Balwant Singh (D) Thr. L.Rs. vs Dungar Singh (Dead) Through Lrs.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7850 OF 2009

BALWANT SINGH (D) THR. LRS. ...Appellant

VERSUS

DUNGAR SINGH (D) THR. LRS. …Respondents

JUDGMENT

R. BANUMATHI, J.

This appeal has been filed by the appellant against the final

order and judgment dated 01.06.2006 passed by the High Court of

Rajasthan at Jodhpur in SB Civil Miscellaneous Appeal No.180 of

1989 in and by which the High Court allowed the appeal of the

respondents and made the arbitral award between the parties the

rule of the court.

2. Balwant Singh and Dungar Singh are real brothers. After the

death of their father-Jeet Mal Jain, disputes arose between them

Signature Not Verified regarding partition of family properties. The parties decided to settle Digitally signed by MADHU BALA Date: 2020.02.12 16:49:55 IST Reason: their dispute amicably through arbitration proceedings. Vide

agreement dated 23.11.1981, they have appointed Shri Fateh Lal,

1 Kiran Mal and Sensh Mal as arbitrators for partitioning immovable

properties, shares and jewellery. These arbitrators were also close

relatives of the parties. The arbitrators Shesh Mal Pagaria is

brother-in-law of Dungar Singh, Shri Kiranmal Swansukha is co-

brother of Balwant Singh and Fateh Lal Hingad is a close relative of

the parties. The arbitrators passed award dated 23.11.1981

mentioning therein that the decision given unanimously by the three

of them will be binding on both the parties. By this award, the

arbitrators had given the following decisions:-

 “In the house situated at Babelon Ki Sehri, except for the one house which is on the left side of the pole and is known as Popat Wala House, all other houses will belong to Shri Dungar Singh Ji Babel.

 After giving the benefit of all the houses to Dungar Singh Ji, plot admeasuring 80× 40 situated in Mehtaji Ki Badi and Papat Wala House and plot located in Babelon Ki Sehri will remain with Shri Balwant Singh Ji. Whole agricultural land will remain with Shri Dungar Singh Ji and Shri Dungar Singh Ji will give Rs.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 gold and silver jewellery will be given to both of them in equal parts.

 Capital that has been received from the shop by Shri Jeetmal Ji and his wife by Notice Munju dated 13.06.1973 comes to a total amount of Rs.20,381/- + Rs.4281.17 = Rs.2466.17 (Rupees Twenty Four Thousand Six Hundred Sixty Eight and

2 Paise Seventeen Only) and from that both will get fifty – fifty share and accordingly Shri Dungar Singh Ji will give Rs.12,334/- (Twelve Thousand Three Hundred Thirty Four Only) to Balwant Singh Ji.

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

 Utensils that are given in the list will be distributed equally between them.

 In the above decision, demands made by both of you and whatever is possessed by each of you is maintained on as is where is basis. And this decision is taken that all other demands are over. Meaning both of them has nothing to do with each other.”

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

3. On 07.04.1983, Dungar Singh filed an application before the

District Judge to make the award rule of the court. Along with the

application, acceptance of both the parties and award given by the

arbitrators were also presented. Appellant Balwant Singh raised

objection assailing the award. The court called for evidence of both

the parties. The application for making the award rule of the court

was dismissed by the District Judge, Udaipur. The District Judge

held that the panch had conducted the whole proceedings in their

own way and such an award cannot be considered valid in law. The

court noted that on examining the award, it was found that the

award was written on 23.11.1981 and the respondent Dungar Singh

3 had signed the award after a long time on 26.07.1982. The court

also noted that on 26.07.1982 itself, one panch Sheshmal Pagaria

produced the award before the arbitration judge where stamp

deficiency was removed and on the very same day i.e. 26.07.1982,

the same was produced before the Deputy Registrar, Udaipur for

registration. It was observed that it is not clarified as to where was

the original award from 23.11.1981 to 26.07.1982. The District

Judge further held that though allegations of misconduct by any

panch was not established but it was found that the three panchas

completed the proceedings quite hurriedly and probably have not

given enough time to Balwant Singh to put forth his side. The court

therefore observed that making the award rule of the court does not

appear to be safe and justifiable because the award by the panch is

not fully clear on the basis of which the dispute between the parties

could be finally settled.

4. Aggrieved, the respondents filed appeal before the High Court

under Section 39(1)(6) of the Arbitration Act, 1940. The High Court

by impugned judgment dated 01.06.2006 opined that on going

through the award, it is seen that the award was given unanimously

by the arbitrators. The High Court further held that no misconduct

was found on the part of the arbitrators and the award is based on

4 the materials supplied by the parties and after due deliberation and

discussion. The High Court held that the arbitrators are the close

relatives of the parties and one of the arbitrators Shri Kiran Mal is

the brother-in-law of Balwant Singh and as per Ex.-7, the arbitrators

were appointed by mutual consent. Pointing out that mere passing

of the award on the same day in one sitting does not give rise to

any suspicion and would not raise any doubt or ambiguity and that

no misconduct has been alleged against the arbitrators, the High

Court set aside the order of the learned District Judge and

concluded that 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 Senior

counsel appearing for the appellant and Mr. Puneet Jain, learned

counsel appearing for the respondents and also perused the

impugned judgment and materials on record.

6. It can be seen from the terms of reference dated 23.11.1981

that the parties had agreed that the arbitral award would be passed

unanimously by the arbitrators and the same would bind the parties.

As pointed out by the High Court, the parties had by mutual consent

agreed to the appointment of all the three arbitrators and they had

5 submitted their respective claims before the arbitrators. As pointed

out earlier, the arbitrators are the close relatives of the parties and

no misconduct is alleged against the arbitrators. They have also

filed the will made by their father Jeetmal Singh before the

arbitrators. Both the parties were present and gave their consent in

writing. That apart, the parties have also submitted their respective

claims in the properties and the arbitrators after hearing the parties,

passed the award. Having regard to the fact that the parties have

consented for the arbitrators to consider their claims and pass the

award, the High Court rightly set aside the order of the District

Judge holding that the award has been passed after due

consideration.

7. With a view to further amicably settle the matter, the parties

have 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, LRs of Balwant Singh shall pay the amount of

Rs.10,00,000/- to the LRs of Dungar Singh within a period of nine

months. The parties have further agreed that insofar as the land

falling in Khasra No.15/1Ka which has been sold by Balwant Singh

which is the subject matter of litigation against the third party, LRs of

Dungar Singh shall continue the litigation with the third party.

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8. In view of further settlement arrived at between the parties,

with the consent of the parties, the award shall stand modified as

under:-

Description of Properties involved in the Arbitration Award and stand of the parties

Sl. Description of Assigned to as Party in Possession No. Property per the Award Who is in Stand of the parties possession

1. House at Dungar Singh LRs of Dungar Singh LRs of Dungar Singh Babelon Ki Sehri continue to remain in possession of the house.

2. Popat Wala Balwant Singh LRs of Dungar Singh LRs of Dungar Singh are House, Old ready to hand over House possession of the said house.

Possession of house shall be handed over on or before 31.05.2020.

3. Remaining Dungar Singh LRs of Dungar Singh LRs of Dungar Singh House continue to remain in possession.

4. Plot ad Rs.9,000/- Balwant Singh In view of the measuring 80*40 payable by LRs compromise, payment situated in of Dungar of amount of Mehtaji ki Badi 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 of 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 Land Dungar Singh The said agriculture Land falling in Khasra land falls in Khasra No.15/1Ka has been sold No.15/1Ka and 13/3, by Balwant Singh Vallabh Nagar, Udaipur. regarding which litigation is pending against third Land falling in Khasra No.15/1Ka has been party.

sold by Balwant LRs of Dungar Singh are Singh. at liberty to continue the litigation with the third party at their cost. 6. Money from Shop To be split Amount payable In view of the amount of Owned by Late equally Rs.12,334/- by LRs Rs.10,00,000/- agreed to Shri Jeetmal and of Dungar Singh to be paid by LRs of Wife LRs of Balwant Balwant Singh qua item

7 (20,381+4281.17 Singh. No.8 – Jewellery, this =24668.17) amount of Rs.12,334/- is not payable by the LRs of Dungar Singh.

Sl. Description of Assigned to as Party in Possession No. Property per the Award Who is in Stand of the parties possession 7. Share certificate To be split LRs of Dungar Singh LRs of Dungar Singh are in the name of equally ready to equally divide Jeetmal Ji Babel the shares amongst themselves and LRs of Balwant Singh. Shares shall be divided within a period of three months. 8. Jewellery: i. Baju LRs of Balwant Singh The said jewelleries are Dungar Singh ii. Kangan*2 said to have been taken iii.Remaining Dungar Singh gold and silver or withdrawn by Balwant To be distributed Singh from Bank Locker in equal share of Bank of Rajasthan on 21.08.1991. Weight of the said jewelleries is 80 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.

9. LRs of Balwant Singh – Deepak B Jain s/o Balwant Singh has

filed an affidavit stating that the appellant shall pay an amount of

Rs.10,00,000/- within a period of nine months in lieu of the share of

gold of Lrs. of Dungar Singh in full and final settlement. Mr. Deepak

B Jain, LRs of Dungar Singh has also filed an affidavit that in lieu of

8 jewellery of 40 tolas, they are ready to receive Rs.10,00,000/-. In

case, 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 on the 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 the

decree accordingly. The chart in Para No.(8) shall form part of the

decree.

………………………..J. [R. BANUMATHI]

………………………..J. [A.S. BOPANNA]

New Delhi;

February 12, 2020.

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