Judgment : The common judgment in O.S.No.111 of 1988 and O.S.No.163 of 1991 on the file of III Senior Civil Judge, City Civil Court, Secunderbad, dated 8-9-2000 led the plaintiff in O.S.No.111 of 1988 to file CCCA.No.61 of 2001 and the plaintiff in O.S.No.163 of 1991 to file CCCA No.129 of 2001, who also filed his cross objections in CCCA.No.61 of 2001. The appellant in CCCA.No.61 of 2001 filed CCCAMP.No.11628 of 2004 to receive certified copy of a sale deed dated 3-4-1987 and CCCAMP.No.624 of 2007 to receive certified copy of the judgment in O.S.No.257 of 1987 as additional evidence. The parties are referred to herein as they are arrayed in O.S.No.111 of 1988. The factual background for the appeals is that the plaintiff filed O.S.No.111 of 1988 for partition of the ground floor and land of 525 square yards in House No.3-5-1091/15/1, Narayanaguda, Hyderabad, covered by the plaint A-schedule and double storied building in 173 square yards in House No.7-2-623 (old No.2543-A) at R.P. Road, Secunderabad covered by the plaint B-schedule into three equal shares and to allot 1/3rd share to the plaintiff and also award future mesne profits and costs. The plaintiff claimed that Dr. G. Ramachandra Rao is the father of the plaintiff and defendants 1 and 2, who was staying after his retirement in House No.7-2-713, old Jail street, Secunderabad, with his wife, the plaintiff and his family and other relatives. The plaintiff, the eldest son, graduated in law and was in State Government service from 1954 to 1983. The 1st defendant graduated from Osmania University and studied Medicine at Manipal by paying captiation fees at the expense of Dr. G. Ramachandra Rao. The 1st defendant and his wife went to the United Kingdom in 1962 for higher studies at the expense of Dr. G. Ramachandra Rao and returned in 1974. The 2nd defendant also graduated from Osmania University and studied Medicine at Manipal with the capitation fee paid by Dr. G. Ramachandra Rao. He did his M.S. (Ortho) at New Delhi and returned to Hyderabad in 1969 joining the State Medical Service. He and his wife also went to the United Kingdom in 1974 and returned in 1979. Disputes arose between the brothers regarding division of gold jewellery and immovable properties and while House No.7-2-713, Old jail street, Secunderabad, stood in the name of Dr. He and his wife also went to the United Kingdom in 1974 and returned in 1979. Disputes arose between the brothers regarding division of gold jewellery and immovable properties and while House No.7-2-713, Old jail street, Secunderabad, stood in the name of Dr. G. Ramachandra Rao, the plaint B-schedule property was standing in the name of Seetharavamma, wife of Dr. G. Ramachandra Rao. The plaint A-schedule property was purchased by Dr. G. Ramachandra Rao in the name of the 1st defendant. The tenant in the plaint B-schedule property was ordered to be evicted by the Court. On 15-06-1980, the defendants, the 1st defendant’s wife and A. Satyanarayana, brother-in-law of the 1st defendant’s wife, came to Dr. G. Ramachandra Rao and taking the keys of almyrah from him, took possession of the jewellery of Seetharavamma. The jewellery was divided by the 1st defendant and A. Satyanarayana in spite of protest by the plaintiff about missing of some costly items and one packet of jewellery was handed over as the share of the plaintiff to Dr. G. Ramachandra Rao, while two lots of jewellery were taken away after preparing receipts. A. Satyanarayana told Dr. Ramachandra Rao that he will amicably settle the disputes regarding the immovable properties also but the same did not materialize. Dr. G. Ramachandra Rao executed a registered Gift deed in respect of House No.7-2-713, old jail street, Secunderabad, in favour of the plaintiff due to natural love and affection and due to his being looked after since his retirement in 1958. The plaintiff alleged that defendants 1 and 2 removed the entire files and papers relating to the plaint schedule properties. The dispute among the brothers was referred to arbitrators and Sri K. Lakshmikantha Rao and Sri K.V. Rama Rao were named as arbitrators by the defendants 1 and 2. They gave an award, which was highly partial and prejudicial and hence, Dr. G. Ramachandra Rao and the plaintiff rejected the award and conveyed their protest and objections stating that the award will not be binding on them. The award was not properly stamped and was not made the rule of the court in accordance with the Arbitration Act, and is, hence, illegal, invalid and inoperative. The defendants compelled Dr. G. Ramachandra Rao and the plaintiff rejected the award and conveyed their protest and objections stating that the award will not be binding on them. The award was not properly stamped and was not made the rule of the court in accordance with the Arbitration Act, and is, hence, illegal, invalid and inoperative. The defendants compelled Dr. G. Ramachandra Rao to execute a Will on 20-11-1981 regarding the plaint B-schedule property and the Will also mentioned the ancestral property at Malkajgiri and a plot of land at Saroornagar also to have been given to the defendants 1 and 2 absolutely. Dr. G. Ramachandra Rao on his return home cancelled the registered Will dated 20-11-1981 by a registered document. The defendants 1 and 2 again got a deed of gift for plaint B-schedule property on 11-08-1982 which was not binding on Dr. G. Ramachandra Rao and the plaintiff as the property stood in the name of Seetharavamma. In fact, Dr. G. Ramachandra Rao and his three sons were impleaded as legal representatives of Seetharavamma in the rent control proceedings. The plaintiff further alleged that Dr. G. Ramachandra Rao was forced to stay with the 1st defendant for about one and half years and he was forced to sign various documents and papers. The plaintiff was not allowed to meet Dr. G. Ramachandra Rao and only when he decided to go on hunger strike in front of the 1st defendant’s house, Suganchand Seth and Manikchand Seth were informed by the 1st defendant to take away Dr. G. Ramachandra Rao. Any documents signed by Dr. G. Ramachandra Rao during his unlawful detention are not binding on Dr. G. Ramachandra Rao, who treated them as cancelled by a declaration dated 5-8-1985. As the defendants were not coming forward for amicable division of joint family properties, the plaintiff got issued a legal notice dated 21-12-1985 for which the defendants did not reply, but Dr. G. Ramachandra Rao replied on 6-1-1986 relinquishing his claim in all the properties and giving consent for dividing all the joint family properties among the three sons. Dr. G. Ramachandra Rao expired on 24-01-1986 leaving the three sons as his sole heirs and the suit properties are in joint and constructive possession of the three brothers. G. Ramachandra Rao replied on 6-1-1986 relinquishing his claim in all the properties and giving consent for dividing all the joint family properties among the three sons. Dr. G. Ramachandra Rao expired on 24-01-1986 leaving the three sons as his sole heirs and the suit properties are in joint and constructive possession of the three brothers. The 1st defendant constructed the first and second floors on the plaint A-schedule house with the consent of the other sharers and the defendants 1 and 2 have to account for the gold jewellery taken away by them. Hence, the suit. The 1st defendant resisted the suit contending that Dr. G. Ramachandra Rao gave equal opportunity to all the three sons for studies they desired to have and the 1st defendant claimed to have gone to United Kingdom with the earnings of himself and his wife, a doctor. The plaintiff and his wife were managing the monies of Dr. G. Ramachandra Rao and all the movable and immovable properties of the joint family including gold jewellery and silver articles and even the presentations received by the 2nd defendant at the time of his marriage. The plaintiff and his wife appropriated most of the movables for themselves and were showing only few items. Dr. G. Ramachandra Rao was not even looked after at the age of 80 years and after the 1st defendant came back, he got him operated for cataract at his expense. The plaint B-schedule house was intended by Dr. G. Ramachandra Rao to be used for the medical practice of defendants 1 and 2 and he got the tenant evicted by spending Rs.10,000/-for the court case. Dr. G. Ramachandra Rao deposited Rs.45,000/-in the name of the plaintiff and Rs.37,000/-each in the names of the defendants and on the suggestion of Dr. G. Ramachandra Rao, the 1st defendant purchased a plot of 500 square yards on the road side in Venkateswara Cooperative Housing Society, Narayanaguda. Dr. G. Ramachandra Rao made the purchase when the 1st defendant and his wife were abroad with the funds provided by the 1st defendant and his wife and the funds for the construction were also similarly provided. The sale proceeds of a plot of the 1st defendant’s wife at Chelluru were also given to Dr. Dr. G. Ramachandra Rao made the purchase when the 1st defendant and his wife were abroad with the funds provided by the 1st defendant and his wife and the funds for the construction were also similarly provided. The sale proceeds of a plot of the 1st defendant’s wife at Chelluru were also given to Dr. G. Ramachandra Rao for the construction of the house apart from the cost of a tractor sent to Krishnaiah Choudary by the 1st defendant from the United Kingdom. The first and second floors of Narayanaguda house were admittedly constructed with the earnings of the 1st defendant and his wife. The 1st defendant was paying taxes and the electricity consumption charges. Thus, the plaint B-schedule property is the property of the 1st defendant. Seetharavamma died on 26-01-1972. When the 2nd defendant questioned the plaintiff about the movables, diaries and papers of his father, the plaintiff abused him and the 1st defendant was giving the list of gold jewellery, silver articles, other articles, which were missing from the house and on 15-06-1980, the plaintiff sent word to the 1st defendant at about 11.00 P.M. in the night on which the defendants and their wives went. The plaintiff raised a dispute for division of gold jewellery, silver articles and other properties at which time A. Satyanarayana was also present. On the next day, a Sunday at 11.00 A.M. with the assistance of A. Satyanarayana, a friend of the plaintiff, the gold jewellery was made into three lots and the plaintiff got 24½ tulas, the 1st defendant got 11½ tulas and the 2nd defendant got 17¾ tulas. The silver articles were not partitioned and A. Satyanarayana later died. The plaintiff got a registered gift deed on 10-10-1980 from Dr. G. Ramachandra Rao in respect of jail street house on false representations and Dr. G. Ramachandra Rao wanted the R.P. Road house to be given to both the defendants. The 2nd defendant opened a clinic and is in possession of the same. The documents of Narayanaguda house are always with the 1st defendant and the defendants did not agree to give any share in the self-acquired properties of the 1st defendant to the plaintiff. Well wishers requested the brothers to settle the disputes through arbitration and K. Lakshmikantha Rao and K.V. Rama Rao, friends of Dr. G. Ramachandra Rao, were appointed as arbitrators for which the three brothers agreed. Well wishers requested the brothers to settle the disputes through arbitration and K. Lakshmikantha Rao and K.V. Rama Rao, friends of Dr. G. Ramachandra Rao, were appointed as arbitrators for which the three brothers agreed. The award passed by the arbitrators on 12-11-1980 (12-12-1980) is binding on the brothers. The plaintiff disclosed about the gift deed of jail street house after the award and the plaintiff is estopped by conduct from questioning the award. The plaintiff did not take recourse to any legal proceedings. Dr. G. Ramachandra Rao executed a Will on 20-11-1981 and was later forced by the plaintiff to sign on a revocation document by playing fraud. The registered gift deed dated 11-8-1982 is not void and the plaint B-schedule house was kept benami in the name of Seetharavamma. Dr. G. Ramachandra Rao was not treated properly by the plaintiff and the letters written by the plaintiff were pre-planned. Any document dated 5-8-1985 was illegal and invalid. Dr. G. Ramachandra Rao was not in a sound mind or good health at that time. The plaintiff is not entitled to the partition and the suit was undervalued. Hence, the 1st defendant desired the suit to be dismissed with exemplary costs. The 2nd defendant in his written statement claimed that Dr. G. Ramachandra Rao has four younger brothers and they have an ancestral house at Malkajgiri in which Dr. G. Ramachandra Rao had undivided 1/5th share, which was enjoyed by the plaintiff. Dr. G. Ramachandra Rao purchased the house No.7-2-713, old jail street, Secunderabad of an extent of 150 square yards for Rs.3,000/-on 8-6-1940. The parents gave their best for the education of their three sons and the plaintiff was a problem as a student and was suspended from service a few years before his retirement on charges of misappropriation. He, his wife and children were throughout living at the house of the father. On 25-10-1940, the plaint B-schedule house was purchased in the name of Seetharavamma and it was under the lease of M/s. Moses and Company, which was evicted in RC.No.278 of 1969. Seetharavamma died on 26-01-1972 and Dr. G. Ramachandra Rao and his three sons came on record as her legal representatives. The eviction order was confirmed by the High Court on 14-4-1980 after which possession was taken and the 2nd defendant is running his clinic there since then. Seetharavamma died on 26-01-1972 and Dr. G. Ramachandra Rao and his three sons came on record as her legal representatives. The eviction order was confirmed by the High Court on 14-4-1980 after which possession was taken and the 2nd defendant is running his clinic there since then. The plaint A-schedule property was in the name of the 1st defendant wherein a three storied building was constructed and since 1974 the defendants 1 and 2 were living separately. In fact, Dr. G. Ramachandra Rao performed the marriages of three grand daughters without any assistance from the plaintiff. The plaintiff was even taking the pension of Dr. G. Ramachandra Rao till his death and only a small part of the entire jewellery was brought out by the plaintiff for division out of the entire jewellery and silver articles in the possession of the plaintiff and the defendants after the death of Seetharavamma. After the plaint B-schedule house was given to the 2nd defendant for opening his clinic, the plaintiff got the uneven distribution of jewellery made. In the Will dated 20-11-1981 Dr. G. Ramachandra Rao recorded his thoughts and properties. It showed that the gift of the old jail street house to the plaintiff was not with knowledge of the executant and the plaint B-schedule property was purchased by Dr. G. Ramachandra Rao in the name of Seetharavamma. Valuables, documents etc., kept by the defendants in locked almyrah when they were out of country disappeared during their absence. 800 sterling pounds from the 2nd defendant for securing chetak scooters were utilized by the plaintiff to reserve such scooters for himself and his daughter. The plaintiff appropriated valuable gold jewellery and silver ware weighing 14.350 Kgs. The plaint A-schedule property is the exclusive property of the 1st defendant. The plaintiff suppressed the gift deed in respect of jail street property before the arbitrators and the arbitration by Sri K. Lakshmikantha Rao and Sri K.V. Rama Rao resulted in an enquiry on 4-11-1980 in which full opportunity was given to the parties to adduce their evidence. They considered distribution of the old jail street house, plaint B-schedule property and another piece of land and gave an award on 22-12-1980 which was registered on 18-4-1981. The plaintiff and Dr. G. Ramachandra Rao never questioned the award in any proceeding. They considered distribution of the old jail street house, plaint B-schedule property and another piece of land and gave an award on 22-12-1980 which was registered on 18-4-1981. The plaintiff and Dr. G. Ramachandra Rao never questioned the award in any proceeding. The award is final and conclusive and the suit is barred by Section 32 of the Arbitration Act. There was no valid revocation of the registered Will dated 20-11-1981 and Dr. G. Ramachandra Rao was competent to execute the registered Gift deed dated 11-08-1982. The alleged declaration dated 5-8-1985 was not made by Dr. G. Ramachandra Rao. The reply dated 6-1-1986 by Dr. G. Ramachandra Rao to the plaintiff’s notice dated 21-12-1985 was collusive and untrue. The 1st defendant executed a registered release deed dated 10-9-1987 in favour of the 2nd defendant in respect of plaint B-schedule property. The jail street house and ancestral property in, Malkajgiri are also liable for partition if there is a joint family. The suit is barred and has no cause of action and the plaintiff is not in actual or constructive possession of the properties, and therefore, is bound to pay court fee on 3/4th of the market value. The 2nd defendant was thrown out of the house after he returned from United Kingdom and was not even returned all his valuable personal belongings. Dr. G. Ramachandra Rao died due to the neglect by the plaintiff and hence, the 2nd defendant desired the suit to be dismissed with costs. On such pleadings, the following issues were framed in O.S.No.111 of 1988: 1. Whether the plaint allegations are true and correct? 2. Whether the suit schedule property is the joint family property of the parties to the suit? 3. Whether the plaintiff is entitled to a preliminary decree for partition and separate possession as prayed for? 4. Whether the plaintiff is entitled to a decree for future mesne profits as prayed for? 5. To what relief? Additional issue framed on 1-2-2000 Whether the award dated 22-12-1980 is binding on the parties and the same is a bar to file the suit O.S.No.111 of 1988 ? Additional issue framed on 21-3-2000: Whether the suit is not maintainable for the property at Malkajgiri not being added as one of the items that are to be partitioned among the parties ? Additional issue framed on 21-3-2000: Whether the suit is not maintainable for the property at Malkajgiri not being added as one of the items that are to be partitioned among the parties ? The 2nd defendant in O.S.No.111 of 1988 filed O.S.No.163 of 1991 against the plaintiff, the 1st defendant and three others in respect of the house No.7-2-713 on 175 square yards in old jail street, Secunderabad, seeking declaration of his right to 1/3rd share, partition and separate possession of his 1/3rd share, Rs.30,000/-towards past profits, Rs.10,000/-towards future profits and costs. He claimed that the double storied house was purchased by Dr. G. Ramachandra Rao under a registered sale deed dated 8-6-1940 for Rs.4,250/-to which some more land was added subsequently. The 2nd defendant claimed that as per the award of the arbitrators, the plaintiff has a right to 1/3rd share in the house, which was subsequently claimed by the plaintiff to have been gifted under a registered deed dated 10-10-1980,which is not valid or legal. Dr. G. Ramachandra Rao denied the same and no possession was delivered to the plaintiff. In view of the pendency of the arbitration proceedings, the gift deed is also vitiated by lis pendens. It is vitiated by misrepresentation and undue influence. This house is not included in O.S.No.111 of 1988 and the 2nd defendant gave a notice on 7-4-1991 demanding partition of this house for which a false reply dated 16-4-1991 was given by the plaintiff as an interim reply. The defendants 3 and 4 in O.S.No.163 of 1991 are the tenants of two mulgies and the 5th defendant in O.S.No.163 of 1991 is the son-in-law of the plaintiff practising medicine in the house paying monthly rent of Rs.500/-to the plaintiff. The 2nd defendant received a further final reply dated 18-7-1991 and hence the suit. The plaintiff contested the suit claiming that the self-acquired absolute property of Dr. G. Ramachandra Rao was the subject of a registered gift deed dated 10-10-1980 in favour of the plaintiff and the house was mutated in the name of the plaintiff by the Municipal Corporation of Hyderabad on information from Dr. G. Ramachandra Rao. The plaintiff is paying Municipal taxes and made additions and developed the property. He is receiving rents from the tenants as the absolute owner. Dr. G. Ramachandra Rao. The plaintiff is paying Municipal taxes and made additions and developed the property. He is receiving rents from the tenants as the absolute owner. Dr. G. Ramachandra Rao informed by a letter that he did not accept the award by the arbitrators and so did the plaintiff. The gift deed in favour of the plaintiff was not challenged in any proceedings and became conclusive, valid and binding with no action against the same within limitation. The suit is a counter blast to O.S.No.111 of 1988 and the plaintiff gave a suitable reply to the notice. The registration of the award was without the knowledge of the plaintiff or Dr. G. Ramachandra Rao and the court fee paid was not correct. Hence, the plaintiff desired O.S.No.163 of 1991 to be dismissed with exemplary costs. The 1st defendant in his written statement in O.S.No.163 of 1991 submitted that he is interested in his own 1/3rd share in the suit property and may be permitted to have the same. The following issues were framed in O.S.No.163 of 1991: 1. Whether the plaintiff is entitled to the relief of declaration that he is entitled to 1/3rd share in the suit schedule property? 2. Whether the suit property is liable for partition and the gift deed dated 10-10-1980 set up by D-1 is not binding on the plaintiff? 3. Whether the plaintiff is entitled to the recovery of Rs.30,000/-as prayed for? 4. Whether the plaintiff is entitled to Rs.1000/-p.a. as future mesne profits? 5. Whether the suit property is joint family property and liable for partition? 6. Whether A-schedule property is the exclusive property of D-1? 7. Whether B-schedule property belongs to D-1 and D-2? 8. Whether the court fee paid is insufficient? 9. Whether the plaintiff and his wife are laible to account for the articles mentioned in the schedule filed along with the written statement of 1st defendant? 10. To what relief? Both the suits were clubbed and evidence was recorded in O.S.No.111 of 1988. PWs.1 to 3 and DWs.1 and 2 were examined and Exs.A.1 to A.73 and B.1 to B.79 were marked during trial. The trial Court rendered the impugned common judgment, firstly concluding that the plaintiff admitted as PW.1 that his father got 1/5th share in Malkajgiri house, which was not shown in O.S.No.111 of 1988 in spite of knowledge of PW.1. PWs.1 to 3 and DWs.1 and 2 were examined and Exs.A.1 to A.73 and B.1 to B.79 were marked during trial. The trial Court rendered the impugned common judgment, firstly concluding that the plaintiff admitted as PW.1 that his father got 1/5th share in Malkajgiri house, which was not shown in O.S.No.111 of 1988 in spite of knowledge of PW.1. The trial Court noted that Ex.A.26-registration extract of the Will dated 20-11-1981 also mentioned about the ancestral house at Malkajgiri in which Dr. G. Ramachandra Rao got 1/5th share and if the house is with the paternal uncles of the plaintiff, they would be necessary parties in respect of that house. The suit in O.S.No.111 of 1988 for partial partition of the properties, therefore, was held not maintainable. The trial Court also found that the gold jewellery was divided as per Ex.B.12 and Ex.A.6, while the silver ware was not distributed. As there was no evidence about the description or value of the silver or other articles allegedly with the plaintiff and his wife, no partition can be ordered merely on the particulars annexed to the written statement without any evidence. The trial Court also found that the suit property in O.S.No.163 of 1991 admittedly was purchased by Dr. G. Ramachandra Rao and was gifted to the plaintiff under Ex.A.1. The gift deed was referred to in Ex.A.26 and the property tax receipts etc., showed that the plaintiff is enjoying the property in his own right. The contention of the defendants that the gift was obtained by fraud or misrepresentation was not proved and hence, the suit property of O.S.No.163 of 1991 owned by the plaintiff was held to be unavailable for partition. The trial Court also noted that reference to arbitrators by the parties in 1980 was admitted and the participation by the brothers was also admitted. The arbitration agreement, the award and other documents were noted to be showing that the award on 22-12-1980 was registered by the arbitrators on 18-4-1981. It was also noted that when the award was filed into the Court to make it the rule of the court, it was rejected as barred by time. The properties covered by both the suits were referred to arbitration. It was also noted that when the award was filed into the Court to make it the rule of the court, it was rejected as barred by time. The properties covered by both the suits were referred to arbitration. The trial Court referred to the precedents cited on either side and primarily relied on the decision reported in 1999 (6) ALD 740 wherein it was held that the arbitration award which was not made rule of the court can still be set up as a defence in the suit for partition. Accordingly, the award dated 22-12-1980 was held to be a valid defence making the suit for partition not maintainable. On a detailed analysis of the evidence, the trial Court also concluded that the plaint B-schedule property belonged to G. Seetharavamma and on her death intestate, it devolved on her husband and three sons and Ex.B.14 executed by Dr. Ramachandra Rao in favour of defendants 1 and 2 as if they were the exclusive owners of the property was of no legal consequence. The trial Court also concluded that the plot at Narayanaguda had been purchased with the money provided by the 1st defendant and the ground floor was also constructed with the funds provided by the 1st defendant. Hence, it was concluded that the plaint A-schedule property is the self-acquired property of the 1st defendant, while plaint B-schedule property was available for division between three brothers in equal shares. However, as the suit for partial partition was not maintainable and as the plaintiff was not entitled to file the suit for partition in view of the binding award passed by the arbitrators, the trial Court dismissed both the suits without costs. The plaintiff filed CCCA.No.61 of 2001 against the dismissal of O.S.No.111 of 1988 claiming that the Will executed by the father in Ex.A.61 dated 7-8-1981 and Ex.A.14-declaration dated 5-8-1985 showed the plot and the ground floor of plaint A-schedule property to be joint family property. The arbitration award was not accepted and acted upon due to which no steps were taken to make it a rule of court and hence, it cannot be a valid defence for a suit for partition. Section 32 of the Arbitration Act does not come in the way and both the parties and Dr. G. Ramachandra Rao rejected the award, which was not implemented. Section 32 of the Arbitration Act does not come in the way and both the parties and Dr. G. Ramachandra Rao rejected the award, which was not implemented. The very suit by the 2nd defendant in O.S.No.163 of 1991 for partition of one of the items considered by the arbitrators showed that he also did not accept the award and the sale of Saroornagar plot in 1987 by the defendants was against the award. The plaintiff never sought for any decision on the existence, effect and validity of the award to press Section 32 into service. The award was not filed into court and it is not capable of creating or extinguishing any rights. The parties are not in possession under the award and the award under consideration in 1996 (6) ALT 644 was acted upon and is dissimilar to the present case. The decision in AIR 1984 AP 78 by a Division Bench held such an award to be incapable of creating or extinguishing any rights, and hence, the plaintiff desired the impugned judgment to be reversed. The 2nd defendant filed CCCA.No.129 of 2001 against the dismissal of O.S.No.163 of 1991 contending that the gift deed dated 10-10-1980 is null and void being vitiated by deceit. The inconsistent defence set up by the plaintiff should have resulted in decreeing the suit and the extent of the area of the property is also in dispute, which could not have been overlooked with reference to the boundaries. The balance beyond 150 square yards was in any view available for partition and equities in favour of the 2nd defendant were ignored. Hence, the 2nd defendant desired the dismissal of O.S.No.163 of 1991 to be reversed. In his cross-objections in CCCA.No.61 of 2001, the 2nd defendant claimed that plaint B-schedule property should have been held to have been acquired benami in the name of Seetharavamma by Dr. G. Ramachandra Rao and the suit is also barred by limitation. The findings about the plaint B-schedule property are based on surmises and assumptions and have to be reversed. In his cross-objections in CCCA.No.61 of 2001, the 2nd defendant claimed that plaint B-schedule property should have been held to have been acquired benami in the name of Seetharavamma by Dr. G. Ramachandra Rao and the suit is also barred by limitation. The findings about the plaint B-schedule property are based on surmises and assumptions and have to be reversed. The plaintiff filed CCCA.MPNo.11628 of 2004 stating that the sale deed executed by the 2nd defendant in favour of V. Subba Rao and another on 3-4-1987 in respect of 250 square yards of Saroornagar plot which had to be kept as joint property as per the arbitration award has to be admitted into evidence as Ex.A.74 for an effective adjudication. As it was taken return in O.S.No.257 of 1987 only on 2-8-2004, it could not be filed earlier. The plaintiff also filed CCCAMP.No.624 of 2007 stating that O.S.No.257 of 1987 was filed by his wife Ahalya in respect of 500 square yards of house site of Saroornagar and the suit was decreed declaring her ownership against the 2nd defendant and the purchasers from him. An appeal was stated to have been filed against the same by the 2nd defendant and the certified copy of the judgment in O.S.No.257 of 1987 be received as additional evidence and marked as Ex.A.75. Sri M.Y.K. Rayudu, learned counsel for the plaintiff and Ms. G. Sudha, learned counsel for the defendants are heard at length and both the learned counsel referred to various precedents, which will be referred to in due course. With the above background, the following points arise for consideration herein, - 1. Whether the additional evidence sought to be tendered in evidence has to be admitted in evidence ? 2. Whether the suit properties in both the suits are available for partition? 3. Whether O.S.No.111 of 1988 is barred by the arbitration award ? 4. Whether O.S.No.111 of 1988 is vitiated by non-inclusion of the ancestral property at Malkajgiri ? 5. To what relief? Point No.1: The copy of the sale deed dated 3-4-1987 executed by the 2nd defendant in favour of Vuthipalli Subba Rao and another was in respect of a house plot in Saroornagar and the 2nd defendant sold 250 square yards out of 500 square yards claiming it to have been purchased, owned and possessed by him exclusively. To what relief? Point No.1: The copy of the sale deed dated 3-4-1987 executed by the 2nd defendant in favour of Vuthipalli Subba Rao and another was in respect of a house plot in Saroornagar and the 2nd defendant sold 250 square yards out of 500 square yards claiming it to have been purchased, owned and possessed by him exclusively. The document is sought to be produced as additional evidence to contend that the 2nd defendant himself acted contrary to the arbitration award and did not act upon the same, as the award directed the said 500 square yards to be kept as the joint property of the brothers. Hence, the said copy of the sale deed is sought to be admitted as additional evidence in CCCAMPNo.11628 of 2004. The certified copy of the judgment in O.S.No.257 of 1987 on the file of I Additional Senior Civil Judge, Ranga Reddy District dated 29-12-2006 between the plaintiff’s wife, 2nd defendant and three others is sought to be produced as additional evidence in CCCAMP. No.624 of 2007. The suit was in respect of Saroornagar plot of 500 square yards claimed by the plaintiff’s wife as having been purchased benami in the name of the 2nd defendant, a portion of which was sold by the 2nd defendant under the original of the document produced in CCCAMP.No.11628 of 2004. The plaintiff’s wife claimed declaration of her ownership and a mandatory injunction for execution of a conveyance by the 2nd defendant and his vendees. The 2nd defendant claimed to be the real owner and purchaser, while the 4th defendant therein claimed to have withdrawn from an agreement of sale entered into with the 2nd defendant herein. After full trial, the trial Court decreed the suit for declaration of title, mandatory injunction and permanent injunction against the 2nd defendant and his vendees. The purchase of the property with the money of the plaintiff’s wife benami in the name of the 2nd defendant was upheld. Incidentally the arbitration award in question herein was also considered with reference to the judgment in O.S.No.111 of 1988 and O.S.No.163 of 1991 and it was concluded that the impugned judgment herein will not bind the plaintiff’s wife who was not a party to the arbitration or award or the suits. Incidentally the arbitration award in question herein was also considered with reference to the judgment in O.S.No.111 of 1988 and O.S.No.163 of 1991 and it was concluded that the impugned judgment herein will not bind the plaintiff’s wife who was not a party to the arbitration or award or the suits. These two documents are, therefore, very relevant for the effective and comprehensive adjudication of the issues involved in these appeals and while it is not known as to what happened to the appeal said to have been preferred by the 2nd defendant against the judgment and decree in O.S.No.257 of 1987, these documents have to be allowed to be produced as their impact on the questions in issue herein provides a substantial cause for receiving them. Therefore, both the documents be received as additional evidence and the copy of the sale deed executed by the 2nd defendant in favour of V. Subba Rao and another on 3-4-1987 be marked as Ex.A.74 and the copy of the judgment in O.S.No.257 of 1987 be marked as Ex.A.75. C.C.C.A.M.P. Nos.11628 of 2004 and 624 of 2007 have to be allowed accordingly. Point No.2: The ground floor of the house and land at Narayanaguda covered by plaint A-schedule in O.S.No.111 of 1988 was claimed in the plaint to have been purchased by Dr. G. Ramachandra Rao benami in the name of the 1st defendant when he was studying in United Kingdom and the ground floor was claimed to have been erected by Dr. G. Ramachandra Rao with his own funds. The 1st defendant was claimed to be residing in the ground floor with the consent of other sharers and to have constructed the first and second floors with the permission of other sharers at the expense of the 1st defendant leaving the site and the ground floor as joint family property. While the first and second floors of the building thus admittedly belonged to the 1st defendant, the 1st defendant claimed in the written statement that the 1st defendant and his wife were in the United Kingdom from 1961 to 1973 and had considerable savings. Dr. G. Ramachandra Rao also had deposited out of his earnings, Rs.45,000/-in the name of the plaintiff and Rs.37,000/-each in the name of the defendants. Dr. G. Ramachandra Rao also had deposited out of his earnings, Rs.45,000/-in the name of the plaintiff and Rs.37,000/-each in the name of the defendants. As the 1st defendant and his wife wanted to have their own house, a Nursing home and a place for consultancy practice, on the suggestion of Dr. G. Ramachandra Rao, the 1st defendant purchased the plot of 500 square yards in Venkateswara Cooperative Society at Narayanaguda by becoming a member. The purchase was made by Dr. G. Ramachandra Rao with the funds standing to the credit of the 1st defendant as the 1st defendant and his wife were abroad. Dr. G. Ramachandra Rao was withdrawing the sums for payment to the society and for construction of the house from the amounts standing to the credit of the 1st defendant. The 1st defendant was also sending funds from England through his doctor friends to Dr. G. Ramachandra Rao and the 1st defendant’s wife’s brother sold a plot at Chelluru and gave money to Dr. G. Ramachandra Rao to use it for construction of the house. The cost of the tractor sent by the 1st defendant to Krishnaiah Chowdary from England was also paid to Dr. G. Ramachandra Rao for use in the construction of the house and the 1st defendant on return to India occupied the house and started his practice keeping place for beds for patients. As the practice improved, the 1st defendant and his wife put up the first and second floors and also had taken portion of a neighbouring plot for extension of the nursing home. There was never any dispute about the title to the property being with the 1st defendant who was paying the municipal taxes in his name and who got the electricity connection in his name. The personal property of the 1st defendant was so stated in the arbitration proceedings also. The 1st defendant claimed that all the documents relating to Narayanaguda house were always in his custody. The 2nd defendant in his written statement stated about the plot of 525 square yards at Narayanaguda being purchased in the name of the 1st defendant and the three storied building being built thereon in which the 1st defendant started living and practising medicine since 1974. The 2nd defendant in his written statement stated about the plot of 525 square yards at Narayanaguda being purchased in the name of the 1st defendant and the three storied building being built thereon in which the 1st defendant started living and practising medicine since 1974. The plaintiff as PW.1 tried to claim that the plaint A-schedule property was purchased and constructed by his father, while the 1st defendant constructed the first floor with consent. He admitted that the 1st defendant constructed the first floor with his own funds by taking a loan from Syndicate Bank, Secunderabad, and he admitted not filing any document to show that his father purchased Narayanaguda property with his self-acquisitions. He also admitted that the 1st defendant and his family shifted their family to Narayanaguda on return to India in 1974. He admitted the 1st defendant’s wife also being a doctor. He claimed to have got plaint A-schedule property constructed under his supervision, but admittedly did not maintain any account and did not file the receipts available with him. He was not aware of the investment made for the construction of the building and he admitted not filing any account books to show the expenditure allegedly incurred by him for constructing the ground floor, though he claimed to be in custody of the documents. He again claimed that the plaint A-schedule property was purchased by him with the money of his father and that he looked after the construction of the ground floor and even gruhapravesam was done by him and his wife. While he conveniently did not remember whether he claimed any share in Narayanaguda property during the life time of Dr. G. Ramachandra Rao orally or in writing, his performing gruhapravesam as the eldest brother may not signify anything. The investment by Dr. G. Ramachandra Rao or by the plaintiff in respect of this property was not corroborated by any document and though he claimed to have applied for bank statement to show his investment, any such statement did not see the light of the day. The alleged construction between 1970 and 1971 under the supervision of the plaintiff, the 2nd defendant and Dr. G. Ramachandra Rao respectively was not corroborated by any other evidence. The alleged construction between 1970 and 1971 under the supervision of the plaintiff, the 2nd defendant and Dr. G. Ramachandra Rao respectively was not corroborated by any other evidence. The evidence of PWs.2 and 3 was not on this aspect and the 1st defendant as DW.1 reiterated his claim of himself and his wife bearing their own expenses for the studies and employment in the United Kingdom and he stated that the plot costed Rs.17,510/-and the construction Rs.79,259.50ps, the monies being sent by him from abroad through friends, Dr. Krishnaiah, some pilgrims etc., and also including an amount of Rs.20,000/-given to his wife towards Pasupukumkuma by her parents. While stating that a part of the amount was paid by Dr. G. Ramachandra Rao, he explained the same to be part of the money allotted to him like the plaintiff and the 2nd defendant. He produced Exs.B.6, B.7, B.18 to B.60, B.62 and B.64 in support of his claims corroborated by the cheque books, diaries of Dr. G. Ramachandra Rao, correspondence with the Cooperative Housing Society and so on. He was cross-examined much about his studies and trip to the United Kingdom and even if Dr. G. Ramachandra Rao spent in that regard for his son, the nature of acquisition of plaint A-schedule property will not change, if it were with the separate funds of the 1st defendant and the property was treated always as his separate property. Though he admitted that the allotment papers were signed by Dr. G. Ramachandra Rao, who entered into an agreement with the society, he again claimed to have provided the monies for everything. Similarly, the sanction for construction of the house and the house warming ceremony in his absence when he was in United Kingdom do not prove any absence of contribution by him for the house. While referring to Exs.A.42 to A.61, the 1st defendant claimed that the cheques relating to the amounts received by his father and deposited into the bank were used for construction of the house. While he did not maintain any copies of letters, he claimed to have sent letters, whenever he saved monies, from United Kingdom. While referring to Exs.A.42 to A.61, the 1st defendant claimed that the cheques relating to the amounts received by his father and deposited into the bank were used for construction of the house. While he did not maintain any copies of letters, he claimed to have sent letters, whenever he saved monies, from United Kingdom. While it is true that the diaries of his father did not specify about receiving monies from him, his defence is no way effected and in fact, it was suggested on behalf of the plaintiff that the entries in the diaries were made by Dr. G. Ramachandra Rao at the instance of the 1st defendant. The 2nd defendant as DW.2 did not throw much light on this aspect and the only oral evidence available is the interested versions of the plaintiff and the 1st defendant themselves. The trial Court on a careful and detailed analysis of the evidence found the expenditure for the purchase of plot and construction of the ground floor to have been mostly from the monies provided by the 1st defendant and any meagre expenditure by the plaintiff or the 2nd defendant or the father giving some monies to the son will not detract from the overwhelming documentary evidence in favour of the 1st defendant. The conclusion that the plot at Narayanaguda was purchased with the monies provided by the 1st defendant and that the ground floor was constructed with the funds provided by him was thus based on the clear probabilities arising out of the evidence on record and there cannot be absolutely any hesitation to concur with the same. However, it has to be noted, while concluding that plaint A-schedule property is the separate, self-acquired and absolute property of the 1st defendant, that Sri M.Y.K. Rayudu, learned counsel for the plaintiff, stated on instructions during hearing that the plaintiff was giving up his claim for the 1/3rd share in Narayanaguda property i.e. in plaint A-schedule property. Therefore, either on merits or due to the plaintiff giving up his claim, the plaint A-schedule property has to be considered to be unavailable for partition. Therefore, either on merits or due to the plaintiff giving up his claim, the plaint A-schedule property has to be considered to be unavailable for partition. Coming to the plaint B-schedule property, which is stated to be a double storied building in Door No.7-2-623 (old No.2543/A) on land admeasuring 173 square yards at R.P. Road, Secunderabad, the property admittedly stood in the name of mother of the parties Smt. Seetharavamma according to the plaint, which was the subject of the registered Will dated 20-11-1981 in favour of the defendants and the subject of a registered cancellation deed. It was again the subject of the registered deed of gift dated 11-08-1982, which was claimed to be not binding on the plaintiff as the property belonged to Seetharavamma with Dr. G. Ramachandra Rao and his three sons being impleaded as legal representatives in the eviction proceedings against the tenant. The 2nd defendant was claimed in the plaint to have been permitted by the other sharers to run his clinic in the ground floor keeping the property as joint family property. The 1st defendant in his written statement claimed the house to be intended by Dr. G. Ramachandra Rao to be the place for the medical practice of the defendants for which purpose the tenant was evicted through court at an expenditure of Rs.10,000/-for Dr. G. Ramachandra Rao. The 1st defendant claimed that the Will dated 20-11-1981 was executed by Dr. G. Ramachandra Rao with his free consent and the revocation deed obtained by coercion by the plaintiff did not see the light of the day. Dr. G. Ramachandra Rao executed a registered gift deed again on 11-08-1982 and the property in the name of Seetharavamma was benami having been purchased and developed with the funds of Dr. G. Ramachandra Rao with no property or earnings for the mother by inheritance or otherwise. The mere addition of the husband and three sons as the legal representatives in the rent control case will not make the gift deed void. Any declaration dated 5-8-1985 said to have been executed by Dr. G. Ramachandra Rao before a Notary was not correct and binding. The 2nd defendant in his written statement claimed that the double storied building on Nuzul land was purchased in the name of Seetharavamma even by which time M/s. Moses and Company was the tenant. Any declaration dated 5-8-1985 said to have been executed by Dr. G. Ramachandra Rao before a Notary was not correct and binding. The 2nd defendant in his written statement claimed that the double storied building on Nuzul land was purchased in the name of Seetharavamma even by which time M/s. Moses and Company was the tenant. R.C.No.278 of 1969 was filed by Seetharavamma to evict the tenant to enable the medical practice of the defendants therein and when Seetharavamma died on 26-01-1972, Dr. G. Ramachandra Rao and his three sons came on record as legal representatives. The possession was taken in execution of the eviction order confirmed up to Supreme Court in 1980 by the 2nd defendant, who was running his clinic since then. The 2nd defendant claimed that the property was purchased by Dr. G. Ramachandra Rao in the name of his wife benami and Dr. G. Ramachandra Rao executed registered Will on 20-11-1981 and the revocation of Will was not as per rules. Dr. G. Ramachandra Rao did not in fact make any revocation and executed a registered gift deed again on 11-08-1982. Any declaration by Dr. G. Ramachandra Rao on 5-8-1985 before a Notary was denied and claimed to be inadmissible. In evidence the plaintiff as PW.1 stated that his mother Seetharavamma died on 26-01-1972 and the plaint B-schedule property belonged to her. He claimed the possession to be delivered to him, his father and the 2nd defendant by the tenant and he claimed the 2nd defendant to be in possession of a portion with consent, while the mother died intestate. He claimed that his father was paying the house tax for the plaint B-schedule house. PW.1 admitted that he was not aware about the sources of income of his mother to purchase the plaint B-schedule property and he was not aware whether the suit property was bequeathed in favour of the 2nd defendant. He also admitted not claiming any division or partition of the property from 26-01-1972 till the suit while the delivery of possession given by the bailiff was claimed by him to be in the presence of the 2nd defendant, himself and his father. However, he admitted that by the date of filing of O.S.No.111 of 1988, the keys of the house were with the 2nd defendant only and he was in possession of the house. However, he admitted that by the date of filing of O.S.No.111 of 1988, the keys of the house were with the 2nd defendant only and he was in possession of the house. He admitted Ex.B.4 deed dated 11-4-1982 regarding the property to be signed by his father and he conveniently did not remember whether he took any steps on knowing about the disposal of the property by his brothers. While the evidence of PWs.2 and 3 had no relevance to this house, the 1st defendant as DW.1 claimed that the plaint B-schedule property was in the name of his mother, but he does not know when and for what consideration the property was purchased or in whose custody the original sale deed was. He admitted that he and his brothers and father were brought on record on the death of his mother but he claimed that his father alone took possession from the tenant. While he stated that the property was the exclusive property of the mother and all of them agitated in the matter and have got a right in the property, he admitted that he relinquished his rights in the house under Ex.B.15 in favour of the 2nd defendant. While he does not know about the legality and validity of Exs.B.14 and B.15 executed by Dr. G. Ramachandra Rao and himself in respect of the property standing in the name of the mother, he had no idea as to what property was conveyed to his mother by his maternal grandfather or any bank account of his mother or any gold and silver of his mother. He referred to Exs.A.28 in which his father mentioned the purchase of the house in the name of the mother. The 2nd defendant as DW.2 stated that after Exs.B.68 and B.69 orders in the rent control cases, Ex.B.70 was written by Dr. G. Ramachandra Rao on 10-07-1980 about the delivery of possession to him. He claimed that his mother has lot of jewellery and the lease deed and the sale deed stood in the name of his mother for the property. However, he claimed to have got the property mutated in his name in 1995. He further stated that he, the 1st defendant and his father were parties to the settlement deed dated 11-08-1982 in respect of the house. He denied procuring Exs.B.14 and B.15 for any wrongful benefit. However, he claimed to have got the property mutated in his name in 1995. He further stated that he, the 1st defendant and his father were parties to the settlement deed dated 11-08-1982 in respect of the house. He denied procuring Exs.B.14 and B.15 for any wrongful benefit. The trial Court in the impugned judgment was referring to Ex.A.18-copy of the sale deed in favour of Seetharavamma reciting payment of consideration by her and the property standing in her name in the Municipal record and hence, pursuing the eviction of the tenant during her life. Considering that after the death of Seetharavamma intestate, the property devolved on her husband and three sons and that after the death of Dr. G. Ramachandra Rao intestate, the property was devolved on the three brothers, the trial Court refused to act upon Ex.B.14 executed by Dr. G. Ramachandra Rao as if he was the exclusive owner of the property. While Seetharavamma is admittedly the ostensible owner of the property, the recitals in Ex.B.14-settlement deed by Dr. G. Ramachandra Rao in favour of the defendants are as though the property was benami in her name, the real owner being Dr. G. Ramachandra Rao, but the brothers themselves in their evidence were not sure of the properties or the means of Seetharavamma to purchase the property or the absence of them or any positive and clinching material to show that Dr. G. Ramachandra Rao purchased the property in the name of his wife. The property was registered in her name and entered in her name in the municipal records and she pursued the case for eviction of the tenant from the property with the husband and sons coming on record as her legal representatives only on her death intestate. The burden of proving that a property standing in the name of an ostensible owner is only benami property is on the person setting it up. Sri M.Y.K. Rayudu, learned counsel for the plaintiff rightly referred to Valliammal v. Subramaniam AIR 2004 Supreme Court 4187, wherein the Supreme Court summarized the principles laid down in various precedents on the question whether a particular sale is benami or not, which is largely one of fact. Sri M.Y.K. Rayudu, learned counsel for the plaintiff rightly referred to Valliammal v. Subramaniam AIR 2004 Supreme Court 4187, wherein the Supreme Court summarized the principles laid down in various precedents on the question whether a particular sale is benami or not, which is largely one of fact. While noting that there are no absolute formulae or acid tests uniformly applicable in all situations, the Supreme Court spelt out six circumstances, which can be taken as a guide to determine the nature of the transaction, as follows: 1. source from which the purchase money came, 2. the nature and possession of the property after the purchase, 3. motive, if any, for giving the transaction a benami colour, 4. the position of the parties and the relationship, if any, between the claimant and the alleged benamidar, 5. the custody of the title deeds after the sale, and 6. the conduct of the parties concerned in dealing with the property after the sale. The Supreme Court observed that these indicia vary in their efficacy according to the facts of each case and in the present case, none of the tests can be considered answered positively to indicate G. Ramachandra Rao to be the real owner and Seetharavamma to be his benamidar in respect of this property. As it is a case of oath against oath without any other independent evidence and no clinching documentary evidence, the conclusion that the property belonged to Seetharavamma, who died intestate cannot be disturbed and on her death the property devolved upon Dr. G. Ramachandra Rao and his three sons and the execution of any settlement deed by Dr. G. Ramachandra Rao in favour of the defendants can only be binding to the extent of his 1/4th share. With the admitted execution of Ex.B.15-Relinquishment deed by the 1st defendant in favour of the 2nd defendant, the 2nd defendant in any view will be entitled to 3/4th share in the property representing the shares of himself, the 1st defendant and Dr. G. Ramachandra Rao, while the plaintiff can lay his claim only to 1/4th share in the plaint B-schedule property, if he is otherwise entitled to the same. Coming to the plaint schedule property of O.S.No.163 of 1991, the plaint in O.S.No.111 of 1988 mentioned about the house standing in the name of Dr. G. Ramachandra Rao, while the plaintiff can lay his claim only to 1/4th share in the plaint B-schedule property, if he is otherwise entitled to the same. Coming to the plaint schedule property of O.S.No.163 of 1991, the plaint in O.S.No.111 of 1988 mentioned about the house standing in the name of Dr. G. Ramachandra Rao being gifted to the plaintiff under a registered gift deed and the 1st defendant in his written statement did not dispute the property being the self-acquired property of Dr. G. Ramachandra Rao, while claiming the gift deed to have been vitiated by false representations of the plaintiff to be a Will taking advantage of the old age, deafness and bad sight of Dr. G. Ramachandra Rao. The 2nd defendant also stated in the written statement about the acquisition of property by Dr. G. Ramachandra Rao on 8-6-1940 and the property was admitted to be solely belonging to Dr. G. Ramachandra Rao. The 2nd defendant was only questioning the inconsistency in the case of the plaintiff in claiming the old jail street property to be the self-acquired property of Dr. G. Ramachandra Rao validly gifted to him, while disputing the plaint B-schedule property belonging to Dr. G. Ramachandra Rao. He attempted to allege that the alleged gift deed dated 10-10-1980 was obtained without the knowledge of Dr. G. Ramachandra Rao, due to which it was included in the arbitration proceedings and the plaintiff did not disclose the gift deed before the arbitrators. Again he claimed the property to be the joint family property without mentioning any basis for the same. PW.1, the plaintiff, claimed that the property was gifted to him under Ex.A.1-registered gift deed, which was accepted by him and that the property was mutated in his name for which he was paying taxes as seen from Exs.A.2 to A.7. He claimed the defendants to be aware of the execution of Ex.A.1 for which they did not object and he claimed PW.2 and another to be the attestors of Ex.A.1. He claimed Dr. G. Ramachandra Rao to have executed and registered Ex.A.1 on his own with the consent of himself and his brothers. He claimed that his brothers and paternal uncle were present when the gift deed was registered and the 2nd defendant was in fact residing with them in the house by that time. He claimed Dr. G. Ramachandra Rao to have executed and registered Ex.A.1 on his own with the consent of himself and his brothers. He claimed that his brothers and paternal uncle were present when the gift deed was registered and the 2nd defendant was in fact residing with them in the house by that time. While admitting that the defendants did not join in Ex.A.1, he denied obtaining Ex.A.1 fraudulently or getting the property mutated without the knowledge of his father. PW.2 was an attestor of Ex.A.1 who spoke about the due execution and it is true that he was suspended by the Bar Council from practising as an advocate for about five years. PW.3 was examined to show that Dr. G. Ramachandra Rao was on his own in every respect up to 1983. The 1st defendant as DW.1 himself stated that his father was practising privately till 1980 and he did not specifically question Ex.A.1 in his evidence. The 2nd defendant as DW.2 claimed that the plaintiff obtained the gift deed giving an impression to Dr. G. Ramachandra Rao that it was a Will in favour of grandson and the property was undervalued and shown to be only as 72 square yards, while it is about 150 to 155 square yards. He further claimed that PW.1 got his name mutated in the municipal record, while his father told him about the misrepresentation. His claims about the happenings in 1980 regarding distribution of gold show his father to be mentally and physically sound as to validly execute a gift deed and DW.2 admitted that the entire property of 150 square yards was gifted to the plaintiff under the registered gift deed, which he claimed to have been procured. He also did not refer to any other circumstances, which would have vitiated the gift deed. The trial Court referred to Ex.A.26-Will in which Dr. G. Ramachandra Rao admitted execution of gift deed apart from entries in his diaries and it is for the defendants or the 2nd defendant to establish how Ex.A.1 is vitiated by fraud, misrepresentation or any other circumstance. In the absence of any convincing evidence in that regard, Ex.A.1 cannot be ignored and its truth, validity and binding nature cannot be nullified. In the absence of any convincing evidence in that regard, Ex.A.1 cannot be ignored and its truth, validity and binding nature cannot be nullified. The plaint schedule property of O.S.No.163 of 1991 cannot, therefore, be considered to be available for any declaration in favour of the 2nd defendant about his entitlement of 1/3rd share or to any partition, mesne profits etc. Though PW.1 and DWs.1 and 2 also referred in detail to gold and silver articles and other movable and immovable properties including the share in the ancestral property at Malkajgiri and the plot of land at Saroornagar and disputes concerning them, they are not the subject matter of either suit and any inter se rights concerning the same cannot be adjudicated herein. As such, without going into the impact of the arbitration proceedings on the claims in these suits, it is probablised by the evidence on record that the plaint A-schedule property exclusively belonged to the 1st defendant and the plaint schedule property of O.S.No.163 of 1991 exclusively belonged to the plaintiff. If the plaintiff is otherwise entitled to claim his share in the plaint B-schedule property, he may be entitled to 1/4th share in the same, while the 2nd defendant will be entitled to 3/4th share representing the shares of himself, the 1st defendant and Dr. G. Ramachandra Rao. The impact of the registered Will dated 20-11-1981 and its cancellation needed no probe in view of subsequent registered deed dated 11-08-1982, which was not shown to be vitiated in law or fact for any reason at least to the extent of the share of Dr. G. Ramachandra Rao in the house property. A detailed biographic description of the events in the lives of Dr. G. Ramachandra Rao and his three sons is otherwise not necessary for determination of the questions in issue in the suits and, hence, not referred to. The alleged notarized declaration dated 5-8-1985 said to have been executed by Dr. G. Ramachandra Rao concerning the documents in favour of the defendants cannot nullify Ex.B.14 in the absence of proof of the said document being so vitiated through any evidence. Though the 1st defendant gave a number of annexures of movable properties, which also have to be partitioned between the brothers, neither the existence of such movables was proved by any evidence nor were they made subject of any counter claim. Though the 1st defendant gave a number of annexures of movable properties, which also have to be partitioned between the brothers, neither the existence of such movables was proved by any evidence nor were they made subject of any counter claim. Point No.3: Both the defendants questioned the right of the plaintiff to question the arbitration award without taking any steps to avoid the same through any legal proceedings and both of them claimed that the award is final and conclusive, which would barring any further action on the original cause of action in view of Section 32 of the Arbitration Act, 1940 and the absence of any steps to avoid the award under Section 33 of the Act. Ex.B.10-agreement of arbitration dated 12-12-1980 was executed by Dr. G. Ramachandra Rao and his three sons to refer the disputes between themselves regarding distribution and sharing of their movable and immovable properties to the arbitration of Sri K.V. Lakshmikantha Rao and Sri K.V. Rama Rao and they declared, agreed and covenanted that they shall file all their claims within 10 days and shall abide by the decision of the arbitrators who shall give their award within 10 days. The plaintiff in Ex.B.11-claims statement claimed the old jail street house to be his own under the settlement deed dated 10-10-1980. While claiming a share in the other properties, he claimed a share in the plaint B-schedule house as the heir of his mother and father, while claiming Saroornagar site of 500 square yards to have been purchased in the name of the 2nd defendant with the monies of the plaintiff’s wife. The arbitration award was communicated to the plaintiff under Ex.A.20 dated 2-1-1988 and the arbitrators in their award dated 22-12-1980, Ex.A.21/ Ex.B.13 stated that they took the statements of the parties and considered the material placed before them. The arbitrators traced the history of the family and the acquisitions by Dr. G. Ramachandra Rao. They did not reopen the distribution of cash and jewellery. The arbitrators allotted the old jail street house to the plaintiff with a right of residence and practice for Dr. Ramachandra Rao during his life and directed division of plaint B-schedule property between the defendants equally. Saroornagar plot was directed to remain joint and the plaint A-schedule property was found and declared to be the absolute and exclusive property of the 1st defendant. Ramachandra Rao during his life and directed division of plaint B-schedule property between the defendants equally. Saroornagar plot was directed to remain joint and the plaint A-schedule property was found and declared to be the absolute and exclusive property of the 1st defendant. The arbitrators also declared the gift deed dated 10-10-1980 in favour of the plaintiff to be null and void and his title to the house was only under the award. Dr. G. Ramachandra Rao sent Ex.A.8 dated 8-1-1981 to the arbitrators stating that the award was not binding on him for the reasons stated in the letter and the plaintiff also sent a similar letter dated 8-1-1981. The plaintiff as PW.1 admitted that he did not take any steps for cancellation of Ex.A.21/Ex.B.13 award before any court. DW.1, the 1st defendant, stated that he accepted the award passed by the Arbitrators while he does not know whether the award is not made a rule of the court. DW.2, the 2nd defendant, also stated that he agreed to abide by the award and claimed the letter written by Dr. G. Ramachandra Rao to be under coercion by PW.1. The trial Court noted that the arbitration award was registered by the arbitrators on 18-4-1981 and when one of the arbitrators approached the Court to make the award a rule of the court, it was rejected as barred by time. Apart from the properties covered by both the suits, the arbitration was noted to be in respect of other movable and immovable properties also and the conclusion of the trial Court that the award can be set up as a valid defence to the suit for partition is primarily in question herein. In considering the arbitration award to stand in the way of the suits for partition, the trial Court primarily relied on Antyakula Eswara Rao v. Gudla Kumara Swamy 1999(6) ALT 644 . A learned Judge of this Court was considering an arbitration award for making an equitable partition of joint family movable and immovable properties as per the terms of the arbitration agreement. A learned Judge of this Court was considering an arbitration award for making an equitable partition of joint family movable and immovable properties as per the terms of the arbitration agreement. In opposition to the award, it was contended that the award suffers for want of participation of the parties, absence of notice of award, violation of the principles of natural justice amounting to misconduct on the part of the arbitrators, invalidity of the arbitration agreement and a notice of cancellation of the arbitration by one of the parties. The same was answered by the other side contending that the alleged collusion is false, no steps were taken for cancellation of the agreement, the award was passed after giving opportunity, which was intimated to the parties and was registered and no petition was filed for setting aside the award. Against the judgment of the trial Court holding the award to be not valid and binding and decreeing the suit for partition, the matter came up before the learned Judge. The learned Judge noted that by the date of filing of the partition suit, the arbitration proceedings were concluded and notice of award was also issued. The learned Judge was considering the questions about the maintainability of a partition suit, when the arbitration proceedings culminated in an award, whether the arbitration award can be challenged in the suit for partition and whether the award can be sought to be set aside without a separate application in the suit for making the award the rule of the Court. The learned Judge referred to the provisions of Arbitration Act, 1940 and observed that the award of an arbitrator can be challenged only under Section 30 on three grounds and Section 30 indicates that once the matter is seized of by the arbitrators, all the proceedings arising out of arbitration have to be initiated under the provisions of the Arbitration Act, 1940 and the suit was barred. The learned Judge distinguished the decision in State of U.P. v. M/s. Thakur Kundan Singh AIR 1984 Allahabad 161noting that when the partition suit was filed, the arbitration proceedings have already concluded and the award was already passed. Without filing an application to set aside the award, a partition suit was filed stating that the arbitration proceedings are not binding. The learned Judge distinguished the decision in State of U.P. v. M/s. Thakur Kundan Singh AIR 1984 Allahabad 161noting that when the partition suit was filed, the arbitration proceedings have already concluded and the award was already passed. Without filing an application to set aside the award, a partition suit was filed stating that the arbitration proceedings are not binding. The learned Judge observed that mere notice by one of the parties requesting the arbitrators to stop further proceedings will not prohibit the arbitration proceedings further unless such questions are decided by the Court having jurisdiction. It was also noted that in that case, the arbitrators after issuing notice to the parties passed the award and issued notice to the parties concerned about the passing of the award. The learned Judge relied on Satish Kumar v. Surinder Kumar AIR 1970 SC 833 , wherein it was held that even though the award had not been made the rule of the Court and even though the same may not operate as a bar to the maintainability of the suit, the same could in any way be set up by way of defence in the suit. The learned Judge, therefore, held that though the parties may not exert their rights when the award is not made the rule of the Court, such an award cannot be overlooked altogether and can be taken as a defence by the defendants. The learned Judge also relied on Akbar Ali v. Mumtaz Hussain AIR 1987 Bombay 39, which dissented from V. Sanjeevamma v. Yerram Purnamma AIR 1984 AP 28 and observed that when once the award is passed, it binds the parties as it is a final adjudication of the rights of their respective rights even though the award was not made the rule of the Court. The Bombay High Court view that the suit on the original cause of action stands barred by the provisions of Section 32 of the Arbitration Act, was also approved. The learned Judge also considered V. Sanjeevamma v. Yerram Purnamma (6 supra) to be making the observation that an award passed and filed into Court by the arbitrator, but not made a rule of the Court, was not capable of creating rights in immovable property was made in different context. The learned Judge also considered V. Sanjeevamma v. Yerram Purnamma (6 supra) to be making the observation that an award passed and filed into Court by the arbitrator, but not made a rule of the Court, was not capable of creating rights in immovable property was made in different context. It was also noted that the award in V. Sanjeevamma v. Yerram Purnamma (6 supra) was not admissible in evidence as it was not registered. The learned Judge, hence, observed that the issue before the Division Bench was whether for want of registration an award could have been admitted as a piece of evidence, but no issue was directly arising under the provisions of the Arbitration Act. The learned Judge also further referred to Kripa Sindhu Biswas v. Sindhu Biswas AIR 1973 Calcutta 496, wherein the Division Bench held that the award is equivalent to final judgment though not enforced and it was also noted that where the award on the face of it does not show that the arbitrators misconducted the enquiry, criticism alone cannot take proof of misconduct and such a serious charge must be proved by independent evidence. In view of all the decisions referred to by the learned Judge and the provisions of the Arbitration Act, 1940, the learned Judge concluded that when once the parties had agreed for arbitration and the arbitrator is seized of the issue, no separate suit lies regarding the existence, effect and validity of the arbitration agreement or the award of the arbitrators and it has to be only challenged under the provisions of the Arbitration Act. Resort to suits in the guise of original cause of action will frustrate the very object of the enactment and hence, the suit for partition was held to be not maintainable due to the legal bar under Section 32 of the Arbitration Act, 1940. The learned Judge further noted that the award of the arbitrators cannot be interfered with on a question of fact or question of law except when there are errors of law apparent on the face of the record. The principles laid down by the learned judge clearly operate against the maintainability of these suits for partition. The learned Judge further noted that the award of the arbitrators cannot be interfered with on a question of fact or question of law except when there are errors of law apparent on the face of the record. The principles laid down by the learned judge clearly operate against the maintainability of these suits for partition. Sri M.Y.K. Rayudu, learned counsel for the plaintiff referred to various precedents, which in his considered view, run counter to the acceptability of the ratio decidendi of Antyakula Eswara Rao v. Gudla Kumara Swamy (2 supra). In Kasinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi AIR 1961 SC 1077 , the Apex Court was considering Section 32 of the Arbitration Act, 1940 and held that where an award made in arbitration out of court is accepted by the parties and it is acted upon voluntarily and a suit thereafter is sought to be filed by one of the parties ignoring the acts done in pursuance of the acceptance of the award, the defence that the suit is not maintainable is not founded on the plea that there is an award which bars the suit but that the parties have by mutual agreement settled the dispute, and that the agreement and the subsequent actings of the parties are binding. The Supreme Court held a plea that the property was divided by consent of parties to be not precluded by anything contained in Arbitration Act where no decision is sought upon the existence, effect or validity of an award. It was pointed out that if the consent of the parties was not procured by fraud, misrepresentation or any other ground, which may vitiate a partition under the general law, the division made by Panchas and accepted by the parties would be binding upon them. If the parties accepted the decisions made by Panchas from time to time, the cancellation of the reference had not the effect of vacating the divisions already made and it was noted that before the Arbitration Act, 1940 was enacted, an award made by arbitrators appointed out of court even if it was not made a rule of the court was regarded as equivalent to a final judgment and any suit filed on the original cause of action referred to the arbitrators was held barred. The Apex Court considered it not necessary in that case to express a considered opinion on the disputed question whether an award made in a reference out of court can be set up as a defence to an action filed by a party thereof on the original cause of action when the award is not filed in court. Therefore, there was no expression of any considered opinion by the Apex Court contrary to the view taken by the learned Judge in Antyakula Eswara Rao v. Gudla Kumara Swamy (2 supra) and that the reference to arbitration was by mutual agreement, is not in dispute. No vitiating factors were stated to be present behind the consent of the parties and the division by the arbitrators does not appear vitiated in the absence of proof of any adverse factors. In Satish Kumar v. Surinder Kumar (4 supra) referred to by the learned Judge in Antyakula Eswara Rao v. Gudla Kumara Swamy (2 supra), it was clearly held that the award is in fact a final adjudication of a court of the parties own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the face of it regular, is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive. It was also observed therein that an award possesses all the elements of vitality even though it has not been formally enforced and it may be relied upon in a litigation between the parties relating to the same subject matter. After an award is pronounced, no action can be started on the original claim which had been the subject matter of the reference. An award has some legal force and is not a mere waste paper. These observations of the Supreme Court appear to be clearly indicating the non-maintainability of a suit for partition on the original claim which is the subject matter of reference to the arbitration and relying on the arbitration award which might not have been formally enforced is permissible in the litigation between the parties on the same subject matter. These observations of the Supreme Court appear to be clearly indicating the non-maintainability of a suit for partition on the original claim which is the subject matter of reference to the arbitration and relying on the arbitration award which might not have been formally enforced is permissible in the litigation between the parties on the same subject matter. The observation in Kasinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi (8 supra) that the defence plea that the property was divided by consent of the parties is not precluded by anything contained in Arbitration Act, 1940 and the further observation in Satish Kumar v. Surinder Kumar (4 supra) that such award is not a mere waste paper, but has some legal effect do not run counter to the conclusions of the learned Single Judge in Antyakula Eswara Rao v. Gudla Kumara Swamy (2 supra). In Valliammal v. Saroja AIR 1979 Madras 151relied on by Sri Rayudu, there was no evidence to show that the award had been acted upon and it was not filed into Court. Hence, it was held that the award could not have been relied upon as a defence by the defendant. On the other hand, a copy of the award has been marked herein on behalf of the plaintiff himself as Ex.A.21 and there is no doubt that it has been acted upon to some extent if not to the full extent. The learned Single Judge referred to Mohmed Yousuf v. Mohamed Hussain AIR 1964 Madras 1, wherein it was held that where an award is made on a reference out of Court and has not been filed into Court in accordance with the provisions of the Arbitration Act, 1940, it cannot ordinarily be pleaded as a defence to a suit instituted by a party thereto on the basis of the original cause of action. Such an award, however, if performed by one of the parties affords a good defence to an action on the original cause of action by the other party, for if in pursuance of the award a party had done everything he was obliged to it under it, he should be deemed to have fulfilled his part of the contract and there would thereby be accord and satisfaction in respect of the original cause of action. The Full Bench followed Kasinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi (8 supra). The Full Bench followed Kasinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi (8 supra). Thus, if there has been performance of the award by one of the parties, it may offer a good defence to such party in an action on the original cause of action. The Full Bench in Mohmed Yousuf v. Mohamed Hussain (10 supra), of course, read the word “award” in Section 32 of the Arbitration Act, 1940 as meaning an award which may be or can be filed under Section 14 and concluded that none of the parties to an arbitration agreement would be entitled to enforce the award or challenge the same in any proceedings other than those brought for the purpose and under the provisions of the enactment. If so, the plaintiff also will be barred to challenge the award in these suits. Though the Full Bench clearly stated that an award made on a reference out of Court but which has not been filed into Court in accordance with the Act and judgment obtained thereon cannot ordinarily be put up as a defence to an action, that does not mean that under no circumstance can an unfiled award be relied on as a defence to an action. Therefore, the question in that case would be whether such an award can be relied on as a defence to an action on the facts and circumstances of that case. In fact, the Full Bench referred to Kasinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi (8 supra) which made it clear that in the case before Their Lordships by setting up a defence that there has been a division of the property and the parties have entered into possession of the properties allotted, the defendant is not seeking to obtain a decision upon the existence, effect or validity of the award, but is merely seeking to set up a plea that the property was divided by consent of the parties which is not precluded by anything contained in the Arbitration Act, 1940. In Padmaraja and others v. Dhanvathi and others (1972) 2 SCC 100 , Section 36 of Madras Aliyasantana Act, 1949 was under consideration with reference to the satisfaction of the conditions prescribed thereunder and the observations with reference to the said statutory provisions do not appear to directly concern the facts in issue herein. In Padmaraja and others v. Dhanvathi and others (1972) 2 SCC 100 , Section 36 of Madras Aliyasantana Act, 1949 was under consideration with reference to the satisfaction of the conditions prescribed thereunder and the observations with reference to the said statutory provisions do not appear to directly concern the facts in issue herein. It was, of course, incidentally observed that after the coming into force of the Arbitration Act, 1940, all awards had to be compulsorily made decrees of the Courts if they were to have any force. In V. Sanjeevamma v. Yerram Purnamma (6 supra), it was held that an award which has been passed and filed into Court by the Arbitrator would be incapable to create or extinguish the rights in the immovable property and for want of registration such an award could not have been admitted as a piece of evidence at all. Such an award was considered to be not a piece of evidence or operable as res judicata. Kasinathsa Yamosa Kabadi v. Narsingsa Bhaskarsa Kabadi (8 supra) and Sait Pamandass Sugnaram v. T.S. Manikyam Pillai and others AIR 1960 AP 59 wherein the Full Bench held that it is not open to a defendant to set up an award as a bar to a suit filed on the original cause of action, where the award has not been filed and all proceedings relating thereto had not been gone through as required by the Arbitration Act, were followed. As already stated, the learned Judge deciding Antyakula Eswara Rao v. Gudla Kumara Swamy (2 supra) distinguished V. Sanjeevamma v. Yerram Purnamma (6 supra) in its application to the facts as under consideration herein. In Satya Pal v. Ved Prakash AIR 1980 Allahabad 268, it was held that no claim under an award, which was not made as rule of the Court can be enforced under the Arbitration Act. The note of caution by a five Judge Bench of the Apex Court in Padmasundara Rao v. State of Tamil Nadu 2002 AIR SCW 1156about reliance on precedents needs to be kept in view in appreciating the various decisions relied on by either side. The Supreme Court held that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. The Supreme Court held that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. It was pointed out that there is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a word of difference between conclusions in two cases. While Ms. G. Sudha, learned counsel for the defendants referred to the above precedent, Sri M.Y.K. Rayudu, learned counsel for the plaintiff referred to U.P. Sate Electricity Board v. Pooran Chandra Pandey 2007(7) SCJ 717in this regard for the principle that a little difference in facts or even upon additional fact may make a lot of difference in the precedential value of a decision and a precedent cannot be applied mechanically without seeing the facts of a particular case. The Supreme Court reiterated that a case is only an authority for what it actually decides. Sri M.Y.K. Rayudu, learned counsel for the plaintiff also contended that the award in question herein is contrary to the provisions of substantive law and cannot be acted upon and relied on Oil and Natural Gas Corporation Ltd., v. SAW Pipes Ltd. AIR 2003 Supreme Court 2629, wherein the Supreme Court held that if the award is contrary to the substantive provisions of law or the provisions of the Arbitration and Conciliation Act, 1996 or against the terms of the contract, it would be patently illegal, which could be interfered under Section 34. However, it was cautioned that such failure of procedure should be patent affecting the rights of the parties. Similarly in M/s. Sikkim Subba Associates v. State of Sikkim AIR 2001 Supreme Court 2062(1), the Supreme Court held that an arbitrator’s duty is to decide the disputes submitted to him according to the legal rights of the parties and not according to what he may consider it to be fair and reasonable. Arbitrator was held to be not entitled to ignore the law or misapply it and cannot also act arbitrarily, irrationally, capriciously or independently of the contract. Arbitrator was held to be not entitled to ignore the law or misapply it and cannot also act arbitrarily, irrationally, capriciously or independently of the contract. Thus, violation of the mandatory procedure under the Arbitration Act, 1940 or ignoring legal provisions or terms of the contract may vitiate the arbitral award. But in passing the award herein or getting it registered, the arbitrators cannot be considered to have been shown to have violated any mandatory provisions of the Arbitration Act, 1940 or the terms of the agreement between the parties. What Sri Rayudu contends primarily is that in allotting the plaint B schedule property, the arbitrators had ignored Section 15 of the Hindu Succession Act, 1956. Section 15 of the Hindu Succession Act may declare the legal entitlement of the parties to the rights in the property in question and the Benami Transactions (Prohibition) Act may be operating in the field of arriving at the real nature of a transaction. But either enactment or any other provision or principle of law do not debar the parties from entering into an agreement to divide or enjoy the property in any other manner or extent than that indicated by the above Statutes. If the parties have agreed by Ex.B.10 agreement of arbitration regarding distribution and sharing of the movable and immovable properties and have, in fact, submitted their respective claims irrespective of the nature of acquisition of the properties, the arbitrators suggesting the manner of partition of the properties cannot be construed to be against the law. As the parties have right to agree to have their rights in the properties determined by the arbitral award, which need not be necessarily in accordance with their statutory entitlement, the award cannot be considered to fall within the mischief of being in ignorance of or in opposition to the law. As the parties have right to agree to have their rights in the properties determined by the arbitral award, which need not be necessarily in accordance with their statutory entitlement, the award cannot be considered to fall within the mischief of being in ignorance of or in opposition to the law. The observations in M/s. Sikkim Subba Associates v. State of Sikkim (15 supra) in respect of the contractual obligations between the parties and the conclusions of the arbitrator against the factual and legal position or the observations in Oil and Natural Gas Corporation Ltd., v. SAW Pipes Ltd. (14 supra), wherein the award was in violation of the mandatory procedure under Arbitration and Conciliation Act and in violation of the Transfer of Property Act and the Contract Act, cannot be considered applicable to the facts of the present case, where notwithstanding their right to a particular share or right or interest in any property, the parties are not precluded by law from entering into an arbitral agreement for reference of the question of partition of their properties to arbitrators and agreeing to be bound by their award. Variance between the shares to which the parties would have been entitled as per law and the shares awarded by the arbitrators cannot be considered to vitiate the award on any such principle. On the other hand, in Skypak Couriers Ltd. v. Tata Chemicals Ltd. (2000) 5 Supreme Court Cases 294referred to by Ms. G. Sudha, learned counsel for the defendants also, the Supreme Court pointed out that in all the cases before Their Lordships, all the parties had consented to their matters being referred to third persons. All parties have participated in the proceedings before the third persons. Awards have been passed. Therefore, the Supreme Court viewed that it would be inequitable to set at naught all the awards and relegate the parties back to the original proceedings. The Supreme Court opined that the reference being by consent, must be treated as reference to arbitration under the Arbitration Act and the awards must be treated as awards of arbitrators. Though the Consumer Protection Act, 1986 does not appear to provide for any consensual adjudication, it will be open in such a situation to the parties to challenge the awards on such grounds as are available under the Arbitration Act, 1940 and/or the Arbitration and Conciliation Act, 1996. Though the Consumer Protection Act, 1986 does not appear to provide for any consensual adjudication, it will be open in such a situation to the parties to challenge the awards on such grounds as are available under the Arbitration Act, 1940 and/or the Arbitration and Conciliation Act, 1996. The parties being relegated to the original state of affairs in the present case after all of them have consented to the reference to two named arbitrators, participated in the proceedings and awards were passed would, therefore, be patently inequitable on the above principle, while it may be open to the plaintiff and defendants 1 and 2 to challenge the award on such grounds as are available under the Arbitration Act, 1940 or the Arbitration and Conciliation Act, 1996. Munna Lal v. Suraj Bhan (1975) 1 Supreme Court Cases 556relied on by Ms. G. Sudha, learned counsel, is a case where one of the parties, who referred the disputes to arbitration, did not sign in the reference, but it was found that the parties appeared to have asked a person of common confidence to effect the partition and it was not intended to resort to any formal proceeding under the Arbitration Act. The Apex Court held that it was, therefore, not necessary for the parties to execute a formal reference or for the Panch to declare a formal written award and the document can be received in evidence, though it is not registered, as a memorandum of a past event. If it were so, the award herein is equally admissible in evidence in proof of the decision of the arbitrators. The Supreme Court further found that the conduct of the parties subsequent to the partition showed that the arrangement effected under the guidance of the Panch was mutually accepted and acquiesced in. Hence, it was held that even the absence of the signature of a party on a memorandum of partition will not invalidate the partition effected by the Panch. The claims of the plaintiff against the effect of the award in question herein appear similar and may be, hence, insufficient to invalidate the effect of the award, which was not shown to have been not acted upon, the probabilities arising out of the evidence being otherwise. The claims of the plaintiff against the effect of the award in question herein appear similar and may be, hence, insufficient to invalidate the effect of the award, which was not shown to have been not acted upon, the probabilities arising out of the evidence being otherwise. The defendants also relied on Union of India v. Manager, M/s. Jain and Associates (2001) 3 Supreme Court Cases 277, wherein with reference to the provisions of the Arbitration Act 1940, it was held that before pronouncing judgment, the Court has to apply its mind to arrive at the conclusion whether there is any cause to modify or remit the award and it should be a judicial determination by reasoned order. Both the parties were noted to be entitled to ask the Court to pronounce judgment according to the award. In State of West Bengal v. Sree Sree Ma Engineering and another (1987) 4 Supreme Court Cases 452, the Supreme Court while noting that an unsigned award cannot be made the rule of the Court, but it is only a formal defect, the Court can extend time for making the award and direct curing of the formal defect in the award. In that case, the award was handed over to the parties, a letter was sent to the parties and the parties acted upon the award. Hence, the Supreme Court opined that so much time and effort should not be allowed to go waste and extended the time by four months from that date and remitted the award to the arbitrator for signature. It is, thus, clear that the Court on application of its judicial mind to the award and the events surrounding the same will act in such a way as to cure any formal defects, more so, when the parties acted on an award. In Lachhman Dass v. Ram Lal and another (1989) 3 Supreme Court Cases 99, further relied on by the defendants, the Supreme Court pointed out that the real purpose of registration is to secure that every person dealing with the property, where such document requires registration, may rely with confidence upon statements contained in the register as a full and complete account of all transactions, by which title may be affected. While opining that Section 17 of the Registration Act, 1908 being a disabling section must be construed strictly, the Apex Court referred to Satish Kumar v. Surinder Kumar (1969) 2 SCR 244 , wherein it was held that all claims, which were the subject matter of a reference to arbitration, merged in the award, which was pronounced in the proceedings before the arbitrator and after the award had been pronounced, the rights and liabilities of the parties in respect of the said claims could be determined only on the basis of the said award. It was pointed out that after an award was pronounced, no action could be started on the original claim, which had been the subject matter of the reference. While even the filing of an unregistered award was not prohibited, the rights could not be enforced without further steps. The award was not a mere waste paper, but has some legal effect. While the award herein was admittedly subsequently registered, the prohibition under Section 17 of the Registration Act, 1908 may not come into play. In Hindustan Steel Ltd. v. Messrs. Dilip Construction Company 1969 (1) Supreme Court Cases 597, the effect of payment of proper stamp duty and penalty making a document capable of being acted upon, as if it had been duly stamped, was recognized. In K.K. Modi v. K.N. Modi and others (1998) 3 Supreme Court Cases 573, referring to the attributes, which must be present for an agreement to be considered as an arbitration agreement, the Supreme Court held that the existence of an agreement to refer the dispute to an arbitrator can be clearly ascertained in the facts and circumstances of the case depending on the intention of the parties to be gathered from the relevant documents and surrounding circumstances. In Shaik Bahseer Ahmed v. Shaik Yakoob Ahmed 2006 (3) ALT 510 , a learned Judge of this Court was dealing with non-registration of an award relating to the assets of a partnership firm, which included some immovable properties and referring to Venkataratnam v. Chelamayya (19 supra) and Satish Kumar v. Surinder Kumar and others (2 supra) pointed out that an award, even if it is not made as the rule of the Court, has its own significance and binds the parties. In M. Venkataratnam v. Chelamayya AIR 1967 A.P. 257 , a Full Bench of this Court held that if a subsequent document including an award merely acknowledges or recites an antecedent fact of an out and out partition, it will not fall within the scope of Section 17 (1)(b). The Full Bench also held that the rest of the award, which does not affect the immovable property, can be received in evidence and acted upon by the Court even if it was unregistered. In Sohanlal Gupta v. Asha Devi Gupta (2003) 7 Supreme Court cases 492, the Apex Court found that for constituting a reasonable opportunity in the arbitration proceedings, the following conditions are required to be observed: 1. Each party must have notice that the hearing is to take place. 2. Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses. 3. Each party must have the opportunity to be present throughout the hearing. 4. Each party must have a reasonable opportunity to present evidence and argument in support of his own case. 5. Each party must have a reasonable opportunity to test his opponent’s case by cross-examining his witnesses, presenting rebutting evidence and addressing oral argument. 6. The hearing must, unless the contrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument. While observing that the principles of natural justice cannot be put in a straitjacket formula, the Supreme Court declared that a party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby. Parkash Chand Khurana v. Harnam Singh (1973) 2 Supreme Court Cases 484is cited for the principle that the award of the arbitrator under the Arbitration Act, 1940 did not get its efficacy by reason of the fact that the parties agreed to it and the award was valid on its own, independently of the decision of the parties not to object to it unlike the validity of a compromise decree flowing from the consent of the parties. Raj Kumar Dey v. Tarapada Dey (1987) 4 Supreme Court Cases 398involved an award, which was not registered within four months from the date of its execution, but the same was due to a subsisting injunction preventing the arbitrators from taking any steps. The Supreme Court excluded the period of award remaining in the Court for permitting its registration. In Inder Sain Mittal v. Housing Board, Haryana AIR 2002 Supreme Court 1157, the Supreme Court classified the grounds of objection under Section 30 of the Arbitration Act, 1940 as emanating from agreement and the other from law. If a party participated in the proceedings, he cannot be allowed to turn round after the award goes against him to challenge the validity of the reference, arbitration proceedings and the award. Any breach of mandatory provision of law, however, will cause no such estoppel against a party. Violation of directory provision of law will preclude a party, who participated in the proceedings without any protest, from raising any objection after making of the award. Om Parkash v. Radha kishan 1974 Revenue Law Reporter 485laid down, following Satish Kumar v. Surender Kumar (15 supra), that the award cannot be treated as a waste paper even if no steps were taken to get the award filed and made a rule of the Court when the other side equally failed to get it set aside. Referring to various precedents, it was concluded that an award possesses all the elements of vitality even though it has not been formally enforced and it may be relied upon in a litigation between the parties relating to the same subject matter. It was, therefore, held that an arbitration award even though not made a rule of the Court can be set up as a defence to a suit, for to hold otherwise would be to treat the award as a mere waste paper, which is not the correct view to take. In Bijendra Nath Srivastava v. Mayank Srivastava AIR 1994 SC 2562 , it was held that where the award has been acted upon by the parties to a considerable extent in the sense that during the pendency of the proceedings in Court, the parties have alienated a number of properties, which have been allotted to their share under the award. In Bijendra Nath Srivastava v. Mayank Srivastava AIR 1994 SC 2562 , it was held that where the award has been acted upon by the parties to a considerable extent in the sense that during the pendency of the proceedings in Court, the parties have alienated a number of properties, which have been allotted to their share under the award. That is an additional circumstance which persuades the Court to hold that the award made by the arbitrator should be maintained and should not be up set. The Supreme Court also held that the award cannot be set aside on the ground that the shares allotted are unequal or due to leaving out the family deity and its assets out of the partition scheme and keeping the same under joint control. M. Anasuya Devi v. M. Manik Reddy (2003) 8 SCC 565 pointed out that the question whether the award is required to be stamped and registered, would be relevant only when the parties would file the award for its enforcement under Section 36 of the Arbitration and Conciliation Act, 1996. Similarly in State Bank of India v. Ram Das (2003) 12 SCC 474 , it was pointed out that so long as the award is not vitiated by reason of any act of misconduct on the part of umpire, the same cannot be set aside. It was noted that the appellant therein happily participated in the proceedings.The cumulative effect of the principles laid down in various decisions relied on by Ms. Sudha, learned counsel for the defendants is, thus, that where a reasonable opportunity in the arbitration proceedings was given with reasonable notice and opportunity to the parties at every stage, any violation of the principles of natural justice and consequential prejudice to a party have to be shown and established by the party making such complaint and in the present case, the arbitrators entered upon the reference admittedly on the agreement between the parties and at their request and there was no claim of the parties being unable or prevented from submitting their claims or having a reasonable hearing or having reasonable opportunity of putting forward their entire version and material. Positive participation of the parties in the arbitral proceedings will make it inequitable to revert back the parties to their original state of affairs and the Apex Court has recognized time and again the efficacy of such proceedings and awards even if in non-compliance with strict technicalities of law. Formal defects were always found curable and even an unfiled and unregistered award was held to have some legal effect and the award herein is a registered award. Any violation of directory provisions of law will not entitle the plaintiff to go behind the award and any breach of any mandatory provision of law has not been established. That the parties have acted upon the award even if not fully is evident from the evidence on record and mere intimations in writing by G. Ramachandra Rao or the plaintiff against the award will not make the award ineffective or non-est in the absence of any steps taken by G. Ramachandra Rao or the plaintiff to nullify or avoid the award under the provisions of the Arbitration Act, 1940.While neither party took recourse to any statutory remedies to set aside the award, the mere fact that both the parties filed suits for partition may not make the award inconclusive or tentative. While the respective possession of the Jail road house, Narayanaguda house and Rastrapathi road house with the plaintiff and defendants 1 and 2 respectively even by the time of the suits is not in controversy, the sale deed executed by the 2nd defendant in favour of V. Subbarao and another on 03-04-1987 in Ex.A.74 is, of course, not in tune with the direction of the arbitral award to keep the property a joint property, but it is seen from Ex.A.75 judgment in O.S. No.257 of 1987 that the arbitral award treating the property as subject matter of arbitration was noted by the trial Court, but was ignored in that suit as the plaintiff therein was not a party to the arbitration proceedings or O.S. No.111 of 1988 or O.S. No.163 of 1991. It was also noted that in the impugned judgment, the award was held to be binding on the plaintiff. It should also be noted that Ex.A.75 judgment is still the subject of a pending first appeal and has not become final. It was also noted that in the impugned judgment, the award was held to be binding on the plaintiff. It should also be noted that Ex.A.75 judgment is still the subject of a pending first appeal and has not become final. Exs.A.74 and A.75 may show that the 2nd defendant was also not faithful in abiding by the contents of the award in question, but in so far as the subject matter of O.S. No.111 of 1988 and O.S. No.163 of 1991 is concerned, the parties have obviously performed their respective obligations as per the award with Himayathnagar house being enjoyed by the 1st defendant and Secunderabad house being enjoyed by the 2nd defendant and Jail road house being enjoyed by the plaintiff and therefore, pleading the award as a defence to the suits and considering any right to sue on the original cause of action to be non-existent will be in tune with the principles laid down in the precedents. The award recorded that claims were received, statements of the parties were recorded and the entire material has been considered to conclude that the old Jail street house should go to the plaintiff and Rastrapathi road house should go to defendants 1 and 2 and that Narayanaguda house belonged to the 1st defendant. The 1st defendant gave up his share in favour of the 2nd defendant in Rastrapathi road house and under the circumstances, the original award has to be concluded as a valid defence to the suits for partition and O.S. No.111 of 1988 filed years after the award cannot be sustained. While it is true that the conduct of both parties after the award was not in tune with faithful acceptance of the award, reversing the existing state of affairs and disturbing the long enjoyment of the properties respectively in tune with the award does not appear just or equitable and M/s. G. Sudha, learned counsel for the defendants admitted that even the defendants cannot deviate from the arbitration agreement or the award. She submitted that if the arbitral award is maintained, the cross objections of the 2nd defendant in C.C.C.A. No.61 of 2001 and C.C.C.A. No.129 of 2001 can be treated as not pressed and in view of the upholding of the arbitral award, the statement of the learned counsel, on instructions, can also be taken as an additional ground to reject the cross objections and C.C.C.A. No.129 of 2001 and hence, this point should be answered against the maintainability of both the appeals and cross-objections. Point No.4: Sri M.Y.K. Rayudu referred to Sitaram Vinayak Hasabnis v. Narayan Shankarrao Hasabnis AIR 1943 Bombay 216, wherein it was held that the ordinary rule applicable to suits for coparcenary property is that when a suit for partition is between coparceners, it should embrace the whole family property and the member of the joint family suing his coparceners for partition of joint family property, is bound to bring into the hotch-potch of the property that may be in his own possession in order that there may be a complete and final partition. But the rule was noted to be subject to exceptions arising out of convenience and from other causes. Sri Rayudu further referred to Mst. Hateshar Kuer v. Sakaldeo Singh (1969) II S.C.W.R. 414, wherein the Apex Court held that the rule requiring the inclusion of the entire joint estate in the suit for partition is not a rigid and inelastic rule which can admit of no exception. The rule aims at preventing multiplicity of legal proceedings, which must result if separate suits were to be instituted in respect of fragments of joint estates. It was observed that this being a rule dictated by considerations of practical convenience and equity may justifiably be ignored when, in a given case, there are cogent grounds for departing from it. Even in Rachakonda Venkat Rao v. R. Satya Bai (2003) 7 Supreme Court Cases 452relied on by the defendants, it was laid down that in a partition it is not necessary that each and every property must be partitioned and that the parties are put in separate possession of respective portions of properties falling to their share. Even in Rachakonda Venkat Rao v. R. Satya Bai (2003) 7 Supreme Court Cases 452relied on by the defendants, it was laid down that in a partition it is not necessary that each and every property must be partitioned and that the parties are put in separate possession of respective portions of properties falling to their share. However, if some properties are kept joint on the agreement of the parties, a fresh suit for partition has to be filed in respect of the properties which were kept joint and not a final decree petition, more so, when the original decree was on compromise without indicating any future course of action. Non-inclusion of the ancestral property at Malkajgiri is claimed to be vitiating the suit for partition in O.S. No.111 of 1988. The existence of the ancestral property is admitted, but it is also evident from the evidence on record that even Dr. Ramachandra Rao never desired to assert to his right to share in the ancestral property and left it to be enjoyed by his brothers. In any view, the rule against maintainability of a suit for partition not embracing the whole family property was clearly held to be not an inflexible or inelastic rule and therefore, no further detailed probe into the said aspect need be made, more so in view of the question not having been specifically pleaded in defence and not having been made the subject of an issue before the trial Court. Point No.5: In view of the conclusions on points 1 to 4, while the additional evidence should be admitted, it should be concluded that in any view Narayanaguda house and Jail road house are not available for partition, while on the admitted facts, the right of the 2nd defendant to three-fourth share in the Rastrapathi road house cannot be disputed. The plaintiff is not entitled to a share in Rastrapathi road house and the 2nd defendant is not entitled to a share in the Jail Street house in view of arbitration award irrespective of any effect of non-inclusion of the ancestral property at Malkajgiri in the suits for partition. If so, the common judgment in O.S. Nos.111 of 1988 and 163 of 1991 under appeals herein cannot be interfered with. If so, the common judgment in O.S. Nos.111 of 1988 and 163 of 1991 under appeals herein cannot be interfered with. In the result, C.C.C.A.M.P. No.11628 of 2004 and C.C.C.A.M.P. No.624 of 2007 in C.C.C.A. No.61 of 2001 are allowed and Exs.A.74 and A.75 are received as additional evidence.However, both the appeals and the cross-objections in C.C.C.A. No.61 of 2001 are dismissed. No costs.