Surinder Kumar v Union Territory, Chandigarh
Supreme Court of India

8 March 1989
Criminal Appeal No. 530
of 1978
The Judgment was delivered by : A. M. Ahmadi, J.
1. The appellant, having been convicted by the learned Sessions Judge, Chandigarh under Section 302. I.P.C, and his appeal against conviction having been dismissed by the High Court of Punjab & Haryana, has preferred this appeal by special leave. The conviction of the appellant is principally based on the ocular evidence of PW 2 Kesho Gupta and PW 4 Varinder Singh.
2. The facts emerging from the evidence of these two main witnesses coupled With the evidence of the other prosecution witnesses may be stated as follows:
"PW 5 Mangal Dass was the owner of House No. 3220 in Sector 23-D, Chandigarh, consisting of the ground floor and the first floor. The ground floor was occupied by Mangal Dass himself while the first floor consisting of four rooms and a kitchen was tenanted; two rooms and a kitchen were rented to PW 4 while the other two rooms were occupied by Sikander Lal, the father of the appellant and Amrit Lal (the acquitted accused). PW 2 Kesho and his brother Nitya Nand (deceased) belonged to village Narnaul to which PW 4 also belonged. They had come to Chandigarh a couple of years back and were sharing the accommodation with PW 4. As Amrit Lal's marriage was scheduled on December 7, 1974, a request was made to PW 4 by Sikander Lal to permit the use of the kitchen for a few days."
Accordingly, the possession of the kitchen was delivered to Sikander Lal on December 4, 1974 on a clear understanding that it would be returned to PW 4 after the marriage. As the possession of the kitchen was not returned immediately after the marriage, PW 2 and his deceased brother Nitya Nand demanded possession thereof from Sikander Lal. They were initially put off but according to the prosecution the possession of the kitchen was delivered on January 1, 1975.
However, as the kitchen had to be cleaned it was not occupied by PW 2 and PW 4 till January 3, 1975 on which date the family members of Sikander Lal are stated to have re-entered the kitchen. It may here be mentioned that this part of the prosecution evidence has not been accepted by the learned Sessions Judge. According to the learned Sessions Judge, the possession of the kitchen was not delivered to PW 4 till January 3, 1975 and that led to the quarrel in which PW 2 received a knife injury on the neck and his brother Nitya Nand lost his life. On this aspect of the matter, the High Court has not expressed any opinion. On a perusal of the relevant evidence we are inclined to think that the finding of fact recorded by the learned Sessions Judge in this behalf is correct. On January 3, 1975, at about 7.15 p.m., PW 2 and his deceased brother had an heated argument with the appellant and his brother Amrit Lal in regard to the return of the kitchen.
3. In the course of this heated exchange PW 2 is alleged to have showered filthy abuses. Although PW 2 denies this fact, PW 4 has admitted the same. PW 2 also threatened to throw out the utensils and lock the kitchen. Since PW 2 was uttering filthy abuses in the presence of the appellant's sister and Nitya Nand did not restrain him, the appellant got enraged, went into the kitchen and returned with a knife with which he inflicted one blow on the neck of PW 2 causing a bleeding injury. In the melee the appellant inflicted three knife blows to Nitya Nand; one on the shoulder, the other on the elbow and the third on the chest, as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital. The fact that Nitya Nand died a homicidal death is not in dispute.
The appellant's defense was that on the date of the incident PW 2 and his deceased brother had demanded vacant possession of the kitchen and on being told that PW 4 had permitted them to continue to occupy it they uttered filthy abuses in the presence of his sister and on being asked to desist from using such language PW 2 began to throw out the utensils from the kitchen. When the appellant tried to stop him from doing so, PW 2 took out a knife from his pant pocket whereupon the appellant took shelter behind a door. PW 2 rushed towards him with the knife but in the meanwhile Nitya Nand moved in between and sustained the injuries in question.
The courts below have, however, concluded, and in our opinion rightly, that the appellant had in the course of the quarrel given stab wounds to PW 2 and the deceased Nitya Nand.
4. The learned Advocate for the appellant submitted that there was no previous iII-will between the parties, on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premeditation and hence Exception 4 to Section 300, IPC was clearly attracted. On the other hand the learned counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said exception. He submitted that the appellant had attacked an unarmed person and had caused as many as three injuries which showed that he had acted in a cruel manner.
The appellant's counsel countered by pointing out from the evidence of PW 1 Dr. Goyal that the appellant had a deformity in the left leg which restricted his movement and he would ordinarily not venture to attack unless he was forced by circumstances to use the weapon to contain PW 2.
Exception 4 to Section 300 reads as under:
"Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault."
To invoke this exception four requirements must be satisfied, namely,
(i) It was a sudden fight;
(ii) There was no premeditation;
(iii) The act was done in a heat of passion; and
(iv) The assailant had not taken any undue advantage or acted in a cruel manner.
The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger.
Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to handover possession of the kitchen, PW 2 quarreled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other.
In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411, IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant.
5. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2" below the nipple- It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW 2 was a self inflicted wound and had therefore acquitted the appellant of the charge under Section 307, IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident.
From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to inter that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner.
Under these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years.
6. In the result, this appeal partly succeeds. The order of conviction and sentence passed under Section 302, IPC is set aside and the fine, if paid, is directed to be refunded. The appellant is convicted under Section 304 Part I, IPC and is directed to suffer rigorous imprisonment for 7 years.
Appeal allowed


Rajindra v Commissioner of Police, Nagpur Division and Others
Supreme Court of India

27 October 1993
Cr.A. No. 643 of 1993
The Order of the Court was as follows :
1. This appeal arises out of a detention order passed by the State Government in exercise of power conferred by subsection (2) of Section 3 of the National Security Act, 1980. By this order the Commissioner of Police, Nagpur, ordered the detention of Ravi alias Ravindra son of Ishwarsingh Paigawar on the ground that his conduct was prejudicial to public order. The grounds of detention of even date referred to two specific instances, one of September 24, 1992 in regard to an offence registered under Sections 143, 147, 353 and 323 of the Indian Penal Code, the prosecution for which was pending in the Court of the Judicial Magistrate, 1st Class, Court No. 4, Nagpur, under CC No. R. 261/92, dated October 23, 1992. The second instance related to an incident which occurred on January 23, 1993 in regard to which an offence was registered under Sections 186, 187, 353, 506(B), 332 and 365 of the Indian Penal Code which was then under investigation. On the basis of these two instances the Commissioner of Police, Nagpur, concluded that the conduct of detenu was prejudicial to public order.
2. Immediately after the detention order was passed and the detenu was taken in custody, he made a representation dated February 12, 1993, addressed to the Central Government. This representation was rejected on April 7, 1993. Two contentions were urged in the High Court, namely, (1) that the grounds of detention, which referred to two specific instances, did not justify the conclusion that the detenu was engaged in conduct prejudicial to 'public order' and (2) there was an inordinate delay in dealing with his representation. The High Court, dealing with the second contention in regard to the delay, points out in judgment that the first activity of the Central Government was to send a wireless message to the State Government on March 4, 1993 seeking some details. There is no indication as to how the representation was dealt with between February 12, 1993 and March 4, 1993. If, as conjectured by the learned Additional Solicitor General, the representation though dated February 12, 1993 was actually handed over late for dispatch to the Central Government, that fact should have been specifically pleaded in the counter expected to be filed by the Central Government as well as by the State Government. It may be mentioned that since the Central Government did not file any counter-affidavit in the Habeas Corpus proceeding before the High Court this delay remained unexplained.
Thereafter it appears that in response to the wireless message dated March 4, 1993, the State Government sent its reply on March 6, 1993; yet it took the Central Government over a month to dispose of the representation. The learned Additional Solicitor General tried to explain this delay by saying that further information was received by the State Government on March 18, 1993. In this connection our attention was drawn by the learned Additional Solicitor General to the counter filed on behalf of the State Government wherein the chronology of events was set out. Nowhere we find in that chronology that the Central Government had sought additional information from the State Government. What appears from the chronology is that the Advisory Board took a decision on March 18, 1993, and that information was conveyed to the Central Government. The Central Government has not filed any counter to state that it was not satisfied with the reply sent on March 6, 1993 and had, therefore, sought further information on any specific issue in connection with the detention. The learned Additional Solicitor General tried to satisfy us that between March 18, 1993 and April 7, 1993, there were only nine working days and, therefore, there was no delay but the learned Additional Solicitor General overlooks the fact that the Central Government has failed to explain the delay between March 6, 1993 and March 18, 1993. An effort was made by the learned Additional Solicitor General to persuade us to adjourn the matter to enable the Central Government to produce the file for our perusal. It appears that of late the Central Government does not show that sense of responsibility which is expected of it while dealing with detention cases, namely, of filing a counter in time before the Court dealing with the Habeas Corpus petition.
Needless to say that the Central Government should be alive to the need to act promptly in such detention cases where the liberty of an individual is concerned. The Court is expected to go by the pleadings and the Central Government is expected to place the factual material in connection with the detention order by filing a counter-affidavit so that the petitioner has an opportunity to meet with that factual information. The indulgence shown by the courts in pursuing the file seems to have given an impression that the Central Government is under no obligation to file a counteraffidavit to explain the delay. We propose to remove this impression once and for all if it persists and to impress upon the Central Government that it is under obligation to file its counter within the time permitted by the Court failing which the case may go by default. Let it be clearly understood that production of the file is not a substitute for a counter to be filed by the Central Government. The Court peruses the file not to absolve the Central Government of its responsibility to file a counter but to satisfy its conscience if it notices ambiguities in the Government's stand. If the Courts have shown indulgence by perusing the file where affidavit is not filed for good reason, let that indulgence not be misused by construing it to be a licence to dispense with the obligation to file a return. In the instant case no counter was filed and the High Court has taken note thereof but, if we may say so with respect, the Court has shown indulgence by observing that the counter is not filed 'presumably because there is no specific allegation in this behalf in the petition'. Let it be stated that once a representation is made, the detenu is entitled to the representation being dealt with expeditiously. If there is some ex facie delay, the obligation is on the State to explain that delay. There is no question of a specific allegation to be made in the petition except pointing out by placing facts that there has been a delay which ex facie calls for an explanation and that obligation has to be discharged by filing a proper counter and explaining the delay. The Courts have not been unduly strict in insisting that each day's delay must be explained but it is obligatory on the part of the Government to show by filing a counteraffidavit that it had acted promptly in dealing with the representation. What is essential is that the Court must be satisfied that the officers dealing with the representation were not indifferent to the urgency of the situation of the detenu being in jail. We are afraid that in the instant case by failing to file a counter-affidavit and by failing to explain the ex facie delay, the Central Government failed in its duty and, therefore, we see no alternative but to uphold the contention and quash the detention order.
3. In the result this appeal succeeds. The order of detention is quashed. The detenu will be set at liberty at once unless required in any other case. A copy of this order be sent to the Secretary, Home Department, Government of India, to ensure that no such lapse takes place in future.
Appeal allowed


Kundanbhai Dulabhai Shaikh and another v Distt. Magistrate, Ahmedabad and Others
Supreme Court of India

13 February 1996
Writ Petition (Crl.) 491 of 1995
The Judgment was delivered by : S. Saghir Ahmad, J.
1.  These two petitions filed under Article 32 of the Constitution of India for writs in the nature of habeas corpus were allowed by us a short order on 21st November, 1995. We now proceed to give our reasons.
2.  Kundanbahi Dulabhai Shaikh, petitioner in Writ Petition (Crl.) No. 491 of 1995 and Rameshchandra Somchand Shah, petitioner in Writ Petition (Crl.) No. 492 of 1995, were detained in jail in pursuance of the orders dated 16th August, 1995, passed by the District Magistrate, Ahmedbad and District Magistrate, Surat, respectively, under section 3(2) of the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980 (For short, "Act"). These orders are contained in Annexure 'A' to the writ petition in both the cases. The grounds of detention were supplied separately, though on the same date, and they are contained in Annexure 'B'.
3.  Petitioner in Writ Petition (Crl.) No. 491/95 is the owner of a godown where 4 barrels containing 800 litres of kerosene meant for distribution to the public under the Public Distribution Scheme were found loaded on an auto-rickshaw. On enquiry made by the staff of the supply Department, it was revealed that those barrels brought from Shreeji Petroleum Agency, Sarkhej, at the instance of Shri Ishamilbhai who was in possession of the godown and that petitioner was the owner of the auto-rickshaw, Ishamilbhai, on being questioned, have out that kerosene in 4 barrels was loaded at his instance and that he was the tenant of the godown. The grounds contain various other details. Which need not be mentioned here as those details are not relevant to the question on which we intend to dispose of this petition,
4.  Petitioner in Writ Petition (Crl.) No. 492/95 carries on business in government foodgrains in a fair price shop. He was to sell the wheat at the concessional rate of Rs. per kg. but when his shop as also the registers and documents contained therein were inspected by the staff of the supply Department, it was found that he had committed serious irregularities in the sale of wheat. Consequently, he was detained under Section 3(2) of the Act in order to prevent him from carrying on his activities prejudicial to the maintenance of supplies of essential commodities.
5.  In both these petitions, the principal contention raised by the counsel for the petitioners is that he representation made by the petitioners against the order of detention were not dealt with expeditiously and were not disposed of by the State Government at the earliest.
6.  The opposite parties have filed counter-affidavits in which they have denied the allegations made by the petitioners and have set out in detail as to how their representations were dealt with. The reply filed by the State Govt. in Writ Petition (Crl.) No. 491/95, so far as it relates to the disposal of representation, is, as under:
" In fact, the above said representation dated 23.8.1995 made by the wife of the detenu Smt. Madinabibi Shaikh was addressed to Chief Minister, Gujarat State, which was received by Chief Minister's office on 25.8.1995, and was sent to the office of Secretary, Food and Civil Supplies Department which was received by the office of the secretary, Food and Civil Supplies Department on 29.8.1995. The said representation thereafter was sent to the Special Branch of Food and Civil Supplies Department. It was received by the concerned Branch, i.e. Special Branch on 1.9.1995. The Special Branch put up a note on the said representation on 6.9.1995, as there were around 40 to 50 representations which were pending for disposal during the said period. They were taken up chronologically. Therefore, the said representation came to be put up for disposal on 6.9.1995 as 5.9.1995 was holiday being Sunday. The file was cleared by Section Officer on 7.9.1995 and submitted by the Branch on 7.9.1995 to the Department which was cleared by Department on 7.9.1995 and was put up before the Deputy Secretary who in turn cleared it on 8.9.1995 and submitted it before the secretary who also cleared it on the same day and submitted the file before the Hon'ble Minister for Civil Supplies for his orders. The file was cleared by the Hon'ble Minister on 12.9.1995 as 9.9.1995 and 10.9.1995 were government holidays. The Minister, Food and Civil Supplies, rejected the request of the petitioner and confinned the detention order. The file was received back by the Special branch from the concerned Minister and by a letter dated 14.9.1995 detenu was informed about the decision taken on the said file of representation. It is, therefore, submitted from, the above facts that there is no delay whatsoever in disposing the representation made by the wife of the detenu so far as the State Government is concerned,"
7.  The Central Government, in its first counter affidavit, admitted that the representation dated 2.9.1995 of the petitioner against the order of detention was still pending, though it was received on 4.10.1995 along with the State Government's covering letter dated 27.9.1995. It was indicated that the State Government did not sent its comments in spite of the telegram dated 12.10.95 and the reminder dated 19.10.95. However, in the Additional Affidavit dated 20.11.1995, the Central Government says (through V.K. Jacob, Under Secretary in the Ministry of Civil supplies) that comments from the State Government were received on 6.11.95 and, after due consideration, the representation of the petitioner was rejected on 8.11.95.
8.  The reply of the State Government with regard to the disposal of representation in Writ Petition (Crl.) No. 492/95 is as under:
"That the representation of the petitioner dated 23.8.95 addressed to the Minister for Food and Civil Supplies (Annexure 'D' to the writ petition) was received by the concerned Special Branch of the Food and Civil Supplies Department through the office of the Minister on 29.8.1995. The said representation was put up by the Special Branch along with the file and note on 2.9.1995. The file of the said representation was then submitted before the deponent on 5.9.1995 and the same was cleared by the deponent on the same day. That the deponent forwarded the Concerned file to the Deputy Secretary, Department of Food and Civil Supplies, The Deputy Secretary cleared this file on 6.9.1995 and submitted it before the Secretary who also cleared it on the same day, i.e. 6.9.1995. The representation was then sent to the Minister for Food and Civil Supplies on 7.9.1995 for his orders. The file was received back by the Special Branch on 8.9.1995. It is stated that the decision regarding the rejection of the representation was communicated to the detenu by a letter dated 11.9.1995.
Copies of the said representation of the petitioner were sent to the Advisory Board on 12.9.95 before its scheduled meeting to be held on 14.9.95.
A copy of the said representation was also sent to the Central Government by speed post letter dated 19.9.1995. The Central Government asked for the comments of the State Govt. regarding the said representation vide its telex dated 22.9.1995. Soon after the telex was received by the special Branch of the Department, the remarks were translated in English and were sent to the Central Government by speed post letter dated 11.10.1995."
9.  In this case, the Central Government has also filed a counter affidavit in which the plea of the detenu with regard to the delay in the disposal of his representation is answered as follows :
"The contents are not admitted hence denied. However a representation dated 23.8.95 of the detenu forwarded by the State Government vide letter dated 19.9.95 was received in the Ministry on 21.9.95. After considering the contents of the representation of the detenu, it was felt necessary that remarks of the State Government should be called for and therefore, I called for the same vide our telegram date 22.9.95. However in spite of our reminders dated 29.9.95 and 5.10.95 the same were received on 18.10.95. The Central Government therefore, examined the representation on the basis of the facts available with them which are sent by the State Government through Reports/grounds of detention through their letter dated 25.8.95. The representation was rejected on 19.10.95 as there was no specific reasons furnished by the detenu that may warrant the revocation of detention order. The decision of the Central Government was conveyed to Supdt. Central Prison, Sabarmati, Ahmedabad on 19.10.95 by telegram with direction to convey to detenu. The State Government was also informed simultaneously on the same day."
Article 22(5) of the Constitution of India provides as under:
"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
10. Sub-section (1) of Section 8 of the Act, inter alia, provides as under:
" Grounds of order of detention to be disclosed to person affected by the order-(l) when a person is detained in pursuance of a detention order, the authority making the order shall......communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government."
The words "appropriate Government" have been defined in Section 2(a) of the Act as under:
"2(a). "appropriate Government" means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or as respects a person detained under such order, the State Government;"
11.   Apart from the above, Section 14 of the Act provides that order of detention may be revoked either by the State Government or by the Central Government. The Central Government can revoke even those orders which have been made by the State Government. The Act also provides that within seven days of the making of a order of detention, copy of the order was also the grounds on which the order was passed shall he sent to the Central Government.
12.   From the above, it will be sees that the right to make representation against the order of detention is not only a constitutional right but a statutory right as well. Since the Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earlier or else the Constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lose both its purpose and meaning.
13.   We may, at this stage, notice a frivolous contention, raised, on behalf of the respondents that since the authorities to whom the representation can be made have not been specified in Article 22(5) of the Constitution, the right of the detenu of making a representation to the appropriate government cannot be treated to be a constitutional right. Respondents, for this purpose, have placed reliance upon the decision of this court in John Martin v. The State of West Bengal, AIR 1975 SC 775 1975 Indlaw SC 603.
14.   It will be seen that right to represent has been given not only by Article 22(5) of the Constitution but also by Section 8 of the Act, the right provided under the Act has, therefore, to be treated as an extension of the Constitutional right already available to a detenu under Article 22(5). The legislature has, in fact, given effect to the Constitutional right by providing in Section 8 of the Act that the delenu shall have the right of making a representation to the appropriate government In Amir Shad Khan v. L. Hmingtiana & Ors., [1991] 4 SCC 391991 Indlaw SC 241, this Court, while considering the provisions of the conservation of foreign Exchange and Prevention of Smmoolina Activities Act, 1974 abserved as under.
"This clause casts a dual obligation on the Detaining Authority, namely (i) to communicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the Constitutional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitution. It is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant-detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the Constitutional guarantee enshrined in Article 22 (5) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires".
15.  This decision was considered in Veeramani v. State of Tamil Nadu, [1994] 2 SC 337 1994 Indlaw SC 1450 and it was laid down as under:
"The right to make representation against the detention order flows from Art. 22(5). But that article does not say to whom such representation if to be made. Such a representation must be made to the authority who has power to approve, rescind or revoke the decision. To know who has such power, the provisions of the Act have to be seen. Under the T.N. Act any detention order made by the empowered officer shall cease to be in operation if not approved within 12 days. Therefore, the Act never contemplated that the detaining authority has specific power to revoke and it cannot be inferred that a representation can be made to it within the meaning of Art. 22(5). Therefore, representation to be made by the detenu, after the earlier opportunity was afforded to him, can be only to the Government which has the power to approve or to revoke."
16.   These decision are enough the reject the contention of the respondents.
17.   Turning now to the main question relating to the early disposal of the representation, we may immediately observed that this Court in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of the detention, and in that situation, continued determination would become bad. This has been the consistent view of this Court all along from its decision in Sk, Abdul Karim & Ors. v. State of West Bengal, [1969] 1 SCC 433 1969 Indlaw SC 262; In re : Durga show & On., [1970] 3 SCC 696 1969 Indlaw SC 497: Jayanarayan Sukul v. State of West Bengal, [1970] 1 SCC 219 1969 Indlaw SC 445; Shait Hanif v. State of West Bengal, [1974] 1 SCC 637 1974 Indlaw SC 30; Raisuddin @ Babu Tamchi v. State of U.P. & Anr. [1983] 4 SCC 537 1983 Indlaw SC 114; Frances Coralie Mullin v. W.C. Khambra & Ors., [1980] 2 SCC 275 1980 Indlaw SC 590; Mohinuddin Alias Main Master v. District Magistrate, Bead & Ors., [1987] 4 SCC 58 1987 Indlaw SC 28885; Rama Dhondu Board v. V.K. Saraf. Commissioner of Police & Ors., [1989] 3. SCC 173 1989 Indlaw SC 618; Aslam Ahmed Zahire Ahmed Saik v. Union of India & Ors., [1989] 3 SCC 277 1989 Indlaw SC 566; Mahesh Kumar Chauhan alias Banti v. Union of India & Ors., [1990] 3 SCC 148 1990 Indlaw SC 52, right upto its reiteration in Gazi Khan alias Chotia v. Slate of Rajasthan and Anr., [1990] 3 SCC 459 1990 Indlaw SC 693.
18.   Almost all these decisions were against considered in State of Tamil Nadu & Anr. v. A. Vaidivel Alias Sundaravadivel, JT (1992) 5 SC 318 1992 Indlaw SC 201 and above view was reiterated, which was repeated against in K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Ors., [1991] 1 SCC 476 1991 Indlaw SC 473 and julia Jose Mavli v. Union of India & Ors., (1992) Crl. LJ. 109 1991 Indlaw SC 60 (SC).
19.   In. Mohitiuddin1987 Indlaw SC 28885 and Ram Dhondu' cases1989 Indlaw SC 618 (supra), it was provided that inordinate and unexplained delay in the disposal of representation would make the continued detention of a person, illegal and unconstitutional. In Devi Lal Mahto v. State of Bihar & Anr., AIR (1982) SC 1548 1982 Indlaw SC 139, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days.
20.   In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the "liberty and freedom" to the person whose detention is allowed to become bad by the government itself on account of his representation not being disposal of at the earliest.
21.  22, In both these cases, we have to read the old story of lethargy of the State Government. In the first case, the representation dated 23.8.95 was received in the office of the Chief Minister on 25.8.95 and was ultimately disposed of on 12.9.95 and the order was communicated to the detenu on 14.9.95. During this period, the file was being processed in the government departments. It is pointed out in the counter-affidavit that the representation, on being received in the office of the Chief Minister on 25.8.95 was sent to the Secretary, Food & Civil Supplies Department, where it was received on 29.8.95. The internal movement of the file thus took four days, The representation was then sent to the Special Branch where it was received on 1.9.95. The representation was taken up by the Special Branch on 6.9.95. The inactivity in taking up the representation for six days is explained by showing in the counter-affidavit that there were about 40 to 50 representations pending for disposal and they were taken up chronologically. This indicates that the representation was placed in the queue and was not given precedence over other representation which are not said, in the counter-affidavit, to relate to detention orders. Even if they related to preventive detention, then such of those which were ready for disposal and in respect of which comments from various departments had been gathered and other formalities completed should have been disposed of immediately and should not have been kept pending on the ground of "chronological disposal" by saying that representations filed earlier by other detenus were still to be disposed of. The chronology must be broken as soon as a representation is ready for disposal.
22.   Apart from the above, the representation dated 2.9.95, which was made to the Central Government could not be disposed of for want of comments from the State Government. It will be noticed that this representation was lying with the State Government from 2.9.95 to 27.9.95 and it was on that date that it was sent to the Central Government which received it on 4.10.95. The Central Government, in spite of its telegrams and reminders, was not furnished the comments by the State Government for over a month. The comments of the State Government were received by the Central Government on 6.11.95 and the representation was disposed of on 8.11.95. This again is a glaring example of the lethargy on the part of the State Government, as a result of which petitioner's representation could not be disposed of expeditiously by the Central Government with the obvious consequence that the petitioner's right under Article 22 (5) of the Constitution read with Section 8 of the Act was violated.
23.   In the second case also, the representation dated 23.8.95 made by the detenu was forwarded to the Central Government by the State Government under its letter dated 19.9.95 which was received on 21.9.95 by the Central Government, which by its telegram dated 22.9.95 and reminders dated 29.9.95 and 5.10.95 called for the comments of the State Government, The State Government, true to its colours, sent the comments on 18.10.95. The representation was rejected by the Central Government on 19.10.95. The representation thus remained lying with the State Government from 23.8.95 to 19.9.95 and when it was ultimately sent to the Central Government, the comments were not furnished by the State Government till 18.10.95. Thus, in this case also, the guarantee of early disposal of representation set out in Arlicle 22 (5) was infringed
24.   Blackmarketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm band, but when it conies to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicate in Mahesh Kumar Chauhan's case 1990 Indlaw SC 52(supra) and in an earlier decision in Mahesh kumar Deorah v. District Magistrate, Kamrup & Ors., AIR (1974) SC 183 1973 Indlaw SC 486, in which it was observed that the gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial.
25.   Learned Counsel for the respondents referred to us the decision of this Court in State of U.P. v. Shakeel Ahmad, [1996] 1 SCC 337 1995 Indlaw SC 1985 and contended that this Court ignored the delay of over 23 days in the disposal of the representation. This decision is of no help to the respondents as the necessary facts on the basis of which the Court came to the conclusion that there was no delay in the disposal of representation, have not been set out. All that has been said is that "in the facts and circumstances of this case, the delay in disposal of the representation of about 23 days also is not fatal". Moreover, the period of detention had already expired and, therefore, what was laid down therein would be of no assistance to the respondents.
26.   In view of the foregoing discussion we, after having considered the arguments of the counsel on both sides, by our order dated 21st November, 1995, as aforesaid, allowed these writ petitions and have now recorded the reasons therefore.
Petition allowed


Rajammal v State of Tamil Nadu and Another
Supreme Court of India

14 December 1998
Criminal Appeal No. 1289 of 1998
The Judgment was delivered by : K. T. Thomas, J.
Leave granted.
1.  Smt. Rajammal, a thirty two year old is kept under detention dubbing her as a "bootlegger", as per the detention order passed under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14/1982) (hereinafter referred to as the TN Act). The aforesaid order was passed by the Government of Tamil Nadu on 18.12.1997 and she continues to be in detention. A representation forwarded by her on 13.1.1998, was rejected by the Government of Tamil Nadu. She filed a habeas corpus petition before the High Court of Madras in which the detention order was challenged mainly on three grounds. First is that there was delay in considering the representation submitted on her behalf. Second is that her family members were not informed about the place of detention nor even about the detention. The third is that report of the Advisory Board was not submitted within the statutory period of seven days as contemplated under Section 11 of the TN Act. A Division Bench of the Madras High Court has repelled all the aforesaid three contentions and dismissed her petition. This appeal has, therefore, been filed by special leave challenging the judgment of the High Court.
2.  Learned counsel for the appellant has, however, confined the challenge to the first ground aforementioned, namely, there was delay in considering the representation submitted on behalf of the detenu. The factual position is the following:
3. The representation was sent by her 13.1.1998 which after passing through the prescribed route reached the Secretary to the Government of Tamil Nadu (Prohibition and Excise Department) on 5.2.1998. The Minister concerned rejected the representation on 14.2.1998. According to the learned counsel, the delay is the interval between the aforesaid two dates and there is no valid justification thereto and hence the detention must be treated as vitiated. Reliance was placed by the learned counsel on the decision of this Court in Mohinuddin vs. District Magistrate, Beed (1987 (4) SCC 58 1987 Indlaw SC 28885).
4.  In the affidavit sworn to by Sri R. Poornalingam, IAS, Secretary to the Government, (Prohibition and Excise Department) in answer to the contentions of the appellant in the Special Leave Petition the delay is sought to be explained in the following lines:
"The remarks were submitted with the relevant files before the Under Secretary of the concerned Department on 6.2.1998. The file was considered by the Under Secretary on 9.2.1998 as 7.2.1998 and 8.2.1998 were holidays in view of Saturday and Sunday and sent to Deputy Secretary on 9.2.1998 itself. Thereafter the file was considered by the Deputy Secretary on 9.2.1998 itself. Thereafter the file was considered by the Deputy Secretary who in turn sent the same to the Minister for Law for approval. The representation was considered and rejected by the Minister for Law on 14.2.1998 as he was away on camp from Headquarter on the dates in between. Thus the file was not unnecessarily held up at any level but moved from level to level promptly."
5.  According to the learned counsel it is no explanation that the Minister concerned was away on camp from the Headquarters, particularly since a similar stand was disapproved in Mohinnuddin's case  1987 Indlaw SC 28885(supra). A two Judge Bench in the said decision declined to accept the explanation that "the Chief Minister was preoccupied with very important matters of the State which involved tours as well as two Cabinet meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986." Learned Judges further observed that "in view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government, the further detention of the appellant must be held illegal and he must be set at liberty forthwith."
6.  Learned counsel also cited an earlier two Judge Bench decision of this Court in Raghavendra Singh vs. Superintendent, District Jail, Kanpur (1986 1 SCC 650 1985 Indlaw SC 22) in which similar delay of a few days in considering the representation was found to have vitiated the detention. That is a case where delay was held be "wholly unexplained". A three Judge Bench of this Court in Rumana Begum vs. State of Andhra Pradesh (1993 Supp. 2 SCC 341 1992 Indlaw SC 463) disapproved the delay in considering the representation on the mere ground that the representation on the mere ground that the representation was not addressed to the Chief Secretary. That was a case where representation was sent to the Governor. Hence it was found that there was unexplained and unreasonable delay and consequently the detention was held vitiated. We are reminded of the following observations made by this Court in Kundanbhai Dulabhai Sheikh vs. District Magistrate, Ahmedabad (JT 1996 (2) SC 532 = 1996 (3) SCC 194 1996 Indlaw SC 3216):
"In spits of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the 'liberty and freedom' to the person whose detention is allowed to become bad by the government itself on account of his representation not being disposed of at the earliest."
7.  It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words "as soon as may be" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation.
8. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a constitution Bench of this Court in K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India and others (1991 (1) SC 476 1991 Indlaw SC 473). The following observations of the Bench can profitable be extracted here: "IT is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay.
9.  However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the Constitutional imperative and it would render the continued detention impermissible and illegal." The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, it any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.
10.  What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 9.2.1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14.2.1998. Though there is explanation for the delay till 9.2.1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14.2.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.
11.  Mr. V.R. Reddy, learned senior counsel for the State of Tamil Nadu referred to a decision of this Court in Mrs. U. Vikayalakshmi vs. State of Tamil Nadu and another (AIR 1994 SC 165 1992 Indlaw SC 64) to contend that it could not be said that there was any delay in considering the representation from 9.2.1998 to 14.2.1998. In that case also the detention was under Section 3(1) of the Act. The detenu made representation again the detention which was received by the State Government conveyed the rejection of the representation on 23.6.1992. The detenu received the rejection order on 26.6.1992. It was submitted that there was an inordinate long delay in dealing with the representation and that the detenu was entitled to have the detention order quashed. This Court noticed that in the counter affidavit filed by the Deputy Secretary to the State Government the manner in which the representation was dealt with after its receipt on 18.5.1992 had been stated in detail. The Court then observed:
"We have perused the stages through which the file containing the representation was dealt with promptly and there was no indifference lethargy or negligence in dealing with the same. The file was not unnecessarily held up at any level but moved from level to level promptly. We are, therefore, satisfied that the explanation tendered by the Deputy Secretary in this behalf is acceptable and does not detray any lack of sense or urgency in dealing with the representation. We, therefore, do not see any merit in the first contention."
12.  In the present case, however, there is no explanation forth coming as to why the representation could not be dealt with by the Minister concerned from 9.2.1998 to 14.2.1998.
13.  We are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu. The corollary thereof is that further detention must necessarily be disallowed. We therefore allow this appeal and set aside the impugned judgment. We direct the appellant-detenu to be set at large forthwith.
Appeal allowed


S. V. Chandra Pandian and Others v S. V. Sivalinga Nadar and Others
Supreme Court of India

11 January 1993
C.As. Nos. 17491752 of 1992
The Judgment was delivered by : Hon'ble Justice A. M. Ahmadi
1. The four appellants and respondents 1 and 2 are brothers. They were carrying on business in partnership in the name and style of Messers Sivalinga Nadar and Brothers and S.V.S. Oil Mills, both partnerships being registered under the Partnership Act, 1932. Most of the properties were acquired by the firm of Sivalinag Nadar and Brothers. The firm of Messers S.V.S. Oil Mills merely had leasehold rights in the parcel of land belonging to the first-named firm on which the superstructure of the oil miff stood. Both the partnerships were of fixed durations. Disputes arose between the six brothers in regard to the business carried on 'in partnership in the aforesaid two names. For the resolution of these disputes the six brothers entered into an arbitration agreement dated 8th October, 1981, which was as under :
"We are carrying on business in Partnership together with other partners under several partnership names. We are also holding shares and Managing the Public Limited Company, namely. The Madras Vanaspati Ltd., at Villupuram. Disputes have arisen among us with respect to the several business concerns, immoveable and moveable properties standing in our names as well as other relatives. We are hereby referring all our disputes, the details of which would be given by us shortly to you, namely, Sri B.B. Naidu, Sri K.R. Ramamani and Sri Seatharaman. We agree to abide by your award as to our disputes."
2. All the three arbitrators were fairly well-conversant with the business carried on in different names by the aforesaid two partnership firms; the first two being their Tax Consultants and the third being their Chartered Accountant. The parties, therefore, had complete faith and trust in their objectivity and impartiality.
3. The arbitrators accepted and entered upon the reference and after giving the disputants full and complete opportunity to place their rival points of view before them, circulated a draft award and after considering the response and reaction of the disputants thereon made their final award on 9th July, 1984. The concluding part of the award reads as under :
"We hereby direct that each of the parties be allotted the schedule of properties mentioned in the various schedules A to F annexed to this award.
S.V. Sivalinga Nadar- Schedule 'A'
S.V. Harikrishnan- Schedule 'B'
S.V. Chandrapandian- Schedule 'C'
S.V. Kasilingam Schedule 'D'
S.V. Ramchandran- Schedule 'E'
S.V. Natesan Schedule 'F
We direct that the firms of M/s Sivalinga Nadar & Bros. and M/s S.V.S. Oil Mills and also the joint house property Rent Account be dissolved as at the close of business on 14th July, 1984."
The arbitrators then proceed to set out the properties belonging to or claimed to belong to the aforesaid two firms in paragraphs 6 to 24 of their award. Paragraph 25 is 'a residuary clause which says that any asset left out or realised hereafter or any liability found due other than those reflected in the account books, shall, likewise, be divided and/or borne equally among the disputants. deal with the use of the firm names. refers to the claim of Smt. C. Kanthimathi, sister of the six partners, with which we are not concerned in these appeals.  refers to the business carried on by the relatives of the disputants in the names of Sri Brahmasakthi Agency and Srimagal Finance Corporation. The arbitrators have recognised the fact that even though the said business is not carried on by the disputants it would be desirable to dissolve the said firms also we.f. 24th July, 1984 in the larger interest of peace and amity among the disputants and their relatives. to the properties standing in the name of the father of the six disputants, i.e., partners of the two firms in question. It is stated that although initially the disputants had shown an inclination to refer the dispute concerning the properties owned by their father to the arbitration of the three arbitrators but when it was noticed that the deceased had left a will disposing of the properties the need for resolution of the dispute through arbitration did not survive. the arbitrators have determined their fees and have directed the disputants to bear them equally. At the end of the award the properties falling to the share of the disputants have been set out in detail in Schedules A to F referred to earlier.
4. After the award was made on 9th July, 1984, O.P. No. 230 of 1984 was filed by S.V. Chandrapandian & Ors. for a direction to the arbitrators to file their award in Court which was done. Thereupon, the applicants S.V. Chanrapandian and others filed a Misc. Application No. 3503 of 1984 requesting the Court to pass a decree in terms of the award. Before orders could be passed on that application, O.P. Nos. 247 & 275 of 1984 were filed by S.V. Sivalinga Nadar and S.V. Harikrishnan respectively u/s. 30 of the Arbitration Act to set aside the award. The said applications came up for hearing before a learned Single Judge of the High Court. Various points were raised and decided by the learned Single Judge but it would be sufficient for our purpose to refer to the one which we are called upon to decide in these group of appeals. That is to be found in the judgment of the learned Single Judge. The contention urged was that having regard to the allotment of partnership properties under the award, it was incumbent that the award should have been registered as required by S. 17(1) of the Registration Act and since it lacked registration, the Court had no jurisdiction to make it the rule of the Court and grant a decree in terms thereof.
5. The learned Single Judge answered the aforesaid contention in his judgment as under :
"The learned counsel for the respondents also contended that Award falls under Schedule I Art. 12 of the Stamp Act and the allocation of properties owned by partnership firm on dissolution to the erstwhile partners is not partition of immoveable properties. In this connection, learned counsel for the respondents placed reliance in the decision reported in which decision has been confirmed in Addanki Narayanappa V. Bhaskara Kiishnappa. It was submitted by the learned counsel for the respondents that the contentions with regard to stamp and registration put forward by the petitioner cannot be accepted. It is to be pointed out that the Award has been submitted for registration long ago on 27-10.1984 itself and it is stamped and if there is any deficiency, the Registering Authority could direct proper stamp to be affixed and therefore I feel there could be no impediment for the Award being made a rule of the Court and a decree being passed in terms of the Award as contended by the learned counsel for the respondents."
6. The learned Single Judge thereafter proceeded to make the final order in  the judgment in the following terms :
"Thus on a careful consideration of the materials available and the contentions of either side it has to be decided that Application No. 3505 of 1984 in O.P. No. 230/84 filed by the petitioners therein praying for a decree in terms of the arbitration Award dated 9.7.1984 has to be allowed and O.P. Nos. 247 and 275 of 1984 and the application filed in. those two petitions, i.e., Application Nos. 3474, 3476, 5030, 5031, 5032, 2827, 2828,3773, 3762, 3874 of 1984 and 4886 and 4887 of 1985, are dismissed. The petitioner in O P. No. 230/84 and the applicants in Application No. 3503/84 are directed to take steps for getting the Award registered. The parties in all these proceedings are directed to bear their own costs."
7. It may here be mentioned that after the making of the award one of the arbitrators Sri B.B. Naidu passed away on 20th October, 1984. At the request of some of the parties the surviving arbitrators presented the award before the District Registrar, Madras, for registration on 27.10.84. Even though. the signature of the deceased arbitrator was identified by the surviving arbitrators the document was kept pending for registration. In the meantime, on 23rd January, 1987, advocate for Sivalinga Nadar served notice on the Registrar not to register the document and threatened to take proceedings in Court if the document was registered. It will thus be seen that the registration of the document was blocked by one of the disputants Sivalinga Nadar on the premise that the High Court had in O.P. No. 247/84 granted a stay against the operation of the award on 5th September, 1984.
8. Against the judgment of the learned Single Judge, the matter was carried in appeal to a Division Bench of the High Court of Madras. The Division Bench of the High Court reversed the aforesaid finding recorded by the learned Single Judge and came to the conclusion that the award required registration u/s. 17(1) of the Registration Act. In this view that it took, it did not think it necessary to go into the other contentions dealt with by the learned Single Judge. It held that since the award required registration and was in fact not registered no proceeding for making the award the rule of the Court could be entertained because in the absence of a valid award the Court had no jurisdiction to grant a decree in term of the award. It, however, took note of the fact that the award was presented for registration but on account of the conduct of one of the disputants it could not be registered as the Registering Authority was threatened with civil consequences. The correspondence in this behalf was sought to be placed on record as additional evidence but the Division Bench though that would not alter the situation since the fact remained that the award was not registered even on the dated of its judgment. It, therefore, made the following observation in the judgment:
"It, however, does not mean that if the award is validly registered and presented to be made a rule of the Court in accordance with law, the Court cannot entertain the same."
9. In this view of the matter the Division Bench allowed the appeal and set aside the impugned judgment of the learned Single Judge and held that as the award was not registered it could not be made the rule of the Court. It made no order as to costs. It is against this decision of the Division Bench of the High Court that present appeals by special leave (we also grant special leave in S.L.P. No. 9408 of 1992) have been filed.
10. Before we examine the contention based on s. 17 of the Registration Act we may notice a few relevant provisions bearing on the interest of partners in partnership property as found in the Partnership Act, 1932. S. 4 defines partnership a,-, a relationship between persons who have agreed to share the profit of a business carried on by all or any of them acting for all. S. 14 provides that subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business. It is also clarified that unless the contrary intention appears, property and rights and interest in property acquired with money belonging to the firm shall be deemed to have been acquired for the firm. S. 15 says that the property of the firm shall be held and used by the partners exclusively for the purposes of the business subject of course to contract between the partners. Says section 18, subject to the provisions of the Act, a partner is the agent of the firm for the purposes of the business of the firm. U/s. 19 the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, shall bind the firm. This authority to bind the firm is termed as "implied authority". S. 22 lays down that in order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm name, or in any other manner expressing or implying an intention to bind the firm. S. 29 deals with the rights of transferee of a partner's interest. Sub-s. (1) thereof provides that such a transferee will not have the same rights as the transferor-partner but he would be entitled to receive the share of profits of his transferor on the account of profits agreed to by the partners. Sub-s. (2) next provides that upon dissolution of the firm or upon a transferor- partner ceasing to be a partner, the transferee would be entitled against the remaining partners to receive the share of the assets of the firm to which the transferor-partner was entitled and will also be entitled to an account as from the date of dissolution. S. 30 deals with the case of a minor admitted to the, benefits of partnership. Such a minor is given a right to his share of the property of the firm and also a right to share in the profits of the firm as may be agreed upon business share is made liable for the acts of the firm though he would not be personally liable for the same. Sub-section (4), however, debars a minor from suing the partners for an account or for his share of the property or profits of the firm except when he severe his connections with the firm, in which case for determining his share the law requires a valuation of his share in the property of the firm to be made in accordance with Section 48. Ss. 31 to 38 relate to incoming and outgoing partners. S. 32 deals with the consequences of retirement. Sub-ss. (2) and (3) of S. 32 deal with the consequences of retirement while Ss. 36 and 37 speak about the rights of an outgoing partner to carry on competing business and in certain cases to share subsequent profits. Chapter VI deals with the dissolution of a firm. S. 40 provides that a firm may be dissolved with the consent of all the partners or in accordance with the contract between the partners. Ss. 41 and 42 deal with dissolution on the happening of certain events while S. 43 permits a partner to dissolve a firm by notice if it is a partnership at will. S. 44 speaks of dissolution through Court. S. 48 indicates the mode of settlement of accounts between the partners on dissolution while S. 49 posits that where there are joint debts due from the firm, and also separate debts due from any partner, the property of the firm shall be applied in the first instance in payment of the debts of the firm, and, if there is any surplus, then the share of each partner shall be applied in payment of his separate debts or paid to him. The separate property of any partner shall be applied first in the payment of his separate debts, and the surplus (if any) in the payment of the debts of the firm. Chapter VII deals with the registration of firm, etc,. and Chapter VIII contains the saving clause.
11. The above provisions make it clear that regardless of the character of the property brought in by the partners on the constitution of the partnership firm or that which is acquired in the course of business of the partnership, such property shall become the property of the firm and an individual partner shall only be entitled to his share of profits, if any, accruing to the partnership from the realisation of this property and upon dissolution of the partnership to a share in the money representing the value of the property. It is well-settled that the firm is not a legal entity, it has no legal existence, it is merely a compendious name and hence the partnership property would vest in all the partners of the firm.
12. Accordingly, each and every partner of the firm would have an interest in the property or asset of the firm but during its subsistence no partner can deal with any portion of the property as belonging to him, nor can be assign his interest in any specific item thereof to anyone. By virtue of the implied authority conferred as agent of the firm his action would bind the firm if it is done to carry on, in the usual way, the business of the kind carried on by the firm but the act or instrument by which the firm is sought to be bound must be done or executed in the firm name or in any other manner expressing or implying an intention to bind the firm. His right is merely to obtain such profits, if any, as may fall to his share upon the dissolution of the firm which remain after satisfying the liabilities set out in the various sub- cls. (i) to (iv) of clause (b) of s. 48 of the Act. In the present case the six brothers who were carrying on business in partnership fell out on account of disputes which they could not resolve inter se. The partnership being of fixed durations could not be dissolved by any partner by notice. As they could not resolve their disputes they decided to resort to arbitration. The three arbitrators chosen by them were men of their confidence and they after giving the partners full and complete opportunity took care to first circulate a proposed award to ascertain the reaction of the disputants therein. The letter written to the arbitrators by S.V. Sivalinga Nadar dated 16th February, 1983 indicates that he was quite satisfied with the hearing given by the arbitrators. He was also by and large satisfied with the proposed award but thought it warranted certain adjustments to make it acceptable and rationale. He was of the view that the award should provide for the reallocation of the shareholdings of Madras Vanaspati Ltd., whereas Brahmaksthi Tin Factory owned by his sons should be kept out of the purview of the arbitrators since it was not the subject matter of arbitration. Then he raised some objection as to the percentage of his share and the amount found due to him. In the subsequent letter written on 9th September, 1983 he has reiterated these very objections while raising certain questions regarding valuation of partnership properties. Even the application filed u/ss. 30 and 33 of the Arbitration Act in the High Court the objections to the award as enumerated and mainly concerned (i) the conduct of the arbitrators who, it is alleged, acted negligently, with bias and against principles of natural justice (ii) deliberate act in leaving out certain proper- ties from consideration e.g., shareholdings of Madras Vanaspati Ltd., stock-in-trade and cash deposits, the properties of Velayudha Perumal Nadar, etc., and (iii) failure to grant him a higher share to which he was entitled. No contention was raised regarding the want of registration of the award. However, being a question of law, the learned Single Judge entertained the plea and rejected it but it found favour with the Division Bench. We now think it convenient to reproduce the relevant part of S. 17 of the Registration Act :
" 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, No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely
(a) instruments of gift of immoveable property;
(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 immoveable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immoveable property from year to year, or for any terms exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates 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 immoveable property."The submission made in this behalf before the Courts below was that the award involved a partition of immoveable properties as a consequence of dissolution of the firms and since the value of the immoveable properties which are the subject matter of the award indisputably exceed the value of Rs. 100, the award was compulsorily registrable in view of the mandatory nature of the language of S. 17(1) which uses the expression 'shall be registered'. On the mandatory character of the provision there is no dispute. The question which requires determination is whether on the dissolution of the partnership the distribution of the assets of the firm comprising both moveable and immoveable properties after meeting its obligations on settlement of accounts amongst the partners of the firm in proportion to their respective shares amounts to a partition of immoveable properties or a relinquishment or extinguishment of a share in immoveable property requiring registration under S. 17 of the Registration Act if the allocation includes immoveable property of the value of Rs. 100 and above? In other words the question to the considered is whether the interest of a partner in partnership assets is to be treated as moveable property or both moveable and immoveable depending on the character of the property for the purposes of S. 17 of the Registration Act? This question has been the subject matter of decision in a few cases. In Addanki Narayanappa & Anr. v. Bhaskara Krishtappa & 13 Ors., [1966] 3 SCR 400 1966 Indlaw SC 382 the members of two Joint Hindu families, the Addanki family and the Bhaskara family, had entered into partnership for carrying on business of hulling rice, etc.; each family having half share in that business. The capital of the partnership comprised, among other things, certain lands belonging to the two families. The firm acquired more lands in the course of business. Differences arose whereupon two members of the Addanki family filed a suit for dissolution of the partnership and accounts. All the members of the two families were made parties to the suit either as plaintiffs or as defendants. The Bhaskara family contended in defence that the partnership was dissolved in 1936 and accounts were settled between the two families under a karar executed in favour of Bhaskara Gurappa Setty, the karta of the Bhaskara family, by five members of the Addanki family representing that family. The defendants, therefore, contended that the plaintiffs had no cause of action and the suit for dissolution of partnership and accounts was not maintainable. The relevant part of the agreement Karar reads as under :
"As disputes have arisen in our family regarding partition, it is not possible to carry on the business of to make investment in furture. Moreover, you yourself have undertaken to discharge some of the debts payable by us in the coastal parts in connection with our private business. Therefore, from this day onwards we have closed the joint business. So, from this day onwards, we have given up (our) share in the machine etc., and in the business, and we have made over the same to you alone completely by way of adjustment. You yourself shall carry on the business without ourselves having anything to do with the profit and loss. Herefor, you have given up to us the property forming our Venkatasubbayya's share which you have purchased and delivered possession of the same to us even previously. In case you want to execute and deliver a proper document in respect of the share which we have given to you, we shall at you own expense, execute and deliver a document registered."
13. Ex-facie this document disclosed that the partnership business had come to a halt and the Addanki family had given up their share in the machine, etc., in the business and had made it over to the Bhaskara family. It also recites that the Addanki family had already received certain properties purchased by the partnership as its share in the partnership assets. The submission was that since the partnership assets included immovable property and the document recorded relinquishment by the members of the Addanki family of their interest therein which exceeded Rs. 100 in value, the document required registration under S. 17(1) (c) of the Registation Act. After referring to the provisions of law, treatise and the case law, both of English and Indian Courts, this Court reproduced the following passage from the decision in Ajudhia Pershad Ram Pershad v. Sham Sunder, AIR 1947 Lahore 13 with approval:
"These Sections require that the debts and liabilities should first be met out of the firm property and thereafter the assets should be applied in ratable payment to each partner of what is due to him firstly on account of advances as distinguished from capital and, secondly on account of capital, the residue, if any, being divided ratably among all the partners. It is obvious that the Act contemplates complete liquidation of the assets of the partnership as a preliminary to the settlement of accounts between partners upon dissolution of the firm and it will, therefore, be correct to say that, for the purposes of the Indian Partnership Act, and irrespective of any mutual agreement between the partners, the share of each partner is, in the words of Lindley : his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged."
14. In Commissioner of Income-Tax, West Bengal, Calcutta v. Juggilal Kamalapat, [1967] 1 SCR 784 = AIR 1967 SC 401 1966 Indlaw SC 151 the facts were that three brothers and one J. entered into a partnership business. The firm owned both moveable and immoveable properties. Sometime thereafter the three brothers created a Trust with themselves as the first three trustees and simultaneously executed a deed of relinquishment relinquishing their rights in and claims to all the properties and assets of the firm in favour of J and of themselves in the capacity of trustees. Thereafter a new partnership firm was constituted between J and the Trust with specified shares. The Trust brought a sum of Rs. 50,000 as its capital in the new firm. The new firm applied for registration under Section 26-A of the Income Tax Act, 1922 but the application was rejected by the authorities. The Tribunal held that the deed of relinquishment being unregistered could not legally transfer the rights and the title to the immoveable properties owned by the original firm to the Trust. Since the immoveable properties were not separable from the other business assets it held that there was no legal transfer of any portion of the business assets of the original firm in favour of the Trust. A reference was made to the High Court on the question whether the new partnership legally came into existence and as such should be registered under Section 26-A. The High Court held that there was no impediment to its registration. The matter was brought in appeal before this Court. This Court pointed out that the deed of relinquishment was in respect of individual interests of the three brothers in the assets of the partnership firm in favour of the Trust and consequently, did not require registration, even though the assets of the partnership included immoveable property. In taking this view reliance was placed on the decision, Ajudhia Pershad's case (supra) as well as the decision of this Court in Addanki Narayanappa & Anr. 1966 Indlaw SC 382 (Supra). Again in CIT Madhya Pradesh v. Dawas Cine Corporation, [1968] 2 SCR 173 = AIR 1968 SC 676 1967 Indlaw SC 384 the partnership firm was dissolved and on dissolution it was agreed between the partners that the theaters should be returned to their original owners who had brought them into the books of the partnership as its assets. In the books of accounts of the partnership the assets were shown as taken over on October 1. 1951 at the original price less depreciation, the depreciation being equally divided between the two partners. In the proceedings for the assessment year 1952-53 the firm was treated as a registered firm. The Appellate Tribunal held that restoration of the two theaters to the original owners amounted to transfer by the firm and the entries adjusting the depreciation and writing off the assets at the original value amounted to total recoupment of the entire depreciation by the partnership and on that account the second proviso to s. 10(2)(vii) of the I.T. Act, 1922 applied. The High Court in reference upturned the decision of the Tribunal and held in favour of the assessee against which the Revenue appealed to this Court. This Court after referring to ss. 46 and 48 of the Partnership Act held that on the dissolution of the partnership each theatre must be deemed to be returned to the original owner in satisfaction partially or wholly of his claim to a share in the residue of the assets after discharging the debts and other obligations. In law there was no sale or transfer by the partnership to the individual partners in consideration of their respective share in the residue. In taking this view reliance was once again placed on the decision of this court in Addanki Narayanappa & Anr. (supra) In CIT. U.P. v. Bankey Lal Vaidya, AIR 1971 SC 2270 1971 Indlaw SC 114 this court pointed out that on dissolution of partnership the assets of the firm are valued and the partner is paid a certain amount in lieu of his share of the assets, the transaction is not a sale, exchange or transfer of assets of the firm and the amount received by the partner cannot be taxed as capital gains. In taking this view reliance was placed on the decision of this Court in CIT. Madhya Pradesh v. Dewas Cine Corpn 1967 Indlaw SC 384., (supra). Again in Malabar Fisheries Co. Calicut v. CIT. Kerala, [1980] 1 SCR 696 = AIR 1980 SC 176 1979 Indlaw SC 189 the facts were that the appellant firm which was constituted on April 1. 1959 with four partners carried on six different businesses in different names. The firm was dissolved on March 31, 1963 and under the deed of dissolution the first business concern was taken over by one of the partners, the remaining five concerns by two of the other partners and the fourth partner received his share in cash. It appears that during the assessment years 1960-61 to 1963-64 the firm had installed various items of machinery in respect of which it had received Development Rebate u/s. 33 of the I.T. Act. 1961. On dissolution, the Income Tax officer took the view that s. 34(3)(b) of the Act applied on the premiss that there was a sale or transfer of the machinery by the firm whereupon he withdrew the Development Rebate earlier allowed to the firm by amending the orders in that behalf. The appeal filed on behalf of the dissolved firm was dismissed by the Appallate Assistant Commissioner but was allowed by the Tribunal. At the instance of the Revenue a reference was made to the High Court and the High Court allowed the reference holding that there was a transfer of assets within the meaning of s. 34(3)(b). The dissolved firm approached this court in appeal. This court after referring to the definition of the expression 'transfer' in s. 2(47) of the Act and the case law on the point concluded as under :
"Having regard to the above discussion, it seems to us clear that a partnership firm under the Indian Partnership Act, 1932 is not a distinct legal entity apart from the partners constituting it and equally in law the firm as such has no separate rights of its own in the partnership assets and when one talks of the firm's property or firm's assets all that is meant is property or assets in which all partners have a joint or common interest. If that be the position, it is difficult to accept the contention that upon dissolution the firm's rights in the partnership assets are extinguished. The firm as such has no separate rights of its own in the partnership assets but it is the partners who own jointly in common the assets of the partnership and, therefore, the consequence of the distribution, division or allotment of assets to the partners which flows upon dissolution after discharge of liabilities is nothing but a mutual adjustment of rights between the partners and there is no question of any extinguishment of the firm's rights in the partnership assets amounting to a transfer of assets within the meaning of s. 2(47) of the Act."
15. From the foregoing discussion it seems clear to us that regardless of its character the property brought into stock of the firm or acquired by the firm during its subsistence for the purposes and in the course of the business of the firm shall constitute the property of the firm unless the contract between the partners provides otherwise. On the dissolution of the firm each partner becomes entitled to his share in the profits, if any, after the accounts are settled in accordance with s. 48 of the Partnership Act. Thus in the entire asset of the firm all the partners have an interest albeit in proportion to their share and the residue, if any, after the settlement of accounts on dissolution would have to be divided among the partners in the same proportion in which they were entitled to a share in the profit. Thus during the subsistence of the partnership a partner would be entitled to a share in the profits and after its dissolution to a share in the residue, if any, on settlement of accounts. The mode of settlement of accounts sat out in s. 48 clearly indicates that the partnership asset in its entirety must be converted into money and from the pool the disbursement has to be made as set out in clause (a) and sub-clauses (i), (fi) and (iii) of clause (b) and thereafter if there is any residue that has to be divided among the partners in the proportions in which they were entitled to a share in the profits of the firm. So viewed, it becomes obvious that the residue would in the eye of law be moveable property i.e. cash, and hence distribution of the residue among the partners in proportion to their shares in the profits would not attract s. 17 of the Registration Act. Viewed from another angle it must be reaslised that since a partnership is not a legal entity but is only a compendious name each and every partner has a beneficial interest in the property of the firm even though he cannot lay a claim on any earmarked portion thereof as the same cannot be predicated. Therefore, when any property is allocated to him from the residue it cannot be said that he had only a definite limited interest in that property and that there is a transfer of the remaining interest in his favour within the meaning of s. 17 of the Registration Act. Each and every partner of a firm has an undefined interest in each and every property of the firm and it is not possible to say unless the accounts are settled and the residue of surplus determined what would be the extent of the interest of each partner in the property. It is, however, clear that since no partner can claim a definite or earmarked interest in one or all of the properties of the firm because the interest is a fluctuating one depending on various factors, such as, the losses incurred by the firm, the advances made by the partners as distinguished from the capital brought in the firm, etc, it cannot be said, unless the accounts are settled in the manner indicated by s. 48 of the partnership Act, what would be the residue which would ultimately be allocable to the partners. In that residue, which becomes divisible among the partners, every partner has an interest and when a particular property is allocated to a partner in proportion to his share in the profits of the firm, there is no partition or transfer taking place nor is there any extinguishment of interest of other partners in the allocated property in the sense of a transfer or extinguishment of interest under s. 17 of the Registration Act. Therefore, viewed from this angle also it seems clear to us that when a dissolution of the partnership takes place and the residue is distributed among the partners after settlement of accounts there is no partition, transfer or extinguishment of interest attracting s. 17 of the Registration Act.
16. Strong reliance was, however, placed by the learned counsel for the respondents on two decisions of this court, namely (1) Ratan Lal Sharma v. Purshottam Harit, [1974] 3 SCR 109 1974 Indlaw SC 219 and (2) Lachman Das v. Ram Lal andanr, [1989] 3 SCC 99 1989 Indlaw SC 551. Insofar as the first mentioned case is concerned, the facts reveal that the appellant and the respondent who had set up a partnership business in December 1962 soon fell out. The partnership had a factory and other moveable and immoveable properties. On August 22, 1963, the partners entered into an agreement to refer the dispute to the arbitration of two persons and gave the arbitrators full authority to decide their dispute. The arbitrators made their award on September 10. 1963. Under the award exclusive allotment of the partnership assets, including the factory, and liabilities was made in favour of the appellant and it was provided that he shall be absolutely entitled to the same in consideration of a sum of Rs. 17,000 plus half the amount of realisable debts of the business to the respondent. The arbitrators filed the award in the High Court on November 8, 1963. On September 10, 1964, the respondent filed an application for determining the validity of the agreement and for setting aside the award. On May 27, 1966, a learned Single Judge of the High Court dismissed the application as barred by time but declined to make the award the rule of the court because in his view the award was void for uncertainty and created rights in favour of the appellant over immoveable property worth over Rs. 100 requiring registration. The Division Bench dismissed the appeal as not maintainable whereupon this Court was moved by special leave. Before this Court it was contended (i) that the award is not void for uncertainty-, (ii) that the award seeks to assign the respondent's share in the partnership to the appellant and therefore does not require registration; and (iii) that under s. 17 of the Arbitration Act, the court was bound to pronounce judgment in accordance with the award. This court while reiterating that the share of a partner in the assets of the partnership comprising even immoveable properties, is moveable property and the assignment of the share does not require registration under s. 17 of the Registration Act. The legal position is thus affirmed. However, since the award did not seek to assign the share of the respondent to the appellant but on the contrary made an exclusive allotment of the partnerShip asset including the factory and liabilities to the appellant, thereby creating an absolute interest on payment of consideration of Rs. 17,000 plus half the amount of the realisible debts, it was held to be compulsorily registrable under s. 17 of the Registration Act. The Court did not depart from the principle that the share of a partner in the asset of the partnership inclusive of immoveable properties, is moveable property and the assignment of the share on dissolution of the partnership did not require registration under s. 17 of the Registration Act. The decision, therefore, turned on the interpretation of the award in regard to the nature of the assignment made in favour of the appellant. So far as the second case is concerned, we think it has no bearing since that was not a case of assignment of partnership property under a dissolution deed. In that case, the dispute was between two brothers in 2-1/2 killas of land situate in Panipat, Haryana. The said land stood in the name of one brother the appellant. The respondent contended that he was a banamidar and that was the dispute which was referred to arbitration. The arbitrator made his award and applied to the court for making it the rule of the court. Objections were filed by the appellant raising various contentions. The award declared that half share of the ownership of the appellant shall "be now owned by Shri Ram Lal, the respondent in addition to his half share owned in those lands". Therefore, the award transferred half share of the appellant to the respondent and since the value thereof exceeded Rs. 100, it was held that it required registration. It is, therefore, obvious that this case has no bearing on the point in issue herein.
17. In the present case, the Division Bench of the High Court concluded that the award required registration because of an erroneous reading of the award. The Division Bench after extensively reproducing from the Schedules A to F of the award proceeded to state in that the allotments are exclusive to the brothers and they get independent rights of their own under the award in the properties allotted under the schedule and hence it is not a case purely of assignment of the shares in the partnership but it confers exclusive rights to the allottees. On this line of reasoning it concluded that the award required registration. The court next pointed out in  the judgment that the award also partitions certain immoveable properties jointly owned by the disputants. In this connection it has placed reliance on paragraph 10(c) of the award which reads as under :
"(c) Other Lands and Buildings and House properties belonging to S.V. Sivalinga Nadar & Bros. standing in the name of the firm and or otherwise jointly owned by the disputants. These have been allotted by us to one or other or jointly to some of the disputants as per schedules annexed hereto."The reasons which weighed with the Division Bench of the High Court in concluding that the award requires registration appear to be based on an erroneous reading of the award. We have carefully read the award and it is manifest therefrom that the arbitrators had confined themselves to the properties belonging to the two firms in question and scrupulously avoided dealing with the properties not belonging to the firm. This is manifest from paragraphs 15 to 18 of the award.
18. However, properties standing in the names of disputants, individually or jointly, and others as benamidars but belonging to the firm also came to be included in the distribution of the surplus partnership asset under the award. That is the purport  extracted hereinabove. When on settlement of accounts the residue is required to be divided among the partners in proportions in which they were entitled to share profits under sub-cl. (iv) of clause (b) of section 48, the properties will have to be allocated to the partnes as falling to their share on the distribution of the residue and, therefore, the arbitrators indicated in the schedules the, properties falling to the share of each brother. Mere statements that a certain property win now exclusively belong to one partner or the other, as the case may be, cannot change the character of the document or the nature of assignment because that would in any case be the effect on the distribution of the residue. The property failing to the share of the partner on the distribution of the residue would naturally then belong to him exclusively but so long as in the eye of law it is money and not immoveable property there is no question of registration under s. 17 of the Registration Act. Besides, as stated earlier, even if one looks at the award as allocating certain immoveable property since there is no transfer, no partition or extinguishment of any right therein there is no question of application of s. 17(i) of the Registration Act. The reference to other land and buildings and house properties jointly owned by the disputants in clause (c) of paragraph 10 of the award merely indicates that certain properties belonging to the firm stood in the names of individual partners or in their joint names but they belonged to the firm and, therefore, they were taken into account for the purpose of settlement of accounts under s. 48 of the partnership Act and distributed on the determination of the residue. The award read as a whole makes it absolutely clear that the arbitrators had confined themselves to the properties belonging to the two firms and had scrupulously avoided other properties in regard to which they did not reach the conclusion that they belonged to the firm. On a correct reading of the award, we are satisfied that the award seeks to distribute the residue after settlement of accounts on dissolution. While distributing the residue the arbitrators allocated the properties to the partners and showed them in the Schedules appended to the award. We are, therefore, of the opinion that on a true reading of the award as a whole, there is no doubt that it essentially deals with the distribution of the surplus properties belonging to the dissolved firms. The award, therefore, did not require registration u/s. 17(1) of the Registration Act. For the above reasons, we allow these appeals and set aside the impugned orders of the Division Bench and remit the matters to the Division Bench for answering the other contentions which arose in the appeal before it but which were not decided in view of its decision on the question of registration of the award. We also make it clear that the award which is pending for registration may be registered by the Sub-Registrar notwithstanding the objection raised by one of the partners S.V. Sivalings Nadar through his lawyer if that is the only reason for withholding registration.
The appeals are allowed accordingly with costs.