Sadasivayya, J.:— So far as Badagabail property is concerned, I agree with my learned Brother that there are no good reasons to take a view different from the one taken by the learned Subordinate Judge. But, with great respect to my learned Brother, I find it difficult to accept the view that a decree on an award, falls within the scope of sub-section (6) of Section 36 of the Madras Aliyasantana Act, 1949. That sub-section is as follows:
“(6) A registered family settlement (by whatever name called) or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purported to have been distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties notwithstanding any terms to the contrary in such settlement or award.”
It will be noticed that a decree on an award is not mentioned in this sub-section, but express reference is made only to a registered family settlement or an award. That there is difference between such a decree and a registered family settlement has not been disputed and the only question is whether such a decree can come within the meaning of the term “award” in the said sub-section.
2. In the present case, the decree based on the award is Ex. A-1 and is of the year 1924. Under paragraph 16 as well as under paragraph 21 of Schedule II to the Code of Civil Procedure, when the Court did not remit or set aside the award, it had to pronounce judgment according to the award; upon the judgment so pronounced under paragraph 16 or paragraph 21, as the case may be, decree had to follow. It is worthy of note that thereafter, no appeal lay against the award, but it was only as against the decree that an appeal lay, and that too, only in so far as the decree was in excess of or was not in accordance with the award. Once a decree was passed in accordance with the award, it was only the decree that was executable. Such being the case, the distinction between an award and the decree of the Court passed on the basis of that award, cannot be ignored. The circumstance that the decree, may be in terms of the award does not alter the fact that the decree is the act of the Court and not that of the arbitrator. By its judgment and decree, the Court, makes the decision of the arbitrator its own, giving it the force and solemnity of its own adjudication; consequently, a decree on award has all the force and effect of, and is as conclusive between the parties and their privies, as any decree passed after full contest. It is possible that with a view not to disturb the finality resulting from a decree (of whatever kind) that the Legislatures intentionally refrained from referring to decrees, in sub-section (6), thereby confining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, no Court would be justified in equating an award to the decree passed on it.
3. If the correct position is that the term “award” in Section 36(6) does not include within its meaning a decree on an award, then, its effect on the present case will be, briefly, as follows: The decree states more than once that the allotment of properties is only for purposes of enjoyment and is not a partition; it is also further made clear therein that in spite of the prayer by some of the parties for an outright partition, this arrangement was made instead, in the interests of all the members of the family. The effect of this is not different from a prayer for partition having been refused by the Court which decreed instead, merely an allotment of properties for the purpose of convenient enjoyment by the members of the family. The decree cannot be ignored or got over either on the ground that the powers of the Court to interfere with the award, were limited under the law or that the decree was merely in terms of the award. As long as there is a decree between the parties, it will not be permissible for either of them to go behind that decree. None of the parties to the decree, can be heard to say that the arrangement decreed was a partition, even though according to the plain language of the decree it was not; nor can the Court be required to adjudicate on the real nature of this transaction, when the decree itself clearly states it to be only an allotment of properties for convenient enjoyment and not a partition. If so, the present suit for partition would not be liable to be thrown out on the ground that there was already a partition.
4. The question as to whether a decree on an award falls within the scope of sub-section (6) of Section 36 of the Madras Aliyasantana Act, 1949, is one in regard to which there is difference of opinion between myself and my learned brother. This is an important question of law and the learned Advocates have admitted that there is no decision directly bearing on this question. The point of law on which we have differed will be formulated for being decided in accordance with the proviso to sub-section (2) of Section 98 of the Code of Civil Procedure.
Mir Iqbal Husain, J.:— This is an appeal from the judgment and decree passed by the learned Subordinate Judge, South Kanara, dismissing the plaintiffs' suit for partition of plaint B schedule moveables and C schedule immoveables. The parties are members of an Aliyasantana family. The relationship of the respective members is evident from the genealogical table—schedule A to the plaint whose correctness is undisputed. The same along with addition of defendant 25 a daughter of defendant 11 and defendant 26 Surendranath, son of defendant 4 Hemavathi is for purposes of ready reference attached to this judgment as well. About defendants 25 and 26 also there is no dispute.
The ancestress of the family is one Manjakke. The two main kavarus of her family are those of Dyake (Sr.) and Dyake (Jr.), Plaintiffs 1, 2 and 3, the present appellants belong to Dyake (Jr.) family. So also defendants 1 to 8 and 26. Defendant 1 is Venkappa Shetty, grandson of Dyake (Jr.) and brother of plaintiff Parameswary. Nammakke, defendant 2 is the grand-daughter of Dyake (Jr.) and elder sister of Parameswary. So also is Parameswary, the grand-daughter of Dyake (Jr.) and she with her daughter Laxmi plaintiff 2 and grandson through Laxmi, Chandrasekhara Shetty, plaintiff 3 formed a sub-kavaru of Dyake (Jr.)'s branch. Turning now to Dyake (Sr.)'s branch, the rest of the defendants are all included in that category. Dyake (Sr.) had three sisters Dammakke, Sankamma and Thankaju. 9th defendant is the son of Dammakke. Shankamma's descendants are defendant 21, her grand son through her daughter Somakke and defendants 10 and 11, her grand-children through her daughter Ujjakke, and the rest of the defendants 12 to 20 and 25. Defendant 1 who is respondent 1 in this case supports the plaintiff. The main contesting defendants are defendants 2 to 8 and 26. They belong to the same kavaru, viz., that of Dyake (Jr.) to which the plaintiffs also belong. Defendants 9 and 15 of Dyake (Sr.)'s branch support defendants 2 to 5.
The bone of contention between the contesting parties is the award marked as Exhibit A-2 in the case dated 21-5-1924. The plaintiffs had, in their suit, ignored this award to which all the then major members of both the kavarus of Dyake (Sr.) and Dyake (Jr.) were parties. They referred their disputes to a leading Advocate of Mangalore Sri Narayana Rao who passed the aforesaid award which has been made a decree of the Court in O.S 314 of 1924 and marked as Exhibit A in the case, the award itself being marked as exhibit A-2. The plaintiffs-appellants have proceeded in their plaint on the basis as though there is no such document in existence. In fact, their plaint is silent about it. They contend that they are the members of an undivided joint family governed by the Aliyasantana Law of inheritance and hence have prayed for partition of the moveables and immoveable properties belonging to the family. The contesting defendants, on the other hand, put forward the award Exhibit A-2 and the decree of the Court passed in pursuance thereof, viz., O.S 314 of 1924 on the file of the Court of the District Munsiff, Mangalore, on 9-9-1924 and marked as Exhibit A in this case, as their trump cards and contend that because of this award, the plaintiffs and the defendants have become divided. The plaintiffs' suit is therefore, barred by the provisions of section 36 of Aliyasantana Act. The learned Subordinate Judge who tried this suit framed the following material issue:
“Whether the award decree in O.S 314 of 1924 on the file of the District Munsiff, Mangalore, amounts to a partition within the meaning of section 36(6) of the Madras Aliyasantana Act and if so, whether the suit is sustainable.”
Holding this issue against the plaintiffs as stated above, the learned Subordinate Judge dismissed their suit on the ground that the said award shall be deemed to be a partition of the kutumba properties. The plaintiffs have preferred this appeal against the Judgment and decree of the learned Subordinate Judge.
It is urged by Sri Krishna Rao, the learned Advocate for the appellant, that the arrangement made under Exhibit A-2 does not amount to a partition under Section 36(6) of the Aliyasantana Act. But, on the other hand, it is one made for maintenance of the members of the family. The properties are distributed for the purpose of enjoyment only. Hence the learned Subordinate Judge erred in dismissing the plaintiffs' suit for partition. On the other hand, it is urged with equal force by Sri Srinivasa Rao for the contesting respondents-defendants 2 to 6 that exhibit A-2 envisages a, partition under the provisions of section 36(6) of the Aliyasantana Act as it satisfies all the conditions contemplated therein. Hence the partition already having taken place as per its provisions, there cannot be a second suit for partition of the properties.
It is contended by Sri Karanth, the learned Advocate for the L.Rs of the first defendant-first respondent, that the Arbitrator's award has become part and parcel of the decree Exhibit A-1. In fact, it is merged in the decree. Hence there is no award as such which as to be looked to for determining the rights of the parties. Section 36(6) is a deeming provision of the Act contemplating two categories of documents which could be considered as distributing the proceeds of the kutumba, resulting in a partition: (1) Registered family settlement (2) Award. After the passing of the decree on the Award in O.S 314 of 1924 as per Exhibit A. 1, the Award has lost its separate entity. It is argued with much force that the provisions of the statute are to be considered strictly. If it was the intendment of the Legislature to extend the provisions of section 36(6) of the Act to a decree based on an Award, specifically the term ‘decree’ would have been used in that section. The said section stops short of mentioning an award only. How then, it is urged, can the section be said to be applicable to a case where decree has been passed on the Award? Judicial imprint of the Judge has taken the place of the decision of the Arbitrator to which major members of the kutumba had submitted.
Before coming into force of the Arbitration Act of 1940 an Award was valid and operative by itself. But after the passing of the said Act, an application must be made to Court for filing of the Award. The Award becomes operative only when it is made a rule of the Court. A party to an Award cannot, therefore, afford to lie by and take no suitable steps to get the Award filed in Court. Otherwise the Award does not become operative and enforcible. Thus, the Arbitration Act of 1940 effected a change by prescribing the procedure for getting the Award enforcible.
Section 14 of the Arbitration Act prescribes the procedure to be adopted by the Arbitrator or Umpire who had made the Award for filing it in Court. Section 15 deals with the power of the Court to modify or correct the Award. According to the said section, the Award must be in consonance with the reference. It must be perfect in form. If there are any obvious errors or clerical mistakes or errors arising from accidental slip or omission, the Court has power to modify or correct the same. Section 16 of the Arbitration Act deals with the power of the Court to remit the Award. Lastly, section 17 deals with the judgment to be passed in terms of the Award and that judgment will be followed by a decree. These are the provisions with regard to the private Award (without the intervention of the Court). Similar are the provisions before the passing of the Arbitration Act as per paras 20 and 21 of II Schedule of C.P.C
A scrutiny of these provisions indicates all that they deal with is the procedural aspect of it but they do not touch the substance of the Award. The latter is within the exclusive domain of the Arbitrator. In other words, the Court which passes the judgment does not super-impose its view on the merits of the case referred for arbitration. What it does is to see that due process of law has been applied to the Award so as to place it on a pedestal beyond reproach. The Aribitrator is the Judge of all matters whether of fact or law referred to him and the Court which puts its seal of approval does not sit in judgment on the merits of the case but sees that the proper procedure is adopted. If so, could it be said with any justification that the Award is superseded by the decree passed by the Court? All that the decree does is, it ensures the validity of the Award and makes it executable as a decree. Thus the award of an Arbitrator which is filed into Court is given the force of a decree and nothing more. It becomes enforceable as a decree, but it leaves the substance of the Award where it was before and in no way interferes with it. If so, the argument advanced by Sri Karanth looses its force. Advisedly the Legislature has mentioned the term ‘Award’ but omitted to mention ‘decree’ passed on the Award. Hence section 36(6) does not exclude the case like the present one from its purview.
Taking into consideration all the facts and circumstances of the case, I find that the decree passed by the learned Subordinate Judge dismissing the plaintiffs' suit is to be upheld.
BY COURT
The point of law for being decided in accordance with the proviso to Section 98(2) of the Code of Civil Procedure, is formulated as follows:—
“Whether a decree on an award falls within the meaning of the term award in sub-section (6) of Section 36 of the Madras Aliyasantana Act, 1949 and can an allotment of properties, expressly stated in such a decree to be not a partition but only for the purpose of convenient enjoyment, be deemed to be a partition under the provisions of the said sub-section?”
We direct that the records be placed before the Hon'ble the Chief Justice for obtaining his directions in regard to the further hearing of this appeal in accordance with the proviso to sub-section (2) of Section 98 of the C.P.C
OPINION
Somnath Iyer, J.:— This appeal was beard by a Bench, composed of Sadasivayya and Mir Iqbal Husain, JJ. They differed in opinion on a point of law, whereupon the appeal has been posted before me, under Sections 98(2) of the Code of Civil Procedure, to be heard upon that point.
The question of law referred to me reads:—
“Whether a decree on an award falls within the meaning of the term ‘award’ in sub-section (6) of Section 36 of the Madras Aliyasantana Act, 1949, and can an allotment of properties, expressly stated in such a decree to be not a partition but only for the purpose of convenient enjoyment, be deemed to be a partition under the provisions of the said sub-section?”
This is how the question arises:
Between the members of an Aliyasantana family there was an arbitration without the intervention of a Court and an award was made on May 21, 1924. That award was filed in the Court of the District Munsiff of Mangalore, under the then existing provisions of paragraph 20 of the Second Schedule to the Code of Civil Procedure. The Court ordered the award to be filed and proceeded to pronounce judgment according to the award, under the provisions of paragraph 21 of the said Schedule. On September 9, 1924, a decree was made in accordance with the judgment so pronounced. That decree reads:—
“This suit coming on this day for final disposal in the presence of Mr. P. Vasudeva Rao, Vakil for plaintiffs and defendant being declared ex parte, this Court doth order and decree, that the terms of the award annexed hereto be, and the same are, passed into a decree of this Court.
Given tender my hand and the seal of Court, this 9th day of September 1924.
(Sd.) U. VAMAN NAYAK,
District Munsiff.”
The material portions of the award which thus became transformed into a decree read:—
“Although some of these parties desire that their undivided properties should be divided outright and they should be put in possession of their shares, without keeping any relationship among them, it does not appear to me that it is proper to so divide outright and put them in possession of their shares. But as it appears to me to be proper to divide the property and give possession only for the purpose of enjoyment without the right of making alienations, etc., I have decided to so divide.
As it appears that both the said properties have been enjoyed together till now and as the division now decided upon by me is only for the enjoyment of properties and as merely on account of enjoyment, right of alienation is not created, I have now allotted the properties Nos. 3 and 4 to Thallangady household.
As the allotment of property made through this award is only for the sake of enjoyment and as the income of property allotted to the respective houses seems to be sufficient for the expenses of the respective household, the enjoyers of the respective properties allotted, shall not be entitled to encumber the property with any debts or subject it to debts or to alienate in any manner.”
Nearly quarter of a century thereafter, so the of the then members of the aforesaid Aliyasantana family, brought a suit in the Court of the subordinate Judge, South Kanara, for a partition of the properties of the family.
This suit was met with the plea that there had already been a partition in the family and that, therefore, the plaintiffs could not ask for another partition. That partition, according to them, had been made by the decree in O.S 314/1924, in accordance with the award on which it rested.
The Subordinate Judge accepted that plea and dismissed the suit.
It was in the appeal preferred by the plaintiffs from that decree, that the Bench which heard it, differed in opinion on the question of law extracted above.
Sadasivayya, J., upheld the contention of the plaintiffs that the award decree did not bring about any partition in the family. But, the view taken by Mir Iqbal Husain, J. was that the distribution of properties made by the award decree has to be statutorily regarded as a partition made in the family, as directed by section 36(6) of the Madras Aliyasantana Act.
That sub-section reads:—
“36. (6) A registered family settlement (by whatever name called) or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purport to have been distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kntumba properties notwithstanding any terms to the contrary in such settlement or award.”
The question of law referred to me presupposes that all the major members of the kutumba were parties to the award decree and that, by that decree, the whole of the kutumba properties were, in fact, distributed among all the kavarus of the kutumba, for their separate and absolute enjoyment in perpetuity.
But, the argument addressed on behalf of the plaintiffs was that the distribution made by the award decree did not amount to a statutory partition under the provisions of the sub-section, since that sub-section was inapplicable to a distribution made by a decree even though that decree rested on an award.
It is clear from Section 36(6) of the Act, that if a registered family settlement or an award distributes the kutumba properties in the manner specified in that sub-section, such distribution shall be deemed to be a partition of the kutumba properties. It is further clear that any statement in the settlement or award that it shall not be deemed to be a partition has to be eliminated from consideration.
The distribution of property which could be deemed to be a partition under the provisions of this sub-section is, as the sub-section indicates, one made by a registered family settlement or on award, the label given to the family settlement by the parties, if it is really one, being immaterial. The section does not, it is plain, take within its ambit, distributions made by other processes.
The distribution made in the present case was not one made by a registered family settlement, but by a decree following an award, under paragraph 21 of the second schedule to the Code of Civil Procedure, upon the pronouncement by the District Muusiff of his judgment, according to the award.
Sadasivayya, J., was of the view that the distribution of the properties was really made by the decree and not by the award although the decree rested on the award. Mir Iqbal, Husain, J., was disposed to interpret the expression ‘award’ occurring in the sub-section as including a decree made on the basis of that award.
What I have, therefore, to decide is whether the word ‘award’ occurring in Section 36(6) of the Aliyasantana Act includes decree made on an award.
Section 36(6) of the Aliyasantana Act refers in plain terms only to distributions made by a registered settlement or an award. It says nothing about a distribution made by a decree. It would therefore, not be permissible to interpret this sub-section as referring to a distribution made by a decree following an award unless such construction is logical or grammatical. The ordinary grammatical construction which should be placed on a statutory provision is one which the plain language of the statute warrants or justifies. A construction which requires interpolation of other words should ordinarily be avoided.
So construed, it would be difficult to understand Section 36(6) of the Aliyasantana Act, as also referring to a distribution of property made by a decree, although that decree merely gives effect to an award and incorporates nothing more than what is contained in the award on which it is founded.
The argument that a distribution of property made by a decree following an award is really a distribution by an award falling within section 36(6) of the Aliyasanthna Act overlooks the difference between the attributes of an award and those of a decree following it. An award made under the second schedule to the Code of Civil Procedure was by its own force enforcible and could have been made the foundation of a claim in a suit. A decree following the award was, only executable. The period on limitation within which an award could have been enforced was not that prescribed for the execution of the decree following it. While this is so, an award made under the Indian Arbitration Act, 1940, has by itself no potency and what is enforcible is only the decree following it.
An award is therefore something distinct from a decree following it and it would not be right to suggest that a decree following an award can be regarded in law as only an award. Both the repealed second schedule to the Code of Civil Procedure and the Arbitration Act, 1940, recognise this distinction. Paragraphs 16 and 21 of the second schedule bring out this distinction in the same way in which it is recognised by section 17 of the Arbitration Act, 1940. Paragraphs 16(2) and 21(2) of the Second Schedule which are similar to section 17 of the Arbitration Act, speak of an appeal from a decree following an award and not of an appeal from an award. Again paragraph 12 of the second Schedule which is similar to section 15 of the Arbitration Act, 1940 empowers the Court to modify or correct an ‘award’. Likewise, paragraph 14 of the second Schedule provides for the ‘award’ being remitted to the arbitrators for reconsideration. Section 30 of the Arbitration Act sets out the grounds on which an ‘award’ could be set aside and section 33 of that Act provides for the manner in which the existence or the validity of an arbitration agreement or an ‘award’ may be challenged.
That Section 36(6) of the Aliyasantana Act, which was enacted long after the enactment of the Arbitration Act which clearly emphasises the distinction between an award and a decree speaks only of an award, is to my mind a weighty consideration for discarding the construction suggested for the defendants.
It being thus impossible to equiparate the decree made by the Court with the award made by the arbitrator, it would not, in my opinion, be correct to think that a decree following an award is also an award. So, a distribution of property made by a decree following an award is not, a distribution by an award within the meaning of Section 36(6) of the Aliyasantana Act.
But, Mr. Srinivasa Rao contended that such construction, would leave without effect, part of the sub-section and is, therefore illegitimate. It was urged that if distributions made under award decrees are excluded from the operation of the sub-section, the provisions of the sub-section become ineffectual in so far as they relate to distributions by awards, made under the Indian Arbitration Act.
To understand this argument it would be necessary to set out the relevant provisions of the Indian Arbitration Act (Act X of 1940) which was enacted to consolidate and amend the law relating to arbitration and came into force on July 1, 1940. Chapter II of that Act contains provisions for arbitration without the intervention of a Court. Sec. 14 provides for the filing of the award. Sec. 17 empowers the Court to pronounce judgment according to the award and, as directed by that section, a decree conforming to the judgment should follow its pronouncement. The provisions of sections 14 & 17 of the Arbitration Act are thus similar to those of paragraphs 20 and 21 of the repealed second schedule to the Code of Civil Procedure. But, while an award in an arbitration under the second Schedule to the Code of Civil Procedure was enforcible even without its being made a decree of a court, one made under the Arbitration Act, 1940, is ineffective unless it is filed in Court, under the provisions of section 14 of that Act, and ends in a decree under section 17. It was possible to found a claim on an award made under the second Schedule to the Code of Civil Procedure although it did not end in a decree and to bring a suit for its enforcement. But, Section 32 of the Arbitration Act forbids the institution of such suit for the enforcement of an award made under that Act.
Now, the Madras Aliyasantana Act came into force on April 13, 1949, and, when it was enacted, the law in force regulating arbitrations was the Arbitration Act under which an award made under its provisions had no efficacy or force if it was not transformed into a decree of a Court. The argument preferred was that the intendment of Section 36(6) of the Aliyasantana Act was to confer the statue of a partition not on an ineffectual distribution by an award but only on one made by a decree creating rights and obligations.
It was submitted that if the word ‘award’ occurring in Section 36(6) of the Aliyasantana Act is given its ordinary meaning excluding from the ambit of that expression decrees made in accordance with the award, the provisions of that sub-section would, to the extent they refer to awards, become otiose and purposeless.
If the impugned construction results in such inutility it is perfectly manifest that it should be discarded.
In Korathi Heggadthi v. Radhamma Heggadthi(1), it was observed:—
“It is well settled that in the interpretation of a statute, we should avoid a construction which leads to insuperable difficulties or anomalies and that we should similarly avoid a construction which would leave without effect the statute or any part thereof. It is our duty to endeavor to give effect to every part of the statute and to prefer a construction which makes the statute effectual and to reject the one that renders it devoid of meaning. We are at liberty, as it has been pointed out on more than one occasion, to modify the meaning of the words found in a statute and a even the structure of a sentence contained in it if its ordinary meaning and grammatical construction lead to inconvenience and absurdity, hardship or injustice presumably not intended by those who made the law and that we should do so by even departing from rules of grammar and by giving a meaning to particular words other than what its plain language warrants or justifies, by altering their collocation by rejecting them altogether or by interpolating other words, which we should, however, so do only under the influence of an irresistible conviction that the legislature could not possibly have intended what its words signify and that the modification thus required to be made is a mere correction of careless language and really gives the true meaning. This, in our opinion, we can always do when reasonably permissible.”
If the construction that Section 36(6) of the Aliyasantana Act excludes from its ambit a decree made on an award, renders it devoid of meaning, in would be clearly open to me, under the influence of the irresistible conviction that the legislature could not possibly have intended what the words of the sub-section signified, to read the word ‘award’ occurring in it as also including a decree made in pursuance of it. But, I am unable to assent to the suggestion that if the sub-section is not so read, any part of it becomes ineffectual.
Now, there may be cases in which an award made under the repealed second schedule to the Code of Civil Procedure, was accepted and implemented by the parties to that award without producing it in Court. If the distribution of property by that award falls within Section 36(6) of the Aliyasantana Act, it is clear that it has to be deemed to be a partition, even if the award expressly states that it is not so. If, after the enactment of the Aliyasantana Act, any member of the family between whose members that distribution was made, again sues for partition of the family properties, and that suit is resisted by the plan that there has already been a partition, that plea is bound to succeed if the Court finds that the family properties had already been distributed in the manner referred to in section 36(6) of that Act. In a case like that, as in a case where a suit is brought after the enactment of the Aliyasantana Act for the enforcement of an award made under the said second Schedule, what the Court has to decide is the effect of an award previously made.
A similar situation may also arise in respect of an award made under the Arbitration Act, distributing property in the manner referred to in Section 36(6) of the Aliyasantana Act. If that award nevertheless states that the distribution is not a partition, and it is contended when that award is filed in Court under section 14 of the Act that the award should be modified or corrected under Section 15, or remitted for reconsideration under Section 16 of the Arbitration Act, the question to be determined by the Court, if it thinks it could exercise jurisdiction under those statutory provisions, is the true nature and scope of the distribution made by the award, tested by the provisions of section 36(6) of the Aliyasantana Act.
Another such occasion for the application of Section 36(6) of the Aliyasantana Act may also arise. If an award making a distribution which, as provided by that section, should be deemed to be a partition is nevertheless stated to be not one by the arbitrator and the Court is asked to set aside that award under sections 30(c) and 33 of the Arbitration Act the question arising for determination would be whether the award infringes Section 36(6) of the Aliyasantana Act and is therefore invalid.
It is thus possible to conceive of more than one situation in which the true nature and character of a distribution made by an award may arise for determination by a Court under section 26(6) of the Aliyasantana Act. The argument that the exclusion of distributions made by decrees from the operation of Section 36(6) of the Aliyasantana Act would render the provisions of a part of that sub-section ineffective and unmeaning, is, thus insubstantial.
It is possible that when the Legislature referred in that sub-section only to distributions made by an award, its intention was to exclude from its purview those made by a decree. It is not inconceivable and, in my opinion, not at all unreasonable to think that the Legislature, considering it inexpedient and undesirable to disturb and unsettle adjudications of Courts, Legislated only in respect of awards which had not become transformed into decrees. I cannot convince myself that when it used the word ‘award’ in Section 36(6) of the Aliyasantana Act, the Legislature employed careless language without understanding what that word really signified.
I, therefore, find no justification forgiving to the word ‘award’ occurring in Section 36(6) of the Aliyasantana Act, a meaning other than what its plain language warrants or justifies. In my opinion, the expression ‘award’ occurring in that sub-section means only an award and does not include a decree following it.
It was next contended that a distribution made by a decree following an award is in law a distribution made by the award and not by the decree following it. Sustenance for this contention was attempted to be drawn from a pronouncement of their Lordships of the Privy Council in Sasi Sekhareshwar Ray v. Lalit Mohan Maitra.
But, I do not understand that decision of their Lordships of the Privy Council in that way. The plaintiff in that case who was entitled to the possession of certain lands under a decree made on the basis of an award, instituted his suit for recovery of possession of those lands, after the expiry of the period of limitation within which he could have executed that decree. His suit was dismissed as time barred and their Lordships of the Privy Council while dismissing his appeal from that decree observed that if he had founded his claim upon the award itself and not upon the decree following it, there would have been no answer to that claim. Their lordships did not hold that the decree following the award could not form the source of the plaintiff's title to the property. What they merely indicated was that the award also could have formed the foundation for his title if he had properly framed his suit, asserting that he had, after the decree, obtained possession but had been subsequently dispossessed.
My opinion on the question of law referred to me is that a decree following an award is not included in the word ‘award’ occurring in sub-section (6) of Section 36 of the Madras Aliyasantana Act, 1949, and that an allotment of properties expressly stated in such decree to be not a partition but as one made only for the purpose of convenient enjoyment is not governed by that sub-section and cannot he deemed to be a partition under its provisions.
The matter will now be placed before the Bench which heard the appeal.