Holding

The award did not create any right in immovable property and therefore did not require registration; consequently it could be made a rule of court after appropriate modification.

Summary

The dispute concerned the inheritance of immovable and movable property of a deceased father and was referred to arbitration. The arbitrator's award directed payment of sums and stipulated residence rights, but did not actually create or extinguish any right in the immovable property. The first respondent objected that, because the award was unregistered, it could not be made a rule of court under s.17 of the Arbitration Act, 1940, and also questioned the mental capacity of the second respondent. The Supreme Court held that the award merely declared a contingent right dependent on payment and therefore did not fall within the ambit of s.17(1)(b) of the Registration Act, 1908, so registration was not mandatory. Consequently the award could be made a rule of court, and the Court modified the monetary amounts to reflect current inflation before confirming it. The appeal was allowed and the modified award was ordered to be a rule of the court.

Issues considered

Whether an arbitration award that does not create a right in immovable property must be registered under s.17(1)(b) of the Registration Act, 1908.
Whether an unregistered award can be made a rule of court under s.17 of the Arbitration Act, 1940.
Whether the award is imperfect under s.15(b) of the Arbitration Act, 1940.
Whether the award can be remitted to the arbitrator under s.16(1)(c) of the Arbitration Act, 1940.
Whether a party of unsound mind (Miss Shail) can be a party to arbitration proceedings.
Whether the Court may modify the award under its powers under Article 136 of the Constitution.

Legislation cited

Arbitration Act, 1940s. 15(b), s. 16(1)(c), s. 17
Code of Civil Procedures. 151
Constitution of Indias. Article 136
Registration Act, 1908s. 17(1)(b)

Subjects

ArbitrationRegistration ActUnregistered awardImmovable propertyMental incapacityArticle 136Modification of awardRule of court

Judgment

CAPT. (NOW MAJOR) ASHOK KSHYAP A
v.
MRS. SUDHA VASISHT & ANR.

FEBRUARY 4, 1987

[SABYASACHI MUKHARJI AND S. NATARAJAN, JJ.]
B

Registration Act, 1908: s.17(J)(b)-Arbitration award-Not
creating any right of effecting partition in immovable property-
Whether required to be registered.

Arbitration Act, 1940: ss.15(b), 16(J)(c) and 17-Unregistered C
award-Whether imperfect in form-Whether could be made a rule of
the Court-Legality of the award not challenged-Whether could be
remitted to the Arbitrator.

Constitution of India: Article 136-Jurisdiction of the Court-To
0
protect interests of all parties.

A family dispute between the parties pertaining to movable and
immovable property left intestate by their father was referred by them
to arbitration. The award made on February U, 1977 stated: (i) that
the appellant should pay to the Isl respondent a specified sum, on pay- E
ment of which she will have no right to live in the house and also have no
other interests in the said property as a legal heir; (ii) that till the full
amount was paid she would be entitled to live in the portion of the house
in her occupation and not be liable to pay any rent; (iii) that the 2nd
respondent shall have right of residence in the said house plus right to
receive from the appellant a specified sum per month as maintenance F
for life or till she is married; and (iv) that in case of her marriage the
appellant should pay her the specified sum upon which she will have no
right to live in the house or get any maintenance. The aforesaid award
was filed in court on March JO, 1977 and accepted by the appellant and
the 2nd respondent on May 11, 1977.
G
The first respondent filed her objection to the award on October
l l, 1977 on two grounds: (i) that being unregistered it was incapable of
being made the rule of the court in terms of s. 17 of the Arbitration Act,
and (ii) that the second respondent being mentally retarded could not be
a party to the arbitration proceedings. The High Court upheld the first
objection but not the second. H

151
152 SUPREME COURT REPORTS [1987] 2 S.C.R.

A In this appeal by special leave it was contended for the appellant
that even if the award was not properly registered as required wider
s. 17 of the Registration Act, in view of the fact that it was filed within a
period of one month of its making and since fonr months time was there
to have the award registered by the arbit,rator the court should have
exercised its powers undE'r s. lS(b) and s.16( l)(c) of the Arbitration Act,
B 1940. For the first respondent it was contended that the award effected
partition of immovable p1roperty and having not been registered it could
not be made a rnle of the court.

Allowing the appeal!,

C HELD: 1.1 The award did not create any right in any immovable
property,_ nor did it effect partition in any immovable property. It was,
therefore, not compulsory to register the award. [162G I

1.2 The award merely indicated the entitlement of the respondent
in the property and the cessor of their interest in the property on receipt
D of money. Their right and interest was to cease only on the payment of
the amount and not otherwise, not even by the operation of the docu-
ment itself. [161B-C]

1.3 The award only declared that the right of the appellant to get
the immovable property was dependent upon the payment of the
E amount by him. A right to the property was not created.by the award
itself, a right to certain property was declared. A right to get the pro-
perty was declared on the payment of the money. The award did not
create any right to the property, extinguish any right to the property,
which was not there. It 11uantified in terms of money the value of that
right and declared the mdhod of working out those rights. [1620-E]
F
Rajangam Ayyar v . Rajangam Ayyar, AIR 1922 Privy Council p.
266; Upendra Nath Bose v. Lall and Others, AIR 1940, Privy Council
p. 222; Sheonarain Lal v. Rameshwari Devi and another, Civil Appeal
No. 296 of 1960 decided on 6. !2.1962; Satish Kumar & Ors. v. Surinder
Kumar & Ors., [ 1969] 2 SCR p. 244 and Ratan Lal Sharma v. Purshot-
G tam Harit, [ 1974] 3 SCR I" 109, referred to.
;...
2. The purpose of remitting the award under s. 16( l)(c) of the
Arbitration Act is to enable the arbitrator to reconsider his decision
where legality was connected with the decision as contained in the
award. It must not rela1" to a matter which has no connection with the
H decision or decree. [159H; 160A]
ASHOK KSHY AP v. SUDHA VASISHT 153

In the instant case, there was no objection to the legality of the A
award. The factum of registration of the award did not pertain to the
decision of the arbitration on its merits and was de hors the award and
for this purpose the award could not be remitted to die arbitrator under
s.16 of the Act. [I59F-G]

Rikhabdass v. Ballabhdas and others., [ 1962] suppl. I SCR 475 B
and Nani Bala Saha v. Ram Gopal Saha and another, AIR (32) 1945
Calcutta 19, referred to.

3. The award was not imperfect in terms of s. 15(b) of the Arbit-
ration Act. There was, therefore, no scope in the facts and cilcumst-
ances of the case, of exercising its powers by the High Court ~oder s.15
of the Act. Powers under s. IS I of the Code of Civil Procedure could also C
not be exercised in this case. lt60A-BI

4. It could not be said that the 2nd respondent was mentally
incapable. Though she was not of a very cheerful disposition, she was
understanding what was happening in this court. She knew what was D
good and what was had for her, and had accepted the award with a free
will. She could perform her duties satisfactorily, intelligently and socially.
She had consciously participated in the award proceedings. She was
never given any ECT treatment. She was never hospitalised. [159B-C]

5. In an appeal under Article 136 of the Constitution the Court E
must in the interests of justice protect as far as practicable the interests
of all the parties. [I63A]

~- [Having regard to the present position of inflation and rise in
price of life and living, the 2nd respondent will be entitled to a monthly
maintenance of Rs.500 instead of Rs.350 and this sum would form a F
charge on the share allotted to the appellant. In the contingencies
mentioned in els.( I) and (2) of the award the first respondent would be
paid Rs.75,000 instead of Rs.40,800. Similarly, in the contingency
mentioned in cl.(4) the 2nd respondent would be paid Rs. 75,000 instead of
Rs.40,800. The award as modified is made a rule of the Court.I [163C-Dl
G
.\ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 314
of 1987.

From the judgment and Order dated 16.5. 1986 of the Delhi High
Court in Suit No. 234-A of 1977
H
154 SUPREME COURT REPORTS [1987] 2 S.C.R.

S.K. Dholkia and P.C. Kapur for the Appellant.
A
Manoj Swarup, Ms. Lalitha Kohli and Pramod Dayal for the
Respondents.

The Judgment of the Court was delivered by
B
SABYASACHI MUKHARJI, J. Special leave is granted. The
appeal arises from the judgment and order of the High Court of Delhi
dated 16th May, 1986 whereby the award .of the Arbitrator was ad-
judged incapable of being made rule of the court and no decree in
terms 'thereof was pass1'd under section 17 of the Arbitration Act,
C 1940, (hereinafter called the 'Act'). The High Court, however, held
that the award was not li!able to be set aside but only that it could not
be made a rule of the court.

In order to appreciate the contentions urged, it is necessary to
note few facts. The father of the parties involved in the matter, Shri S.
D Lal, died on 13th November, 1975 leaving behind him his two daugh-
ters, Mrs. Sudha Vasisht and Miss Shail and Capt. (now Major) Ashok
Kshyap, the son. The wife of the said deceased Shri S. Lal pre-
deceased him. Mrs. Sudha Vasisht is the eldest child and Major
Kshyap is the youngest, who is the son. Mrs. Sudha Vasisht is married,
Miss Shail is a spinster and Major Kshyap is also married. The said S.
E Lal left only one immovable property, namely, premises No. -F-4,
Green Park, New Delhi and some movables including about Rs.8,000
in the Punjab National Bank, Green Park, New Delhi. It was claimed
that Miss Shail was not capable of managing her affairs. Indeed one of
the objections against the award was that Miss Shail who was the
unmarried sister of Major Kshyap and Mrs. Sudha Vasisht was of
F unsound mind and due to her mental incapacity the arbitration agree-
ment, arbitration proceedings and the resultant award were all bad in
the eye of law. The arbitration agreement was, however, signed by all
the three parties. It may be noted that disputes and differences arose
between the parties and arbitration agreement as entered into by the
three parties to settle these on 9th June, 1976, soon after the death of
G their father, Shri S. Lal. The arbitration agreement recited that their '
father died intestate leaving behind him premises No. F-4, Green f
Park, New Delhi and the sum of Rs.8,000 in the Punjab National
Bank. Further it was recited that disputes and differences had arisen in
between them with regard to the immovable as well as movable pr-0-
perty left by their father, and Shri S. Lal died without making any will
H and the parties were desirous to get their disputes and differences
ASHOK KSHYAP v. SUDHA VASISHT [MUKHARJI, J.) 155

settled through arbitration to maintain family peace, harmony and
--1 A
goodwill amongst themselves and to avoid unnecessary litigation by
arriving at a "family settlement" through arbitration. The agreement,
thereafter nominated and appointed one Shri D.C. Singhania, Advo-
cate, as the arbitrator and to enter upon reference and to decide all the
disputes and differences existing between them "pertaining to or relat-
ing to or in any manner touching upon the matter of inheritance and/or B

' -r
division of all movable and immovable property left behind by their
late father, Shri S. Lal. The agreement, further recited that the parties
undertook that the decision given by the arbitrator would be accepted
c y .. as final. The arbitration proceedings have been filed before this Court.
The son, the appellant gave evidence and stated that two houses, one
at Meerut and one at Hapur were inherited by him from his mother
Smt. Sarla Devi, which she got from her parents without leaving any
c
·-! male issue behind them. These houses were sold for Rs.21,000 which
sum according to Major Kshyap was invested by the father in the
construction of the house in question. Major Kshyap further claimed
that he had invested a further amount of Rs.10,000 out of his savings of
his service as a Commissioned Officer. This amount, according to him, D
was spent on wood work, painting of two rooms etc. The father, Shri
S. Lal was a teacher in a school and in order to realise his pension,

~
according to Major Kshyap, he paid to his father a sum of Rs.4440.93
which the father had drawn to build the house. Major Kshyap further
·claimed that he had purchased a geyser for Rs,887 and he had spent
certain amount of money for certain other expenses. Mrs. Sudha E
Vasisht gave evidence stating that her father died without making any
will and she was entitled to 1/3rd share in the house left behind him.
Miss Shail deposed before the arbitrator that during her life time, she
was not to be financially dependent upon anybody but after her death,
her share in the house should go to her brother. She further asserted
that she always wanted that the complete house should go to her F
brother. It is not necessary to give the break-up of ,the expenses of the
houses as appearing from the evidence. All the parties agreed, the
arbitrator noted that there could be no exact and feasible division of
the house. Mrs. Sudha expressed her desire that if she was given a fair
share in money, she would not insist for the division of the house,
according to the arbitrator. Her other alternative suggestion was that G
,\ the house has got 10 rooms ·or nine rooms in the sense that one big
room on Barsati floor has been divided in two and as such each person
could be given three rooms each. According to Miss Shail, the division
of the house was not at all feasible, since there was a lot of bad blood
and differences between the parties. According to her, the deposition
states, it is not at all in the interest of anybody that all should live in H
one house.
156 SUPREME COURT REPORTS [1987] 2 S.C.R.

A The other important thing to note in the arbitration proceedings
was that Capt. Kshyap stated that the house could not possibly be
divided into three parts. It did not have three kitchens. Miss Shail
stated that if the house was divided into three parts, there would
always be quarrels and disputes among them. She could not say
whether the house could be divided into three parts or not. Miss Shail
B further stated that she would like to live with her brother Capt.
Kshyap or whatever arrangement he made for her, that would be
acceptable to her. Mrs. Sudha Vasisht stated that she would not like to
live or associate with Miss Shail in any manner. Miss Shail further
stated that her share of the property, if any, might be allotted to her _)
brother or whatever otherwise considered proper.
c
It is further noted that according to Major Kshyap, the house
could not be divided in three parts. He would not like to share it with
his sister, Mrs. Sudha Vasisht who is now married. He further stated,
at that time in the deposition that he still had to serve in the army for
D about another 21 years. He was prepared to have his share in the
property in cash also. He further asserted that he wanted to keep and
maintain his sister Miss Shail. He further asserted that he was also
prepared to pay his sister Mrs. Sudha Vasisht in cash whatever share
was considered to be due and payable to her. According to him, he was
not in a position to pay both of his sisters in cash for their shares in the
)
property. But he could pay her sister Shail, her share in cash gradually.
E Mrs. Sudha Vasisht stated that she was not in a position to pay the
share either of her brother or her sister Miss Shail in cash. She further
stated, s!ie had no money nor any arrangement for the same.

All this narration is necessary in order to jud~: whether the -"1~
F award was just and fair because a contention was advanced about the
mental capacity of the unmarried sister Miss Shail. The award made on
12th February, 1977, stated that the appellant should pay Rs.40,800 to
Mrs. Sudha Vasisht and upon payment Mrs. Sudha Vasisht would
vacate the house. In view of the contentions raised, it is necessary to
set out the relevant part of the award which is as follows: ·
G
"NOW, THEREFORE, I hereby make and publish my J
award as follows:-

1. Capt. A. Kshyap, shall pay an amount of Rs.40,800 to
Mrs. Sudha Vasisht by way of her share in the said pro-
H perty No. F.4, Green Park and other assets left behind
ASHOK KSHYAP v. SUDHA VASISHT [MUKHARJI, J.] 157

by late Shri S. Lal and on payment of this full amount
--i A
she shall vacate the house.

r 2. Mrs. Sudha Vasisht shall be entitled to live in the por-
tion of the house already in her occupation till the full
amount of Rs.40,800 has been paid to her and she will
also not be liable to pay any rent for occupation of the B
portion of the house so far occupied by her and further
-\. until the total amount of Rs.40,800 is paid to her by

-~ 'l Capt. A.Kshyap. On payment of this amount she will
have no right to live in the house and also have no other
interests left in the said property as legal heir of Shri S.
Lal.
c
'--1 3. Miss Shail shall have a right of residence in the said
house, i.e. ·F-4, Green Park throughout her life or till
she is married and in addition to her right in residence in
the house, Capt. Kshyap shall also pay her an amount of
Rs.350 per month for her maintenance till she is D
married.

4. In case Miss Shail is married, Capt. Kshyap shall pay
~ her a lumpsum amount of Rs.40,800 and thereafter she
will also have no right to live in the house or get any
maintenance from Capt. Kshyap on full payment of said E
amount.

.,.J 5 . Capt. A. Kshyap shall be liable to pay all the outstand-
ing amount of loan along with interest due thereon
I taken by late Shri S. Lal tram L.l.C. and also bear
Estate Duty, if any, already paid or to be payable with F
regard to the movable and immovable assets left behind
by Shri S. Lal. He shall also be entitled to have all other
movable and immovable assets including withdrawal of
an amount of about Rs.8500 or so, along with interest if
any due thereon, lying deposited to the credit of late

I
Shri Lal in Punjab National Bank, Green.Park." G
/\
The award was filed by the Arbitrator on 10th March, 1977. The
respondent no. l filed objections to the same on 11th October, 1977.
Major Kshyap and Miss Shail accepted the award before the Deputy
Registrar, Delhi High Court on 11th May, 1977. This position is stated
in the petition for special leave and this is not denied in the affidavit H
158 SUPREME COURT REPORTS [1987] 2 S.C.R.

A filed on behalf of Mrs. Sudha Vasisht. Mrs. Sudha Vasisht filed an ._
objection on two grounds, namely, that the award being unregistered
could not be made a rule of the court and the other Miss Shall being
mentally retarded could not be a party to the arbitration proceedings.
The High Court rejected the contention about the invalidity of tile
Award on the ground of mental capacity of Miss Shail but held that the
B award could not be made rule of the court because it was an unre-
gistered Award. 'j

In view of the submission made on behalf of the respondent that
Miss Shail was of unsound mind and as this contention was advanced
before us in support of the order of the High Court, we may briefly
C deal with it. We have gone through the evidence considered by the
learned judge about the mental capacity of Miss Shail. It is an unfortu-
nate case of border line intellectual retardation which was one part of
the diagnosis in respect of her and on the other hand the arbitrator had
noted that Major Kshyap had come into the witness box and he had
also examined one Brig. Dr. Sangat Singh Syalee who is a medical
D practitioner. The testimony of Capt. Kshyap showed that the arbitrn-
tion agreement was executoed in the office of the arbitrator and that the
arbitration proceedings used to be attended by himself, Miss Shail,
Mrs. Sudha Vasisht and ht:r husband, and the proceedings used to be
signed by all the parties. He had further stated that Miss Shail's case
was of border line mental retardation but she could perform her duties
E satisfactorily, intelligently and socially and she knew what was good
and what was bad for her. She, had been living all alone in house F-4,
Green Park from 1977 to 1980 and had been doing everything for
herself. It is true that story of this spinster living alone in Green Park
house- in Delhi belonging to her late father, does not make pleasant
reading, yet from the evido!nce which the learned judge has exhaus-
F tively examined, he found that the medical record obtained from the
All India Institute of Medical Sciences indicated that Miss Shail was
suffering from schizophrenia and even in the year 1974-1981 she was
suffering from mental retardation. But the arbitrator noted that Miss
Shall was never given any ECT treatment. She was never hospitalised
and Mrs. Vasisht did not at any point of time objected to the arbitrn-
G tion because of Miss Shail's mental capacities .. The arbitrator expres-
sed his opinion that the objo!ction against the mental capacity of Miss
Shail during the period from 9th June, 1976 to 12th February, 1977
could not be accepted.

We may note that before us all the parties were present. We had
H asked counsel for Miss Shail to ascertain from her whether she
ASHOK KSHYAP v. SUDHA VASISHT [MUKHARJI, J.) 159

accepted the award with a free will? We did so not because we found any
A
defect in the evidence or in the order of the learned judge of the High
1 Court but being an appeal under article 136 of the Constitution even if
there was no legal material in these aspects, the court was entitled to
be satisfied. Though it is difficult to hazard an opinion on the mental
capacity of a lady by her looks, it appeared to us that though she was
not of a very cheerful disposition, it would perhaps be unfair to con- B
elude that she was mentally incapable. We watched her manner during

1 the time the proceedings were going on in the court and observed that
she was understanding what was happening in the court. We have not
any material to disagree with the views of the learned judge on this

-- r aspect. Therefore, we cannot accept this submission urged on behalf of
.respondent no. l, Mrs. Vasisht about the mental capacity of Miss
,Shail.
c
'-1
The High Court noted that apart from the question of registra-
tion and the question of mental capacity, no other contentions were
raised.
D
Therefore the only other question is, was this award bad having
not been registered under the law under section 17 of the Registration
Act, 1908? Before we deal with that point, we might record that a
_., submission was made that even if the award was not properly regis-
tered as required under section 17 of the Registration Act, in view of
the facts and circumstances of the case and further in view of the facts E
that the award was filed within a period of one month of making of the
award and further in view of the fact that four months' time was there
to have the award registered by the arbitrator when the award came to
the court from the date of making of the award the court should have
-...J
f exercised its powers under section 15(b) and under section 16(1)(c) of
\ the Act. We are unable to accept the submission urged on behalf of the F
appellant in this behalf. Section 16 of the Act, we are of the opinion,
does not apply to the facts of this case. There is no objection to the
legality of the award apparantly. We are in agreement with the views
expressed by the learned judge on this aspect. The factum of registra-
.. tion of the award does not pertain to the decision of the arbitrator on
its merits and is de hors the award and for this purpose the award can G
not be remitted to the arbitrator under section 16 of the Act. The
,~ principles enunciated by this Court in Rikhabdass y. Ballabhdas and
others, [1962] Suppl. 1SCR475 are applicable to the facts of this case.
The purpose of remitting the award is to enable the arbitrator to re-
consider the decision where the legali°ty was connected with the deci-
sion as contained in the award. It must not relate to a matter which has H
160 SUPREME COURT REPORTS [1987] 2 S.C.R.

no connection with the decision or decree. See in this connection the
A
observations of the Calcutta High Court in the case of Nani Bala Saha
v. Ram Gopal Saha and another, AIR 32 1945 Calcutta 19. The award
is also not imperfect in terms of section 15(b) of the Act as rightly held
by the High Court. Therefore, in our opinion, there was no scope, in the
facts and circumstances of the case, of exercising its powers by the
B High Court under section 15 of the Act and powers under section 151
of the Code of Civil Procedure could also not be exercised in this case.
The objection against the award was filed by Mrs. Sudha Vasisht on
11th October, 1977 after that more than eight months have expired
and there was no prayer to the court to extend the time for regis-
tration.
c The main contention, however, that requires consideration is
whether the award could not be made a rule of the court because it
affects the partition of immovable property and affects ~ights in im-
movable property. We are of the opinion that the High Court was not
right in the view it took on this aspect of the matter. The document in
D question did not effect the partition if read properly.

Section 17(1)(b) of the Registration Act enjoins that any non-
testamentary instrument which purports or operates to create, declare,
assign, ·limit or extinguish, whether in present or in future, any right, ,!--
title or interest, whether vested or contingent, of the value of one
E hundred rupees and upwards, to or in immovable property should be
registered. Therefore, the question is, does the document itself extin-
guish or purports to create or declare any right in immovable property.
It certainly declares the sha,-e of the parties in the property but. it
enjoins that only upon payment of Rs.40,800 Mrs. Vasisht would ____,__
vacate the house. It further enjoins that "she will be entitled to live in
F the house in the portion occupied by her till the full payment of
Rs.40,800 is made to her and she will not be liable to pay any rent for
the occupation of the portion and on the said payment, she will not
have any right and also no interest left in the said property". So her
right in the said property and her interest in the property ceases on
payment of the amount of Rs.40,800 and not otherwise not by the
G operation of document itself. The document itself creates a right by
itself to get Rs.40,800 and right to obtain the payment and on payment A_
the obligation or relinquishment of her right or interest in the pr-0-
perty. It does nothing more.

A similar position arose before the Judicial Committee in the
H case of Rajangam Ayyar v. Rafangam Ayyar, AIR )922 Privy Council
ASHOK KSHYAP v. SUDHA VASISHT (MUKHARJI, J.) 161

p. 266 where dealing with the document of similar nature the Judicial
i Committee observed that that document was not a document by itself A
creating, declaring, assigning, limiting or extinguishing any right, title
or interest in the immovable property. It merely creates a right to
obtain another document which will, when executed, create a right in
the person claiming the relief. There was a memorandum of agreement
which specified the shares and provided for a further deed effectuating B
the partition. It was held that it did not require to be registered. In our

I y opinion, the entitlement of the members namely Miss Shail as well as
Mrs. Vasisht in the property and the cessor of interest in the properties

~r on payment of the money in case of Mrs. Vasisht and other conditions
in case of Miss Shail were indicated in the Award.

This position was again reiterated by the Judicial Committee in c
--1
Upendra Nath Bose v. Lall and Others, AIR 1940, Privy Council p. 222.
There the document recited that the ownership of the second party in
l one half of the Raitar would not come till after the payment of a sum of
Rupees sixty one thousand and four hundred as well as the amounts
mentioned in the statement exhibit B together with interest specified D
in respect of both be fully paid up. The question before the Judicial
Committee was whether the last sentence of para 2 of the Award
purported to confer upon "the second party" a right, title or interest
--1,, which commenced with the Award and came to an end when the sum
r- of Rs.61,400 with interest was paid or whether it intended merely to
provide that the interest which arose from the exercise of the option E
,_. should remain unaltered until Rs.61,400 and interest had been paid or
whether they intended merely to provide that the status quo should
remain unaltered (i.e. the contractual interest which arose from
,...,..., - the exercise of the option) would remain unaltered until Rs.61,400 and
interest had been paid. The Judicial Committee was of the view that
the latter was the true view. The sentence was not framed as one which F
purports to create or confer any interest. This Court in the unreported
judgment which is in the Supreme Court judgments 1962, in the case of
Sheonarain Lalv. Rameshwari Devi and another (Civil Appeal No. 296
of 1960) had also to deal with a similar situation. There fifth clause of
the Award was as follows:
~

' G
), "Shri Sheo Narain Lal and his heirs should execute as early
as possible a registered document in respect of the shop let
out on rent to Beli Sao Sukhdeo Prasad, in favour of Shri
Prabhu Chand for which Shri Prabhu Chand will have to
pay nothing as consideration. He will pay only costs of
stamp etc." H
162 SUJ'RE~E COURT REPORTS [1987] 2 S.C.R,

A This Court had to deal with this clause and to consider the question
whether this clause purlPorted or created or declared or assigned, '-
limited or extinguished any right. This Court held that the award
merely provided that some right could be created in future by means of
a document to be executed. Therefore, this Court was of the view that
it did not require registration. We are of the opinion that the same
B principle should be applicable here.

Two decisions upon which reliance was placed by the High Court 't
to which our attention was drawn by the learned counsel, firstly, Salish

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C p. 109 do not help the respondent. In the first case Hegde, J. observed
that for the purpose of section 17(1)(b) of the Registration Act, it was
necessary to determine whether the Award purported to create rights ·.\-
in the immovable property. If it did, it was necessary to have it re-
gistered. As it was found by the court that it did, it needed compulsory
registration. But the facts of this case are entirely different. Here the
D award did not create right to get the money, the award only declared
that the rights to get the immovable property was dependent upon the
payment of the amount. A right to the property was not created by the
award itself, a right to certain property was declared. A right to get the
property was declared on the payment of the money. The award did 1'
not create any right to the property to extinguish any right to the
E property, which was not there. It quantified in terms of money the
value of that right and declared the method of working out those
rights.

In the second case, the' question was whether assignment of the -.._.,,;·
share in the partnership required registration? The sha~e of partner in
F the partnership which has also immovable property is movable pr-0-
perty and assignment of that share did not require registration under
section 17 of the Registration Act. But the award in that case expressly
made an exclusive allottment of the partnership assets including
factory and liabilities over Rs.100 to the appellant in that case. It went
further and made the appellant absolutely entitled to the same. That is
G not the position in the instant case. In that view of the matter, though
there is no dispute about the propositions, these two decisions would J
be applicable to the facts of the instant case, we are of the opinion on
an analysis of the award that it did not create any right in any immov-
able property and as such it was not compulsory to register it.

H Though the above should be sufficient to dispose of the order as
ASHOK KSHYAP v. SUDHA VASISHT [MUKHARJI, JJ 163

it is an appeal under Article 136 of the Constitution, we should see in A
the interest of justice to the interest of all the parties and we must
protect as far as practicable the interests of all the parties. A submis-
sion was made on behalf of Miss Shail that Rs.350 per month which has
been fixed for the maintenance to be paid by Major Kshyap was inade-
quate. It was further submitted that Rs.40,800 which was the share of B
the money to be allotted to either Mrs. Vasisht and also to Miss Shail
for getting their relinqhishment of their property in the event men-

r tioned in the award is also not proper.

In view of the present position of inflation and rise in price of life
=-= r and living, we are of the opinion that so far as Miss Shail is concerned,
we would dismiss this appeal with the directions that she will be en- C
titled to a monthly maintenance of Rs.500 instead of Rs.350 and that
, this sum should form a charge on the share allotted to Major Kshyap.
·--{
Furthermore we direct that in the contingencies mentioned in clauses
(1) and (2) of the Award, Mrs. Vasisht should be paid Rs.75.000
instead of Rs.40,800. Similarly in the contingency mentioned in clause D
(4) of the Award, Miss Shail should be paid Rs.75,000 instead of
Rs.40,800. The appeal is allowed and the award as modified with the
aforesaid direction is made a rule of the court.

In the facts and circumstances of the case, the parties will pay
and bear their own costs except that the cost on behalf of Miss Shail
E
should be paid by Major Kshyap.

P.S.S. Appeal allowed.