Balwant Singh (D) Thr. L.Rs. vs Dungar Singh (Dead) Through Lrs. on 12 February, 2020


Supreme Court of India

Balwant Singh (D) Thr. L.Rs. vs Dungar Singh (Dead) Through Lrs. on 12 February, 2020

Author: R. Banumathi

Bench: R. Banumathi, S. Abdul Nazeer, A.S. Bopanna

                                                                               REPORTABLE

                                         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,

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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

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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

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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

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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

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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

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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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