' This IInd appeal is directed against the judgment passed by the Additional District Judge, Hyderabad, dated 20-11-1966, setting aside the judgment and decree of the trial Court decreeing the appellant's suit.
2. The two appellants and the two respondents are the respective legal heirs of deceased Mohammad Sadiq and deceased Haji Wali Mohammad who were related inter se as paternal cousins. They will be collectively referred to as the deceased appellant and the deceased respondent. Mst. Lateefan was the wife of the deceased respondent Haji Wali Mohammad. She was owner of a house bearing City Survey No, 1171-1173, Ward 'A' in Town Matiari, Taluka Hala, District Hyderabad. She was also cousin of the deceased appellant and the deceased respondent. She died leaving as her legal heirs deceased respondent, her husband and paternal cousin, the deceased appellant and Shah Mohammad, her cousin. The appellants' case is that she had also left certain gold and silver ornaments worth about Rs, 30,000.
3. Some 2-3 years after the death of Mst. Lateefan, Shaft Mohammad died. He owned a house bearing C. S. No, 1187 in Matiari Town, Taluka Hala, District Hyderabad. As he died issueless, the deceased appellant and the deceased respondent as his only legal heirs being his paternal cousins, succeeded not only to the house but also to the Shaft Mohammad's share in the property left by Mst. Lateefan. Thus it is not disputed, and so it was found by both the lower Courts, that the final shares of the parties in the inheritance to the estate of Mst. Lateefan are that the deceased respondent Haji Wali Mohammad was entitled to a 75 paisa share, while the deceased appellant Mohammad Sadiq was entitled to a 25 paisa share. As far as the shares of the parties in the house left by the deceased Shaft Mohammad is concerned it is admitted that each of the parties is entitled to a 50 paisa share in it.
4. Disputes arose with regard to the partition of the respective estates of the deceased Mst.
Lateefan and the deceased Shafi Mohammad. The disputes were referred by the parties for settlement to their common Pir Umar Jan Sarhandi and Moulsi Mohammad Hussain Al-Tahtavi.
They gave an award in writing (Exh. 56) on 20-1-1960 to which the deceased appellant affixed his thumb impression, while the deceased respondent subscribed his signature in "Wankay" characters and it was attested by other witnesses.
5. It appears that the deceased respondent did not accept the award and demanded partition again, which the deceased appellant declined. Therefore, he filed a suit some 18 months later against the deceased appellant for partition and separate possession by metes and bounds and that he be put in separate possession of the shares. No mention, however, was made of the award in the plaint.
6. The deceased appellant submitted a written statement in which, inter alia, he pleaded that the parties by mutual consent had submitted the disputes regarding partition to the arbitration of two arbitrators who have given their award which was binding and that the suit was barred by the provisions of the Arbitration Act, 1940. He, therefore, prayed for dismissal of the suit.
7. On the evidence, supported by the admissions in cross-examination of Mst. Karima (P. W. 1), the principal witness of the deceased respondent/ plaintiff, the learned Civil Judge, found the award (Exh. P. 56) stood proved. He therefore, held that the suit was barred under section 32 of the Arbitration Act, 1940, and was not maintainable. Accordingly, he dismissed the suit.
8. The deceased respondent filed 1st appeal (Civil Appeal No, 388/65) in the Court of the Additional District Judge, Hyderabad. The learned appellate Court held that an unfiled award could not be set up as a defence in a suit on the original cause of action unless it has been acted upon by the parties. That in the present case the evidence does not show that any of the parties has acted on the award. Therefore, the suit was not barred by the provisions of section 32 of the Arbitration Act, 1940. He, therefore, set aside the judgment of the trial Court and allowed the appeal by the impugned judgment dated 26-11-1966.
9. Mr. Yousuf Rafi, learned counsel for the appellant submitted that the learned Appellate Court misconstrued the evidence and his finding that the deceased appellant had not acted upon the award, was contrary and erroneous. According to counsel, the award (Exh. 56) of the arbitrators was that the deceased respondent will pay Rs, 625 to the deceased appellant for adjusting their respective claims in the inheritance "Torka" and that the parties shall be exclusive owners of the respective houses in their occupation and both parties will transfer the khata of the houses in their names. Therefore, the deceased appellant was not expected to do anything under the award except to transfer the khata of the house which was in the occupation, in his name which he has done, as will be evidence from Exh. 59, which is a certified copy of the khata produced by the deceased appellant in his evidence showing his title to the house C. S. No, 1187 by partition. I am inclined to accept the submission of the counsel. It is clear to me that the only act which the deceased appellant was to do under the award was to transfer the khata of the house in his name.
The evidence shows that that was done by him. Therefore, in my view, the learned Appellate Court erred in holding that there was no evidence to show that the deceased appellant had acted upon the award. If an nulled award has been fully performed by one of the parties thereto, it affords a good defence to a suit 'A on the original cause of action by the other party. This proposition o law is supported by the decision of the Full Bench of the Madras High Court in Muhammad Yousaf v. Haji Muha nmad Hussain Rowther (1). This decision was cited with approval by their Lordships of the Supreme Court in Ch. Muhammad Saleem v. Muhammad Akram and othars (2). In this view of the matter, it is not necessary to consider the alternative submission of the counsel, that if the writing Exh. 56 is held not to be an award, then it is at least a family settlement confirming an oral partition which was acted upon by the deceased appellant. There is no dispute, and in fact, both the lower Courts have held and have proceeded on the basis that the writing Exh. 56 was an award.
10. In the result, the appeal is allowed with no order as to costs. {{FOOT NOTE}}
(1) AIR 1964 Mad. 1 (2) PLD 1971 SC 516 {{FOOT NOTE}}