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TMI Blog1972 (1) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... d Subordinate Judge after framing a number of issues considered only the question with regard to the admissibility of the document. In his view the award dated 10-11-1955 embodied a partition of immovable properties worth more than ₹ 100/- and was, therefore, compulsorily registrable under Section 17 of the Indian Registration Act. Being compulsorily registrable the award could not be admitted in evidence for the purpose of passing a decree. He also had that the award was not duly stamped and for that reason also it was inadmissible in evidence. Accordingly, he dismissed the suit. 4. The plaintiffs went in appeal to the High Court. The appeal was placed before a Full Bench for disposal. The court held that the award was not inadmissible on the ground that it embodied a partition. In its opinion it was admissible in evidence so far as it did not affect immovable property. It further held that a decree could be passed in terms of that part of the award which was severable from any other part of it which was invalid for any reason. As regards the contention that the document was unstamped the High Court held that the document was admissible in evidence on payment of necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttapalli Venkataswamy has ceased to be a minor and attained majority. Therefore, we take again executed this Panchayat mutchilika in your favour. On 26-5-52 during the minority of 4th individual (Venkataswamy) of us, the immovable properties etc. belonging to our joint family had been partitioned. Venkataswamy, the 4th individual of us has also agreed to the said partition. Now we have executed again this mutchilika in your favour requesting you to partition the remaining properties. This agreement is important in two respects. One is that more than two years before the agreement the immovable properties of the family had been orally partitioned and, secondly, Venkataswamy who had now attained majority accepted the partition of those properties. Then on 28-8-1955 a third agreement was entered into. It is Ext. A-3. The relevant portion of this agreement is as follows : In pursuance of the panchayat mutchilika executed by us in your favour, we requested you to pass as award taking into consideration the chitta balance pertaining to our joint family, the paddy account relating faslis 1347, 1348, and 1349 as per the statements given by us previously and also the records. What ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e B (referred to have come to you) and each of you obtained individual and separate possession of the lands that came to his share and you were in enjoyment peacefully and without any disturbance or dispute. This recital is consistent with the parties own admission about the partition in Ext. A. 2 namely the second arbitration agreement dated 10-10-1954. The partition of the immovable properties had been effected in about the middle of 1952 and the parties were since then in possession of the lands etc. which had been allotted to their share. The recital in the award is no more than a reference to an existing fact and does not support to create or declare, by virtue of the award itself, right title or interest in immovable property. Therefore, as shown in Kashinathsa Yamosa Kabadi, etc. v. Narsingsa Bhaskarsa Kabadi, etc. [1961] 3 SCR 792 the award cannot be regarded as compulsorily registrable on the ground that it embodies a partition. So far as the charge is concerned it is created for the first time by the award and it is not disputed that the transaction of the charge would require to be registered. On taking an account of the funds and collections of the family the arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge was not registered it will be correct to say that the document will not affect the immovable properties of the appellants sought to be charged. It will not also be received as evidence of any transaction affecting such property that is to say, in this case, as evidence of the charge. It should be noted that the section does not say that the document cannot be received in evidence at all. How that it says is that the document cannot be received as evidence of any transaction affecting such property. If under the Evidence Act the document is receivable in evidence for a collateral purpose, Section 49 is no bar. This construction of the provision which was accepted for a long time by the High Courts has been duly recognised by the Amending Act 21 of 1929 which added a proviso to the section. The proviso clearly empowers the Courts to admit any unregistered document as evidence of a collateral transaction not required to be registered. 11. The direction to pay a sum of money which has been held due and payable by the appellants to the respondents is a direction giving effect to a liability for the first time but merely works out the liability. But the same thing cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be justly given. See Mst, Amir Begam v. Badruddin Hussain and Ors. A.I.R. 1914 Privy Council, 105 where as a general principle it is laid down that when a separable portion of an award is bad, the remainder of the award, if good, can be maintained. By giving effect to a part of the award in this case no prejudice is caused to the appellants. In fact they stand to benefit. As the award stands, the appellants would have been responsible not only to pay the amounts personally, but also from the property which was charged. Since the charge part is eliminated for want of registration, they are freed from the additional liability. It is true that judgment should be pronounced according to the award, but that does not bar giving effect to the severable part of the award if it could be justly done. Departure from the award or a part of the award is barred only in those cases where the award or severable part of it is lawful and capable of being given effect to. 13. Lastly it was contended that the award was inadmissible in evidence in view of Section 35 of the Stamp Act. It is true that the award in the original is not engrossed on a stamp paper. What the arbitrators had done at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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