this application, I by my order dated 14. 1. 83, directed the ward to be filed with out prejudice to the rights and contentions of the parties to the proceeding and the award has been filed by Mr. P. K. Das's clients Prasanta and Jyotsna, the respondents Nos. 1 and 2 herein. The award is unregistered. 10. The first point taken by the petitioner, Tarubala and the supporting respondents Nos. 4 and 5 (hereinafter referred to as the petitioner's group) is that this award purports to create declare, assign, limit or extinguish the rights, title, interest of the parties in immovable properties of the value more than Rs. 100/-, and as such it is compulsorily registrable under section 17(1)(b) of the Indian Registration Act. The award, not being registered, is inadmissible in evidence and the Court will not look at it. The present application is, therefore, not maintainable and the award should be directed to be taken off the record of this Court. On the ether hand, respondents Nos. 1, 2, 3 and 7 (hereinafter referred to as the 'contesting group') contend that there is a difference between an a ward made in a private reference under Chapter II of the Arbitration Act and awards made pursuant to orders of Court under Chapters III and IV of the Act. The award made in a reference under Chapter IV is a part of a judicial proceeding and such an award has no effect whatsoever until a decree is passed en it. Such an award does not require any registration. The award made in a reference under Chapter IV is a part of a judicial proceeding and such an award has no effect whatsoever until a decree is passed en it. Such an award does not require any registration. In support of their contention the provisions of sections 21 to 25 of the Arbitration Act were construed and interpreted to show that the Court retains supervisory jurisdiction over a reference under Chapter IV of the Act throughout. The Court has to scrutiny the application for reference to see that the reference is confined only to the parties to the suit and disputes in the suit. If not, the Court cannot make an order. In support, reliance is place on (1) AIR 1925 PC 293. If only some of the parties to the suit want to go to arbitration, it is the duty of the Court to see that the disputes intended to be referred to arbitration are severable from the rest of the disputes in suit so that both can proceed simultaneously. On this point reliance is placed on section 24 of the Act. The parties to the reference under Chapter IV of the Act have no right to enlarge the scope of the reference or to coder "any new power to the arbitrator without obtaining an order of Court to that effect. In support of this contention in 2) AIR 1948 Bombay 292, paragraph 6 has been cited by the contesting group. The time to make the award under Chapter IV is to be fixed by the Court and the time cannot be extended by mutual consent of the parties. In support of this contention my attention is invited to section 23 of the Arbitration Act. According to the contesting group the Court does not have these supervisory powers in respect of a private reference under Chapter II of the Act. The contesting group's contention is that different courts have always maintained a meaningful distinction between an award made in a private reference and an award made in a reference with the intervention of court under Chapter IV of the Act. Strong reliance is placed by the contesting respondents in (3) AIR 1934 Cal 815 at 916. "Whereas an award made by the Arbitrators under orders of Court has no force until a decree is passed on it, a private award...... Strong reliance is placed by the contesting respondents in (3) AIR 1934 Cal 815 at 916. "Whereas an award made by the Arbitrators under orders of Court has no force until a decree is passed on it, a private award...... is operative even though neither party sought to enforce it by a regular suit". 11. If the award has no force, the question of registration will not arise as the document will not fall within the purview of section l7(1)(b) of the Registration Act. It is also contended that this view of AIR 1934 Cal 815 (supra) has been approved in (4) AIR 1945 Cal 19 and in (5) AIR 1971 Cal 65 . On behalf of the petitioner's group it is however; submitted that the aforesaid observation in AIR 1934 Cal 815 (supra) relied on by the contesting respondents is an obiter. The ratio of the decision is that a private award falling within the meaning of section 17(1)(b) of the Registration Act must be registered. Moreover, this decision was made before the Arbitration Act, 1940 came into force and is no longer a good law. Whether an award made under Chapter IV of the Arbitration Act dealing with immovable properties requires registration or not has, to be found out within the four corners of the 1940 Act itself read with section 17 of the Indian Registration Act. The petitioner’s group further contends that AIR 1945 Cal 19 (supra) has not approved of the legal proposition laid down in AIR 1934 Cal 815 (supra) that an award made pursuant to an order of Court has no force until a decree passed on it. As a matter of fact AIR 1945 Cal 19 (supra) did not consider the correctness or otherwise of this view at all and as such it is not helping the contesting group in any way. In AIR 1971 Cal 65 (supra) the Court was considering the effect or non-registration of a private award affecting immovable property of the value more than Rs. 100/-. In this case relying on the ratio of the decision in AIR 1934 Cal 815 (supra), the Court held that such an award is compulsorily registrable. In AIR 1971 Cal 65 (supra) the Court was considering the effect or non-registration of a private award affecting immovable property of the value more than Rs. 100/-. In this case relying on the ratio of the decision in AIR 1934 Cal 815 (supra), the Court held that such an award is compulsorily registrable. AIR 1971 Cal 65 (supra) was not considering an award under Chapter IV of the Arbitration Act and bad nothing to do with the observation made in obiter in AIR 1934 Cal 815 (supra) in respect to the same. The entire submission of the contesting group on this point is the result of misreading of the judgments in AIR 1945 Cal 19 (supra) and AIR 1971 Cal 65 (supra). I have carefully read these two decisions and I find that the submissions made on behalf of the petitioner's group is correct AIR 1934 Cal 815 (supra) is a core: voice and is an obiter dictum, so far as this High Court is concerned. 12. On behalf of the contesting group strong reliance has been placed in (6 AIR 1981 Bombay 248, The findings of this Court are summarised as follows :- (1) An award under Chapter IV of the Arbitration Act affecting immovable property valued over Rs. 100/- does not require registration. (2) Such an award is not binding on the parties thereto and has no force until a decree is passed on it. (3) Such an award is part of a judicial proceeding and has no independent existence until a decree is passed. (4) The award is only a recommendation to the Court. 13. A careful reading of this judgment will reveal that the learned Judge's whole theory that even after passing of the present Arbitration Act, 1940 an award under Chapter IV of the Act has no force or independent existence is based on his opinion that the First Schedule of the Act applies only to Chapter II by virtue of section 3 of the Act and not to Chapter IV. Paragraph 7 of this First Schedule makes an award binding on the parties. If this schedule becomes inapplicable to Chapter IV, then the award made under this chapter cannot be binding on the parties and cannot have any independent existence until a decree is passed on it. Paragraph 7 of this First Schedule makes an award binding on the parties. If this schedule becomes inapplicable to Chapter IV, then the award made under this chapter cannot be binding on the parties and cannot have any independent existence until a decree is passed on it. For better understanding of this theory, section 3 is set out below:- "An arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out ill the First Schedule in so far as they are applicable to the reference." 14. It appears that the learned Judge took the view that a private reference originates from an agreement of arbitration and the First Schedule will apply to the agreement unless a contrary intention appears from the agreement. Hence, the First Schedule including its paragraph 7 applies to private reference only and makes the award binding on the parties. Supporting this view of AIR 1981 Bombay 248 (supra) the contesting group contended that a private reference is governed by the agreement of the parties and a reference under Chapter IV is governed by the order of Court. The question of any agreement in the last type of reference will not arise. The application of the First Schedule to Chapter IV of the Act is therefore out of the question. With great respect I am unable to accept this view taken in AIR 1981 Bom 248 (supra) as well as the submissions on behalf of the contesting group. The petitioner's group submits that section 21 clearly envisages an arbitration agreement between the parties to the suit. If the parties to a pending suit agree to refer the disputes in suit to arbitration, they apply to Court and obtain an order to that effect. By the order, the Court only sanctions and/or approves the agreement and stays the suit either wholly or partially depending on the nature of the arbitration agreement between the parties. The authorities of the arbitrator flow from the agreement as well as from order of Court The aforesaid position will be clear from section 21 itself. Section 21 : "Where in any suit an the parties interested agree that any matter in difference between them in suit shall he referred to arbitration......” (emphasis supplied) 15. A Court cannot pass any order under section 23 unless the parties to the suit agree to go to arbitration. Section 21 : "Where in any suit an the parties interested agree that any matter in difference between them in suit shall he referred to arbitration......” (emphasis supplied) 15. A Court cannot pass any order under section 23 unless the parties to the suit agree to go to arbitration. A reference under Chapter IV therefore, also originates from an agreement of parties approved of and sanctioned by Court. Then why section 3 of the Act will not apply in full force? Section 25 in Chapter IV of the Act also provides :- "The provisions of the other chapters shall, so far as they can be made applicable apply to arbitration under this chapter". 16. Therefore section 25 also makes Chapter II section 3 of the Act applicable to a reference or award under Chapter IV so far as they are applicable. Paragraph 7 of the First Schedule of the Act is as follows :- "The a ward shall be final and binding on the parties and persons claiming under them respectively." 17. It would be significant to note that paragraph 7 does not make any distinction between an award made under Chapter II or under Chapter IV. It contains general terms. There is no reason why the First Schedule of paragraph 7 thereof will not apply to Chapter IV. Moreover section 24 of the Act also makes an award under Chapter IV binding on the parties as will be clear from the last two lines of that section :- ".........an award made in pursuance of such a reference shall be binding only on the parties who have joined in the application". 18. I accept the submissions of the petitioner's group that the learned Judge in AIR 1981 Bombay 248 (supra) not having considered sections 24 and 25 of the Arbitration Act came to the wrong conclusion that the First Schedule of the Act applies only to Chapter II by virtue of section 3 and not to Chapter IV of the Act. The petitioner's group further invited my attention to the fact that the basis of the decisions in AIR 1981 Bombay 248 (supra) are four cases viz., AIR 1934 Cal 815 (supra) (7) AIR 1935 Rangoon 16, (8) AIR 1936 Sind 79 and (9) AIR 1945 Oudh 1 which is again based On AIR 1935 Rang 16 (supra). The petitioner's group further invited my attention to the fact that the basis of the decisions in AIR 1981 Bombay 248 (supra) are four cases viz., AIR 1934 Cal 815 (supra) (7) AIR 1935 Rangoon 16, (8) AIR 1936 Sind 79 and (9) AIR 1945 Oudh 1 which is again based On AIR 1935 Rang 16 (supra). All these cases deal with the old law in force prior to 1940 before the present Act came into force and cannot be considered as a good law. Whether awards made under Chapters II, III, and IV of the present Act have independent existence or have binding force will have to be found out from the Act itself. The petitioner's group also strongly relies on (10) AIR 1970 SC 833 at page 837 :- "The award does create rights in that property but these rights cannot be enforced until the award is made a decree of the Court. It is one thing to say that a right is not created, it is an entirely different thing to say that the right created cannot be enforced without further steps. For the purpose of section 17(1)(b) of the Registration Act all that we have to see is whether the award in question purports or operates to create my right". 19. According to this case an award is not a mere waste paper but has some legal effect. It is final and binding on the parties and it cannot be said that it is a waste paper unless it is made a rule of the Court. The award is final adjudication of a private forum of the parties own chaise and until the same is set aside is conclusive upon the merits of the controversy between the parties and is entitled to that respect which is due to a judgment of a Court of last resort. The petitioner's group submits that all awards made under Chapters II, III and IV of the Act are final and binding but they cannot be enforced until decree is passed. Such awards, if they deal with properties art? compulsorily registrable. The petitioner's group submits that all awards made under Chapters II, III and IV of the Act are final and binding but they cannot be enforced until decree is passed. Such awards, if they deal with properties art? compulsorily registrable. On behalf of the contesting group it is pointed out that in paragraph 18 of this judgment the Supreme Court was careful enough to point out that they were dealing with a private reference and a private award only and submits that the principles enunciated in this case will not apply to an award under Chapter IV. But the Supreme Court did not say that the principles laid down therein will not apply to Chapter IV as submitted by the contesting respondents. In my opinion I here is some difference in the procedural part in conducting reference under Chapter II and Chapter IV and Courts have more supervisory power over a reference under Chapter IV but the Arbitration Act does not make any distinction or difference amongst awards made under Chapters II, III and IV of the Act and treat all of them on the same footing. All these awards are final and binding on the parties there to by virtue of the provisions of sections 3, 24 and 25 and paragraph 7 of the First Schedule of the Act. I further hold that First Schedule excluding paragraph 3 thereof applies in full force to awards under Chapter IV of the Act subject to the terms of the arbitration agreement between the parties. Paragraph 3 of the First Schedule cannot apply to Chapter IV due to the express provisions of section 23(1) of the Act whereby the Court has to fix the time for making the award. In that view of the matter I have no hesitation to hold that the law laid down concerning the registration of awards made pursuant to order of Court in AIR 1934 Cal 815 (supra); AIR 1935 Rangoon 16 (supra); AIR 1936 Sind 79 (supra) ; AIR 1945 Oudh 1 and AIR 1981 Bom 248 (supra) cannot be considered to be good law any more after Arbitration Act, 1940 carne into force. I have no doubt that all awards under 1940 Act if they affect immovable properties' in the manner mentioned in section 17(1)(b) of the Registration Act, are compulsorily registrable irrespective of the question whether they were made under Chapters II, III or IV of the Act. I also accept the submission of the petitioner's group that for the purpose of ascertaining whether a document is registrable or not only the document concerned and section 17 of the Registration Act have to be considered and nothing else. 20. The petitioner's group, relying on section 49(c) of the Registration Act, contends that the present award not being registered is inadmissible in evidence and Court will not look at it and the award should be taken of the record. I fail to appreciate, how without considering the nature and the contents of the documents concerned it is possible for any Court to arrive at a conclusion that the document requires registration and that it is inadmissible due to non-registration. This submission is absurd. The Court is not expected to pass order merely on the submissions of the parties without checking the correctness of the same. The Court cannot pass any order on this point without considering the document itself. Moreover, section 49 of the Registration Act does not put a complete bar against admission of non-registered documents in evidence as submitted by the petitioner's group. The section provides that a document registrable under section 17(1)(b) of the Act if remains unregistered, it will not- a) affect any immovable property comprised therein, or b) confer any power to adopt, or c) be received as evidence of any transaction affecting such property or conferring such power. 21. It does not make the document completely inadmissible in evidence excepting for the purposes mentioned in the section itself. The unregistered document will not be received in evidence to prove that any right, title or interest has been created or extinguished in the properties mentioned in the document or to prove any power to adopt. But for all other purposes the document is admissible in law. The object of the present application is not to assert any right in respect of any immovable property mentioned in this award. On the contrary its validity has been challenged and the prayer is for setting aside the entire award. But for all other purposes the document is admissible in law. The object of the present application is not to assert any right in respect of any immovable property mentioned in this award. On the contrary its validity has been challenged and the prayer is for setting aside the entire award. So the restriction put by section 49 of the Act does not apply in this case. The nature of the present application is quite different. It has not been made for the purpose mentioned in section 49 of the Registration Act. Looking into the contents of the present award, I have no doubt in my mind that some of the clauses contained therein are compulsorily registrable but not all the clauses. The effect of non-registration on the entire award will be dealt with latter on. 22. A preliminary objection has been raised by the contesting group that on the date of this application the award remained unfiled. Therefore, the present application was premature and not maintainable. I have already pointed out that during the pendency of this application, the award was filed pursuant to my order without prejudice to the rights and contention of the parties. The records show that the Arbitrator duly submitted his award alongwith all records of the Registrar, Original Side of this Court for filing the same and duly intimated the parties by his letter dated 17. 12. 81. It has been held by the Supreme Court as well as by this Court that these facts amount to filing of the award and the rest to be done for filing the same actually are mere ministerial functions. The authorities on this point are: (11) AIR 1953 SC 313 , (12) AIR 1976 Cal 291 and my unreported judgment delivered on 2.5.83 in the Matter No. 1016 of 1982. In (13) Della Jute & Industries Ltd. v. The Food Corporation of India. Hence, this point is rejected. 23. Now looking at the award I find that the arbitrator proceeded on the basis that the deed of partition dated 13.12.50, was a valid document. Most of the dames of the award only record the past transactions in immovable properties completed by virtue of the .aforesaid Deed of Partition, Deeds of Release and the registered Deeds of Purchases. 23. Now looking at the award I find that the arbitrator proceeded on the basis that the deed of partition dated 13.12.50, was a valid document. Most of the dames of the award only record the past transactions in immovable properties completed by virtue of the .aforesaid Deed of Partition, Deeds of Release and the registered Deeds of Purchases. These clauses, therefore, do not require any registration because no right, title or interest in these properties have been created or extinguished by this award. But Clauses 4, 13, 14 and 20 of the award purport to create rights in immovable properties in favour of the persons mentioned therein and as such fall within tile purview of section 17(1)(b) of the Registration Act. The rest of the clauses deal with movables and have nothing to do with registration. 24. On behalf of the petitioner's group it is contended that under Clause 15 of the award Ananta has been awarded the business of East India Arms Co. with liberty to apply for licence in his own name. It is alleged in paragraph 20(q) of the petition that for obtaining such a licence, Prasanta's consent will be necessary. If Prasanta refuses to give such consent no licence can be obtained by Ananta and the award to that extent will become en-executable. The award is the evidence of Ananta's title in this business and on the strength of this award Ananta will be entitled to obtain the licence as of right. Nothing, however, has been shown to me to establish why Prasanta's consent will be necessary to obtain the licence. It is also not possible to come to any finding that Prasanta will refuse to give consent (if his consent is at all necessary) in view of the fact that Prasanta himself is supporting this award. There is no basis for this submission and I reject the same. 25. The petitioner's group further contends that the allotment of the business of Biswas Chemical Enterprise with its goodwill and tenancy in favour of Jayanta under Clause 18 of the award is bad in law as the tenancy cannot be transferred in the name of Jayanta without the consent of the landlord and the tenant Ananta. This allegation is made in paragraph 20(T) of the petition. This allegation is made in paragraph 20(T) of the petition. The allegation in the petition that the tenancy stands in the name of Ananta has been specifically denied by Prasanta and his wife in paragraph 5(T) of their affidavit-in-opposition. It appears from the Annexure 'C to the plaint in Partition Suit No. 24A of 1978 that the plaintiff, Tam Bala has admitted that this business stands in the name of Jayanta alone. The award only records this fact. The petitioner Tarubala tried to set up a different case in the petition which cannot be accepted. There is not an iota of evidence that tenancy is in the name of Ananta. 26. Clause 20 of the award has been challenged on the ground that the allotment of the business of Lyon and Lyon with goodwill tenancies etc. to Prasanta is bad and the award has been made by the Arbitrator in excess of his jurisdiction. In paragraph 20(v) of the petition it has been alleged that there is an agreement for purchase of this business between Prasanta and one R. B. Rodda & Company the proprietor of the business and a suit for specific performance is pending. The matter being subjudice, no allotment can be made by the arbitrator. The pendency of the suit is admitted by Prasanta. The plaint in the partition suit is silent about this business but Ananta in his written statement, paragraph 6, specifically mentioned about this agreement and the pending suit. this business therefore, is the subject-matter of the partition suit. The allotment by the arbitration under Clause 20, of the award is subject to the result of the pending suit for specific performance. If the suit is decreed in favour of Prasanta he will get this business. The Arbitrator, therefore, created a contingent right in favour of Prasanta. I do not think Clause 20 of the award has been made in excess of or without jurisdiction as alleged by the petitioner's group. Section 17(1)(b) of the Registration Act, contemplates creation of contingent rights and that such a document requires registration. Due to non-registration, the allotment is bad. 27. Clause 25 has been challenged on the ground that the arbitrator acted without jurisdiction by ignoring the admitted case of the parties regarding the Bank Accounts and the contents of the Bank lockers. It is also alleged that no evidence was taken on this point. Due to non-registration, the allotment is bad. 27. Clause 25 has been challenged on the ground that the arbitrator acted without jurisdiction by ignoring the admitted case of the parties regarding the Bank Accounts and the contents of the Bank lockers. It is also alleged that no evidence was taken on this point. The story of any admitted case has been specifically denied by Prasanta and his wife in their affidavit-in-opposition. In the award, the arbitrator recorded hat he had heard the parties at length and considered all documents produced by them. Moreover the Arbitrator has been given summary powers by the parties. In that view of the matter the findings of facts in Clause 25 of the award are final and binding on the parties. 28. Clause 27 has also been challenged. In this clause the Arbitrator has held that the partition deed dated 13.12.50 is valid and' the agreement dated 14.9.76 is void. The petitioner's group themselves wanted that the family agreement dated 14.9.76 should be declared void and the Arbitrator has held so. Regarding the partition of 1950 the document was challenged on the ground that it was never acted upon by the parties whereas the contesting group alleged otherwise. Thereupon the Arbitrator after hearing the parties and on the basis of documents disclosed by them, came to the finding that this deed was valid. The petitioner failed to establish that there is any infirmity so far as Clause 25 ns concerned and this contention is therefore rejected. 29. It was submitted on behalf of Prasanta and Jyotsna the respondents Nos. 1 and 2 that non-registration only hits the alloments in Clauses 4, 13, 14 and 20 of the award and as such these allotments have became ineffective and bad in law but the rest are valid and binding. The lands concerned in Clauses 4, 13 and 14 are situate at Varanashi, Sukhchar in 24-parganas and at Bhubaneswar. In a partition suit parties are entitled to have partition of some of the joint properties and keep some joint. The properties in Clauses 4, 13, 14 and 20 can remain joint. These clauses are severable from the rest of the a ward and there is no bar in enforcing the part of the award which could be lawfully enforced. In a partition suit parties are entitled to have partition of some of the joint properties and keep some joint. The properties in Clauses 4, 13, 14 and 20 can remain joint. These clauses are severable from the rest of the a ward and there is no bar in enforcing the part of the award which could be lawfully enforced. In support of this contention, reliance is placed on (14) AIR 1914 PC 105 and (15) AIR 1972 SC 1121 . The Supreme Court relying on AIR 1914 PC 105 (supra) held in paragraph 12 as follows :- "It is contended 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 mo bar to enforce the part to which effect could be fully given. See Mst. Anwar Begum v. Syed Badruddin Hossain, AIR 1914 PC 105 where as a general principle it is laid down that where a separate portion of an award is bad, the remainder of the award. if good, can be maintained." 30. On behalf of the petitioner's group it is submitted that from Clause 26 of the award it will be clear that each allotment in the award in favour of one party formed consideration for the other allotments in favour of other parties to the proceeding. Therefore each alloment is an integral part of the whole award and cannot be separated. It is also submitted that in a partition suit each allotment forms consideration for the other allotments and no allotment is severable. I do not think this submissions is correct. When a partition is made by agreement of the parties, the question of consideration may arise and become important but not so when partition is made by Court or by the arbitrator. The parties get allotments of properties according to their respective share in them and the partition is made by the Judicial Authority by metes and bounds on that basis. The Judicial Authority also has so me discretion in the matter of allotments. The parties get allotments of properties according to their respective share in them and the partition is made by the Judicial Authority by metes and bounds on that basis. The Judicial Authority also has so me discretion in the matter of allotments. Moreover Clause 26 of the award does not support the contention of indivisibility of the award as submitted on behalf of the petitioner's group. The submission regarding consideration also does not apply in the present case. It should be noted that rights in most of the properties were created by virtue of the purchases already made by deed of release and by the deed of partition dated 13.12.50. As no fresh rights were created by this award in respect of these properties, the subject-matters of the aforesaid documents, the question of consideration did not arise. Hence, I reject this contention and hold that all allotments are independent severable and the allotments made in Clauses 4, 13, 14 and 20 are of no effect due to non-regestration. The rest of the award does not suffer from any infirmity and as such stands. This award cannot be registered now and the defects in Clauses 4, 13, 14 and 20 of the award due to non-registration cannot be cured. These allotments are declared invalid and the award is set aside partially to this extent. If the matters covered by Clauses 4, 13, 14 and 20 of the award are referred to arbitration once again, it may take long time to resolve these disputes. It appears that the arbitration proceedings are defeating the whole purpose of the Act itself. The object was to have speedy disposal of the matters. In that view of the matter, in my opinion, no useful purpose will be served by keeping the reference pending any more. I, therefore, order that the arbitration agreement shall cease to have effect with respect to the outstanding differences in respect of these properties. It would be desirable and convenient for the parties to revive and resume the suit for speedy disposal of the disputes. If good sense prevails, the parties may put an end to this ruinous litigation by assisting the Court in disposing of the suit quickly and amicably. 31. As the award bas been set aside partially. I direct that parties will pay and bear their respective cost of this application. If good sense prevails, the parties may put an end to this ruinous litigation by assisting the Court in disposing of the suit quickly and amicably. 31. As the award bas been set aside partially. I direct that parties will pay and bear their respective cost of this application. In view of the order made in Taru Bala's application, there will be no order on Ananta's application for setting aside the same award.