LexCT. A. CT. NACHIAPPA CHETTIAR AND OTHERS versus CT. A . CT. SUBRAMANIAM CHETTIAR
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• • 8.C.R. SUPREME COURT REPORTS 209 hold that r. 89 of 0. 21 does not apply to such a sale and that the High Court was right in rejecting the ·appellants' claim based on the said rule. The result is the appeal fails and is dismissed with costs. ..A_p_peal dis111issed. 1959 J ibon ]( ris.hna Mukherjea v. New Blieerbhum Coal Co. Lid • Gajendragadkar J . • CT. A. CT. NACHIAPPA CHETTIAR AND OTHERS, v. CT. A .. CT. SUBRMIANIAJl.I CHETTIAR. . (P. B. GAJENDRAGADKAR, K. SunBA RAO and J. c. SHAH, JJ.) Arbitration-Partition suit-Preliminary decree-Appeal to· High Coitrt~Reference to arbitration by Trial Court-Competency- Foreign immoveable properties ·excluded by preliminary decree- JV hether reference and award include such properties-Construction- lndian Arbitration Act, I940 (X of I940), s. 2I. In a suit for partition of the j'lint 'family properties filed by the respondent against his brother and his sons, appellants' I to 5 respectively, the latter while admitting the relationship of the respondent and his half share to the family properties, pleaded, inter alia, that the court had no jurisdiction to divide the imlnove- able properties situated in Burma and in the Indian State of Pudukottai. The trial court passed a preliminary decree exclud- ing from its operation the aforesaid immoveable, properties. Against the preliminary decree appeals were preferred before the High Court by the several parties on various grounds, but in his appeal the respondent did not challenge the finding of the trial court that it had no jurisdiction to deal with foreign immoveable properties. During the pendency of the appeals, on the joint application made by the parties, the trial court made an order referring for determination by the two arbitrators .named by them" all the matters in dispute in the suit and all matters and proceedings connected therewith". In due course the arbitrators gave an award which was then filPd in the trial court. As regards immoveable properties in Pudukottai the award recited that since the parties had separated and the properties in suit before the arbitrators had been· actually divided by metes and hounds, the two branch•s shall enjoy the Pudukottai properties in equal halves; while with reference to the properties in Burma the arbitrators asked the parties to hold the documents of title half and half for safe custody and added that when the parties decided to divide the properties all the documents would have to be 27 1959, November IJ . . 210 SUPREME COURT REPORTS [1960 (2)] '959 brought together and a partition made according to law. The . - . appellant challenged the validity of the award on the grounds Nach1appa CheUtar inter alia (1) that the reference and the award dealt with immove- v. able properties in Burma and Pudukottai and so they were Subramania»i invalid, and (z) that the trial court was not competent to make Chettiar the order of reference under s. 21 of the Indian Arbitration Act, 1940. Held: (1) that the reference and the award could not be challenged on the ground that they purported to deal with foreign immoveable properties because (a) at the time when the matters in· dispute were referred to arbitration it \vas on the basis of the finding of the trial court that the court had no jurisdiction to deal with foreign immoveable properties, and (b) the award did not divide the said properties or declare their shares in them, but merely recited the fact that the parties having become divided and accepted a half share in each of the branches they would hold and enjoy the properties half and half. There is a distinction between a mere recital of a fact and something which in itself creates a title. Bageshwari Charan Singh v. J agarnath Kuari, (1932) L.R. 53 I.A. 130, relied on. (2) that the words "suit" and "court" in s. 21 of the Indian Arbitration Act, 1940, include appellate court proceedings and appellate court, respectively. Abani Bhusan Chakravarthy and Others v. Hem Chandra Chakravarthy and Others, A.LR. 1947 Cal. 93, disapproved, Thakur Prasad v. Baleshwar Ahir and Others, A.LR. 1954 Pat. ro6, M oradhwaj v. Bhudar Das A.LR. 1955 All. 353 and Subramannaya Bhatta v. Devadas Nayak and Others, A.I.R. 1955 Mad. 693, approved. (3) that the word "judgment" in s. 21 of the Act means a judgment which- finally decides all matters in controversy in the suit and does not refer to the various interlocutory orders
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