RAJINDER PARSHAD SHARMA Vs. ASHOK SHARMA

JUDGEMENT

(1.) THE parties to the litigation, spanning over two decades, are brothers, and respondent No. 4 is the son of respondent No. 2. All the parties are in litigation with regard to the properties left by Late Sh. Raghunath Prasad Sharma. It is time to draw the curtains on the said litigation and it is hoped that this will bring a quietus to the long pending family dispute. The present objections are filed by respondent No. 2, Sh. Ramesh C. Sharma, under Sections 30 & 33 of the Arbitration Act, 1940 (in short 'the Act') against an award dated 17.3.1988 passed by the joint Arbitrators, Lala Kanhaiya Lal and Sh. Madan Lal Ahuja. The aforesaid award came to be filed in the Court by the learned Arbitrators on a petition filed by the petitioner under Sections 14 & 17 of the Act praying, inter alia, for directions to the Arbitrators to file the original award and the original proceedings and make the award dated 17.3.1988, a rule of the Court. The facts of the case are that Sh. Raghunath Prasad Sharma, father of the petitioner and the respondents No. 1 to 3 and grandfather of respondent No. 4, executed a will dated 5.11.1986. He expired on 22.06.1987. As per the Will executed by late Sh. Raghunath Prasad Sharma, though he was survived by four sons and five daughters, he left his assets for the benefit of his four sons, namely, the petitioner and respondents No. 1 to 3 and his grandson, respondent No. 4. Thereafter, all the beneficiaries of the Will approached two persons to arbitrate in the matter of the Will and pass an award. An Agreement for Arbitration (hereinafter referred to as 'the Agreement') dated 13.12.1987 (Ex.PW -1/7) was signed by all the beneficiaries of the Will and duly accepted by the named Arbitrators. However, subsequently, a Deed of Reference dated 3.3.1988 (hereinafter referred to as 'the Deed') (Ex.PW -1/5) was executed by the beneficiaries. By virtue of the said Deed, the beneficiaries jointly appointed different Arbitrators, namely, Lala Kanhaiya Lal and Sh. Madan Lal Ahuja, both friends of late Raghunath Prasad Sharma and witnesses to his Will dated 5.11.1986, to resolve all the differences between the beneficiaries regarding distribution of the assets left by the deceased, as detailed in the Deed. It was mentioned in the aforesaid Deed that the Will of Late Raghunath Prasad Sharma was subject matter of a probate petition before the District Judge, Delhi. It was also mentioned that the Agreement dated 13.12.1987 appointing the earlier Arbitrators had been revoked and thereafter, the Deed was made. The aforesaid request made by the beneficiaries to the Will was accepted by the Arbitrators who rendered the impugned award. Objections have also been filed by the respondent No. 2 to the award.

(2.) IT was submitted by the respondent No. 2, who appeared in person that the award is liable to be set aside on the ground that the Arbitrators dealt with the properties which were a subject matter of the Will dated 5.11.1986 and that the genuineness of the Will could not be a subject matter of consideration by the Arbitrators. He urged that the same could be considered only by the probate court and that this itself was sufficient ground to set aside the award. He contended that there was no arbitration agreement between the parties whereby all the parties agreed to get the properties distributed by the Arbitrators. The Deed was referred to state that the Arbitrators were not expected to distribute the assets, but to only resolve the differences regarding distribution of assets left by the deceased.

(3.) THE respondent No. 2 argued that since the authority of the Arbitrators appointed to make an award under the earlier Agreement dated 13.12.1987, was extended till 12.4.1988, and their power was not revoked, neither could the new Arbitrators been appointed, nor could have an award been rendered by them and on this ground also, the award is vitiated. It was submitted that the other legal heirs of the deceased, namely, sisters of the petitioner and the respondents No. 1 to 3 were affected by the award, but they were not heard or even impleaded in the arbitration proceedings. He contended that his sisters had a right to the properties of their deceased father under the Hindu Succession Act and such of the properties which were not subject matter of the Will had to devolve on the parties in terms of the Hindu Succession Act. It was lastly submitted by the respondent No. 2 that the impugned award was neither sufficiently stamped nor registered before being filed in the Court and thus Section 17 of the Registration Act, 1908 comes into play. Respondent No. 2 submitted that the award was mandatorily required to be registered and the Arbitrators having failed to do so, the same stands vitiated.