Mungeshwar Sahoo, J.@mdashBoth the First Appeals are heard together because the result of First Appeal No. 1206 of 1971 is dependent on the result of First Appeal No. 65 of 1967. The First Appeal No. 65 of 1967 was filed by the original plaintiff, Tarkeshwar Dayal against the judgment and decree dated 19.01.1967 passed by Sri Harishanker Prasad Choudhary, Additional Subordinate Judge 2nd Court, Patna in Title Suit No. 58 of 1954/20 of 1965 whereby the learned court below dismissed the plaintiff''s suit for declaration that the decree dated 13.02.1950 passed in Title Suit No. 8 of 1950 is null and void and not binding on the plaintiff and for partition of half share in the joint family properties. During the pendency of the appeal, the original plaintiff-appellant, Tarkeshwar Dayal died and has been substituted by his legal representatives. The said plaintiff-appellant had filed First Appeal No. 1206 of 1971 against the judgment and decree dated 16.07.1971 passed by Sri Dipti Prasad Mukherjee, 2nd Additional Subordinate Judge, Patna in Title Suit No. 115 of 1963/43 of 1970 whereby the learned court below dismissed the plaintiff''s suit for pre-emption and in the alternative, for specific performance of contract.
2. During the course of argument, it is submitted by the learned counsels appearing on behalf of both the parties that if it is held that there had been no partition between the original plaintiff and original defendant no. 1, then only the question of pre-emption will arise and, therefore, the result of this first suit is dependent on the result of the second suit giving rise to First Appeal No. 1206 of 1971. In such circumstances, both the appeals are heard together and are being disposed of by this common judgment with the consent of the parties. The original defendant no. 1, Chandeshwar Dayal also died during the pendency of the appeal and has been substituted by his legal representatives.
3. The original plaintiff, Tarkeshwar Dayal filed aforesaid Title Suit No. 58 of 1954/20 of 1965 giving rise to First Appeal No. 65 of 1967 for declaration that the decree dated 13.02.1950 passed in Title Suit No. 8 of 1950 is null and void and not binding on the plaintiff. The plaintiff also prayed for partition of the joint family properties mentioned in detail in Schedule-1(A) of the plaint, after adjudication of the aforesaid decree as null and void. The plaintiffs claimed the said relief alleging that Sri Shiveshwar Dayal, Advocate, father of plaintiff and defendant no. 1 and husband of defendant no. 4 died on 03.08.1932 leaving behind the suit property. At the time of death of their father, the plaintiff and the defendant no. 1 were minors. So, in Guardianship Case No. 90 of 1932, Kameshwar Dayal, Advocate was appointed as guardian of the person and the property of both the minor sons and one minor sister also. In Guardianship Case No. 30 of 1934, the defendant no. 4, Sarswati Devi, mother of plaintiff and step mother of defendant no. 1 was appointed as guardian of plaintiff and Lakshmi Devi. In the said guardianship case, the defendant no. 1, Chandeshwar Dayal filed an application on 10.10.1947 stating that he has attained majority and then he obtained moveable and moneys from the step mother. On 01.02.1949, it was held by the District Judge that the mother of defendant no. 4 had ceased to be the guardian of the plaintiff as one of the coparceners became major and karta of the family. Thereafter on 30.03.1949, the defendant no. 4 who is mother of the plaintiff on behalf of the plaintiff entered into registered agreement of arbitration with defendant no. 1 in order to refer to arbitration, the claim of the defendant no. 1 as well as the claim of the plaintiff over the joint family properties for partitioning the same. By this arbitration agreement, Hon''ble Justice B.P. Sinha who was subsequently became the Hon''ble Chief Justice of India was appointed as sole arbitrator to divide the joint family property by metes and bounds. The award was given on 09.08.1949 which was registered on 12.08.1949. On 20.01.1950, the defendant no. 1, Chandeshwar Dayal filed Title Suit No. 8 of 1950 along with the registered award dated 12.08.1949 before the Subordinate Judge 1st Court, Patna and prayed for making the award a rule of the court. With the plaint, a consent petition dated 09.11.1949 of defendant no. 4 for herself and on behalf of the plaintiff as mother and natural guardian was filed. On 07.02.1950, another application was filed by the mother of the plaintiff seeking permission to allow her to compromise on behalf of the plaintiff. Thereafter, the Subordinate Judge 1st Court, Patna accordingly decreed the suit on 07.02.1950 and the award was made rule of the court. The decree was sealed and signed on 13.02.1950. It may be mentioned here that the plaintiff attained majority on 13.03.1951. After attaining majority, the plaintiff repudiated the partition award and retained possession of the immovable properties against the terms of the award. The defendant no. 1 sold some properties to defendant no. 6 on 06.12.1951 and defendant no. 1 again entered into an agreement with the plaintiff for the sell of a house for a sum of Rs. 30,000 on 13.07.1952 but that negotiation failed. Defendant no. 1 executed a mortgage by conditional sell in favour of the defendant no. 5 and gave possession of portion of item no. 8 for a sum of Rs. 10,000 for a period of five years. This property was being possessed by the plaintiff as owner repudiating the terms and conditions of the award. The defendant no. 5 attempted to interfere with the possession. 107 Cr.P.C. proceeding was then started wherein the plaintiff was directed to approach the civil court. Hence, the suit for declaration has been filed.
4. The defendant no. 1, step brother of plaintiff along with his wife and minor children are the first set defendant. Defendant no. 4, the mother of plaintiff is defendant second set. Defendant no. 5 is third set whereas the defendant no. 6, another purchaser from defendant no. 1 is fourth set. The defendant no. 4 filed supporting written statement and also she claimed that her 1/3rd share may be separated from the suit property. The defendant nos. 5 and 6 filed contesting written statement. The defendant no. 1 also filed contesting written statement.
5. The defence of the contesting defendants in short is that the decree passed in Title Suit No. 8 of 1950 is legal, valid and operative. The plaintiff never repudiated the same rather they came in separate possession of the properties allotted to them in the award made by Hon''ble Justice B.P. Sinha. The plaintiff instead of repudiating in fact, accepted the award and the decree. On 13.07.1952, the plaintiff and the defendant no. 1 entered into a registered deed of agreement whereby the defendant agreed to sell Block ''B'' and ''C'' to the plaintiff. The plaintiff also took on rent a portion of the house allotted to the defendant no. 1 and he also filed a petition for fixation of fair rent of that house taken on rent. The plaintiff also filed mutation petition in Patna Municipal Corporation in terms of the award. After executing mortgage, the defendant no. 1 gave possession to the defendant no. 5 and defendant no. 5 is in possession of the mortgaged property.
6. On the basis of the aforesaid pleadings of the parties, the learned court below framed the following issues:
1. Is the suit barred by principle of waiver, acquiescence, estoppel and resjudicata?
2. Is the suit barred u/s 42 of the Specific Relief Act?
3. Is the decree of T.S. No. 8 of 1950 of the court of Sub Judge I, Patna null and void?
3(a) Have the parties accepted the award and the decree and they are in possession of terms thereof?
4. Has the property been properly valued and is the court fee paid sufficient?
5. Whether the agreement dated 30.03.1949 entered into between defendant no. 1 and defendant no. 4 on her behalf as also as guardian of the plaintiff (then a minor) did not confer any lawful jurisdiction on Hon''ble Mr. Justice B.P. Sinha to arbitrate and partition the properties belonging jointly to the plaintiff and defendant no. 1 and defendant no. 4?
6. Whether the arbitration award of Hon''ble Mr. Justice delivered on 08.09.1949 and registered on 12.08.1949 was without jurisdiction in view of the provisions of Section 3 Schedule I, item no. 3 of the Arbitration Act, 1940?
7. Is the plaintiff entitled to partition? If so, in respect of what share and in what property?
8. Whether the plaintiff is entitled to any other relief and if so what relief?
9. Is the suit maintainable?
10. Is the suit barred by limitation?
7. After trial, the learned court below found that the Arbitrator, Hon''ble Justice B.P. Sinha had the jurisdiction to give the award on the basis of the arbitration agreement and the decree passed on the basis of the award is legal, valid and binding on the plaintiff and dismissed the plaintiff''s suit.
8. So far the First Appeal No. 1206 of 1971 is concerned, the plaintiffs filed a suit praying for a decree for pre-emption in respect of the suit property of the said suit on plaintiffs depositing the necessary consideration money within the time allotted by court to the credit of defendant no. 5 and also prayed for eviction of defendant no. 5 from the property sold in his favour by defendant no. 1. The plaintiff in the alternative, prayed for decree for specific performance of contract against the defendant nos. 1 to 5. Besides taking all the pleas pleaded in the earlier suit giving rise to First Appeal No. 65 of 1967, it is pleaded that on the basis of the award, ex-parte decree was passed on 07.02.1950 in Title Suit No. 8 of 1950. But the decree in terms of the award was never acted upon. The plaintiff was in possession over Schedule-A properties in spite of the fact that the said property was allotted in favour of defendant no. 1 in the award. In December 1951, defendant no. 1 sold one double storied building to one Dr. Swami Charan. From him the plaintiff came to learnt that Block ''A'', ''B'' and ''C'' was being negotiated by defendant no. 1 to sell and then through intervention of Dr. Swami Charan, a registered document dated 19.07.1952 was entered into between the plaintiff and defendant no. 1 whereby the defendant no. 1 agreed to sell the house to the plaintiff for Rs. 30,000 compromise within Block ''B'' and ''C''. Sale deed was to be executed by the defendant no. 1 within 28.08.1952. Subsequently, because of illegal demand by the defendant no. 1 against the terms of the agreement which would have amounted to legalize the terms and conditions of award, the plaintiff did not agree. On 09.07.1954, the defendant no. 1 executed usufructuary mortgage in favour of defendant no. 5 and thereafter the plaintiff filed the Title Suit No. 58 of 1954 giving rise to First Appeal No. 65 of 1967. On 21.06.1962, by written agreement executed by defendant no. 1 in favour of the plaintiff, the defendant no. 1 agreed to sell the plaintiff the property covered by mortgage for a consideration of Rs. 30,000 and, therefore, the previous agreement dated 19.07.1952 was revived. However, subsequently the defendant no. 1 sold the same to the defendant no. 5 on 07.11.1962 but the plaintiff had already perfected his title by adverse possession on the said property. Defendant no. 5 is not a bonafide purchaser for value without notice. The plaintiff demanded the resale of the property from defendant no. 5 and declared his intention to pre-empt the property and hence, the suit was filed.
9. The defendant no. 5 contested the suit. His defence in short is that the decree passed in Title Suit No. 8 of 1950 is legal, valid and binding on the plaintiff. The plaintiff was not in possession of any portion of the property sold to the defendant no. 5. By the agreement dated 19.07.1952, the plaintiff agreed to pay sum of Rs. 30,000 for the purchase of Block ''B'' and ''C'' from the defendant no. 5 within 28.08.1952 and paid Rs. 3,000 as earnest money to the defendant no. 1 but the plaintiff subsequently did not pay the balance amount of consideration money within the stipulated period. So sale deed could not be executed. Thereafter, the defendant executed the mortgage of conditional sell and put the defendant in possession over the properties. After the mortgage, the plaintiffs filed the Title Suit No. 58 of 1954. In the mortgage deed, it has clearly been stipulated that in case the defendant ever wanted to transfer by sell, the defendant no. 5 should be given first preference and on his failure only, the property may be transferred to others. Subsequently, for legal necessity, the property was transferred to the defendant no. 5 on 07.11.1962 and the defendant no. 5 became absolute owner thereof. The Title Suit No. 95 of 1962 filed on behalf of defendant no. 1 for redemption has been dismissed. The plaintiff then filed Title Suit No. 194 of 1962 for declaration that the sale deed in favour of the defendant no. 5 is not binding. The alleged agreement between the plaintiff and defendant no. 1 dated 21.06.1962 is collusive, fraudulent and antedated document which is not binding on the defendant. All other allegations were denied.
10. On the basis of the aforesaid pleadings, the following issues were framed by the court below:
1. Is the suit as framed maintainable?
2. Has the plaintiff any cause of action for the suit?
3. Is the suit barred by limitation?
4. Is the unregistered agreement dated 21.06.1992 executed by defendant no. 1 in favour of the plaintiff valid, genuine and binding on the defendants and whether it has the effect of renewing and revalidating the registered agreement dated 19.07.1952 executed between plaintiff and defendant no. 1?
5. Is the plaintiff entitled to a decree for pre-emption in respect of Schedule A property in suit and in the alternative for a decree for specific performance of contract?
6. Is the defendant no. 5 a bonafide purchaser of Schedule A property for value and without notice?
7. Is the plaintiff entitled to any relief if so for what?
11. After trial, the learned court below found that it creates doubt about the genuineness of the agreement of the year 1962. The agreement of the year 1952 entered into between the plaintiff and the defendant no. 1 lost its validity and came to an end. Ultimately, at paragraph 30, the learned court below came to the conclusion that the agreement dated 21.06.1962 is not a valid and genuine document which is not binding on the defendants and it has not the effect of renewing and revitalizing the registered document dated 19.07.1952. The learned court below also found that there is no clog on equity of redemption or the purchase by defendant no. 5 was malafide and defendant no. 5 is a bonafide purchaser. The learned court below ultimately came to the conclusion at paragraph 44 that the plaintiff is not entitled for pre-emption in respect of the suit property nor in alternative, the plaintiff is entitled for a decree for specific performance of contract.
12. The learned counsel for the appellant, Mr. Vaidyanath Thakur raised only the questions of law with regard to First Appeal No. 65 of 1967. So far the facts alleged and mentioned above and mentioned in the judgment are concerned, no dispute is raised. So the admitted fact remains that the father of plaintiff and defendant no. 1 died when both of them were minors. The mother of plaintiff entered into an arbitration agreement with the defendant no. 1, i.e., the step brother of plaintiff. At the time of agreement, the plaintiff was minor. So, his mother who was defendant no. 4 entered into agreement and the dispute was referred to arbitrator for partitioning the joint family property. The Arbitrator gave the award which was registered on 12.08.1949. Thereafter, title Suit No. 8 of 1950 was filed by defendant no. 1 praying for making the award rule of the court. Along with this title suit-plaint, a consent application of defendant no. 4 was filed. The defendant no. 4 also appeared and filed an application for compromising the case and on the basis of the consent of the parties, decree was passed on 13.02.1950 and the award was made rule of the court. The plaintiff attained majority on 13.03.1951 and thereafter has filed this present suit on 24.09.1954.
13. According to the learned counsel for the appellant, the award of the arbitrator was itself a void award and illegal therefore, could not have been made a rule of the court. According to the learned counsel, when the plaintiff was minor, the defendant no. 4, i.e., the mother of the plaintiff could not have entered into an agreement without taking leave of the District Judge because the guardianship case was pending and, therefore, the arbitration agreement itself was illegal. Secondly, that the arbitrator gave the award after 4 months of entering into reference and, therefore, the award given by the arbitrator is null and void because after lapse of statutory period of 4 months, the jurisdiction of the arbitrator seized when the time was not extended by the court. Thirdly, the learned court below passed the decree on the basis of award without awaiting 30 days as provided u/s 17 of the Arbitration Act, 1940 and, therefore, also the decree passed by the court below is illegal and void and fourthly, the learned court below has not considered the evidence of the plaintiff to the effect that the arbitrator entered into the reference on the date of execution of the arbitration agreement and, therefore, wrongly came to the conclusion that the arbitrator entered into reference on the date when arbitration agreement was registered. According to the learned counsel, since the award itself was void, there is no limitation for setting aside the same. On these grounds, only the appellant assailed the judgment and decree passed by the court below.
14. So far First Appeal No. 1206 of 1971 is concerned, the learned counsel submitted that in view of Section 22 of the Hindu Succession Act and Section 44 of the Transfer of Property Act, the plaintiff has got a preferential right, i.e., a right of pre-emption to purchase the undivided share particularly when there had been no partition of the joint family property as the decree and award of the arbitrator is not binding on the plaintiff. In the alternative, the plaintiff is entitled for a decree for specific performance of the contract of the year 1962. The learned counsel for the appellant relied upon various decisions which shall be considered later on.
15. On the contrary, the learned senior counsel appearing on behalf of the respondents, Mr. Shivanandan Roy in First Appeal No. 65 of 1967 submitted that the suit itself was barred u/s 32 of the Arbitration Act, 1940. According to the learned counsel, the correctness or otherwise of the award cannot be examined in a suit. Even if now the decree passed by the court below is set aside then also, the award cannot be set aside in the suit in view of provision of Section 32 of the Arbitration Act, 1940. The learned counsel further submitted that the plaintiff''s suit itself was barred by law of limitation because admittedly, the plaintiff attained majority on 13.03.1951 whereas the suit has been filed on 24.09.1954. In view of Article 91 and 114 of Limitation Act, 1908, the limitation for setting aside the decree was only 3 years from the date of passing of the decree. Admittedly, the suit was filed beyond 3 years. The learned counsel next contended that so far giving of award after 4 months is concerned, there is no reliable evidence on behalf of either parties and in fact, the agreement was executed on 02.04.1949. At the instance of the arbitrator, it was registered on 03.05.1949. Therefore, the arbitrator gave the award within 4 months from the date of 03.05.1949. According to the learned counsel, the plaintiff himself participated before the arbitrator in the arbitration proceeding and, therefore, he cannot be allowed to say that the award was filed after 4 months. The decree was passed with consent of the parties. The award was filed by defendant no. 1 in the court with the consent application and subsequently, the mother of plaintiff being the natural guardian filed the application seeking permission of the court to compromise and thereafter the court made the award rule of the court. Since there was no objection to the award, the court had no option but to make the same rule of the court.
16. The learned counsel further submitted that pursuant to the award, the parties came in possession of their respective properties and thereafter on attaining majority, the plaintiff instead of repudiating the award accepted the same and entered into an agreement with the defendant no. 1 whereby the plaintiff agreed to purchase from defendant the house property and for that he has filed suit for pre-emption also. The plaintiff also took on rent some portion of premises from the defendant no. 1 and has filed application before the rent controller for fixing fair rent. In 107 Cr.P.C. proceeding, he admitted the award and allotment of land and possession of the defendant. In such view of the matter, at one stage in one proceeding, the plaintiff admitted the legality of the award and acted upon it and then in another proceeding, he is repudiating on frivolous grounds. In other words, the plaintiff cannot be allowed to aprobate and reprobate. So far waiting of 30 days by the court prior to making the award rule of the court is concerned, the learned counsel submitted that when all the parties were present and filed compromise and no objection was raised, there was no question of passing the award after 30 days arises. On these grounds, the learned counsel submitted that the appeal is liable to be dismissed with cost.
17. So far the First Appeal No. 1206 of 1971 is concerned, the learned counsel submitted that since there had already been partition between the parties by the arbitration proceeding and the award which was made rule of the court neither Section 22 of the Hindu Succession Act nor Section 44 of the T.P. Act is applicable in the present case and, therefore, the pre-emption suit is liable to be dismissed outrightly. So far relief for specific performance of contract is concerned, the plaintiff has not adduced any evidence regarding his readiness and willingness to perform his part of the contract and, therefore, he is not entitled for that relief also. On these grounds, he has submitted that the First Appeal No. 1206 of 1971 is also liable to be dismissed.
18. In view of the above rival contentions of the parties, the points arise for consideration is as to:
1. Whether the judgment and decree passed in Title Suit No. 8 of 1950 is liable to be set aside in the present suit and whether the plaintiff is entitled for partition of his half share and whether the judgment and decree passed by the court below is sustainable in the eye of law?
2. Whether the plaintiff is entitled for decree for pre-emption and in alternative the decree for specific performance of contract?
Point no. 1
19. So far this point is concerned, it relates to First Appeal No. 65 of 1967. The fact stated above is not in dispute. As submitted by the learned counsel, Mr. Vaidyanath Thakur, he is not disputing the fact nor is challenging the decree of Title Suit No. 8 of 1950 on the ground of fact. He is challenging the decree only on the question of law. Admittedly, the arbitration agreement was entered into between the mother of the plaintiff for self and on behalf of minor and the defendant no. 1 referring the dispute to the arbitrator for dividing the suit property into half and half. It is admitted fact that both the parties, i.e., the plaintiff and the defendant no. 1 had half and half share in the joint family property. The first point raised by the appellant is that on the date of the arbitration agreement entered into by the defendant nos. 1and 4 he was minor so it is not binding on the minor plaintiff because no leave was obtained from the District Judge when the Guardianship Case No. 30 of 1934 was pending. According to the learned counsel, the agreement was executed on 02.04.1949 whereas the guardianship case was disposed of on 12.09.1949. On the basis of this fact, the learned counsel for the appellant submitted that the arbitration agreement itself was illegal as no permission was obtained from the District Judge, the award is vitiated. So far this question of law is concerned, it may be mentioned here that the guardianship case was disposed of holding that the defendant no. 1 attained majority on 06.09.1947 and as soon as he attained majority, he became the karta of the family being the coparcener and, therefore, he was the guardian of the minor plaintiff also. It appears that there was some dispute between the parties and, therefore, they entered into the arbitration agreement. Since the dispute was between the plaintiff and defendant no. 1, the defendant no. 1 could not have acted as guardian of the plaintiff and, therefore, the mother being the natural guardian of minor plaintiff entered into the arbitration agreement with the defendant no. 1. In such circumstances, it cannot be said that the arbitration agreement is illegal as permission from District Judge was not obtained. It is not denied that the mother was not representing the minor plaintiff. Admittedly, she is the natural guardian of the minor and it is not the case of the plaintiff that her interest was adversed to the interest of the minor plaintiff. Therefore, there was no necessity for obtaining permission from District Judge.
20. The learned counsel for the appellants relied upon the case of
21. The learned counsel next relied upon
22. Section 32 of the Arbitration Act, 1940 provides that notwithstanding any law for the time being in force no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise then as provided in this act. The decisions relied upon by the appellant is therefore, not helpful to the appellant. When the plaintiff attained majority, he could have avoided the same by initiating appropriate proceeding but in view of section 32, he cannot challenge the validity or existence or illegality of the arbitration agreement. As stated above, no case has been made out that in any way he is being prejudiced by the arbitration agreement.
23. The next point raised by the appellant is that the agreement was executed on 02.04.1949 and the arbitrator entered into the reference on the same date. According to Section 3 read with Schedule 1 Rule 3 of Arbitration Act, 1940, the arbitrator should have made the award within 4 months but the arbitrator made the award on 09.08.1949 which was registered on 12.08.1949. The learned counsel, Mr. Thakur appearing on behalf of the appellant submitted that the plaintiff in his evidence categorically stated that the arbitrator entered into reference on the date of the execution of the agreement. It may be mentioned here that this plea was not mentioned in the plaint. It appears that on recall, only the plaintiff deposed to this effect. Except this one line statement, there is nothing on record to show that in fact on the date of execution of the agreement itself, the arbitrator entered into the reference. On the contrary, it appears that the arbitrator directed the parties to get the agreement registered. This fact has been admitted by the mother of the plaintiff in the written statement. It is admitted fact that on the request of arbitrator, the agreement was registered on 03.05.1949. Therefore, even if it is held that the arbitrator entered into reference from the date of registration of the agreement, the award has been filed within 4 months. The learned counsel for the appellant submitted that it is not the requirement of law that arbitration agreement should be registered. So far this is concerned, it is not the case of any party that agreement should be registered but it is the case of the parties that the arbitrator required that the agreement should be registered therefore, there can never be any presumption that the arbitrator after entering into reference directed the parties to get the agreement registered. Therefore, on the basis of only one line statement made by the plaintiff in his evidence on recall that the arbitrator entered into reference on the date of execution of the agreement i.e. 02.04.1949 is not reliable.
24. The learned counsel for the appellant next submitted that the court below should have passed the decree on the basis of the award only after completion of 30 days but in the present case, the Title Suit No. 8 of 1950 was filed on 20.01.1950 and the award was made rule of the court on 07.02.1950, i.e., within 30 days and the decree was sealed and signed on 13.02.1950. In such circumstances, the decree is void decree. So far this submission is concerned, it may be mentioned here that P.W. 2 at paragraph 59 has clearly stated that the award was filed by the defendant no. 1 along with petition to make the award rule of the court. Exhibit-B/A is a petition by defendant no. 4 seeking permission to compromise on behalf of the plaintiff as it is for the benefit of the plaintiff. Therefore, when all the parties were present before the court, it was not necessary for the court to await for 30 days. The provision as contained in Section 17 of the Article do not provide that even after appearance of the parties, the court is required to await for 30 days particularly when no objection is filed rather a compromise application was filed praying for making award rule of the court. Therefore, the court below has rightly made the award rule of the court on 07.02.1950. Since the compromise application was filed by the mother, i.e., the natural guardian of the plaintiff and the court passed the award, it will be presumed that the permission was accorded by the court to the defendant no. 4 to compromise. Therefore, on this ground, it cannot be said that the award is vitiated.
25. The next ground taken by the learned counsel for the appellant is that the Lower Court has not considered the evidences. As stated above, it may be mentioned here that only on the question of law, the judgment has been assailed. So far fact is concerned, the only evidence that has been raised by the appellant that the plaintiff in his evidence stated that the arbitrator entered into reference on the date of execution of agreement should have been considered by the court below. So far this submission is concerned, as discussed above, even if it is considered and I have considered above, no finding can be recorded that the arbitrator entered into reference on the date of execution of the arbitration agreement.
26. In this case, the plaintiff, P.W.2 in his evidence himself admitted that deliberation was made on 4 days and he appeared on all the 4 days before the arbitrator and the award was given with his consent. The plaintiff himself admitted that an agreement was executed by the plaintiff and the defendant no. 1 whereby the defendant no. 1 agreed to sell some property to the plaintiff. This agreement is dated 13.07.1952. On the basis of this agreement, the plaintiff has filed the Title Suit No. 115 of 1963 for pre-emption and specific performance of contract.
27. Exhibit-B/2 has been produced by the defendant to show that the plaintiff filed a petition on 24.06.1953 before the rent controller for fixation of fair rent of a portion of the premises which was allotted to the defendant. This Exhibit-B/2 proves that the plaintiff admitted himself to be a tenant under the defendant no. 1 on portion of the properties allotted to defendant no. 1 by the award. The defendants have also produced Exhibit-G which is a show cause filed by the plaintiff on 09.02.1953 before the S.D.O. in 107 Cr.P.C. proceeding wherein he has admitted the award. In view of these documentary evidences, it can safely be held that the award was acted upon.
28. It is admitted fact that the plaintiff attained majority on 13.03.1951 whereas the suit has been filed on 24.09.1954. According to the plaintiff, he was minor. In view of Article 91 read with 114 of Limitation Act, 1908 = Article 59 of the Limitation Act, 1963, the plaintiff was required to file the suit within 3 years from the date of his attaining majority. As has been held by the Apex Court in the decisions relied upon by the appellant himself, the plaintiff could have avoided the award or the decree within 3 years from the date of his attainment of majority. Three years from the date of his majority was completed on 13.03.1954 and that was the last date for filing the suit but the suit has been filed much after 6 months. The learned counsel for the appellant submitted that this question was not raised before the trial court by the respondent. So far this question is concerned, in view of Section 3 of the Limitation Act irrespective of the fact that the defence has been taken by the defendant or not, it is the duty of the court to dismiss the suit if it is barred by law of limitation. The learned counsel for the appellant submitted that the plaintiff has filed the suit for partition. Therefore, it cannot be said that suit for partition is barred by law of limitation. So far this submission is concerned, no doubt, in case of partition suit the cause of action is recurring day to day cause of action but here, the fact is otherwise. If there had already been partition between the parties through the arbitrator as far back as in 1949, the same cannot be reopened now. Therefore, unless the award is set aside the plaintiff is not entitled for a decree for partition.
29. In view of Section 32 of the Arbitration Act, the plaintiff cannot challenge the arbitration agreement or the award by filing suit. The civil suit is barred. As has been stated above, since the award was filed by the defendant in the court with a consent application of the defendant and subsequent to that the defendant no. 4 being the natural guardian of plaintiff filed a petition seeking permission to compromise, the court had no option but to make the award rule of the court and, therefore, the learned court below has rightly made the award rule of the court. Now, in view of Section 32, if the plaintiff cannot challenge the award how can he be allowed to challenge the decree after 3 years. The decree passed by the court below is consent decree. There was no objection to the award. In suit, therefore, the award cannot be set aside. Now, let us see that if the decree is set aside but then in such situation also, the award of the arbitrator will remain because of Section 32 of the Arbitration Act, 1940. By filing this suit, the plaintiff has indirectly challenged the legality or otherwise, existence or otherwise of the arbitration agreement or the award which cannot be permitted. Moreover, the award was acted upon by the parties. The plaintiff admitted to have agreed to purchase a portion of the house allotted to the defendant no. 1 in the award. This agreement between the parties is clearly indicates that the award was acted upon by the parties.
30. The learned counsel for the appellant in support of his contention, cited various decisions but in my opinion, those decisions are not required to be gone into here, in view of the above settled proposition of law laid down by the Apex Court referred to above, i.e., the minor on being major could have avoided the award itself by initiating proceeding under the Arbitration Act within 3 years after attaining majority. In the present case, it has not been done by the plaintiff. The present suit has been filed after 3 years, therefore, the award and the decree of the court below has attained its finality. The findings of the court below on these points are therefore, affirmed. In view of my above discussion, I ultimately find that there had already been partition between the parties through the arbitration and the consent decree was passed by the court in Title Suit No. 8 of 1950 which is binding on the parties. Since there had already been partition, the same cannot be reopened in the present suit. Thus, point no. 1 is answered against the appellants. Accordingly, this First Appeal No. 65 of 1967 is dismissed with cost of Rs. 10,000 in view of
Point no. 2
31. So far First Appeal No. 1206 of 1971 is concerned, the plaintiff-appellant has filed the same for pre-emption and in the alternative, decree for specific performance of the contract. Since we have held above that there had already been partition between the parties, Section 22 of the Hindu Succession Act or Section 44 of the T.P. Act will not apply. In
32. So far decree for specific performance of contract alleged to have been entered into between the plaintiff and the defendant no. 1 in the year 1962 is concerned, except the averment in the plaint no evidence has been adduced by the plaintiff in proof of his readiness and willingness to perform his part of the contract. No doubt, after amendment, the pleading as required u/s 16(3) of the Specific Relief Act has been introduced but merely because there is a plea in the plaint, no relief for specific performance of contract can be granted unless the plaintiff by his subsequent intention and conduct show that in fact, he was ready and willing and is still ready and willing to pay the balance consideration amount. As stated above, there is no evidence except the pleading. Moreover, the suit itself has been filed after 9 years. The grant of specific performance of contract is equitable relief and in all circumstances, it is not obligatory on the part of the court to grant the said relief. The plaintiff will be entitled to the said relief only if he can show that he was ready and willing to perform his part of the contract and is still ready and willing to perform his part of the contract. Admittedly, an agreement was executed in the year 1952 earlier and the plaintiff agreed to purchase on payment of Rs. 30,000 and Rs. 3,000 was advanced as earnest money but it is admitted fact that the plaintiff failed to pay the balance consideration amount and he never approached the court of law for specific performance of the said contract. It is the case of the plaintiff in the present case that subsequently, another written agreement as executed between them in the year 1962 by which the agreement of the year 1952 revised. Therefore, only on the basis of this pleading, the decree of specific performance of contract cannot be granted that too when relief was sought after 9 years. Thus, the finding of the learned court below to the effect that there is no evidence of readiness and willingness adduced on behalf of the plaintiff is hereby confirmed. Thus, this point no. 2 is answered against the plaintiffs-appellants and in favour of the defendants-respondents. Thus, this First Appeal is also dismissed with cost of Rs. 10,000 to be paid by the appellants to the respondents within two months from today failing which the respondents are at liberty to realize the said cost through process of the court. In the result, both the First Appeals are dismissed with cost of Rs. 10,000 + Rs. 10,000 = Rs. 20,000 as stated above to be paid by the appellants to the respondents.
