KASHINATHSA YAMOSA KABADI, ETC. versus NARSINGSA BHASKARSA KABADI, ETC.

Citation: [1961] 3 S.C.R. 792 · Decided: 10-02-1961 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Case Partly allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

792 
SUPREME COURT REPORTS 
[1961] 
1961 
The result is the appeal is partly allowed and the 
decree passed by the High Court is modified by giving 
M•llesapp~ 
the appellants their half share in the properties 
B•nd•P:.• Desai described in Schedule C. The rest of the decree passed 
Des•i Mall•PP• by the High Court is confirmed. In the circumstances 
of this case the parties should bear their own costs. 
Gaj•ndragadkar J • 
Appeal allowed in part. 
February Io. 
KASHINATHSA YAMOSA KABADI, ETC. 
v. 
NARSINGSA BHASKARSA KABADI, ETC. 
(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.) 
Hindu Law-Partition-Reference to arbitration out of Court-
Arbilrator actually dividing some properties and giving possession to 
parties-Revocation of reference-Suit for partition, maintainability 
of-Documents recording division by arlntrator-Registration, if 
necessary-Arbitration Act .. r940 (roof r940), s. 3z-Registration 
Act, r908 (r6 of r908), s. r7. 
The parties were members of a joint Hindu family possessed 
of considerable property movable and immovable. They volun-
tarily appointed Panchas to determine the shares of the parties 
and to divide the property. The Panchas first determined the 
shares of the parties and reduced the determination to writing. 
It was accepted by the parties and was signed by all of them and 
the Panchas. Thereafter, on various dates the Panchas divided 
several items of movable and immovable properties and the par-
ties entered into possession of their shares. These divisions were 
duly entered in the "partition books" and were signed by the 
parties and the Panchas. The Panchas were unable to divide the 
remaining properties a.nd with the consent of the parties they 
appointed cne G to divide them. G divided some of the proper-
ties but he too was unable to divide the remaining properties. 
One of the parties served a notice cancelling the authority of the 
Panchas and filed a suit for partition of the remaining properties. 
Upon an application made by the plaintiff for revoking the refer-
ence the Trial Court cancelled :he arbitration as one of the 
Panchas was unwilling to proceed with the division. Another 
party filed a suit for partition of all the properties contending that 
the division made by the Panchas was not binding as the award 
had not been made a rule of the court and the reference had been 
revoked and as the award was not registered; 
Held, that the divisions already made by the Panchas were 
binding on the parties and only the remaining properties were 
liable to be partitioned. By the reference to the Panchas, the 
3 S.C.R. 
SUPREME COURT REPORTS 
793 
parties ceased to be members of the joint Hindu family. There-
after, by the division of the family assets which was accepted 
by the parties and by the taking into possession of their shares 
Kashinathsa 
· 
h 
d 
h · d' 'd 
1 
Yamosa Kabadi 
by the par!Ies, t e properties came un er t em 1v1 ua owner-
ships of the parties to whom they were allotted; and in respect of 
v .. 
the remaining properties they became tenants-in-common. The 
Narsingsa d. 
proceedings taken by the Panchas were not revoked by the order Bhaskaisa Kaba 1 
of the trial Court revoking the reference as they had been accepted 
and acted upon by the parties. Where an award made in arbitra-
tion out of court is voluntarily accepted and acted upon by the 
parties and a suit is thereafter filed by one of the parties ignoring 
the acts done in pursuance.of the acceptance of the award, the 
defence that the suit is not maintainable is not founded on the 
plea that there is an award which bars the suit but that the 
parties have by mutual agreement settled the dispute, and that 
the agreement and the subsequent actings of the parties are bind-
ing. Such a plea i~ not barred by s. 32 of the Arbitration Act. 
The records made by the Panchas were documents which merely 
acknowledged partitions already made and were not required to 
be registered. 
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 
218 to 223of1959. 
Appeals from the Judgment and Decree dated 
August 9, 1953, of the Bombay High Court in Appeals 
Nos. 605 and 606 of 1952 from Original Decrees. 
R. B. Kotwal, S. N. Andley, J. B. Dadachanji, 
Rameshwar Nath and P. L. Vohra, for the appellant (In 
C. As. Nos. 218 and 219 of 59), Respondent No. 1 (In 
C. As. Nos. 220 and 222 of 59), Respondent No. 2 (In 
C. A. No. 221 of 59) and Respondent No. 5 (In C. A. 
No. 223 of 59). 
W. S. Barlingay and A.G. Ratnaparkhi, f

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