Gentle, J.

1. This application arises out of an arbitration between tenpartners of a firm known as Tarachand Ghyanashamdas. The partnership formerlycarried on businesses at Calcutta, Bombay, Madras, Karachi and Delhi and atbranches and agencies of those places. The main part of the undertaking was abanianship business for Burma Shell Oil Storage and Distributing Co. of IndiaLtd. (to which further reference is not necessary), and a similar business forMessrs. Shaw Wallace & Co. In regard to the latter there were more than 130agencies. The partnership also bought and sold various kinds of goods andcommodities, including purchases from the above company and firm. Thepartnership terminated on 31st December 1934. The partners owned shares ofvarying values in the partnership, the exact proportions are not material. Inthe award the partners are referred to as parties Nos. 1 to 10, and it isconvenient so to refer to them. The applicant is party No. 10. The otherparties are the respondents. The respondents, who are parties Nos. 8 and 9,support the application and together with No. 10 they are members of onefamily. The remaining parties Nos. 1 to 7 are members of another family andjointly oppose the application.

2. By an agreement in writing made between the partnersdated 20th December 1934 it was recited, that differences had arisen amongstthemselves regarding the adjustment of the partnership accounts and division ofthe partnership assets, and it was, inter alia, agreed that:

All differences and matters in dispute between the partieshereto, relating to their partnership business at Calcutta, Bombay, Madras,Karachi and Delhi and the branches and agencies thereunder up to 31st December1934 and the assets and accounts thereof are referred to the said arbitrators.The submission will not include the question of allotment of agencies orbusinesses as made or to be made by Burma Shell Oil Storage Co. of India Ltd.and Messrs Shaw Wallace & Co.

The names of the two arbitrators were elsewhere stated inthe arbitration agreement.

3. The award is dated 24th December 1935 and is signed bythe two named arbitrators. Between that date and 13th January 1945 one of thearbitrators died. On the latter date, the surviving arbitrator filed the awardin this Court, notice of which was duly given to the parties. The arbitrationwas held pursuant to the provisions of the Indian Arbitration Act 1899, whichwas in force at the date when it took place.

4. By the award the arbitrators found and/or held and/ordirected and/or awarded that: 3. The partnership carried on the followingbusinesses: (i) The banianship for the Burma Shell Co. in areas described asCalcutta, Bombay, Madras, Karachi and Delhi in each of which there were severalsub agencies and in some of those other persons were admitted as workingpartners; (ii) banianship with Messrs Shaw Wallace; (iii) other miscellaneousbusinesses at Calcutta, Bombay, Karachi and other places; (iv) Khajanchiship ofthe Imperial Bank, Burra Bazar Branch (Calcutta) under the name of JoynarainRam Chunder; (v) Owning Joyrampore and Khas Joyrampore collieries and carryingon colliery business under the name of Tarachand Ghanashyamdas; (vi) Owning andmanaging immoveable properties: (a) Kalichowki, Bombay; (b) a share in land atKurla, Bombay, (c) 26 Middle Road, Entally, Calcutta. 4. The shares of therespective parties in the several businesses were set out. 6. The parties, bymutual consent, dissolved the partnership with effect from 31st December 1934and had already divided amicably the agency businesses from 1st January 1934 inaccordance with Schs. A and B to the award, namely, 31 agencies to Nos. 8 to 10set out in Sch. A and the agencies (over 100 in number) to Nos. 1 to 7 as setout in Sch. B. 7. The assets relating to the agency businesses and the rest ofthe businesses and the assets of the partnership remained undivided and thepartnership accounts and affairs remained to be adjusted and divided. 9. The immoveableproperties appertaining to the said 31 agencies be allotted to Nos. 8 to 10 tobe used and enjoyed, owned and possessed by them in severalty and absolutely.10. There be allotted to Nos. 1 to 7 the businesses of the partnership atCalcutta, Bombay, Madras, Karachi and Delhi and the said collieries andcolliery business together with, inter alia, the immovable propertiesappertaining to the several businesses and to the collieries, which shouldbelong to and be enjoyed owned and possessed by Nos. 1 to 7 absolutely. 11. Theentire banianship business of Messrs. Shaw Wallace including Indo Agri. Ltd.,had been and was thereby allotted to Nos. 1 to 7. 12. The Khajanchishipbusiness of the Imperial Bank was allotted to Nos. 8 to 10. 13. The threeimmovable properties, Kalichowki at Bombay, share in the Kurla land at Bombayand No. 26 Middle Road, Entally, Calcutta, were valued at the sums thereinspecified and were allotted to Nos. 1 to 7 absolutely to be used, enjoyed,owned and possessed by them in severalty. 14. The share or interest of Nos. 8to 10 in the three immovable properties mentioned in Para. 13 toad been valuedat Rs. 90,000 and had been taken into account in the adjustment of accountsbetween the parties and the division of the partnership asset between them. Ifdesired by Nos. 1 to 7, and at their cost, Nos. 8 to 10 would execute thenecessary release, transfer and assurance in favour of Nos. 1 to 7. 21. Thepartnership had set apart various sums from time to time for the purpose ofcharity and all parties desired that the shares of the companies therein statedtogether with cash amount of Rs. 8500 to be paid by Nos. 1 to 7, of the totalvalue of Rs. 51,238/12 be set apart for such charitable purposes as thearbitrators might think fit and they should nominate trustees and frame ascheme for the purpose and deliver the trust property to the person namedtherein for the purpose of the same being handed over to the trustees named bythe arbitrators. 24. If necessary, mutual releases and assurances, powers ofattorney and all documents should be executed by all parties for more fully andeffectually carrying out the directions contained in the award and/or vestingthe properties in the parties to whom they had been respectively allotted.

5. The present application is to set aside the award and/orto have it removed from the file of the Court.

6. The grounds of the application are that: (1) The award isbad since it was filed by one of two arbitrators. (2) The arbitrators had nojurisdiction to deal with the immovable properties since they are all outsidethe jurisdiction of this Court. (3) The award cannot be filed in this Courtsince all the immovable properties with which it deals are outside itsjurisdiction. (4) The arbitration agreement excluded the agencies, but thearbitrators have purported to divide and allot the agencies among the parties.(5) The award is incomplete since it does not deal with matters reserved inanother arbitration agreement between the same parties in respect of the Madrasbusiness. (6) All necessary parties were not parties to the arbitration. (7)The arbitrators exceeded their powers by allotting to Nos. 1 to 7 assets,including the immovable properties, which did not belong to the partnership.(8) The award purports to create a trust. (9) The award is required to beregistered under the provisions of the Registration Act since it deals with theright, title or interest of the parties in immovable properties.

7. It is convenient to deal seriatim with the above matters.

8. (1) The award filed by one of two arbitrators.

9. Under the rules of this Court, made pursuant to S. 20,Arbitration Act of 1899, it is provided in chap. 23, R. 12 that where thearbitrators have been requested to file the award they shall cause the award tobe filed in the Court. It was contended that the rule requires both arbitratorsto perform the actual act of filing and since one of the arbitrators diedbetween the date when both of them signed the award and the filing of it by onearbitrator there has not been compliance with the rule and the award has notbeen filed in accordance with the provisions of the rule.

10. If, in the case of an arbitration by more than onearbitrators, one of the arbitrators should die after all have signed an award, butbefore it has been filed and, if it is necessary that all the arbitrators mustfile an award, then it must follow that such an arbitration will becomeabortive since it is impossible, in such a case, for all arbitrators to filethe award. The rule does not require the arbitrators to file the award but theymust cause it to be filed. Whilst a deceased arbitrator, after his death,cannot cause an award signed by himself and a surviving arbitrator or survivingarbitrators, to be filed, does the happening of his death after signature andbefore filing, in effect, render the arbitration abortive In my view it doesnot. In causing an award to be filed the arbitrators do not perform a judicialact but one of a ministerial nature. Although the Rule speaks of arbitratorscausing the award to be filed, the ministerial act of filing can properly becarried out by one of their number. This was the view expressed by the saidJudicial Commissioners Court in Shamdas Teumal v. Khimanmal Chandumal, 29 I.C.602 : (A.I.R. 1914 Sin 90), with which decision I venture to agree. The failureor omission or inability of one of several arbitrators to participate in theministerial act of filing an award by his co-arbitrator or co-arbitrators isnot an irregularity which vitiates the proceedings or the award provided, as inthe present case, there is an absence of any circumstance or fact such asfraud, connected with the act of the filing.

11. (2) The arbitrators had no jurisdiction to deal with theimmovable properties of the partnership as they are situate outside thejurisdiction of this Court (3) The award cannot be filed in this Court sinceall the immovable properties with which it deals are situate outside itsjurisdiction.

12. These two questions can conveniently be consideredtogether since the answer to each is dependent upon the same facts,circumstances and legal provisions; but this is subject to the necessity orotherwise for the award to be registered and with which I will deal later.

13. In order to consider these two questions reference isnecessary to the material provisions of S. 2, Arbitration Act of 1899 and toCl. 12, Letters Patent of this Court, which are as follows:

Section 2.-.....The Act shall apply only in cases where, ifthe subject-matter submitted to arbitration were the subject of a suit, thesuit could, whether with leave or otherwise, be instituted in a PresidencyTown.

Clause 12 - The High Court of Judicature at Fort William inBengal....shall be empowered to try, receive and determine suits of everydescription, if, in the case of suits for land or other immoveable property,such land shall be situated....either wholly, or, in case leave of the Courtshall have been first obtained, in part, within the local limits of theordinary original jurisdiction of the said High Court.

14. These two provisions being construed together, it isclear that if and when the subject-matter of an arbitration is land orimmovable property none of which is situated within the Courts jurisdiction,then the arbitrators would not have jurisdiction to hear the arbitration. If,however, the land or immovable property, the subject-matter of the proceedings,is situated partly within and partly without the jurisdiction, in the event ofa suit, the Court would have jurisdiction provided its leave is obtained beforethe institution of the suit. Consequently, in the same circumstances, thearbitrators would likewise have jurisdiction to hear the arbitration since S. 2provides that the Act applies when a suit could be instituted in the Courtwhether with leave or otherwise.

15. One of the assets of the partnership was a mortgagedecree which was obtained by the partnership in Suit No. 2188 of 1928 inrespect of, inter alia, an immovable property situated within the jurisdiction.It was conceded, by Learned Counsel for parties Nos. 8 to 10, that if amortgage decree is immovable property then the arbitrators had jurisdiction tohear the arbitration and also there can be no objection to the filing of theaward in this Court on the ground of want of jurisdiction. But it was contendeda mortgage decree is not immovable property.

16. In the past, there was a conflict of opinion betweenseveral High Courts in India whether a mortgage decree should be regarded asmovable or as immovable property. Before referring to the authorities in whichthese opinions are expressed it is necessary to set out the provisions of S.17, sub-s. (1), sub-cl. (b), Registration Act, 1908 and also sub-cl. (e) whichwas added to and included in the same sub-section by S. 10, Transfer ofProperty (Amendment) Supplementary Act of 1929. These provisions are asfollows:

Section 17. (1) The following documents shall be registered,(b) other non-testamentary instruments which purport or operate to create,declare, assign, limit or extinguish, whether in present or in future, anyright, title or interest, whether vested or contingent, of the value of onehundred rupees and upwards, to or in immovable property (e) Non-testamentaryinstruments transferring or assigning any decree or order of a Court or anyaward when such decree or order or award purports or operates to create,declare, assign, limit or extinguish, whether in present or in future, anyright, title or interest, whether vested or contingent, of the value of onehundred rupees and upwards, to or in immoveable property.

17. The Bombay High Court held that an assignment of amortgage decree required registration, the reason being that it gives theassignee the right to sell the immovable property covered by the decree whichright is a right to an interest in such property and falls within S. 17, sub-s.(1), cl. (b). Opinions to the contrary were expressed in this and in theAllahabad High Courts vide Gous Mahomed v. Khawas Ali Khan, 23 Cal. 450 [LQ/CalHC/1896/11] andAbdul Majid v. Mohammad Faizullah, 13 All. 89. There are other decisions to thesame effect by these two Courts to which reference is not necessary. Thecontroversy has now been settled in favour of the opinion of the Bombay HighCourt by the amendment to S. 17, sub-s. (1) when sub-cl. (e) was added in 1929;the wording of this sub-clause follows that of sub-cl (b). By virtue of theamendment an assignment of a mortgage decree is placed in the same category asinstruments falling within the other sub-clause. When a final mortgage decreeis passed it declares the mortgagees rights in the mortgaged property and thusit comes within sub-cl. (b), but the decree itself is not a document whichrequires to be registered because of the exemption contained in sub-cl. (vi) orsub-s. (2) of S. 17 which enacts that:

17. (2) Nothing in cl. (b) of sub-s. (1) applies to (vi) anydecree or order of a Court except a decree or order expressed to be made oncompromise and comprising immoveable property other than that which is the subject-matterof the suit or proceeding.

18. It is clear, however, from sub-cl. (e) of sub-s. (1)that an assignment of a mortgage decree requires to be registered the reasonbeing that the subject-matter of assignment namely the mortgage decree, doespurport or operate to the effect stated in sub-cl. (b) and the assignmentitself must also so purport or operate.

19. The effect of the amendment to the Registration Act bythe addition of sub-cl. (e) is discussed and explained in Pandit Shiva Rao v.Shanmugha Sundara Swami, : I.L.R. (1940) Mad. 306 : (A.I.R.1940 Mad. 140) [LQ/MadHC/1939/254] . In my view, this amendment has the effect of overruling theearlier decision of this and the Allahabad High Courts and which therefore Ishould not follow. I am of opinion that both a mortgage decree and anassignment of it are immovable properties. It follows that, since the decreewas passed by this Court, part of the immovable properties, which are thesubject-matter of the arbitration, being situated within its jurisdiction theCourt could have given leave under Cl. 12 of the Letters Patent for a suit tobe filed in which the same matters would have been in issue as were in contestin the arbitration and consequently the arbitrators had jurisdiction to hearthe arbitration and also there is jurisdiction in this Court for the award tobe filed in it.

20. (4) The arbitration agreement excluded the agencies butthe arbitrators have purported to divide and allot the agencies amongst theparties.

21. In the course of argument it was stated, and it iscommon ground, that Messrs. Shaw Wallace had themselves re-allotted theagencies formerly held by the partnership to Nos. 8 to 10 and Nos. 1 to 7 asset out in Schs. A and B respectively of the award.

22. Since the partnership had been their agent and it hadcome to an end, this is the course which one would expect Messrs. Shaw Wallaceto follow and that they would appoint new agents of their respective agenciesas their own wishes and requirements dictated and not expect to see theagencies farmed out among themselves by the retiring partners of the defunctpartnership. The individual partners of the late partnership, or rather, thetwo groups which the partners had formed and of which they were the members forthe purpose of conducting business in the future, would have to accept the newappointments or reallocations and would have to agree to take the agenciesgiven to their respective groups by Messrs. Shaw Wallace. It is not correct forit to be said that the parties had divided the business of the agencies amongstthemselves, but, in my view, this error does not make the award bad.

23. Clause 1 of the arbitration agreement expressly exceptedfrom the submission the question of the allotment of agencies. Complaint ismade that in Cl. 11 of the award, the arbitrators went beyond their powers bypurporting to allot to Nos. 1 to 7 the entire banianship business of Messrs.Shaw Wallace and, it is contended, in this respect the award is bad upon itsface and therefore should be set aside.

23a. In cl. 6 it is recited that the parties had alreadyamicably divided the agency businesses with effect from 1st January 1936 as setout in Schs. A and B. Clause 7 recites that the assets of the agencies remainedundivided and the partnership account remained to be adjusted. In Cl. 9 thepartners shares in the asset including the immovable properties appertainingto the 31 agencies allotted to Nos. 8 to 10 were allotted to them, to be usedand enjoyed and possessed by them in severalty and absolutely and they were todischarge the partnership liabilities of those agencies. These assets andliabilities are set out in Sch. C to the award. Clause 9 does not purport toallot 31 agencies to Nos. 8 to 10. By cl. 10, omitting immaterial parts, the arbitratorsawarded the share and interest of the partnership in the assets including theimmovable properties appertaining to the said agency businesses allotted to andtaken over by Nos. 1 to 7 as therein before stated (that is in cl. 6) andincluding the assets mentioned in Sch. D [which contains the assets andliabilities of the partnership including all immovable properties (notmentioned in Sch. C)] should belong to and be enjoyed, owned and possessed bythem in severalty and absolutely and they would pay and satisfy the rest of thepartnership liabilities including those mentioned in Sch. D. Clause 11 statesthat the entire banianship business (including the Indo Agri. Ltd.) of ShawWallace & Co. had been and was thereby allotted to Nos. 1 to 7 with effectfrom 1st January 1935. This clause then provides that the agents of thepartnership had deposited, as security with the partnership firm, sumsaggregating Rs. 10,000 and there were several claims outstanding due to thepartnership from agents and several sums payable by the partnership to IndoAgri. Ltd., which claims and liabilities were allotted to Nos. 1 to 7 who wereexclusively to realise the claims and pay the liabilities.

24. Clause 6 recites or records that outside the arbitrationthe agencies had been divided by the respective parties, but Cl. 11 recordsthat the entire banianship business of Shaw Wallace had been allotted to Nos. 1to 7. This must be subject to Cl. 6 which makes it clear which part of thebanianship business had been allotted to them and it can only mean the severalagencies which are correctly set out in Sch. B as allotted to Nos. 1 to 7 andnot the whole of these agencies. Having been previously allotted there was noneed for them to be allotted once again, and this purported allotment is of noeffect and is no more than an unnecessary and inaccurate repetition of theearlier allotments. The assets which belonged to and the liabilities which hadbeen incurred by the agencies, when administered by the partnership, were theassets and liabilities of the partnership and which had to be divided andallotted by the arbitrators. The distribution by Messrs. Shaw Wallace of theagencies between the two groups of partners, for control and administration,related solely to the right to the agencies after the partnership had come toan end. This distribution did not and could not affect the partnership assetsand liabilities of the agencies during the administration of them by thepartnership. Apart from an agreement between the parties, those assets andliabilities had to be allotted to the two groups by the arbitrators and, indoing this by Cls. 9, 10 and 11 of the award, the arbitrators acted perfectlyproperly and in accordance with the submission to them by the arbitrationagreement.

25. In para. 7 of the petition it is alleged that thepartners agreed that the assets of the various agencies would belong to thepartners to whom the particular agencies had been allotted. This agreement isdenied in para. 7 of the affidavit in opposition and there is no reference toit in the award. Had there been any such agreement the arbitrators would havebeen informed of it and they would have made reference to it in the award.

26. The award is not defective by reason of the allocationof the assets and liabilities of the agencies nor by the statement in Cl. 11 ofthe allotment of the banianship business to Nos. 1 to 7.

27. (5) The award is incomplete as it does not deal withmatters reserved in another arbitration award dealing with the Madras business.

28. There was a stranger named Motilal Fomra who was apartner in the Madras business, together with the parties Nos. 1 to 10. He hada two anna share in it and the remaining 14 anna share belonged to thepartnership of Nos. 1 to 10. It would seem that Fomras brother and sons wereinterested with him in the above two anna share. On 10th August 1935 anarbitration agreement was made between Nos. 1 to 10 together with Motilal Fomraand his relations, who were parties Nos. 11 to 15 in the agreement, by whichmatters in dispute at Madras were referred to the same gentlemen who werearbitrators in the earlier arbitration agreement.

29. By their award dated 24th December 1935 (the same dateas the award in the other arbitration) the arbitrators found, held anddirected, inter alia, that the partnership (that is the Madras business) wasdissolved by mutual consent and the entire business was allotted and taken overby Nos. 1 to 7; the only dispute referred for decision was whether MotilalFomra and/or his brothers and/or his sons were exclusively entitled to theprofits of five specified agencies and/or were entitled to separateremuneration for the management of those agencies; the agency businessesbelonged to the partnership and Motilal Fomra was entitled to an extraremuneration of Rs. 10,000; besides the amounts credited in the books ofaccount, extra sums remained in Motilals hands which the arbitrators had takeninto account in the other arbitration between Nos. 1 to 7 and Nos. 8 to 10, andit was agreed before the arbitrators that no separate decision need be given bythem; and it was also agreed before the arbitrators that the general account ofthe Madras partnership should be dealt with by them in the other arbitrationand the award made thereunder.

30. Complaint is made by Nos. 8 to 10 that the arbitratorshave not decided and their award (in the arbitration which is now under review)does not deal with, the matters which the Madras award left to be decided inthe arbitration under the agreement dated 20th December 1934.

31. By Cl. 10 of the award (the subject of the presentapplication) the arbitrators allotted to Nos. 1 to 7, inter alia, the businessof the partnership at Madras (as well as other businesses therein mentioned)and the shares and interest of the partnership in the assets, stock-in-trade,stores, claims, outstanding, immoveable properties, deposits and other assetsappertaining to Madras (as well as other businesses) should belong to, and beenjoyed, owned and possessed by, them in severalty and absolutely and theywould pay and satisfy the rest of the liabilities of the partnership, includingthose mentioned in Sch. D. This schedule includes in the assets of thepartnership, all claims and book debts other than those allotted to Nos. 8 to10, and in the liabilities to be paid by Nos. 1 to 7, the amounts due to theseveral persons in the Madras books.

32. From the foregoing it is clear that the matters ofgeneral account which, by agreement as stated in the Madras award, were to be dealtwith in the award now under consideration, are included in that award.

33. (6) All necessary persons were not parties to thearbitration. In some of the businesses or sub-businesses, for instance, atMadras, there were persons who were not partners in the partnership but werepartners with the partnership in those sub-businesses. Further, with regard tosome of the immoveable properties, which the arbitrators have found belonged tothe partnership, and with which I will deal later, it was alleged that theseproperties were owned not by the partnership but by some individual members intheir personal capacity together with others who were strangers to thepartnership. It was argued that all these other persons should have beenparties to the arbitration and their absence makes the award had. These personswere not parties to the arbitration agreement and if their presence at thearbitration was thought to be necessary they could, at least have been asked tobe parties to the arbitration agreement. It was not suggested that they wereover approached. The object of the arbitration, inter alia, was to have apronouncement as to the assets and liabilities of the partnership and thedivision of them to be made among the partners. This would involve the ascertainmentof the partnership shares in any other partnership, for instance at Madras andin any properties. This was done and the award gives the findings of thearbitrators with regard to them. In my view there is no substance in thiscontention.

34-35. (7) The arbitrators exceeded their powers byallotting to Nos. 1 to 7, as assets of the partnership, properties and assetswhich did not belong to it. This objection to the award more particularlyrelates: to the immoveable properties, Kalichowki in Bombay, shares in land atKurla, 26 Middle Road, Entally, the collieries in Behar, and also to thekhajanchiship of the Imperial Bank, Burra Bazar Branch, Calcutta. Nos. 8 to 10allege that none of these were assets of, or were owned by, the partnership.

36. It must be borne in mind that the present application isnot and cannot be an appeal against the findings of fact by the arbitrators.The arbitration agreement conferred jurisdiction upon the arbitrators toascertain the assets of the partnership. They have found the above propertiesand the khajanchiship belonged to the partnership. With regard to the Bombay,Kurla and Entally properties Nos. 8 to 10 were asked for and gave a valuationof these which they did "without prejudice." The valuation, with thisreservation, shows that a contention with regard to ownership was being raisedat the arbitration which doubtless received consideration by the arbitrators.The arbitrators had full authority to investigate and decide what were theassets and they have done so. Even assuming that their findings are incorrect,nevertheless there is no defect on the face of the award and nothing to showthat the arbitrators have been guilty of misconduct in this respect and thefindings cannot be set aside.

37. (8) The award purports to create a trust. In Cl. 21 ofthe award it is stated that the partnership set apart various sums from time totime for the purpose of charity and all the parties desired that the propertiesspecified in the clause, of the total value of Rs. 51,238 including a sum ofRs. 8,500 to be paid by Nos. 1 to 7 be set apart for such charitable purposesas the arbitrators might think fit and they should nominate trustees and framea scheme. Schedule F to the award contains the scheme which the arbitratorsframed. The name of the trust was to be the "Marwari EducationTrust." The objects were to help and give encouragement to Marwari boysand girls in their education and give them scholarships, donations, prizes,medals, etc., to encourage research work among Marwari students and pay moneyto a university and other institutions to further the cause of education amongMarwari students; to start and maintain boarding houses, schools, colleges andinstitutions or co-operate with institutions which might agree to help Marwaristudents in furtherance of their education; to receive donations from othersfor the purposes of the trust; to amalgamate or cooperate with any other trusthaving similar objects; and

for such other purpose and in such other manner as thetrustees might think fit which may advance the cause of education of theMarwari Community.

38. There are other provisions, for instance, powers,numbers, appointment and removal of trustees to which reference is notrequired.

39. It is contended that: (1) The submission to arbitrationdoes not authorise the creation of a trust. (2) The object of the trust being,inter alia, to advance the cause of education, (which I have set out inquotation above) the trust is void. (3) A trust cannot be created in an arbitrationaward.

40. (1) Whilst there is no reference to the creation of atrust in the submission, in Cl. 21 of the award it is stated that the partiesdesired the properties and monies therein mentioned to be set apart forcharities and that the arbitrators should frame a scheme. This statementreflects that all the parties asked for and consented to this being done by thearbitrators. The petition makes no reference to the proceedings before thearbitrators relative to the trust and does not deny the correctness of thestatements in the award. In para. 14 of the affidavit of Guru Protap Poddar,party No. 9, who supports the present application, there is a bare allegationthat the arbitrators had exceeded their jurisdiction and had gone beyond theterms of reference and had created a trust; but, again, there is no denial ofthe correctness of the statements in the award. It is, therefore, beyonddispute that all the parties requested the arbitrators to create a trust and toframe a scheme with respect to the properties set out in Cl. 21 of the award,and agreed that this should be included in the award.

41. Where there is jurisdiction to make an award, the awardis not bad because the possibility that matters, not within the jurisdiction ofthe arbitrators, may have been taken into account, is not in terms excluded onthe face of the award. In such a case, the award can be impeached only byshowing that the arbitrators did in fact exceed their jurisdiction (SeeFalkingham v. Victorian Railways Commissioner, 1900 A.C. 452 : (69 L.J.P.C.89). In Maccaura v. Northern Assurance Co., Ltd., 1925 A.C. 619 : (94 L.J.P.C.154), it was held that the Court will not set aside an award on the ground thatthe arbitrator had exceeded his authority, where the party complaining had madeno protest at the hearing before the arbitrator. A fortiori, it will not do sowhen the party complaining agreed at the hearing that the arbitrators shoulddeal with a matter which might not be included in the submission.

42. (2) It was argued that since the last of the objects ofthe trust is

for finch other purpose and is such other manner as thetrustees may think which might advance the cause of education in the Marwaricommunity,

this power would allow the trustees to spend the income ofthe trust upon propaganda and upon substantial entertainment provided that bothmight advance the cause; therefore, it was contended, the trust fails withrespect to the whole. No objection or criticism was made with regard to anyother object, including the object of paying money to a university or otherinstitution for furthering the cause of education among Marwari students. In myview, there has been an attempt to place undue emphasis upon the word"cause". It is quite clear, looking at the objects as a whole, whatthe intention and the objects of the trust are, and and I do not think the widemeaning should be given or could be given to the object of advancing the causeof education as is suggested. The objects, as expressed in the scheme, appearto be in accordance with those which one finds in the majority of trusts ofthis nature. In my view the trust is not bad because of the objects expressedin the scheme.

43. (3) Reference was made to Chalmers v. Chalmers,: 48 C.W.N. 621 : (A.I.R. 1944 P.C. 78), in which theJudicial Committee held that a trust is not created merely by entries in a bookof account, and thus, it was argued, a trust was not created of the sums, setapart as being devoted to charity, in the partnership books. The shares andcash which clause 21 of the award sets out as the corpus of the trust, are notthe sums, as such, which the partnership hooks show as being set aside forcharity. These properties are those which all parties requested the arbitratorsto utilise as the corpus of a trust for which they are to frame a scheme.

44. The arbitrators were requested by all parties to frame ascheme in respect of specific shares and cash and for a trust to be created inrespect of those shares and cash. The arbitrators carried out the request madeto them. No authority was cited by which it has been laid down that if an awardsettles the terms and conditions of a trust, then the award is bad and shouldbe set aside. In the absence of such authority I am not prepared to hold that theaward is bad.

45. 9. The award, is bad for want of registration. The awardhas not been registered and the contention that, consequently, the award is badmore especially arises out of the following clauses in the award in whichimmoveable properties are allocated to one or other of the two groups ofparties. Clause 9, properties appertaining to 31 agencies of Messrs. ShawWallace & Co., allotted to Nos. 8 to 10; Cl. 10, appertaining to thepartnership business at, Calcutta, Bombay, Madras, Karachi and Delhi and theBihar colliery allotted to Nos. 1 to 7, and Cl. 13, Kalichowki, Bombay, Kurlaland and a house at Entally allotted to Nos. 1 to 7.

46. These properties previously belonged to the partnershipand, therefore, to its 10 partners. It was argued that, by making the aboveallotments, the award purports, even if it does not operate, to create ordeclare for the partners in whose favour the allotments are made, their right,title and interest therein and to extinguish those of the other partners.

47. Prior to the making of the award, all the parties, aspartners in the partnership, were jointly the owners of the properties to theextent of the interest of the partnership in them. After the award, only thoseparties, or groups of parties, to whom the properties were allotted by theaward were entitled to the properties and the interests of the other parties inthem were extinguished. The right, title or interest of the parties in theproperties depends upon and arises out of the terms of the award and referenceto it, therefore, becomes necessary to ascertain their right, title or interestin the property.

48. The learned Advocate-General, on behalf of thecontesting parties Nos. 1 to 7 argued that the award neither purports noroperates to create, declare, or extinguish any right, title or interest inimmoveable property, clause 14 of the award directs Nos. 8 to 10 to execute thenecessary release, transfer, and assurance in favour of Nos. 1 to 7 (if theyshould desire it and would pay for it to be done) in respect of the Bombay,Kurla and Entally properties; Cl. 24 directs, if necessary, mutual releases andassurances and all other documents to be executed by all parties for more fullyand effectually carrying out the directions as to the allotments and forvesting the properties in the parties to whom they have been respectivelyallotted, and, if and when these documents are executed, they would create,declare or extinguish the parties rights in the property, but in the absenceof execution of these documents, those rights would not be transferred.

49. I am unable to accept this argument. The right, titleand interest of the parties is ascertained from the award. Whilst there are thedirections stated in clauses 14 and 24, the execution of the documents thereindirected is not compulsory; they are to be executed either if desired by Nos. 1to 7 or if necessary, as the case might be, and if they are executed, theywould have to be in accordance with and pursuant to the other clauses in theaward which set out to which parties thenceforth the right, title and interestin the properties would belong. The words "hereby allot" and"hereby award and direct" in the award makes it an operativeinstrument. (See Sir Hari Shanker Paul v. Kedarnath Saha,: 66I.A. 184 : (A.I.R. 1939 P.C. 167).) In my opinion the award purports to create,declare or extinguish the right, title or interest of the respective parties inthe properties The transfer or assignment of them is not necessary to bring theaward within S.17(1)(b), Registration Act, since it purports to create, declareor extinguish those rights.

50. A further contention was raised which requires referenceto the relevant portions of S. 49 Registration Act, they are as follows:

No document required by S. 17......to be registered shall

(a) affect any immovable property comprised therein, or.....

(c) be received as evidence of any transaction, affectingsuch property.....

unless it has been registered,

Provided that an unregistered document affecting immovableproperty and required by this Act...to be registered may be received inevidence of a contract in a suit for specific performance under Ch. II of theSpecific Relief Act 1877 or.....as evidence of any collateral transaction notrequired to he effected by registered instrument.

51. It was contended that the directions in the award, inclauses 14 and 24, were collateral transactions within the meaning of theproviso and that if any suit were brought to enforce the award, such suit wouldbe one for specific performance. Consequently, it was argued, the failure toregister the award does not prevent it being used as evidence in such a suit orof such a transaction. Be that as it may, when an award is filed in Court, anapplication to execute the award can be entertained and the question of theaward being used as evidence in a suit for specific performance or as evidenceof a collateral transaction, does not arise in the present proceedings norwould arise in any proceedings to obtain execution of the award.

52. Further reference is now required to the provisions ofS. 17(2)(vi) of the same Act, which, previously, have been stated. Thissub-clause was amended in 1929. Previously, the words "or award"appeared after "Court" but they have now been eliminated. Before theamendment an exception from registration was made with respect to an awardfalling within S. 17(1)(b); but this exception has now disappeared, and such anaward now requires to be registered. This was the view expressed by a DivisionBench of this Court in Jitendranath De v. Nagendra Nath De, :62 Cal. 201 : (A.I.R. 1934 Cal. 815). A decision to a like effect is to befound in Bachchan Lal v. Narottam Datt, : A.I.R. 1933 All. 59 [LQ/AllHC/1932/112] : (143 I.C. 423).

53. Having come to the conclusion, as I do, that the awardrequires to be registered and as this has not been effected, the next questionfor consideration is the result of such a finding.

54. It was contended, on behalf of parties Nos. 1 to 7, thateven if registration is required with regard to the portions of the award whichdeal with immovable properties, nevertheless the other portions are stillenforcible. If, notwithstanding some portion of an award is void, the remainingpart contains a final and certain determination of every question submitted,the valid portion may frequently be maintained and the invalid or void partrejected. (Vide Stone v. Phillips, (1837) 4 Bin. N.C. 37 : (7 L.J. (N.S.) C.P.54). The bad portions, however, must be clearly separable in their nature inorder that the award may be good for the residue (vide Tandy v. Tandy, (1841) 9Dow. 1044 : (61 R.R. 845). On account of the absence of registration althoughit is not void, the award cannot affect the immovable property with which itdeals nor be received in evidence affecting such property, and, therefore,those portions which deal with the division and allotment of immovableproperties are unenforcible. If the other portions remain, then the division ofpart only of the assets of the partnership is effective. It must follow thatthe remaining portions of the award do not contain a final and certaindetermination of every question submitted to the arbitrators, and, thereforethe portions dealing with the division and allotment of the immovables cannotbe separated from the remaining portions. These two portions areinterdependant.

55. In Chimanlal Girdhar Gauchi v. Dahyabhai NathubhaiGauchi, : A.I.R. 1938 Bom. 422 [LQ/BomHC/1938/30] : (177 I.C. 911), it was heldthat an award, which falls within S. 17(1)(b), Registration Act, requires to beregistered, and in the circumstances of that case the lower Court was wrong inmaking it a decree of Court. The award dealt with some movables as well as withimmovable property. Broomfield J., who delivered the judgment of the Court,observed at p. 423:

It was somewhat faintly suggested that the award deals alsowith movable property and so far as the movables are concerned, it would notrequire registration. But it is quite clear in my view that the award is notseparable. The various provisions are interdependent and, as a whole, itclearly required registration.

In Ch. Bachchan Lal v. Narottam Dutt & others,: A.I.R. 1933 All. 59 [LQ/AllHC/1932/112] : (143 I.C. 423), an unregistered awardin a partition arbitration allotted moveable and immovable properties among theparties. It was held that the award was inseparable and being inadmissible inevidence for want of registration, it was rejected and the application forfiling it was dismissed.

56. In the circumstances of this case and the contents ofthe award it is impossible to separate the portions which deal with immovableproperties from the other portions and allow the other portions alone to beexecuted.

57. Future to have the award registered is not, in my view,a ground upon which it can be set aside, but, in addition to seeking to havethe award set aside, there is a prayer in the petition for it to be removedfrom the file. The object and the result of an award being filed is that executionmay be ordered upon it. It was argued that this Court cannot direct the removalof a document from its file and that the objections now raised to theeffectiveness of the award are premature and should properly be put forward ifand when an application is made for execution.

58. If, as I am satisfied in this case, an award has beenfiled which cannot be the subject of execution proceedings, there is no seed towait until such an application is made, but steps can be taken at the outset toprevent an attempt to enforce the award. A Court of Record has inherent powerto order removal of documents from its file in proper cases: (See Hill v. HartDavis, (1884) 26 Ch. D. 470 : (51 L.T. 279). In Sadarmull Jessraj v. AgarchandMahala, : 23 C.W.N. 811: (A.I.R. 1919 Cal. 89), anapplication was made for an injunction to restrain further proceedings in anarbitration. In refusing the injunction, Rankin J. observed at p. 814:

Therefore, the position is simply this that in all thesecases where a man says that he wants to deny the contract altogether, hiscourse is to let the arbitrators do what they like, to wait till there is aquestion of the award being enforced and the moment be gets notice that theaward is going to be filed or has been filed, to object to it.

59. I do not consider that it is necessary to wait until anapplication is made to execute the award before taking the objections whichhave now been put forward and to obtain the relief which is now sought. In myview, the present application is properly made and before unnecessary costshave been incurred in initiation of execution proceedings. For the reasonswhich I have given, there should be an order that the award be removed from thefile of the Court.

60. Considerable time has been devoted to arguments and thehearing of this matter. The applicant has succeeded upon one out of ninecontentions. In those circumstances I think the proper order to make is thateach party should respectively bear his or their costs.

61. This is a fit case for certificate for two counsel.

.

Anandi Lal Poddar vs. Keskavdeo Poddar and Ors. (28.03.1945- CALHC)