9911796707
TMI Blog1940 (7) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... o him a sum of ₹ 50,000 for the purpose of partially clearing off the incumbrances and upon the terms that he should have an option to acquire a half share in the village in lieu of the repayment of his loan. This option he exercised in or about the year 1914. No conveyance was executed; the matter continued to rest on contract, but thenceforward he enjoyed a half share of the profits of the village. This state of affairs continued until the death of Ishwari which occurred in the year 1924. He left him surviving three sons, viz., the respondents Het Lall, Debi Prasad, and Shyam Lall, and a grandson the respondent Parbhakar Prakash. On 26th April 1925, the appellant executed a document addressed to the respondents in which he set out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly direct that the said Babu Upendra Nath Basu do pay rupees fifteen thousand, three hundred and fifty to each of the four gentlemen of the second party, that is to Bay a total sum of rupees sixty-one thousand and four hundred as the equivalent of the share of the second party in the said property, with interest at six per cent per annum accruing from 1st October 1930. If the said amount is not paid by 1st October 1931, the rate of interest thereafter shall be seven and a half per cent per annum on whole or any balance left unpaid. The ownership of the second party in one-half of Raitar property shall not cease till after the above sum of rupees sixty one thousand and four hundred as well as the amounts mentioned in the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court at Patna, the order of the Subordinate Judge was set aside, and the award was ordered to be filed and made a decree of Court. The point at issue on the appeal by the appellant to His Majesty in Council can now be stated. It was contended by the appellant that upon its true construction the award was, within the meaning of Section 17(1)(b), Registration Act, 1908, a non-testamentary instrument which purported or operated to create, declare assign limit or extinguish a right title or interest of the value of ₹ 100 or upwards to or in immovable property; and that since it had not been registered, then by Section 49 of the same Act it was incapable of affecting the immovable property in question or of being received in evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last sentence of para. 2 of the award the arbitrators purport to confer upon the second party a right title or interest to or in one-half of the village, which commences with the award and comes to an end when the sum of ₹ 61,400 with interest has been paid, or whether they intend merely to provide that the status quo (i.e., the contractual interest which arose from the exercise of the option) should remain unaltered until the ₹ 61,400 and interest had been paid. In their Lordships' opinion the latter is the true view. The sentence is not framed as one which purports to create or confer an interest. It is framed on the assumption that an interest is already in existence, and provides that that existence shall not cease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, Civil P.C. Undoubtedly in order to test whether the Benares Court had jurisdiction to order the filing of the award, the Judges applied the test whether it would have had jurisdiction to try a suit in which the relief claimed was the relief granted by the award. For the purpose of this test, they construed the award as an award which did determine that the heirs of Ishwari Prasad had a legal title to half share in the Raitar property which they were entitled to retain until the receipt of specified sums of money ; and they held that just as the Benares Court would have had no jurisdiction to try a suit claiming that relief, since the village was outside the local limits of its jurisdiction, so it had no jurisdiction to order the filing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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