Case details

Court: Supreme Court of India
Decided: 12 February 2020
Bench: R. Banumathi
Citations: 2020 INSC 172[2020] 1 S.C.R. 609
Type: Judgment (Disposed off)

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Citation: [2020] 1 S.C.R. 609 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

BALWANT SINGH (D) THR. LR. versus DUNGAR SINGH (D) THR. LRS. on 12 February 2020

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Conclusion

BALWANT SINGH (D) THR. LR.

DUNGAR SINGH (D) THR. LRS.(Civil Appeal No. 7850 of 2009)FEBRUARY 12, 2020

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Arbitration Act, 1940 – s.39(1)(6) – Disputes arose betweenappellant and respondent (brothers) after the death of their father,regarding partition of family properties – By an agreement theyappointed three arbitrators, who were their close relatives forpartitioning immovable properties, shares and jewellery –Arbitrators passed award mentioning therein that the decision givenunanimously by the three of them will be binding on the parties –Respondent filed application before District Judge to make the awardrule of the court – Objection raised by appellant – Applicationdismissed by the District Judge – Respondents filed appealu/s.39(1)(6) – Allowed by High Court – Held: Parties by mutualconsent agreed to the appointment of all the three arbitrators andsubmitted their respective claims before them – Arbitrators are closerelatives of the parties and no misconduct is alleged against them –High Court rightly set aside the order of the District Judge holdingthat the award has been passed after due consideration – With aview to further amicably settle the matter, the parties arrived atsettlement – In view of the same, with the consent of the parties, theaward is modified – Registry to draft the decree in terms of themodified award.

Disposing of the appeal, the Court

HELD: 1.1 The parties had by mutual consent agreed tothe appointment of all the three arbitrators and they had submittedtheir respective claims before the arbitrators. The arbitratorsare the close relatives of the parties and no misconduct is allegedagainst the arbitrators. They have also filed the will made by theirfather before the arbitrators. Both the parties were present andgave their consent in writing. That apart, the parties alsosubmitted their respective claims in the properties and the

Aarbitrators after hearing the parties, passed the award. Havingregard to the fact that the parties have consented for thearbitrators to consider their claims and pass the award, the HighCourt rightly set aside the order of the District Judge holdingthat the award has been passed after due consideration. In viewof further settlement arrived at between the parties, with theBconsent of the parties, the award stands modified. Registry isdirected to draft the decree accordingly. [Paras 6, 8 and 10][613-C-E, H; 615-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7850Of 2009.C

From the Judgment and Order dated 01.06.2006 of the High Courtof Rajasthan at Jodhpur in S.B. Civil Miscellaneous Appeal No. 180 of1989.

Prashanto Chandra Sen, Sr. Adv., P. S. Sudheer, Kaushthubh Singh,DRishi Maheshwari, Ms. Anne Mathew, Bharat Sood, Ms. Shruti Jose,Advs. for the Appellants.

Puneet Jain, Ms. Christi Jain, Harsh Jain, Harshit Khanduja,Abhinav Deshwal, Ms. Pratibha Jain, Advs. for the Respondents.

The Judgment of the Court was delivered byE

R. BANUMATHI, J.

1. This appeal has been filed by the appellant against the finalorder and judgment dated 01.06.2006 passed by the High Court ofRajasthan at Jodhpur in SB Civil Miscellaneous Appeal No.180 of 1989in and by which the High Court allowed the appeal of the respondentsFand made the arbitral award between the parties the rule of the court.

2. Balwant Singh and Dungar Singh are real brothers. After thedeath of their father-Jeet Mal Jain, disputes arose between them regardingpartition of family properties. The parties decided to settle their disputeamicably through arbitration proceedings. Vide agreement datedG23.11.1981, they have appointed Shri Fateh Lal, Kiran Mal and SenshMal as arbitrators for partitioning immovable properties, shares andjewellery. These arbitrators were also close relatives of the parties. Thearbitrators Shesh Mal Pagaria is brother-in-law of Dungar Singh, ShriKiranmal Swansukha is co-brother of Balwant Singh and Fateh Lal HingadHis a close relative of the parties. The arbitrators passed award dated 23.11.1981 mentioning therein that the decision given unanimously bythe three of them will be binding on both the parties. By this award, thearbitrators had given the following decisions:- A

•“In the house situated at Babelon Ki Sehri, except for the onehouse which is on the left side of the pole and is known asPopat Wala House, all other houses will belong to Shri DungarBSingh Ji Babel.

•After giving the benefit of all the houses to Dungar Singh Ji,plot admeasuring 80× 40 situated in Mehtaji Ki Badi and PapatWala House and plot located in Babelon Ki Sehri will remainwith Shri Balwant Singh Ji. Whole agricultural land will remainCwith Shri Dungar Singh Ji and Shri Dungar Singh Ji will giveRs.9,000/- to Balwant Singh Ji.

•According to the list of jewellery placed in bank locker, “Baju”will remain with Shri Dungar Singh Ji and “Kangania” – (two)will remain with Shri Balwant Singh Ji. The remaining goldDand silver jewellery will be given to both of them in equal parts.

•Capital that has been received from the shop by Shri JeetmalJi and his wife by Notice Munju dated 13.06.1973 comes to atotal amount of Rs.20,381/- + Rs.4281.17 = Rs.2466.17(Rupees Twenty Four Thousand Six Hundred Sixty Eight andPaise Seventeen Only) and from that both will get fifty – fiftyshare and accordingly Shri Dungar Singh Ji will give Rs.12,334/- (Twelve Thousand Three Hundred Thirty Four Only) toBalwant Singh Ji.

•Both will get equal share of the share certificates that are inthe name of Shri Jeetmal Ji Babel.

•Utensils that are given in the list will be distributed equallybetween them.

•In the above decision, demands made by both of you andwhatever is possessed by each of you is maintained on as iswhere is basis. And this decision is taken that all other demandsare over. Meaning both of them has nothing to do with eachother.”

On 10.12.1982, Collector (Stamps), Udaipur registered the award.

A3. On 07.04.1983, Dungar Singh filed an application before theDistrict Judge to make the award rule of the court. Along with theapplication, acceptance of both the parties and award given by thearbitrators were also presented. Appellant Balwant Singh raised objectionassailing the award. The court called for evidence of both the parties.BThe application for making the award rule of the court was dismissed bythe District Judge, Udaipur. The District Judge held that the panch hadconducted the whole proceedings in their own way and such an awardcannot be considered valid in law. The court noted that on examining theaward, it was found that the award was written on 23.11.1981 and therespondent Dungar Singh had signed the award after a long time onC26.07.1982. The court also noted that on 26.07.1982 itself, one panchSheshmal Pagaria produced the award before the arbitration judge wherestamp deficiency was removed and on the very same day i.e. 26.07.1982,the same was produced before the Deputy Registrar, Udaipur forregistration. It was observed that it is not clarified as to where was theDoriginal award from 23.11.1981 to 26.07.1982. The District Judge furtherheld that though allegations of misconduct by any panch was notestablished but it was found that the three panchas completed theproceedings quite hurriedly and probably have not given enough time toBalwant Singh to put forth his side. The court therefore observed thatmaking the award rule of the court does not appear to be safe andEjustifiable because the award by the panch is not fully clear on the basisof which the dispute between the parties could be finally settled.

4. Aggrieved, the respondents filed appeal before the High Courtunder Section 39(1)(6) of the Arbitration Act, 1940. The High Court byFimpugned judgment dated 01.06.2006 opined that on going through theaward, it is seen that the award was given unanimously by the arbitrators.The High Court further held that no misconduct was found on the partof the arbitrators and the award is based on the materials supplied by theparties and after due deliberation and discussion. The High Court heldthat the arbitrators are the close relatives of the parties and one of theGarbitrators Shri Kiran Mal is the brother-in-law of Balwant Singh and asper Ex.-7, the arbitrators were appointed by mutual consent. Pointingout that mere passing of the award on the same day in one sitting doesnot give rise to any suspicion and would not raise any doubt or ambiguityand that no misconduct has been alleged against the arbitrators, the High H

Court set aside the order of the learned District Judge and concludedthat the award deserves to be made rule of the court and accordingly,declared to be so. Being aggrieved, the appellant has preferred this appeal.

5. We have heard Mr. Prashanto Chandra Sen, learned Seniorcounsel appearing for the appellant and Mr. Puneet Jain, learned counselappearing for the respondents and also perused the impugned judgmentand materials on record.

6. It can be seen from the terms of reference dated 23.11.1981that the parties had agreed that the arbitral award would be passedunanimously by the arbitrators and the same would bind the parties. Aspointed out by the High Court, the parties had by mutual consent agreedto the appointment of all the three arbitrators and they had submittedtheir respective claims before the arbitrators. As pointed out earlier, thearbitrators are the close relatives of the parties and no misconduct isalleged against the arbitrators. They have also filed the will made bytheir father Jeetmal Singh before the arbitrators. Both the parties werepresent and gave their consent in writing. That apart, the parties havealso submitted their respective claims in the properties and the arbitratorsafter hearing the parties, passed the award. Having regard to the factthat the parties have consented for the arbitrators to consider their claimsand pass the award, the High Court rightly set aside the order of theDistrict Judge holding that the award has been passed after dueconsideration.

7. With a view to further amicably settle the matter, the partieshave negotiated and agreed that on Item No.8-Jewellery, in lieu of 50%of the jewellery which the LRs of Dungar Singh are entitled i.e. 40 tolas,LR of Balwant Singh shall pay the amount of Rs.10,00,000/- to the LRsof Dungar Singh within a period of nine months. The parties have furtheragreed that insofar as the land falling in Khasra No.15/1Ka which hasbeen sold by Balwant Singh which is the subject matter of litigationagainst the third party, LRs of Dungar Singh shall continue the litigationwith the third party.

8. In view of further settlement arrived at between the parties,with the consent of the parties, the award shall stand modified as under:- A

ADescription of Properties involved in the Arbitration Awardand stand of the partiesSl. Description of PropertyAssigned to as per Party in PossessionNo. the Award Who is in possessionStand of the parties1.House at Babelon Ki SehriDungar SinghLRs of Dungar SinghLRs of Dungar Singh continue to remain in possession of the house. 2.Popat Wala House, Old HouseBalwant SinghLRs of Dungar SinghLRs of Dungar Singh are ready to hand over possession of the Bsaid house. Possession of house shall be handed over on or before 31.05.2020. 3.Remaining HouseDungar SinghLRs of Dungar SinghLRs of Dungar Singh continueto remain in possession. 4.Plot ad measuring 80*40 Rs.9,000/-payable Balwant SinghIn view of the compromise, situated in Mehtaji ki Badi by LRs of Dungar payment of amount of Singh to LRs of Rs.10,00,000/- by LRs of Balwant Singh Balwant Singh qua Item No.8 – Jewellery to be paid to LRs Cof Dungar Singh within a period of nine months. The amount of Rs.9,000/- is not payable by LRs of Dungar Singh to LRs of Balwant Singh.5.Agriculture LandDungar SinghThe said agriculture land Land falling in Khasra falls in Khasra No.15/1Ka No.15/1Ka has been sold by and 13/3, Vallabh Nagar, Udaipur. Balwant Singh regarding which litigation is pending against No.15/1Ka has been sold Land falling in Khasra third party. Dby Balwant Singh. LRs of Dungar Singh are at liberty to continue the litigation with the third party at their cost. 6.Money from Shop Owned by To be split equallyAmount payable In view of the amount of Late Shri Jeetmal and Wife Rs.12,334/- by LRs of Rs.10,00,000/- agreed to be Dungar Singh to LRs of paid by LRs of Balwant Singh (20,381+4281.17=24668.17) Balwant Singh. qua item No.8 – Jewellery, this amount of Rs.12,334/- is not payable by the LRs of Dungar Singh.7.Share certificate in the name of To be split equallyLRs of Dungar SinghLRs of Dungar Singh are ready Jeetmal Ji Babel to equally divide the shares Eamongst themselves and LRs of Balwant Singh. Shares shall be divided within a period of three months. 8.Jewellery:Dungar SinghLRs of Balwant SinghThe said jewelleries are said to i.ii. Kangan*2 iii. Remaining gold and silver Baju Dungar Singh To be distributed in by Balwant Singh from Bank have been taken or withdrawn Locker of Bank of Rajasthan on equal share 21.08.1991. Weight of the said jewelleries is F80 tolas (800 gms) and the LRs of Dungar Singh are entitled to 50% i.e. 40 tolas of the same. In lieu of 50% of the jewellery, LRs of Balwant Singh agreed to pay an amount of Rs.10,00,000/- to LRs of Dungar Singh. Amount of Rs.10,00,000/- is payable within a period of nine months.

G9. LRs of Balwant Singh – Deepak B Jain s/o Balwant Singh hasfiled an affidavit stating that the appellant shall pay an amount ofRs.10,00,000/- within a period of nine months in lieu of the share of goldof Lrs. of Dungar Singh in full and final settlement. Mr. Lalit KumarBabel, LRs of Dungar Singh has also filed an affidavit that in lieu ofHjewellery of 40 tolas, they are ready to receive Rs.10,00,000/-. In case, BALWANT SINGH (D) THR. LR. v. DUNGAR SINGH (D) THR.LRS. [R. BANUMATHI, J.]

if the amount of Rs.10,00,000/- is not paid within a period of nine months,the appellant is liable to pay an interest at the rate of 9% per annum onthe said amount of Rs.10,00,000/-.

10. In terms of the above modified award as stated in Para No.(8), the appeal shall stand disposed. Registry is directed to draft thedecree accordingly. The chart in Para No.(8) shall form part of thedecree.

Divya Pandey

Appeal disposed of.