judgement:
vil Appeal Nos.
1905 06 (NT) of 1974 and 3414 of 1984.
From the Judgment and Order dated 24.7.73 and 7.9.81 of the Bombay High Court in I.T.R. No. 19 of 1967, 66 of 1964 and 27 of 1972 respectively.
B. Datta, Additional Solicitor General, M.B. Rao and Ms. A. Subhashini for the Appellant.
Soli J. Sorabji, Harish Salve, Mrs. A.K. Verma and Jeel Peres for the Respondents.
The Judgment of the Court was delivered by PATHAK, CJ.
The assessee is a Hindu Undivided Family deriving income from interest on securities, dividends, property and dealing in shares.
In 1941 the assessee pur chased a share of the Shorrock Spinning and Manufacturing Co. Ltd., hereinafter referred to as 181 "the Shorrock Co.", of the face value of Rs. 1,000 for Rs.3,307.
Later this share was split into 10 shares of Rs. 100 each, and from time to time a total of 80 shares of the face value of Rs. 100 each was issued to the assessee by way of bonus shares.
In consequence, on 31 December, 1959 the assessee owned 90 shares in the Shorrock Co. of the face value of Rs. 100 each.
There is another company called the New Shorrock Spin ning and Manufacturing Co. Ltd. to which reference may be made as "the New Shorrock Co.".
It was decided to amalgamate the Shorrock Co. with the New Shorrock Co., and upon peti tions filed under section 39 1 and section 394 of the the Gujarat High Court made an order dated 23 Septem ber, 1960 directing meetings of the share holders of both the companies.
The meetings were held on 27 October, 1960 and the scheme of amalgamation was approved.
On 25 November, 1960 the High Court sanctioned the scheme of amalgamation and declared that the scheme would be binding on members of both the Companies.
Under the scheme of amalgamation, the undertaking and all the property rights and powers as well as all liabili ties and duties of the Shorrock Co. were to stand trans ferred and vest with effect from 1 January, 1960 in the New Shorrock Co. The scheme of amalgamation provided further for an increase in the share capital of the New Shorrock Co. and it permitted the creation of 14,625 new ordinary shares of the face value of Rs. 125 each of the transferee company.
The newly created shares were to rank pari passu with the existing shares of the transferee company in all respects.
Under the scheme the New Shorrock Co., as the transferee company, was directed to allot to members of the Shorrock Co., the transferor company, one share in the transferee company for every two shares of the transferor company held by them.
The order of the Court directed that the Shorrock Co. should file a certified copy of the order with the Registrar of Companies within 14 days for registration, and on such certified copy being delivered the transferor compa ny would stand dissolved and the Registrar of Companies was to place all documents relating to the transferor company on the file relating to the transferee company and the folios relating to the two companies were to be consolidated ac cordingly.
During the assessment proceedings for the assessment year 1961 62, the previous year being the financial year ended 31 March, 1961, the Income Tax Officer, although apprised of the fact of the scheme of amalgamation and of the acquisition by the assessee of 45 shares of the 182 New Shorrock Co. omitted to consider the applicability of section 12B of the Indian Income Tax Act, 1922.
On 21 January, 1964 the Commissioner of Income tax issued a notice under section 33B of the Act to the assessee stating that the receipt of 45 shares of the New Shorrock Co. "in exchange" of his original holding of 90 shares in the Shorrock Co. in December 1960 had resulted in an assessable profit, and this aspect had been overlooked by the Income Tax Officer when making the regular assessment, and, therefore, he proposed a revision of the assessment.
After heating the assessee, the Commis sioner of Income Tax passed an order dated 29 January, 1964 directing the Income Tax Officer to revise the assessment and to include an amount of Rs.49,350 representing the capital gain resulting from the transaction of the acquisi tion of 45 shares of New Shorrock Co. in place of the 90 shares held in Shorrock Co. On appeal by the assessee before the Income Tax Appellate Tribunal, the Appellate Tribunal held that the transaction represented neither an exchange nor a relinquishment and, therefore, section 12B of the Act was not attracted.
At the instance of the Revenue the Appel late Tribunal referred the following questions to the High Court for its opinion: "1.
Whether on the facts and in the circumstances of the case, the sum of Rs.49,350 could be assessed in the hands of the assessee as capital gains as having ac crued to the assessee by exchange or relin quishment as provided for under section 12B of the Act? 2.
If the answer to the above question is in the affirmative, whether the said sum of Rs.49,350 was assessable in the year 1961 62?" Before the High Court the Revenue did not contend that the transaction constituted a sale or a transfer, and the parties confined themselves to the point whether the trans action represented an exchange or a relinquishment for the purposes of section 12B. The High Court took the view that no exchange can be said to have taken place on the allotment of the 45 shares of the New Shorrock Co. under the scheme of amalgamation.
Nor, in the opinion of the High Court, did it constitute a relinquishment.
In the result, the High Court answered both questions in favour of the assessee and against the Revenue.
The relevant portion of section 12B of the Act provides: 183 section 12B(1) Capital gains.
The tax shall be payable by an assessee under the head "Capital gains" in respect of any profits or gains arising from the sale, exchange, relinquish ment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and gains shall be deemed to be income of the previous year in which the sale, ex change, relinquishment or transfer took place.
The sole question is whether the receipt of the 45 shares of the New Shorrock Co. upon amalgamation by reason of the share holding of 90 shares of the Shorrock Co. can be described as an "exchange" or a "relinquishment" within the meaning of section 12B of the Act.
It seems plain to us that no exchange is involved in the transaction.
An exchange in volves the transfer of property by one person to another and reciprocally the transfer of property by that other to the first person.
There must be a mutual transfer of ownership of one thing for the ownership of another.
In the present case, the assessee cannot be said to have transferred any property to any one.
When he was allotted the shares of the New Shorrock Co. he was entitled to such allotment because of his holding the 90 shares of Shorrock Co. The holding of the 90 shares in the Shorrock Co. was merely a qualifying condition entitling the assessee to the allotment of the 45 shares of the New Shorrock Co. The dissolution of the Shor rock Co. deprived the holding of the 90 shares of that company of all value.
On the question whether there was any relinquishment, the decision must again be against the Revenue.
A relin quishment takes place when the owner withdraws himself from the property and abandons his rights thereto.
It presumes that the property continues to exist after the relinquish ment.
Upon amalgamation, the shares of the Shorrock Co., as has been mentioned earlier, lost all value as that company stood dissolved.
There is no relinquishment.
The connected cases raise similar questions, and are dealt with accordingly.
In the result, we agree with the view taken by the High Court, and dismiss these appeals with costs.
H.L.C. Appeals dis missed.

dataset_name: IN-Abs

summary/full:
Sub section
(1) of section 12B of the Indian Income Tax Act, 1922 provides that tax shall be payable by an assessee under the head "Capital gains" in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset.
The respondent assessee who owned 90 shares in the Shorrock Co. which stood dissolved under a scheme of amalga mation with another company known as New Shorrock Co., which was sanctioned by the High Court, was aborted 45 shares of the New Shorrock Co. in terms of the provisions of the said scheme.
During the assessment proceedings for the assessment year 1961 62, the Income Tax Officer omitted to consider the applicability of section 12B 10 the case of the assessee.
Later on, the Commissioner issued a notice under section 33B to the assessee stating that the receipt of 45 shares of the New Shorrock Co. "in exchange" of his original holding of 90 shares in the Shorrock Co. had resulted in an assessable profit, and passed an order directing the Income Tax Officer to revise the assessment and to include an amount of Rs.49,350 representing the capital gain resulting from the transaction.
On appeal by the assessee the Appellate Tribu nal held that the transaction represented neither an ex change nor a relinquishment and, therefore, section 12B of the Act was not attracted.
However, at the instance of the Revenue the Tribunal referred the question to the High Court which answered it in favour of the assessee.
Dismissing the appeals, 180 HELD: The sole question is whether the receipt of the 45 shares of the New Shorrock Co. upon amalgamation by reason of the share holding of 90 shares of the Shorrock Co. can be described as an "exchange" or a "relinquishment" within the meaning of section 12B.
It seems plain to us that no exchange is involved in the transaction.
An exchange involves the trans fer of property by one person to another and reciprocally the transfer of property by that other to the first person.
There must be a mutual transfer of ownership of one thing for the ownership of another.
In the present case, the assessee cannot be said to have transferred any property to any one.
When he was allotted the shares of the New Shorrock Co. he was entitled to such allotment because of his holding the 90 shares of Shorrock Co. The holding of the 90 shares in the Shorrock Co. was merely a qualifying condition enti tling the assessee to the allotment of the 45 shares of the New Shorrock Co. The dissolution of the Shorrock Co. de prived the holding of the 90 shares of that company of all value.
[183B E] On the question whether there was any relinquishment, the decision must again be against the Revenue.
A relin quishment takes place when the owner withdraws himself from the property and abandons his rights thereto.
It presumes that the property continues to exist after the relinquish ment.
Upon amalgamation, the shares of the Shorrock Co. lost all value as that company stood dissolved.
[183E F]


judgement:
vil Appeal No. 2 104 of 1989.
WITH C.M.P. No. 26956 of 1988.
From the Judgment and Order dated 22.4.1988 of the Punjab and Haryana High Court in C.R. No. 2875 of 1979.
Ashok K. Sen and G.K. Bansal for the Appellant.
S.M. Ashri and C.S. Ashri for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
This appeal is from the judgment and order of the High Court of Punjab and Haryana dated 22nd April, 1988.
The dispute was between the two brothers.
Both the parties appointed one Shri Ajit Singh as the Arbitrator on 7th March, 1974 for settlement of the dispute about 2 1/2 Killas of land situated near Chandni Bagh, Panipat in the State of Haryana.
The said land stood in the name of the appellant.
According to the respondent, Ram Lal, it was benami in the name of the appellant.
That was the dispute.
The arbitrator gave his award on 22nd May, 1974 and moved an application on 23rd September, 1974 before the Court of Sub Judge IInd Class, Panipat, for making the award the rule of the Court.
The application was registered in the said Court and notice was issued to the appellant herein on 7th November, 1974.
Objections were filed by the appellant taking various grounds.
It was contended that the appellant had informed the sole arbitrator through registered notice and by a telegraphic notice that he had no faith in the said arbitra tor and had thus repudiated his authority to proceed with the arbitration proceedings.
It was also contended that the award was lop sided, perverse, and totally unjust and against all cannons of justice and fair play.
It was alleged that the arbitrator had acted in a partisan manner.
He never heard the claim of the appellant and never 254 called upon him to substantiate his claim and had acted as an agent of the respondent.
It was, therefore, prayed by the appellant that the award be set aside.
It may be mentioned that no point was raised that the award was bad and unforce able because it was not properly stamped nor any plea was taken that the award was an unregistered one as such could not be made the rule of the court.
Several issues were framed.
No issue was, however, framed on the ground that the award was bad because it was not properly stamped or that it was not registered.
The appellant, who was respondent No. 2 in the said proceedings before the learned Trial Judge, gave his version about the repudiation of the authority.
The learned Trial Judge had, however, held that the appellant had failed to prove that he had repudiated the authority of the arbitrator to enter upon the arbitration through registered notice or otherwise before the arbitrator announced his award.
It was further held that the award of the arbitrator was not liable to be set aside on the grounds taken.
The objections were treated as objections under section 33 of the and it was filed within the limitation period.
In that view of the matter, the learned Sub Judge IInd Class, Panipat by his order dated 28th July, 1977 dismissed the objections under Section 14 of the and made the said award the rule of the court.
Aggrieved thereby, the appellant went up in first appeal before the Additional District Judge, Karnal.
The learned Additional District Judge, while dealing with the conten tions of the appellant, held that the application was prop erly filed.
A point was taken before the first Appellate Court that the award was on an unstamped paper and as such could not be made the rule of the court.
The learned District Judge held that the award has not been properly stamped and as such could not be made the rule of the court.
It was also contended before the learned District Judge that the award was unregistered and as such it could not be made the rule of the court as it affected immovable property of more than Rs. 100.
The learned Dis trict Judge after analysing the provisions of section 17 of the (hereinafter referred as to 'the Act ') came to the conclusion that the award declared right in immovable property and since it was unregistered, it could not be made the rule of the court.
The learned Dis trict Judge, however, also came to the conclusion that the authority of the arbitrator had been repudiated.
This ground no longer survives.
In the aforesaid view of the matter, the learned District Judge allowed the appeal on the ground that the 255 award was unregistered and unstamped and as such could not be made the rule of the court and set aside the order of the learned Trial Judge.
There was a second appeal to the High Court.
The High Court upheld the award.
The High Court noted that the neces sary stamp was purchased on 8th August, 1974 before the award was filed on the 9th September, 1974.
And that being so, it could not be argued successfully that the award was unstamped.
In that view of the matter, the High Court held that the learned District Judge was in error in allowing the stamp objection to be taken.
As regards the registration, it was held by the High Court that the award did not create any right as such in immovable property; it only admitted the already existing rights between the parties and hence it did not require any registration.
In that view of the matter, the High Court was of the opinion that the first appellate Court was wrong.
The High Court was further of the view that no right was created in favour of Shri Ram Lal, the respondent herein when he was declared the owner.
Both Lachhman Das, the appellant and Ram Lal, the respondent, had claimed their ownership and, ac cording to the High Court, they had the existing rights.
The award only made, according to the High Court, it clear that the ownership would vest in one of the brothers, Ram Lal.
In the aforesaid view of the matter, the High Court was of the view that it did not require registration.
The High Court allowed the appeal and directed the restoration of the order of the learned trial court and the award be made the rule of the court.
Aggrieved thereby, the appellant has come up to this Court.
The question is Was the High Court right in the view it took? Mr. A.K. Sen, learned counsel for the appellant contend ed that the High Court was clearly in error in the facts and circumstances of this case to have made this award the rule of the court and to have looked upon this award which at all relevant and material time was unregistered.
It may be mentioned that when this matter came up before this Court on the 5th December, 1988, the matter was adjourned for two months and it was recorded "In the meantime, the parties may take steps".
Thereafter, it appears that the award was filed for registration on 19th December, 1988 before the Sub Registrar, Panipat and was registered actually on 3rd Febru ary, 1989.
Mr. Sen, contended that the registration of the award subsequently made in the manner indicated hereinbefore did not validate it retrospectively in 256 view of the relevant provisions of the Act.
The award being an unregistered one could not have been looked into by the High Court.
Mr. Sen tried to urge before us that the award was got registered by misrepresentation of the order of this Court dated 5th December, 1988.
This Court did not, on 5th December, 1988, direct that the registration could be made.
All that this Court observed was that the parties might take steps.
It may be mentioned that on or about 18th December, 1988, it appears at page 75 of the present paper book that an application was made for registration of award which was said to have been applied by Shri Ajit Singh, S/o Shri Beer Singh.
In the said letter, it was mentioned that Mr. justice J.V. Gupta of the Hon 'ble High Court of Punjab and Haryana had held in favour of the said writer and it was further stated that on the 5th December, 1988, this Court dismissed the case of Lachhman Singh, the appellant herein, copy whereof was enclosed.
The award was filed for registration on 18th December, 1988.
The statements contained in the letter were incorrect and misleading inasmuch as this Court did not dismiss the case of the appellant on 5th December, 1988.
On the other hand, this Court, as mentioned hereinbe fore on the 5th December, 1988, merely observed that the appellant would be at liberty to do what was needful.
Mr. Ashri, learned counsel for the respondent, submitted that the registration was done in view of provisions of sections 23 and 25 of the Act.
Mr. Sen, on the other hand, submitted before us that this was wholly irregular to have obtained registration by misleading the Sub Registrar and this was of no effect.
Furthermore, in any event, according to Mr. Sen, the registration having been beyond the period of four months as enjoined by the relevant provisions was wholly bad.
The first question that requires consideration in the instant case is whether the Court could have looked into the award for the purpose of pronouncing judgment upon the award.
In order to deal with this question, it is necessary to refer to Section 17 of the Act.
Section 17 deals with documents of which registration is compulsory.
Section 17 of the said Act mentions the documents which must be regis tered.
Section 17(1)(e), inter alia, provides: "non testamentary instruments transferring or assigning any decree or order of a Court or any order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extin guish, whether in present or in future, any right, title or interest, 257 whether in present or in future, any right, title or interest,, whether vested or contin gent, of the value of one hundred rupees and upwards, to or in immovable property." Section 23 of the said Act provides as under: "Subject to the provisions contained in sec tions 24, 25 and 26, no document other than will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution: Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final." Section 25 of the said Act provides as under: "If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not present ed for registration till after the expiration of the time hereinbefore presented in that be half, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration." Section 49 of the said Act provides as under: "No document required by section 17 or by any provision of the , to be registered shall (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transac tion affecting such property or conferring such power, unless it has been registered." 258 The proviso to this section deals with a suit for specific performance with which we are not concerned.
Shri Ashri contended that the document in question was one which did not require registration.
He submitted that the High Court was right in the view it took.
He further submitted that the property in dispute was in the joint name of the appellant and the respondent.
The dispute was whether the half of the property held by the appellant was benami for the respondent or a declaration to that effect could be made by the arbitrator.
Mr. Ashri further submitted that it was the case of the appellant that he was the owner of the property in question.
The award in question recites that Shri Ajit Singh had been appointed as arbitrator by an agreement dated 7th March, 1974 by both the parties.
The award further recites that he was appointed arbitrator to adjudicate through arbitration "their disputes regarding property against each other".
The arbitrator thereafter recites the steps taken and the proceedings before him.
It was further stated that the appellant did not orally reply to the contentions of the respondent nor did he submit his claims in writing.
In these circumstances, the award was bad.
The award stated, inter alia, "Land of Tibbi comprising of rect.
No. 13 Kila No. 23 (3 11), 26(1 11), 16(5 15), 17(5 14), 25(4 4), 23/27 and 26/1 situated in Mauz Ugra Kheri, near Chandni Bagh, which is in the joint name of Shri Ram Lal, Party No. 1 and Shri Lachhman Dass, Party No. 2.
The half ownership of Shri Lachhman Dass shall be now owned by Shri Ram Lal in addition to his 1/2 share owned by him in these lands.
" The award gave certain other directions.
Regarding other claims, it was held that lands were allotted in the names of both the brothers and in that context Rs. 16,000 were spent by the respondent from his own sources.
The arbitrator stated that he admitted these expenses at Rs. 10,000 and awarded that an amount of Rs.5,000 equal to 1/2 share should be paid by the appellant to the respondent.
The other claims were also decided by the award with which it is not neces sary to deal in the present appeal.
The question is does this award purport or operate to create, declare or assign, limit or extinguish any right, title or interest in immova ble property? Shri Ashri submitted that as his client was the real owner and as respondent No. 1 was mere benamdar, and the arbitrator merely declared the true position and the award did not as such create, declare or assign any fight, title or interest in any immovable property by the aforesaid clause in the award.
259 The Division Bench of the Madras High Court in Ramaswamy Ayyar & Anr.
vs Thirupathi Naik, ILR XXVII Madras p. 43 has observed that the criterion for purposes of registration under the Registration Act, 1877 (III of 1877), which was in the same term as the provision of the present Act, was what was expressed on the face of the document, not what inci dents might be annexed by custom to a grant of the kind.
Therefore, we have to see not what the document intends to convey really, but what it purports to convey.
In other words, it is necessary.
to examine not so much what it intends to do but what it purports to do.
The real purpose of registration is to secure that every person dealing with the property, where such document re quires registration, may rely with confidence upon state ments contained in the register as a full and complete account of all transactions by which title may be affected.
Section 17 of the said Act being a disabling section, must be construed strictly.
Therefore, unless a document is clearly brought within the provisions of the section, its non registration would be no bar to its being admitted in evidence.
On a proper construction of the award, it does appear to us that the award did create, declare or assign a right, title and interest in the immovable property.
The award declares that 1/2 share of the ownership of Shri Lachhman Dass shall "be now owned by Shri Ram Lal, the respondent in addition to his 1/2 share owned in those lands".
Therefore, the said award declares the right of Ram Lal to the said share of the said property mentioned in that clause.
It is not in dispute that the said property is immovable property and it is not merely a declaration of the pre existing right but creation of new right of the parties.
It is significant to bear in mind that the section enjoins registration wher ever the award "purports or operates to create, declare, assign, limit or extinguish" whether in present or in future any right, title or interest of the value of Rs. 100 or upwards in immovable property.
Shri Ashri tried to submit that while reading the award reasonably and fairly, it must be construed that there was no creation or declaration of any new right in the immovable property.
What was done was only, according to Shri Ashri, a declaration of existing right, that is to say, Ram Lal 's full ownership of the property in question.
The section, however, enjoins registration in respect of any document, which purports not which intends to create a right in immov able property or declare a right in immovable property.
It is not a question of declaration of an existing right.
It is by this award that a new right was 260 being created in favour of Ram Lal, the respondent herein.
In that view of the matter, in our opinion, it cannot be contended that the award did not require registration.
This question was considered by this Court in Satish Kumar & Ors.
vs Surinder Kumar & Ors.
, There an arbi trator appointed by the appellants and the respondents partitioned their immovable property exceeding the value of Rs. 100.
The arbitrator applied under section 14 of the to the Court for making the award a rule of the Court.
On the question whether the award was admissible in evidence as it was not registered it was held that the award required registration.
It was further held by Justice Sikri, as the Chief Justice then was, and Justice Bachawat that all claims which were the subject matter of a reference to arbitration merged in the award which was pronounced in the proceedings before the arbitrator and after an award had been pronounced, the rights and liabili ties of the parties in respect of the said claims could be determined only on the basis of the said award.
After an award was pronounced, no action could be started on the original claim which had been the subject matter of the reference.
The position under the registration Act is in no way different from what it was before the Act came into force.
Therefore, the conferment of exclusive jurisdiction on a court under the did not make an award any less binding than it was under the provisions of the Second Schedule of the Code of Civil Procedure.
It was further held that the filing of an unregistered award under section 49 of the Act was not prohibited.
What was prohibit ed was that it could not be taken into evidence so as to affect immovable property falling under section 17 of the Act.
It was further reiterated that it could not be said that the registration did not in any manner add to its efficacy or give it added competence.
If an award affected immovable property above the value of Rs. 100, its registration would not rid of the disability created by section 49 of the Act.
The award in question was not a mere waste paper but had some legal effect and it plainly purported to affect or affected property within the meaning of section 17(1)(b) of the Act.
Justice Hegde gave a separate but concurring judgment.
He observed that it was one thing to say that a right was not created, it was an entirely different thing to say that the right created could not be enforced without further steps.
An award did create rights in that property but those rights could not be enforced until the award was made a decree of the Court.
For the purpose of section 17(1)(b) of the Act, all that had to be seen was whether the award in question pur ported or operated to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property.
261 It was incorrect to state that an award which could not be enforced was not an award and the same did not create any right in the property which was the subject matter of the award.
An award whether registered or unregistered, accord ing to Justice Hegde, does create rights but those rights could not be enforced until the award is made the decree of the court.
The learned Judge made it clear that for the purpose of section 17(1)(b) of the Act, all that had to be seen was whether the award in question purported or operated to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of Rs. 100 and upwards in the immovable property.
If it does, it is compulsorily registerable.
A document might validly create rights but those rights might not be enforced for various reasons.
The Court found that the award in that case created right in immovable property and it required registration.
This Court in Ratan Lal Sharma vs Purshottam Harit, ; had to consider the question of registra tion and the effect of non registration of an award.
The appellant and the respondent therein had set up a partner ship business in the year 1962.
The parties, however, there after fell out.
At the time the disputes arose, the running business had a factory and various movable and immovable properties.
On August 22, 1963, by agreement in writing, the parties referred "the disputes of our concern" to the arbi tration of two persons and gave "the arbirators full author ity to decide their dispute".
The arbitrators gave their award on September 10, 1963.
The award made an exclusive allotment of the partnership assets, including the factory, and liabilities to the appellant.
He was "absolutely enti tled to the same" in consideration of a sum of Rs. 17,000 plus half the amount of the realisable debts of the business to the respondent and of the appellants renouncement of the right to share in amounts already received by the respond ent.
The award, stipulated that the appellant should not run the factory unless he had paid the awarded consideration to the respondent.
The arbitrators filed the award in the High Court on November 8, 1963.
On September 10, 1964, the re spondent 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 time barred.
But he declined the request of the appellant to proceed to pronounce judgment according to the award because in his view; (i) the award was void for uncertainty and (ii) the award, which created rights in favour of the appellant over immovable property worth over Rs. 100 required registration and was unregistered.
From this part of the order, the 262 appellant filed an appeal which was dismissed as not main tainable by the Division Bench of the High Court.
The appel lant preferred an appeal by special leave to this Court against the decision of the Single Judge declining to pro nounce judgment in accordance with the award.
He also filed a special leave petition against the judgment of the Divi sion Bench.
In the appeal before this Court, the appellant contended that the award was not void for uncertainty and that the award sought to assign the respondent 's share in the partnership to the appellant and so did not require registration and that under sec.
17 of the , the Court was bound to pronounce judgment in accordance with the award after it had dismissed the respondent 's applica tion for setting it aside.
It was held that the share of a partner in the assets of the partnership, which had also immovable properties, was movable property and the assign ment of the share did not require registration under section 17 of the Act.
But the award in the instant case, this Court observed, did not seek to assign the share of the respondent to the appellant, either in express words or by necessary implication.
The award expressly makes an exclusive allot ment of the partnership assets including the factory and liabilities to the appellant.
It went further and made him "absolutely entitled to the same", in consideration of a sum of Rs. 17,000 plus half of the amount of Rs. 1924.88 P. to the respondent and the appellant 's renouncement of the right to share in the amounts already received by the respondent.
In express words the award purported to create rights in immovable property worth above Rs. 100 in favour of the appellant.
It would require accordingly registration under section 17 of the Act.
As the award was unregistered, the court could not look into it.
The award being inadmissible in evidence for want of registration the Court could not pro nounce judgment in accordance with it.
Section 17 of the presupposes an award which could be validly looked into by the Court.
The appellant could not success fully invoke section 17.
The award is an inseparable tangle of several clauses and cannot be enforced as to the part not dealing with immovable property.
In the instant case also, it appears to us that the award affects immovable property over Rs. I00 and as such was required to be registered.
Shri Ashn, however, contended that the fact that the award was unregistered had not been taken before the learned trial judge.
Indeed, this was not urged within 30 days and the time for filing of application for setting aside an award under section 30 of the Arbitra tion Act, was 30 days and as such this not having been taken, the appellant was not entitled to take this point at a later stage.
1t is.
true that in the application for making the award a rule of the court before 263 the learned trial judge this point had not been taken.
Section 33 of the provides that: "Any party to an arbitration agreement or of any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits.
" It has been held by the majority of three learned Judges in a full Bench decision of the Calcutta High Court in the case of Saha & Co. vs Ishar Singh Kirpal Singh, AIR 1956 Cal. 321 that under the Indian , there was no distinction between an application for setting aside of an award and an application for adjudgment of the award as a nullity and all applications must be under section 30 within the time stipulated for that application.
The existence of an award and validity of the reference both have to be chal lenged in the same manner.
But the next question that arises, is, whether an unregistered award can be set aside or not.
It was submitted by Mr. Ashri that the award was otherwise invalid, under section 30(c) of the .
It is, however, not necessary for the present purpose to decide this question.
It is sufficient to emphasise that an award affecting immovable property of the value of more than Rs. 100 cannot be looked into by the Court for pronouncement upon the award on the application under section 14 of the Arbi tration Act unless the award is registered.
section 14 enjoins that when an award of an arbitrator has been filed, the Court should give notice to the parties and thereupon the court shall pronounce judgment upon the award and made it a rule of the court.
But in order to do so, the court must be competent to look into the award.
section 49 of the Act enjoins that the award cannot be received as evidence of any trans action affecting immovable property or confering power to adopt, unless it is registered.
In that view of the matter, no judgment upon the award could have been pronounced upon the unregistered award.
Mr. Ashri, however, relied on a decision of the learned Single Judge of the Calcutta High Court, in which one of us (Sabyasachi Mukharji, J) had occasion to deal with the question whether an application for determination of the validity of an award could be entertained after the lapse of 30 days time.
It was held that an application challenging an award on the ground of non registration must be by procedure under section 30 of the and the party not apply ing with in the time under section 30 was estopped from agitating the 264 question subsequently.
The relevant case law was discussed and it was held that where an adjudication was necessary as to whether registration was required or not and it was emphasised that in the instant case also an adjudication was necessary because the High Court had held that registration was not necessary, while the appellant is contending and as we are inclined to agree that registration was necessary, in such a case, it must be done by means of an application within 30 days.
It is true that where an application is made for determining the validity and effect of an award in such a case, as was the case in the application made to the Calcutta High Court for determination and admissibility of the award and for a declaration that the award was void, it is necessary that the application should be made within 30 days.
But that problem does not arise here because here under section 14 of the , a judgment is sought in favour of the award.
In order to pronounce that judgment, the award has to be looked into.
The court cannot do it when the award affects the immovable property or purports to affect the immovable property of the value of more than Rs. 100 and it is not registered and as such it cannot be looked into.
In that view of the matter, we are of the opinion that the High Court was in error in the order under appeal.
It may be appropriate in this connection to refer to the observations of Justice Vivian Bose, in the Gangaprashad vs Mt. Banaspati, AIR 1933 Nagpur 132.
In that decision Justice Bose speaking for the Nagpur High Court observed at page 134 of the report, that it was argued before him that even though it was not possible for the plaintiff to challenge the fact that there was a reference to arbitration, and an award, and that there was no misconduct, etc., he could still question its validity on the ground that it had not been registered.
But this question was barred by the rule of constructive res judicata.
He referred to Mulla that if an application was made to the court to file an unregistered award which requires registration, then the court must reject it.
It followed that this was one of the grounds which could be urged against the filing of an award.
If it was not urged, and the award was filed, then that question was as much barred in a subsequent suit as the others.
In this case, however, this point that the award is not registered and as such it could not be filed, though not taken subsequently in argument before the trial Judge, it was urged before the First Appellate Court and it was held in favour of the present respondent.
This is an appeal by special leave in subsequent decision from that decision where the filing of the award is being challenged on the ground that it 265 is unregistered.
Therefore, in our opinion, though it may not be possible to take the point that the award is bad because it is unregistered as such it could not be taken into consideration in a proceeding under section 30 or 33 of the , but can be taken in the proceedings under section 14 of the when the award is sought to be filed in the court and the court is called upon to pass a decree in accordance with the award.
As the court, as mentioned hereinbefore, could not look into the award, there is no question of the court passing a decree in accordance with the award and that point can also be taken when the award is sought to be enforced as the rule of the court.
Mr. Ashri, however, contended that the award had been subsequently registered and unless the registration was set aside the award did not suffer from any defect.
We have, however, to examine whether the High Court was fight in accepting the award and in pronouncing the judgment in terms of the award.
At the relevant time, the award was not regis tered.
If that is the position, then the subsequent regis tration of the award whether in confirmity with sections 23 and 25 of the Act or whether in breach or in violation of the same is not relevant.
It is not necessary in the view that we have taken to go into the question whether the appellant was right in getting this document registered in the manner it has been done by making certain representation, which was not correct, to the Sub Registrar.
Learned Counsel for the respondent drew our attention to certain observations of this court in Raj Kumar Dey and Others vs Tarapada Dey and Others, ; where registration was permitted by the Court after the lapse of four months as enjoined by section 23 of the Act.
But the facts and the circumstances and the grounds upon which registra tion was permitted, were entirely different from the present case.
In the premises, the observations made in the said decision are not relevant or germane for the present contro versy.
In the aforesaid view of the matter, the decision of the High Court cannot be sustained.
The appeal is, therefore, allowed.
The judgment and/or order of the High Court are set aside.
But in the facts and circumstances of the case, the parties will pay and bear their own costs.
R.P.D. Appeal allowed.

summary/full:
By an agreement dated 7 March, 1974, both the appellant and the respondent Ram Lal appointed an arbitrator to adju dicate through arbitration their disputes about a plot of land.
The arbitrator gave his award on 22 May 1974 stating, inter alia, that the land in dispute was in the joint name of the appellant and respondent Ram Lal, and that the half ownership of the appellant shall now be owned by Shri Ram Lal in addition to his 1/2 share owned by him in those lands.
The arbitrator filed an application before Sub Judge, II Class for making the award the rule of the Court.
The appel lant filed objections under section 33 of the , to set aside the award on various grounds but no point was raised that the award was unenforceable because it was not properly stamped and not registered.
The trial court dismissed all the objections taken under section 14 of the and made the award the rule of the Court.
The District Judge, in the appeal filed by the appel lant, came to the conclusion that the award declared a right in immovable property and since it was unregistered and unstamped it could not be made the rule of the Court.
The High Court, however, allowed the appeal filed by the res 251 pondent on the ground that the award did not create any right in immovable property, and that it only admitted the already existing rights between the parties and hence it did not require any registration.
The appellant appealed by special leave to this Court.
During the pendency of the said appeal the award was submitted for registration on 19 December, 1988 and was registered on 3 February, 1989.
On behalf of appellant it was argued that the High Court was wrong in looking into an unregistered award, and that its subsequent registration was obtained by misrepresenta tion and misleading the authorities did not validate it retrospectively and that the registration having been beyond the period of four months was wholly bad.
On behalf of the respondent the appeal was contested by contending that the award did not require registration as it did not create, declare or assign any new right in the immovable property, but that it merely declared the existing right of ownership of the respondent, that the appellant was barred from taking the plea of its being unregistered at a later stage as it had not been taken by him before the trial court.
It was further submitted that the appellant was estopped from agitating the question after the lapse of 30 days as is statutorily required under section 30 of the Arbitra tion Act.
Allowing the appeal, this Court, HELD: (1) The real purpose of registration is to secure that every person dealing with the property, where such document requires registration, may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected.
Section 17 of the said Act being a disabling section, must be construed strictly.
Therefore, unless a document is clearly brought within the provisions of the section, its non registration would be no bar to its being admitted in evidence.
[259C D] Ramaswamy Ayyar & Anr.
vs Thirupathi Naik, ILR XXVII Madras p. 43, affirmed.
(2) On a proper construction of the award, it does appear that the award did create, declare or assign a right, title and interest in the immovable property.
The award declares that 1/2 share of the ownership 252 of Shri Lachhman Dass shall "be now owned by Shri Ram Lal, the respondent in addition to his 1/2 share owned in these lands.
" Therefore,the said award declares the right of Ram Lal to the said share of the said property mentioned in that clause.
It is not in dispute that the said property is immovable property and it is not merely a declaration of the pre existing right but creation of new right of the parties.
The award in the instant case affects immovable property over Rs. I00 and as such was required to be registered.
[259D F; 262G] (3) The filing of an unregistered award under section 49 of the Act was not prohibited.
What was prohibited was that it could not be taken into evidence so as to affect immovable property failing under section 17 of the Act.
[260E] (4) An award affecting immovable property of the value of more than Rs. I00 cannot be looked into by the Court for pronouncement upon the award, on the application under section 14 of the unless the award is registered.
Section 14 enjoins that when an award of an arbitrator has been filed, the Court should give notice to the parties and thereupon the court shall pronounce judgment upon the award and make it a rule of the Court.
But in order to do so, the court must be competent to look into the award.
Section 49 of the act enjoins that the award cannot be received as evidence of any transaction affecting immovable property or conferring power to adopt, unless it is registered.
In that view of the matter, no judgment upon the award could have been pronounced upon the unregistered award.
[263E F] Satish Kumar & Ors.
vs Surinder Kumar & Ors., and Ratan Lal Sharma vs Purshottam Harit, ; , relied upon.
(5) In the instant case, though it may not be possible to take the point that the.
award is bad because it is unregistered as such, it could not be taken into considera tion in a proceeding under section 30 or 33 of the , but it can be taken in the proceedings under section 14 of the when the award is sought to be .filed in the Court and the Court is called upon to pass a decree in accordance with the award.
As the court could not look into the award, there is no question of the court passing a decree in accordance with the award and that point can also be taken when the award is sought to be enforced as the rule of the Court.
Further, at the relevant time the award was not registered.
If that is the position, then the subse 253 quent registration of the award whether in conformity with sections 23 and 25 of the Act or whether in breach or in violation of the same is not relevant.
[265A D] Gangaprashad vs Mt. Banaspati, AIR 1933 Nagpur 132, referred to.


judgement:
: Civil Appeal No. 708 of 1988.
From the Judgment and Order dated 20.2.
1987 of t he Bombay High Court in S.A. No. 282 of 1985.
Mrs. Shyamla Pappu, K.K. Rai and Mrs. Indira Sawhney f or the Appellant.
G.L. Sanghi and A.K. Sanghi for the Respondent.
The Judgment of the Court was delivered by OZA, J.
This appeal after leave has been filed by the appe l lant 140 wife arising out of a decree under Section 12(1)(d) of t he Hindu Marriage Act (hereinafter referred to as the 'Act '), a decree declaring the marriage a nullity.
The respondent husband instituted a petition on 7 th March, 1984 for a declaration that the marriage of t he respondent with the appellant wife was a nullity under su b section (1) sub clause (d) of section 12 of the Act on t he ground that appellant, the wife at the time of marriage wi th the respondent was pregnant by some one other than t he respondent.
The appellant wife contested the allegations a nd ultimately the IIIrd Joint Civil Judge, Senior Divisi on Nagput granted a decree in favour of the respondent by h is judgment dated 3rd May, 1985 declaring the marriage to be a nullity.
The appellant wife filed a regular civil appeal No. 4 36 of 1985 on 19.7.1985 before the IInd Additional Distri ct Judge, Nagput.
Before this appeal could be filed, the r e spondent husband married one Miss Sarita daughter of Laxma n rao Modak on 27.6.1985, and in the appeal filed by t he appellant, the respondent raised a preliminary objecti on contending that after passing of the judgment and decr ee dated 3.5.1985 by the trial court he has married Sari ta daughter of Laxmanrao Modak on 27.6.1985.
It was furth er alleged in the application that this marriage was solemnis ed on 27.6.1985 when there was no impediment against the r e spondent husband which could come in his way for contracti ng this marriage as the parties were relegated to the positi on as if they were not married and therefore this marria ge performed on 27.6.1985 of respondent with Sarita was leg al and valid and the consequence of this is that the appe al filed by the appellant was not tenable having been render ed infructuous.
The IInd Additional District Judge, Nagpur vi de his order dated 17.8.1985 allowed the objection of t he respondent and dismissed the appeal as infructuous with a direction to the parties to bear their own respective cost section Against this the appellant preferred a second appe al before the High Court.
The High Court by its judgment dat ed 20.2.1987 dismissed the appeal holding that as the appe al was filed by the appellant after the re marriage of t he respondent it has become infructuous.
The learned Judge al so dismissed the application for maintenance pendent elite a nd aggrieved by this judgment of the High Court after obtaini ng leave this appeal is filed in this Court.
It was contended by learned counsel for the appella nt that the language of Sec.
15 clearly goes to show that it refers to a marriage 141 which has been dissolved and it also talks of fight of appeal against the decree.
In view of this language used in Sec.
15 it is not possible to distinguish between a decr ee of nullity under Section 11 or 12 and decree of divor ce under Section 13.
It was contended that the word 'divorc e ' has been used in this provision in a broader sense indica t ing that where the marriage is dissolved or the relationsh ip is brought to an end by decree of court whether it is by declaring the marriage invalid or dissolving it by a decr ee but result is the same and it was contended that it is because of this that in this Act there is neither any sp e cific definition provided for the term 'divorce ' or a decr ee of divorce.
It was also contended that when language of Section 15 refers to a fight of appeal will have to look to the provision providing for an appeal and Sec.
28 of the A ct which provides for appeals against all decrees made by t he court in proceedings under this Act.
It was therefore co n tended that the interpretation put by the lower court on t he basis of judgments of some of the High Courts that Sec.
15 will not apply to a decree under Sec.
12 but would on ly apply when there is a decree under Sec.
13 does not appe ar to be the correct view and on this basis it was contended by learned counsel for the appellant that the courts below we re wrong in coming to the conclusion that the appeal had beco me infructuous because the respondent has married a seco nd time.
Learned counsel also referred to meaning of the wo rd 'divorce ' in Webster 's Third New International Dictiona ry and Shorter Oxford English Dictionary.
Learned counsel in support of her contentions referred to the two decisions of this Court in Chandra Mohini Srivastava vs Avinash Pras ad Srivastava & another; , and Tejinder Kaur vs Gurmit Singh, AIR 1988 SC 839 Although on the basis of the se decisions what was contended was that the provisions of t he Act have to be interpreted broadly.
Learned counsel al so placed reliance on the decision in Vathsala vs N. Manohara n, AIR 1969 Madras 405.
Learned counsel however, conceded th at there are decisions in Mohanmurari vs Smt.
Kusumkumari, A IR 1965 M.P. 194;.
Jamboo Prasad Jain vs Smt.
Malti Prabha a nd Anr., AIR 1979 Allahabad 260 and Pramod Sharma vs Sm t. Radha, AIR 1976 Punjab 355 where the question of Section 15 in relation to a decree under Sec.
12 has been specifical ly considered and decided against the appellant, but learn ed counsel contended that the scope and language of Sec. 15 coupled with the language of Sec.
28 has not been consider ed by any one of these courts.
Learned counsel for the respon d ent on the other hand contended that the language of Sec. 15 refers to "marriage dissolved by decree for divorce" where as in the present case, the mar 142 riage was not dissolved by decree of divorce.
The marria ge was declared as nullity under Sections 11 and 12 of the Ac t. Sections 11 and 12 of the Act, according to the learn ed counsel, talk of annulment of marriage "by decree of null i ty" and it was contended that it is because of this that t he various High Courts have taken a view that Sec. 15 will n ot apply to cases where a marriage is annulled by a decree of nullity in accordance with Sections 11 or 12 of the Ac t. Learned counsel however frankly conceded that so far as Se c. 28 is concerned, the language is so wide that an appeal wi ll lie even against a decree under Section 11 or 12 and if an appeal lies under Sec.
28 even against the order or a decr ee passed under Sections 11 or 12, the phrase 'if there is su ch a right of appeal, the time for filing has expired witho ut an appeal having been presented ' are to be given its mea n ing, it would be clear that Sec. 15 also will apply to decrees by which the marriage is either dissolved or a n nulled i.e. decrees which are passed under Sec.
12 or und er Sec. 13.
Learned counsel in face of this raised anoth er contention pertaining to the application of the Limitati on Act which we will examine later.
In order to understand the meaning of Sec. 15 of the A ct it would be better if we first notice that the words 'decr ee for divorce ' or 'decree for nullity ' has not been defined in any one of the provisions of this Act.
12 clause (1) of the Act reads: "Any marriage solemnized, whether before or after the co m mencement of this Act, shall be voidable and may be annull ed by a decree of nullity on any of the following groun ds namely, Similarly Sec.
13 clause (1) of the Act reads: (1) Any marriage solemnized, whether before or after t he commencement of this Act may, on a petition presented by either the husband or wife, be dissolved by a decree of divorce on the ground that the other party, 143 It is no doubt true that these two sections have differe nt phraseology.
In section 12 it is said that the marriage be annulled by a decree of nullity whereas in Section 13, t he phraseology used is "dissolved by decree of divorce" but in substance the meaning of the two may be different under t he circumstances and on the facts of each case but the leg al meaning or the effect is that by intervention of the cou rt the relationship between two spouses has been severed eith er in accordance with the provisions of Section 12 or in a c cordance with the provisions of Section 13.
Probably it is because of this reason that the phrase 'decree of nullit y ' and 'decree of divorce ' have not been defined.
28 of the Act reads: "28.
Appeal from decrees and orders (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub section (3), be applicable as decre es of the court made in the exercise of its original civ il jurisdiction, and every such appeal shall lie to the Cou rt to which appeals ordinarily lie from the decisions of t he court given in the exercise of its original civil jurisdi c tion.
(2) Orders made by the Court in any proceeding under th is Act, under Section 25 or Section 26 shall, subject to t he provisions of sub section (3), be appealable if they are n ot interim orders, and every such appeal shall lie to the cou rt to which appeals ordinarily lie from the decision of t he Court given in exercise of its original civil jurisdiction ; (3) There shall be no appeal under this section on t he subject of costs only.
(4) Every appeal under this section shall be preferr ed within a period of thirty days from the date of the decr ee or order. ' ' Under this provision all decrees made by the Court in a ny proceeding under this Act are appealable.
Apparently a ny proceeding under this Act will refer to a proceeding inst i tuted under Section 13 or a proceeding instituted und er Sections 11 or 12 as Sections 11 or 12 talks of 'decree f or nullity ' and Section 13 talks of 'decree for divorce ' but in order to provide an appeal against all decrees Section 28 has used a very wide terminology which include decrees und er Sections 11, 12 and 13 and so far as this is concerned it could hardly be contested as the language of Section 28 itself is so clear.
It is in this context that we 144 analyse the language of Section 15.
It reads: "Divorced persons when may marry again When a marriage h as been dissolved by a decree of divorce and either there is no fight of appeal against the decree or, if there is such a fight of appeal, the time for appealing has expired witho ut an appeal having been presented or an appeal has been pr e sented but has been dismissed, it shall be lawful for eith er party to the marriage to marry again.
" Before we examine the phraseology 'dissolved by decree of divorce ' it would be worthwhile to examine the remaini ng part of this provision, especially 'if there is such a fig ht of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been present ed but has been dismissed '.
If we give narrow meaning to t he term 'dissolved by decree of divorce ' as contended by t he learned counsel for the respondent, it will mean that if it is a decree under Sec. 13 then either party to the procee d ing have to wait till the period of appeal has expired or if the appeal is filed within limitation till the appeal is disposed of and before that it will not be lawful for eith er party to the marriage to marry again.
The phrase 'eith er party to the marriage ' if is co related with the first pa rt of the Section, marriage which has been dissolved by decr ee of divorce will indicate that what was provided in th is Section was that when a relationship of marriage is di s solved by decree of court and either no appeal is filed or if filed, is dismissed then either party to the marria ge which has been dissolved by the process of law by a decr ee are free to marry again.
The only words on the basis of which the narrow meaning has been given to this Section by some of the High Courts is on the basis of the Words 'decr ee of divorce ', it could not be doubted that where the marria ge is dissolved under Sections 11, 12 or 13 by grant of a decree of nullity or divorce, the relationship is dissolv ed or in any way is brought to an end and it would be signif i cant that if the language of Section 15 is interpreted in the light of Section 28 which provides for appeal and co n fers a right of appeal on either party to proceedings whi ch culminate into a decree bringing an end to the relationsh ip of marriage then we will have to infer that the Legislatu re so far as decrees under Section 13 are concerned wanted t he right of appeal to survive but in decrees under Section 11 or 12 the Legislature wanted the right of appeal to be subject to the will of the other party.
As it is appare nt that if what is contended by the learned counsel for t he respondent and held by some of the High Courts is accept ed that Sec.
15 will not apply to cases when a decree is pass ed under Sec.
11 or 12 it will mean that as 145 soon as a decree is passed the party aggrieved may appe al but the other.
party by remarriage would make the appe al infructuous and therefore the right of appeal of one of t he parties to the decree under Sec.
28 will be subject to t he act of the other party in cases where decree is passed und er Sections 11 or 12 but if it were so, the Legislature wou ld have provided a separate provision for appeal when there is a decree under Section 13 and a different provision f or appeal when there is a decree under Sections 11 or 12 as t he right of appeal against a decree under Sec.
11 or 12 cou ld only be a limited right subject to the desire of the oth er party.
The Legislature in its wisdom has enacted Sec. 28 conferring a right of appeal which is unqualified, unr e strictive and not depending on the mercy or desire of a party against all decrees in any proceeding under this A ct which will include a decree under Sections 11, 12 or 13 a nd therefore the only interpretation which could be put on t he language of Sec.
15 should be which will be consistent wi th Section 28.
This phrase 'marriage has been dissolved by decree of divorce ' will only mean where the relationship of marriage has been brought to an end by the process of cou rt by a decree.
It is plain that the word 'divorce ' or 'decree of d i vorce ' have not been defined in this Act.
The meaning of t he word 'divorce ' indicated in Shorter Oxford English Dictio n ary reads: "Divorce 1.
Legal dissolution of marriage by a court or other competent body, or according to forms locally reco g nized.
Complete separation; disunion of things close ly united ME.
That which causes divorce 1607.
" Similarly the meaning of the word 'divorce ' as indicated in Webster 's Third New International Dictionary reads: "Divorce 1: a legal dissolution in whole or in part of a marriage relation by a court or other body having compete nt authority.
In Vathsala 's case the Court had occasion to consider t he effect of an application for setting aside an exparte decr ee which was granted under Sec. 12 and it was contended th at while the application by the husband for setting aside t he exparte decree was pending the wife contracted remarriag e. Will not remarriage have the effect of making the applic a tion to set aside exparte decree infructuous? More or less a similar question is in the present case where it has be en held that by marrying the second time the respondent ma de the appeal filed by the 146 appellant infructuous, and the learned Judge placing rel i ance on the observations made in Chandra Mohini 's case hel d: "That is the principle of Smt.
Chandra Mohini vs Avina sh Prasad; , The principle laid down in th at decision has general application.
The Supreme Court point ed out that on dissolution of marriage, a spouse can lawful ly marry only when there is no right of appeal against t he decree dissolving the marriage or if there is a right of appeal, the time for filing of an appeal has expired or t he appeal presented has been dismissed.
" The question about an appeal to the Supreme Court has als o been considered in a recent decision of this Court in T e jinder Kaur 's case wherein the observations made in Chand ra Mohini 's case have been quoted and it is held that: "In view of this, it was incumbent on the respondent to ha ve enquired about the fate of the appeal.
At any rate, the Hi gh Court having dismissed the appeal on 16th July, 1986 t he petitioner could have presented a special leave petiti on within ninety days therefrom under article 133(c) of the Lim i tation Act, 1963 i.e. till 14th September, 1986.
Till th at period was over, it was not lawful for either party to mar ry again as provided by section 15.
It was incumbent on the respon d ent, as observed in Lila Gupta 's case (ILR 1969) 1 All. 9 2) to have apprised himself as to whether the appeal in t he High Court was still pending; and if not, whether the peri od for filing a special leave petition to this Court had e x pired.
We must accordingly overrule the views expressed in Chandra Mohini 's; , and Lila Gupta, cases (I LR 1969(1) All 92).
We wish to add that in the subseque nt decision in Lila Gupta the Court while dealing with t he effect of deletion of the proviso observed: The net result is that now since the amendme nt parties whose marriage is dissolved by a decree of divor ce can contract marriage soon thereafter provided of course t he period of appeal has expired.
The Court adverted to the word of caution administered by Wanchoo, J. in Chandra Mohini 's case and reiterated: 147 "Even though it may not have been unlawful for t he husband to have marriage immediately after the High Court 's decree for no appeal as of right lies from the decree of t he High Court to this Court, still it was for the respondent to make sure whether an application for special leave had be en filed in this Court and he could not, by marrying immediat e ly after the High Court 's decree, deprive the wife of t he chance of presenting a special leave petition to this Cour t.
If a person does so, he takes a risk and could not ask t he Court to revoke the special leave on that ground," It is no doubt true that in these two decisions, this Cou rt was considering the impact of an appeal against a decr ee under Section 13 itself and not a decree under Section 11 or 12 but as indicated earlier if the impact of the phraseolo gy 'fight of appeal ' occurring in Sec.
15 is to be examined in the light of language of Sec. 28 as discussed earlier the re will be no difference in respect of the fight of appe al whether the decree is under Sections 11, 12 or 13.
The decisions of the High Court on which reliance is placed by courts below and the learned counsel for t he respondent are: i) Mohanmurari ii) Jam boo Prasad Jain, a nd Pramod Sharrna.
In none of these decisions the impact of t he fight of appeal occurring in Sec. 15 in view of the langua ge of Section 28 where the right of appeal is conferred, h as been considered.
In our opinion, therefore the view taken by the High Court is not correct.
What Section 15 means when it uses the phrase 'has been dissolved by decree of divorce '? It only means where the relationship of marriage has be en brought to an end by intervention of court by a decree, th is decree will include a decree under Sections 11, 12 or 13 a nd therefore the view taken by all the courts below is n ot sustainable.
The contention of the learned counsel for t he appellant has to be accepted so far as this question is concerned.
Learned counsel for the respondent contended that as Section 28 sub clause (4) of the Act provides for the lim i tation for preferring an appeal in view of Sec.
29 clau se (3).
Provisions of will not apply and if th ey do not apply as the trial court disposed of 'the matter by a decree dated 3.5.1985 the period of limitation for appe al could only be upto 3.6.1985 as the period for obtaini ng copies as contemplated under Section 12 clause (2) of t he will not be applicable and therefore even if it is held that under Sec.
15 the respondent had to wa it till the period of limitation for appeal expires 148 as he entered into a marriage on 27.6.1985 it was clear ly after the period of limitation has expired and therefo re this marriage apparently made the appeal filed by the appe l lant infructuous.
It is not in dispute that if the peri od for obtaining copy of the judgment and decree is computed as contemplated in Section 12 clause (2) of the Limitation Ac t, the appeal filed by the appellant before the first appella te court was within the time and if Section 12 clause 2 is he ld applicable then this marriage which the respondent perform ed on 27.6.1985 could not be said to be a marriage which he w as entitled to perform in view of language of Section 15 a nd therefore it could not be said that this marriage render ed the appeal filed by the appellant infructuous.
Learn ed counsel for the respondent mainly placed reliance on t he language of Sec.
29 clause 3 of the where as learned counsel appearing for the appellant contended th at Sec.
29 clause 3 talks of suit or proceedings and therefo re the phrase 'proceedings ' used in clause 3 of Sec.
29 cou ld only refer to suits or other original proceedings and it will not apply to appeals as is very clear from the defin i tion of 'suit ' as defined in Section 2(L) of the Limitati on Act.
It was therefore contended that the provisions of t he will be applicable to appeals under Sec.
28 of the Act.
Learned counsel for the appellant placed rel i ance on the decisions in Chander Dev Chadha vs Smt.
Ra ni Bala, AIR 1979 Delhi 22; Smt.
Sipra Dey vs Ajit Kumar De y, AIR 1988 Calcutta 28 and Kanti bai vs Karnal Singh Thaku r, AIR 1978 M.P. 245.
Section 2(L) of the defines the 'suit '.
It reads: "suit" does not include an appeal or an application".
It clearly enacts that suit does not include an appeal or an application.
Sec. 29 of the reads: "29.
Savings (1) Nothing in this Act shall affect Section 25 of the .
(2) Where any special or local law prescribes for any sui t, appeal or application a period of limitation different fr om the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the peri od prescribed by the Schedule and for the purpose of determi n ing any period of limitation prescribed for any suit, appe al or application by any special or local law, the provisio ns contained in Sections 4 to 24 (inclusive) shall apply on ly insofar as, and to the extent to which, they are not 149 expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time bei ng in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding und er any such law.
(4) Sections 25 and 26 and the definition of 'easement ' in Section 2 shall not apply to cases arising in the territ o ries to which the Indian Easement Act, 1882, may for t he time being extend.
" Clause (2) of this Section provides that where the limit a tion provided by the special or local law is different fr om the period prescribed by the Schedule, the provisions of Section 3 will apply.
In the Hindu Marriage Act, the peri od of appeal is prescribed.
In the schedule under the Limit a tion Act, there is no provision providing for an appe al under the Hindu Marriage Act.
Thus the limitation prescrib ed under the Hindu Marriage Act is different and is not pr e scribed in the Schedule.
Thus the provisions of Section 3 shall apply and therefore it is clear that to an appeal or application the provisions contained in Sections 4 to 24 shall apply, so far and to the extent to which they are n ot expressly excluded by the special or local law and clau se (3) of this Section provides that the provisions of this A ct shall not apply to any suit or other proceedings under a ny marriage law.
It is therefore clear that so far as clau se (3) is concerned, the impact of it will be that the prov i sions of the will not apply so far as a su it or an original proceeding under the Act is concerned b ut clause (3) will not govern an appeal.
The Schedule in the do not provide for an appeal, under the Hindu Marriage Act but it is only provid ed in clause (4) of Sec.
28 of the Hindu Marriage Act.
Thus t he limitation provided in clause (4) of Sec.
28 is differe nt from the Schedule of the .
Accordingly to clause (2) of Sec. 29, provisions contained in Sections 4 to 24 will be applicable unless they are not expressly exclu d ed.
It is clear that the provisions of the Act do not e x clude operation of provisions of Sections 4 to 24 of t he and therefore it could not be said that the se provisions will not be applicable.
It is therefore cle ar that to an appeal under Section 28 of the Hindu Marria ge Act, provisions contained in Section 12 clause (2) will be applicable, therefore the time required for obtaining copi es of the judgment will have to be excluded for computing t he period of limita 150 tion for appeal.
A Division Bench of Delhi High Court in Chandra Dev Chadha 's case held as under: "The Hindu Marriage Act is a special law.
That this "speci al law" prescribes" for an appeal a period of limitation is also evident.
The period of limitation is 30 days.
It is a period different from that prescribed in the First Schedu le to the .
But when we turn to the Fir st Schedule we find there is no provision in the First Schedu le for an appeal against the decree or order passed under t he Hindu Marriage Act.
Now it has been held that the test of a "prescription of a period of limitation different from t he period prescribed by the First Schedule" as laid down in section 29(2), is satisfied even in a ca se where a difference between the special law and Limitati on Act arose by omissions to provide for a limitation to a particular proceeding under the , see, Cana ra Bank, Bombay vs Warden Insurance Co. Ltd. Bombay, AIR 19 (supra) approved by the Supreme Court in Vidyachar an Shukla vs Khubchand, ; (1102).
Once the test is satisfied the provisions of Ss, 3, 4 to 24, would at once apply to t he special law.
The result is that the court hearing the appe al from the decree or order passed under the Hindu Marriage A ct would under section 3 of the have power to dismi ss the appeal if made after the period of limitation of 30 da ys prescribed thereof by the special law.
Similarly under section 5 for sufficient cause it will have the power to condo ne delay.
Likewise under section 12(2) the time spent in obtaining a certified copy of the decree or order appealed from will be excluded.
If it is so, section 12(2) of the is attracted, and the appellants in all the three appeals wi ll be entitled to exclude the time taken by them for obtaini ng certified copy of the decree and order.
The appeals ar e, therefore, within time.
" Similar is the view taken by the Calcutta High Court in Sm t. Sipra Dey 's case and also the M.P. High Court in Kantibai 's case.
It is therefore clear that the contention advanced by the learned counsel for the respondent on the basis of t he also is of no substance.
151 Consequently the appeal is allowed.
The judgment pass ed by the High Court as well as by the first appellate court is set aside.
We remand the matter back to the first appella te court as that court had disposed of the appeal treating it to have been rendered infructuous.
We therefore direct th at the learned lind Additional District Judge, Nagpur befo re whom the appeal was filed, will hear the appeal on meri ts and dispose it of in accordance with law.
A suggestion was made by the counsel for the appella nt about some tests and willingness of the appellant for ge t ting those tests performed which could be used as addition al evidence in respect of the paternity of the child born to the appellant which has been made a ground for declarati on of marriage as nullity.
Without expressing any opinion, it would be appropriate for the lower appellate court to co n sider the matter if parties approach about additional ev i dence.
The appallant shall be entitled to costs of th is appeal.
Costs quantified at Rs.2500.
R.S.S. Appeal allowed.

summary/full:
A decree in favour of the respondent husband was grant ed by the Trial Court declaring his marriage with the appella nt to be a nullity under section 12(1)(d) of the Hindu Marria ge Act, 1956 on the ground that the wife at the time of ma r riage was pregnant by some one other than the respondent.
In the appeal filed by the appellant, the respondent raised a preliminary objection contending that the appeal was n ot tenable and had been rendered infructuous because he h ad re married before the filing of the appeal.
The Appella te Court allowed the preliminary objection and dismissed t he appeal, and the High Court dismissed the second appeal.
Before this Court it was contended on behalf of t he appellant that (i) the word 'divorce ' has been used in section 15 in a broader sense and, in view of the langua ge used in that section, it is not possible to distingui sh between a decree of nullity under section 11 or 12 a nd decree of divorce under section 13; (ii) the interpretati on put by the lower courts, on the basis of judgments of so me of the High Courts, that section 15 will not apply to a decree under section 12 but would only apply when there is a decree under section 13, does not appear to be correct as the scope and language of section 15 coupled with the la n guage of section 28, had not been considered by any one of these courts; and (iii) even if it is held that section 15 applies to a decree under section 12, the respondent h ad re married after the period of limitation had expired, as the provisions of the will not apply in vi ew of the section 29(3) of that Act, and therefore the period 138 for obtaining copies of the judgment excluded under secti on 12 clause will not be available to the appellant.
Allowing the appeal, it was, HELD: (1) It is no doubt true that section 12 and se c tion 13 have different phraseology.
In section 12 it is sa id that the "marriage may be annulled by a decree of nullit y" whereas in section 13, the phraseology used is "dissolved by a decree of divorce".
Though in substance the meaning of t he two may be different under the circumstances and on t he facts of each case, but the legal meaning or the effect, is that by intervention of the court the relationship betwe en two spouses has been severed either in accordance with t he provisions of section 12 or in accordance with the prov i sions of section 13.
Probably it is because of this reas on that the phrase 'decree of nullity ' and 'decree of divorc e ' have not been defined.
[143A B] (2) Under the provisions of section 28 all decrees ma de by the Court in any proceeding under this Act are appea l able.
In order to provide an appeal against all decre es section 28 has used a very wide terminology which includ es decrees under sections 11, 12 and 13, and so far as this is concerned it could hardly be contested as the language of section 28 itself is so clear.
[143G H] (3) If it is accepted that section 15 will not apply to cases when a decree is passed under section 11 or 12, it will mean that as soon as a decree is passed the par ty aggrieved may appeal but the other party by remarriage wou ld make the appeal infructuous and therefore the right of appeal of one of the parties to the decree under section 28 will be subject to the act of the other party in cases whe re decree is passed under section 11 or 12.
But if it were s o, the Legislature would have provided a separate provision f or appeal when there is a decree under section 13 and a diffe r ent provision for appeal when there is a decree under se c tion 11 or 12 as the right of appeal against a decree und er section 11 or 12 could only be a limited right subject to the desire of the other party.
[144H; 145A B] (4) The Legislature in its wisdom had enacted section 28 conferring a right of appeal which is unqualified, unr e strictive and not depending on the mercy or desire of a party against all decrees in any proceeding under the Ac t.
Hence, the only interpretation which could be put on t he language of section 15 should be that which will be consis t ent with section 28.
Therefore, the phrase 'marriage h as been dissolved 139 by a decree of divorce ' in section 15 will only mean whe re the relationship of marriage has been brought to an end by the process of court by a decree, which will include a decree under section 11, 12 or 13.
The view taken by t he courts below is accordingly not sustainable.
[145C D; 147F ] Chandra Mohini Srivastava vs Avinash Prasad Srivastava Anr.; , ; Tejinder Kaur vs Gurmit Singh, A IR ; Vathsala vs N. Manoharan, AIR (1969) Madr as 405, referred to.
Mohanmurari vs Srnt.
Kusumkumari, AIR (1965) M.P. 19 4; Jamboo Prasad Jain vs Smt.
Malti Prabha, AIR 1979 Allahab ad 260; Pramod Sharma vs Smt.
Radha, AIR (1976) Punjab 35 5, overruled.
(5) So far as clause (3) of Section 29 of the Limitati on Act is concerned, the impact of it will be that the prov i sions of the will not apply so far as a su it or an original proceeding under the Hindu Marriage Act is concerned, but clause (3) will not govern an appeal.
[149E ] (6) To an appeal under section 28 of the Hindu Marria ge Act, provisions contained in section 12 clause (2) of t he will be applicable, and therefore, the ti me required for obtaining copies of the judgment will have to be excluded for computing the period of limitation f or appeal.
[149G H] Chander Dev Chadha vs Smt.
Rani Bala, AIR (1979) Del hi 22; Smt.
Sipra Dey vs Ajit Kumar Dey, AIR (1988) Cal 28 a nd Kantibai vs Kamal Singh Thakur, AIR (1978) M.P. 245, r e ferred to.