4. The Subordinate Judge dismissed the application; but on an appeal by the respondent Het Lall to the High Court at Patna, the order of the Subordinate Judge was set aside, and the award was ordered to be filed and made a decree of Court. The point at issue on the appeal by the appellant to His Majesty in Council can now be stated. It was contended by the appellant that upon its true construction the award was, within the meaning of Section 17(1)(b), Registration Act, 1908, a non-testamentary instrument which purported or operated to create, declare assign limit or extinguish a right title or interest of the value of Rupees 100 or upwards to or in immovable property; and that since it had not been registered, then by Section 49 of the same Act it was incapable of affecting the immovable property in question or of being received in evidence of any transaction affecting that property, with the consequence that the award was incapable of being filed in Court and of having judgment pronounced and decree passed according to it. The point, it will be noted, is whether upon its true construction that part of the award which deals with the village Raitar falls within the description of non-testamentary instruments contained in Section 17(1)(b), Registration Act. Ss.17(1)(b) and 49 of that Act are framed thus:



17.(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which Act 16 of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force namely:

* * * * * *

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

49. No document required by Section 17 to be registered shall



(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.

5. The question resolves itself into this: whether by the last sentence of para. 2 of the award the arbitrators purport to confer upon "the second party" a right title or interest to or in one-half of the village, which commences with the award and comes to an end when the sum of Rs. 61,400 with interest has been paid, or whether they intend merely to provide that the status quo (i.e., the contractual interest which arose from the exercise of the option) should remain unaltered until the Rupees 61,400 and interest had been paid. In their Lordships opinion the latter is the true view. The sentence is not framed as one which purports to create or confer an interest. It is framed on the assumption that an interest is already in existence, and provides that that existence shall not cease until a specified event has happened. It is true that the interest is called "ownership", while the existing interest of the second party was merely contractual, but the arbitrators were not lawyers but laymen, to whom the rights in respect of the village which were being exchanged or released for cash, might well appear to be not inaccurately described as an ownership which was not to cease until the cash was paid. However that may be, the mere use of the word "ownership" cannot in their Lordships opinion outweigh the consideration that the whole wording of the sentence points to the continuance of a status quo, and not to the creation of a new condition of affairs. The award did not purport or operate to create, declare or assign any right title or interest in the village, and therefore did not require registration under the Act. A further contention, however, was raised by the appellant, of this nature. Assuming, it was argued, that upon its true construction the award did not purport or operate to create, declare or assign a right title or interest in the village, nevertheless as between the appellant and respondents it must be taken that it did, because the matter of the true construction of the award was res judicata between them.

6. The foundation for this argument is the decision before referred to of the Allahabad High Court, that the Courts of that Province Bad no jurisdiction over the subject-matter of the award within the meaning of Para. 20 of Schedule 2, Civil P.C. Undoubtedly in order to test whether the Benares Court had jurisdiction to order the filing of the award, the Judges applied the test whether it would have had jurisdiction to try a suit in which the relief claimed was the relief granted by the award. For the purpose of this test, they construed the award as an award which "did determine that the heirs of Ishwari Prasad had a legal title to half share in the Raitar property which they were entitled to retain until the receipt of specified sums of money"; and they held that just as the Benares Court would have had no jurisdiction to try a suit claiming that relief, since the village was outside the local limits of its jurisdiction, so it had no jurisdiction to order the filing of the award. It must, however, be borne in mind that the construction of the award was not an issue in the proceedings; it was merely a ground upon which the Court based their decision upon the question which was the issue between the parties, viz., whether the Benares Court had jurisdiction to order that the award be filed and be made an order of Court.

7. No case for holding that the matter of the construction of the award is res judicata between the appellant and respondents can be based upon Section 11, Civil P.C. Indeed this was conceded by counsel for the appellant, who based his case in this regard upon what he termed the general principles of res judicata. But it is difficult to see how those general principles can be applicable to the facts of the present case. The res judicata here was the lack of jurisdiction of the Sub-ordinate Judge of Benares and of the High Court at Allahabad on appeal therefrom - not the reason for that decision. ACourt which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction : such reasons are not decisions, and are certainly not decisions by a Court of competent jurisdiction. It would indeed be strange if on a dispute as to the jurisdiction of a Court to try an issue, that Court by its reasons for holding that it had no jurisdiction, could, upon the principle of res judicata, decide and bind the parties upon the very issue which it was incompetent to try. For the reasons indicated their Lordships are of opinion that this appeal fails and should be dismissed. They will humbly so advise His Majesty. The appellant will pay the costs of the appeal.