ASHOK KSHYAP Vs. SUDHA VASISHT

JUDGEMENT

(1.) Special leave is granted. The appeal arises from the judgment and order of the High Court of Delhi dated 16th May, 1986 whereby the award of the Arbitrator was adjudged incapable of being made rule of the Court and no decree in terms thereof was passed under S. 17 of the Arbitration Act, 1940, (hereinafter called the 'Act'). The High Court, however, held that the award was not liable to be set aside but only that it could not be made a rule of the Court.

(2.) In order to appreciate the contentions urged, it is necessary to note few facts. The father of the parties involved in the matter, Shri S. Lal, died on 13th November, 1975 leaving behind him his two daughters, Mrs. Sudha Vasisht and Miss Shail and Capt. (now Major) Ashok Kshyap, the son. The wife of the said deceased Shri S. Lal pre-deceased him. Mrs. Sudha Vasisht is the eldest child and Major Kshyap is the youngest, who is the son. Mrs. Sudha Vasisht is married, Miss Shail is a spinster and Major Kshyap is also married. The said S. Lal left only one immovable property, namely, premises No. F-4, Green Park, New Delhi and some movables including about Rs. 8,000/- in the Punjab National Bank, Green Park, New Delhi. It was claimed that Miss Shail was not capable of managing her affairs. Indeed one of the objections against the award was that Miss Shail who was the unmarried sister of Major Kshyap and Mrs. Sudha Vasisht was of unsound mind and due to her mental incapacity the arbitration agreement, arbitration proceedings and the resultant award were all bad in the eye of law. The arbitration agreement was, however, signed by all the three parties. It may be noted that disputes and differences arose between the parties and arbitration agreement, was entered into by the three parties to settle these on 9th June, 1976, soon after the death of their father, Shri S. Lal. The arbitration agreement recited that their father died intestate leaving behind him premises No. F-4, Green Park, New Delhi and the sum of Rs. 8,000/- in the Punjab National Bank. Further it was recited that disputes and differences had arisen in between them with regard to the immovable as well as movable property left by their father, and Shri S. Lal died without making any will and the parties were desirous to get their disputes and differences settled through arbitration to maintain family peace, harmony and goodwill amongst themselves and to avoid unnecessary litigation by arriving at a "family settlement" through arbitration. The agreement, thereafter nominated and appointed one Shri D. C. Singhania, Advocate, as the arbitrator and to enter upon the reference and to decide all the disputes and differences existing between them "pertaining to or relating to or in any manner touching upon the matter of inheritance and/or division of all movable and immovable property left behind by their late father, Shri S. Lal. The agreement, further recited that the parties undertook that the decision given by the arbitrator would be accepted as final. The arbitration proceedings have been filed before this Court. The son, the appellant gave evidence and stated that two houses, one at Meerut and one at Hapur were inherited by him from his mother Smt. Sarla Devi, which she got from her parents without leaving any male issue behind them. These houses were sold for Rs. 21,000/- which sum according to Major Kshyap was invested by the father in the construction of the house in question. Major Kshyap further claimed that he had invested a further amount of Rs. 10,000 out of his savings of his service as a Commissioned Officer. This amount, according to him, was spent on wood work painting of two rooms etc. The father, Shri S. Lal was a teacher in a school and in order to realise his pension, according to Major Kshyap, he paid to his father a sum of Rs.4,440.93 which the father had drawn to build the house. Major Kshyap further claimed that he had purchased a geyser for Rs. 887/- and he had spent certain amount of money for certain other expenses. Mrs. Sudha Vasisht gave evidence stating that her father died without making any will and she was entitled to 1/3rd share in the house left behind him. Miss Shail deposed before the arbitrator that during her lifetime, she was not to be financially dependent upon anybody but after her death, her share in the house should go to her brother. She further asserted that she always wanted that the complete house should go to her brother. It is not necessary to give the break-up of the expenses of the houses as appearing from the evidence. All the parties agreed, the arbitrator noted that there could be no exact and feasible division of the house. Mrs. Sudha expressed her desire that if she was given a fair share in money, she would not insist for the division of the house, according to the arbitrator. Her other alternative suggestion was that the house has got 10 rooms or nine rooms in the sense that one big room on Barsati floor has been divided in two and as such each person could be given three rooms each. According to Miss Shail, the division of the house was not at all feasible, since there was a lot of bad blood and differences between the parties. According to her, the deposition states, it is not at all in the interest of anybody that all should live in one house.

(3.) The other important thing to note in the arbitration proceedings was that Capt. Kshyap stated that the house could not possibly be divided into three parts. It did not have three kitchens. Miss Shail stated that if the house was divided into three parts, there would always be quarrels and disputes among them. She could not say whether the house could be divided into three parts or not. Miss Shail further stated that she would like to live with her brother Capt. Kshyap or whatever arrangement he made for her, that would be acceptable to her. Mrs. Sudha Vasisht stated that she would not like to live or associate with Miss Shail in any manner. Miss Shail further stated that her share of the property, if any, might be allotted to her brother or whatever otherwise considered proper.