CHAVAKULA YANADAMMA Vs. CHAVAKULA VENKATESWARLU

JUDGEMENT

(1.) The appellants are mother and daughter, the first appellant being the widow of one Venkata Krishnayya who died in 1936. Venkata Krishnayya was the undivided brother of the contesting respondent, the first defendant in the lower Court. The appellants filed the suit for a declaration that they were entitled to certain properties in lieu of maintenance as a consequence of the award of an arbitrator, who is impleaded as the fifth defendant in the suit. The allegations in the plaint were that the first plaintiff is legally entitled to a half share in the family properties for the maintenance of herself and her daughter, that the first defendant was refusing to give proper maintenance to the plaintiffs who threatened legal proceedings, whereupon mediators intervened, and on their suggestion the dispute was referred to the fifth defendant as an arbitrator, who decided that the suit properties should be given to the plaintiffs, that the plaintiffs got possession in pursuance of this decision but their possession was threatened by the first defendant and his supporters, defendants 2 to 4. Along with the plaint, a copy of the award Ex. P-I, dated 20 July, 1943, was filed.

(2.) The written statement of the first defendant denied that there was any failure to maintain the plaintiffs and alleged that the arbitration by the fifth defendant was collusive and that the award was vitiated by gross misconduct on the part of the arbitrator and that it was illegal because the arbitrator had exceeded the scope of the reference. There is also a plea that the suit for bare declaration was not maintainable, but no plea was taken regarding the non- registration of the award. The date of the award is 29 July, 1943. The suit was filed on the 7 August, 4943, and the first defendant's written statement was filed on 16 October, 1943, when there was still time to have the award registered. When the issues were framed, the question of non-registration was not made the subject of any issue. Even at this stage there was still time for the registration of the award. When the suit came on for trial, objection was taken by the first defendant to the receipt of the award in evidence on the ground that it was a document which was com-pulsorily registrable under Section 17(1) of the Indian Registration Act and had not been so registered. This contention succeeded before the trial Court which dismissed the suit without finding on the other contentions raised in the issues and also rejected, as a consequence of the dismissal of the suit, a petition filed by the plaintiffs praying that the plaint might be converted into an application under Section 17 of the Indian Arbitration Act X of 1940.

(3.) The question which we have to decide in this appeal is therefore whether the lower Court was right in excluding the award on the ground that it was not registered. No doubt the objection was one which could have been met by the plaintiffs if it had been taken in the first instance in the written statement of the first defendant or at the time when the issues were framed. The belated nature of the objection is a matter which might well have been taken into consideration in awarding costs, but it cannot be a ground for treating the document as admissible in evidence if by law it is inadmissible.