1994 PLP 2348 (MLD)

AMIR-UL-MULK MENGAL, J.

This appeal filed under section 39 of the Arbitration Act (hereinafter referred to as the "Act") is directed against. order dated 18-12-1993 passed by Additional District Judge-1, Quetta whereby he was pleased to dismiss the application filed under section 14 of the Act for making the award as rule of the Court. The facts. arising out of this Civil Miscellaneous Appeal are related to the dispute amongst the legal heirs of late Malik Karam Ellahi Khan, Advocate and his son late Khalid Malik who was a practising Advocate of Quetta over the property bequeathed by them. Malik Karam Ellahi expired at Quetta in the year 1982 and his wife Mst. Zubeda Zarrin also died after two months of his death, leaving behind the following legal heirs:

(1) Late Khalid Malik (Son) (2) Khalida Malik (Daughter) (3) Fouzia Malik (Daughter) (4) Shahnaz (Daughter) It is worth mentioning to note here that Khalid Malik was murdered at Bhera (Pun iab) on 19-7-1991. He contracted two marriages. The name of his first wife is Mst. Farida and the name of his second wife is Mst. Naheed. Out of the first wedlock two issues namely Taimoor (son) and Aneeia (daughter) were born whereas only one son namely Hassan was born out of the second marriage. The details of the property, the subject-matter of the present appeal, are given hereinbelow:

PROPERTY NO. 1: (i) A Bungalow on Survey No. 12-A, Khojak Road, Quetta Cantt., the land underneath of the Bungalow was leased out to late Zubeda Zarrin (wife of late Malik Karam Ellahi Khan). She constructed a bungalow over it. It is important to note that on 25-11-1989 this lease was surrendered and four separate lease deeds were executed in the names of the late Khalid Malik, Khalida, Fouzia and ~ Shahnaz. Thus this plot of land was divided into four Parts and the constructed portion of the land (Bungalow) was given Survey NO-12-A (1868 sq. ft.) in favour of late Khalid Malik vide document dated 25 11-1989. A plot adjacent to the said Bungalow numbered as 12-A/1 leased out to Shahnaz Malik (869 yards), the second plot numbered 12-A/2 was leased to Fouzia (869 yards) and 3rd plot numbered 12-A/3 was leased to Khalida (869 yards). This distribution of the property was made during the lifetime of Mr.Khalid Malik. PROPERTY NO. 2: A plot measuring 1,282 sq.ft. on Khasra No.386 Chauhar Mal Road, Quetta bearing Municipal No. 42-4/4. This plot was in the name of late Karam Ellahi Khan entered in Fard of the year 1979-80. This property was sold by late Malik Karam Ellahi Khan to his son Khalid Malik for a consideration of Rs.20,000 but it is disputed by the legal heirs. PROPERTY NO. 3: An orchard with fruit-giving trees over an area of 50 acres being-- irrigated from water pump machine in the name of late Khalid Malik at the suburb of Quetta. PROPERTY NO. 4: House situated in Rabwa in the name of late Karam Ellahi Khan. PROPERTY N0.5 Land situated at Bhera in the name of late Malik Karam Ellahi Khan. Thus for the purposes of brevity we would term these properties as "Property No.l, Property No.2, Property No.3, Property No.4, and Property No.5 as and when mentioned in the judgment". It is further revealed from the facts that-after the death of Khalid Malik, Mr. Ehsanul Haque issued a Fatwaha as Amir of Jamiat-e-Ahmadia Balochistan in respect of property of Malik Karam Ellahi Khan to be inherited as under:

S.No. Name Relationship Shares. 1 Khalid Malik Son 2/5 2 Mst. Khalida Malik Daughter 1/5 3 Mst.Fouzia Malik Daughter 1/5 4 Mst.Shahnaz Malik Daughter 1/5 On the basis of this Fat`vaha an application was moved by Mst. Khalida Malik to the Collector, Quetta for effecting a mutation accordingly. Thus Mutation No. 270 was attested and shares were determined and entered on the basis of Fatwaha given by Amir of Jamiat-e-Ahmadia, Balochistan, Quetta. Thereafter Mr. Abdul Rashid father of Mst. Naheed (the second wife of late Khalid Malik) produced the Fatwaha and on his request Mutation No.271 was effected and entries made regarding shares of the legal heirs of late Khalid Malik in respect of Property No.2. At this juncture the first wife of late Khalid Malik namely Mst. Farida Malik arrived at Quetta as she was living abroad and filed a suit as widow of Khalid Malik in the Court of District Judge, Quetta which was transferred to the file of Senior Civil Judge, Quetta for disposal. She also prayed for appointment of Receiver but this plaint was rejected on 4-6-1992. She filed a revision petition which was also dismissed on 27-9-1992. Now started the real dispute. Mst. Khalida Malik filed a complaint on 7-7-1992 stating that the second wife of late Khalid Malik and her father Abdul Rashid came to the Bungalow for taking possession of the same with many further allegations. In fact she wanted to register a case but S.H.O. concerned refused, therefore, she filed a Constitutional Petition No.311 of 1992 but the said petition was dismissed as District Magistrate undertook to proceed according to law. Another important fact was that on 9-7-1992 Mst. Khalida Malik embraced Islam and parted with Jamiat Ahmadia by addressing a Press conference. It appears that efforts were made thereafter to resolve the dispute over the property through arbitration as such an agreement was reached on 18-10-1092 to refer the dispute to be resolved through arbitration. The agreement was reached by the parties which may be categorized in the following three groups:

(i) First Party Appellants. (ii) Second Party Ist wife, her son and daughter. (iii) Third party Second wife for herself and her son. The following persons were nominated as arbitrators by the parties (1) Syed Ghulam Hyder Shah Advocate (2) Mr. Mujeeb-ur-Rehman Advocate (3) Ch. Ejaz Yousuf Advocate The arbitrators proceeded and gave their award on 18-10-1992 regarding the entire property and shares to be inherited by the legal heirs of late Karam Ellahi Khan and late Khalid Malik. But it appears that thereafter again the respondents resiled hence the appellants filed an application under section 14 of the Act with the prayer for making the award as rule Gf the Court on 16-11-1992. The respondents Nos.4 and 5 filed objections on 23-12-1992, whereas respondents Nos. 1 to 3 filed objections on 26-12-1993. However, respondent No. 7 filed objections on 7-3-1993 and so did respondent No.8 on 24-5-1993. The appellants also filed a rejoinder on 22-6-1993 and on the same day two affidavits were filed by Muhammad Sharif, Advocate and Manzoor Ahmad. However, after hearing the arguments, the learned Additional District Judge-I, Quetta rejected the application vide impugned order dated 18-12-1993 holding the same as premature. Hence this appeal under section 39 of the Act. Heard Mr. Basharatullah, Advocate for the appellants, Mr. M. Zafar, Advocate for respondents Nos.4 and 5, Raja M. Afsar, for respondents Nos. 1, 2 and

3. We also heard Mr. Zahid Moquim Ansarr for respondent No.8, Mr. Imranul Haque for respondent No.7 and Mr. M. Riaz of respondent No.6. Mr. Basharatullah firstly contended that this Court may decide whether findings of the learned Additional District Judge-1, Quetta were correct that the award was not an award within the meaning of the Act. It was secondly urged that this Court should see whether a clause in the arbitration agreement providing re-reference to arbitrator for interpretation of a clause of the award has rendered the award illegal as concluded by the learned Additional District Judge -I, Quetta and lastly whether Additional District Judge-I, Quetta decided the objections within the meaning of section 30 read with section 33 of the Act or he failed at all to attend to this aspect of the matter. It would be proper to take. note of the points raised by the learned counsel of the respondents and then to proceed to determine the issues. Mr: Zafar appearing for respondents Nos. 4 and 5 contended that respondents Nos. 4 and 5 have no objection regarding shares in Property Nos. 1, 3, 4 and

5. However, the dispute relates only to Property No.2 which according to him, was sold out by late Karam Ellahi Khan to his son Khalid Malik during his lifetime for a consideration of Rs. 20,

000. He argued that the parties agreed to refer the matter to the arbitrators. But, according to him, the arbitrators failed to give an award. In furtherance of his arguments learned counsel submitted that all arbitrators agreed to a proposed draft, written on a rough paper. But when the fact that the Property No.2 had been mutated in the name of Khalid Malik was known to the father of Mst. Naheed, the arbitrators namely Chaudhary Ejaz Yousuf and Majeeb-ur-Rehman did not sign the award to be written on a stamp paper. In short the learned counsel submitted that the proposed award is not an award within the meaning of section 2 of the Act and thus the learned lower Court was correct in coming to the conclusion that the proposed award was nothing more than a piece of paper which could not, in any case, be made rule of the Courts. Raja M. Afsar representing respondents Nos. l, 2 and 3 firstly challenged the maintainability of the appeal contending that since there was no award at all, therefore, the present appeal is not competent within the meaning of section 39(1) (6) of the Act. According to learned counsel only a revision could competently be filed which has not been filed, therefore; this Court should dismiss the appeal on this ground alone. It was secondly ' contended that the minors are ward of the Court and unless an order was obtained by the Court regarding referring the matter, the entire proceedings would be void ab initio. Referring to section 141, C.P.C. learned counsel contended that on account of legal disability the agreement for referring the matter to arbitrators was itself without lawful authority and this legal flaw would render all the subsequent actions as illegal. Reliance was placed on (i) PLD 1956 Kar. 150, (ii) PLD 1955 Sindh 289, PLD 1965 Karachi 341, (iv) PLD 1966 Quetta 5 and AIR 1962 SC (India) 1886. Learned counsel next contended that it is only a cause which could be referred to arbitration but from perusal of the agreement one cannot find any cause of difference amongst the parties. However, this agreement contains several clauses where the parties have concurrence. Thus regarding the properties which were already settled and transferred through valid mutations, no agreement could be reached to re-decide the decided facts. It was not a question of distribution of property but in fact it was a redistribution, thus the agreement was void. To substantiate the arguments Raja M. Afsar, Advocate contended that in pursuance of a registered sale-deed regarding property No.2 mutation was effected. Furthermore building permit has no evidentiary value as regards title but still the building permit also is indicative of the fact that builders were Malik Karam Ellahi and Khalid Malik. It was contended by the counsel that ever; thing was settled in the first sitting of the arbitrators. There is nothing on record to show that any second or third sitting of the arbitrators to consider the material was ever held. Besides, the counsel argued that it was requirement of section 3, Schedule I, item 12 of the Stamp Act, that award should have been stamped. Learned. counsel then emphatically urged that it is not an award which in fact is a judicial adjudication of a lis between the parties and should be proceeded on the basis of some inquiry. Reliance was placed on PLD 1971 SC

516. Another argument advanced was that the decision by the arbitrators was not based on documents and that it was beyond terms of reference. From perusal of award, according to learned counsel, it is nowhere mentioned that any document was taken into consideration. Learned counsel further submitted that assuming that finding (which in fact is a mutual understanding) is an award, even then no executable decree could be passed as` it was in the nature of a declaration only. In this regard he relied on PLD 1953 Lah.

284. An objection was also raised that arbitrators, were not summoned by the Court as witness, therefore, the award could not be made Rule of the Court. Reference was made to PLD 1959 Kar.

320. Learned counsel further submitted that it was decided that the award should be unanimous but in fact it is a majority view (2:1) that it was a tentative report and not an award. Furthermore it requires clarification for which again resort had to be made to arbitrators which is illegal. Mr. Imranul Haque adopted the said arguments and stated that it was requirement of the agreement itself that award would be written on a stamp paper. He also pointed out that it was a family settlement to be registered before the Registrar. This fact is reflected from the agreement to refer the matter for arbitration. Since no proceedings have yet been drawn by the arbitrator, therefore, the application for making the award as Rule of the Court was premature. He also, while referring to section 14(1) of the Act argued that no notice within the meaning of this section was given. Mr. Zahid Moquim Ansari and M. Riaz, argued that no misconduct has been proved of two arbitrators therefore award was perfect and proper. In reply to the said objections Mr. Basharat Ullah contended that Order 32, C.P.C. is applicable only to the proceedings of Court but the same is not applicable to arbitration outside the Court. According to him he has gone through the authorities referred to in this respect (PLD 1956 Karachi 150 and PLD 1955 Sindh 289) and argued that suit was pending in the Court, therefore, these are not apt to the facts of the present case. Besides an application seeking for appointment of guardian ad litem was moved alongwith the main application. Furthermore no prejudice has been caused to the minors, because they have been represented through their natural guardian i.e. the mother who even represented them in this appeal. As regards to objection in respect of section 3 of Stamp Act read with Article 12 learned counsel submitted that this defect has already been removed because duty had been paid when the award was produced before Court. Reliance. has been placed on 20 IC 491, AIR 1974 Pat.

315. Regarding non-registration, the learned counsel invited our attention to 1988 SCMR 623 and PLD 1967 Lah.

365. Before proceeding further it may be noted that the learned Additional District Judge-I, Quetta mainly dismissed the application holding that it was a premature, application because according to the learned Judge award dated 18-10-1992 was nothing but minutes of the proceedings. We now proceed to dispose of the preliminary objection regarding maintainability of the appeal as raised by Raja M. Afsar. According to him since there was no award at all, therefore, appeal was not competent. Learned counsel lost sight of the fact that an appeal within the meaning of section 39(1) (vi) is competent when the Court passes an order setting aside or refusing to set aside an award. Although the Court has held that the arbitrators have not decided the matter and it was not an award at all, the same amounts to setting aside this award as being improperly procured, as such the appeal is competent. Reference if at all necessary, may be made to AIR 1949 Pat.

393. This objection is, therefore, overruled. Attending now to the main objection raised by Raja M. Afsar that the minors are .ward of the Court and unless an order was obtained from the Court regarding the reference of matter, the entire proceedings are void ab initio. In this respect our attention was drawn to the ratio decidendi of the following cases:

(1) PLD 1955 Sindh 289; (2) PLD 1956 Kar. 150; (3) PLD 1965 Kar. 341; (4) PLD 1966 Quetta 5; (5) AIR 1962 SC (India) 1886. The first judgment which has been followed is PLD 1955 Sindh 289 wherein it was held that an agreement to refer the matter to arbitration by mother of the minors is void as the mother under Muhammadan Law is disqualified within the meaning of section 11 of the Contract Act to enter into ,any legal contract, as such the award would be void and can be challenged even by the third party. We have perused the aforementioned judgment in which reference has been made to case of Imam,Bandi and others v. Haji Mutasaddi and others AIR 1918 PC 11, wherein it was held as under:

"that under the Muhammadan Law, the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian. " Besides Order XXXII, Rule 7, C.P.C. has also been taken into consideration which reads as under:

"7.

(l) Agreement or compromise b y next friend or guardian of the suit.

No next friend or guardian for the suit shall, without leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. (2) Any-, such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. " It has been held that since under Muhammadan Law a person who has charge of the person or property .of the minor without being his legal guardian and who may, therefore, be conveniently called "a de facto guardian" has no powers to convey to another party any right or interest in immovable property which the transferee can enforce against an infant. The proposition of law requiring determination, therefore, can be visualised from two angles; firstly,

applying the principles of Muhammadan Law; and secondly, taking into consideration provisions of Civil Procedure Code as well as Contract Act. As far as the cases relied upon by Raja M. Afsar (PLD 1955 Sindh 289 and PLD 1956 Karachi 150) the principles of Muhammadan Law were mainly considered and it was held that since the mother is merely "a de facto guardian", therefore, she is not competent to enter into a lawful agreement as regards minor's interest. The ratio decidendi do not apply to the facts of the case in hand for the simple reason that at the time of agreement, the parties were not Muhammadans and only Qadyanis, therefore, they were not governed by the principles of Muhammadan Law. In this regard it may be noted that appellant Dr. Khalida Malik and her sisters embraced Islam, only at a subsequent stage when the arbitrators had already given their award. However, the respondents are still Qadyanis. Keeping these facts in mind we are of the clear view that Muhammadan Law had no application at the time when agreement to refer the matter to arbitration was executed. Thus we have to take resort to the legal aspect of the matter i.e. to see it from the second angle i.e. considering provisions of C.P.C. and Contract Act. We have already reproduced Order XXXII, Rule 7, C.P.C. and now we reproduce section 11 of the Contract Act in order to dilate upon and settle the controversies. Section 1:1 of the Contract Act reads as under: "

11. Every person is competent to contract .who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject." From Order XXXII, Rule 7, C.P.C. it becomes clear that no next friend or guardian for the suit shall, without leave of the Court, expressly, recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. Similarly according to section 11 of the Contract Act every person is competent to contract who is of the age of majority according to the law to which he is subject etc. etc. As far as provisions of Order XXXII, Rule 7, C.P.C. are concerned that relates to filing of a suit, therefore, the same has no relevance to the facts of the case as no minor has. filed any suit in the present case. Only an application has been filed by daughters of late Malik Karam Ellahi Khan which cannot be termed as a suit and which has not been filed by a minor through legal guardian or next friend. However, section 11 of the Contract Act would be relevant for determination of the issue. Any contract by a minor is void unless the Court expressly appoints a legal guardian or a next friend through which such an agreement could be executed but it is equally the duty of the Court to see that the interest of the minors is fully secured. Where a compromise is entered by a family member of a minor (as is the case here) as a bona fide settlement of a family dispute and such dispute has been amicably settled wherein minors' interest have been fully secured and further that no element of fraud .or forgery is found, such settlement cannot be disregarded as void or could be held to be in contravention of aforesaid provisions of law. The fundamental and basic object of section 11 appears to be that the minor is the ward of the Court and it is the duty of the Court to protect adequately the rights of the minors therefore, in the instant case when an application under section 14 of the Arbitration Act was moved an application was also-moved for appointment of the mothers of the minor respondents to be their guardians. This application was allowed vide order dated 22-6-1993 by the Court. Thus the proceedings before the trial Court were regular and did not suffer from any legal infirmity as mothers of the minor respondents were respectively appointed as their legal guardians by the Court. However, the question still remains as to who signed the agreement to refer the dispute to arbitration. It was found that the mother of Anila and Taimour has signed on their behalf and mother of Hassan Malik has signed on his behalf. It is to be noted that these were allowed by the Court to act as their legal guardians subsequently and otherwise they were the legal guardians of the minors and they agreed to settle the dispute through arbitration in respect of the properties bequeathed by late Malik Karam Ellahi Khan and late Khalid Malik. In the circumstances it is to be seen whether such agreement is void m view of section 11 of the Contract Act. As stated hereinabove the main object of this provision appears to be to protect interest of the minors Parties are the legal heirs of late Malik Karam Ellahi Khan, Advocate and every member of the family wanted to settle the dispute of the property in an amicable manner, thus they thought it-proper to refer the matter to arbitrators appointed by each of the parties. We have found no element of fraud and forgery in the said agreement and the counsel failed to point out any mala fides on the part of the mothers of the minors to enter into agreement as against the interest of the minors. Learned counsel has also failed to point out that the minors' mothers have ever acted against their interest. Thus our conscience is satisfied that the legal guardian entered into agreement on behalf of the minors bona fide so as to settle the dispute through arbitration by appointing arbitrators of their confidence. It is also not the case of the parties that the mothers of the minors as legal guardians have ever sold an inch of the property to any one else or that they acted against the interest of the minors in any way. The object of section 11 of the Contract Act has thus been fully achieved. It may be observed that where a compromise is entered by a. family member of a minor towards a bona fide settlement of a family dispute, and the same is directed to protect minor's interest in the property, then such settlement shall not be disregarded or held to be in contravention of aforesaid provision of law; if the conscience of the Court is so satisfied. For all such reasons we are fully satisfied that the mothers of the minors have never acted against the interest of the minors. Rather they did so to fully and adequately protect their interest, therefore, we are not inclined to declare the said agreement as void in the peculiar circumstances of the case. We do not find any suspicious attitude or clandestine behaviour of the legal guardians, therefore, the objection raised in this respect is overruled. We are fortified in our view by the principles laid down in the case of Barodaprosad Sukul v. Sahanlall Boid and others (AIR 1937 Cal. 658) and the relevant observations are reproduced hereunder for ready reference:

"It is the duty of the Court to see that interests of minors are adequately protected. When a compromise is affected, to which

a minor is a party, it is of considerable importance that the conscience of the Court should be satisfied that the compromise is really in the interest of the minor. In ordinary circumstances, when the Court records an order to the effect that a compromise has been allowed, it may be assumed, unless there are clear indications to the contrary that the Court has exercised its judicial discretion in dealing with the matter. In cases, however, in which the circumstances are peculiar or suspicious, it is clear that a heavy duty lies upon the Court to scrutinise with care the terms of -the proposed compromise and the circumstances connected therewith, in order that the conscience of the Court may be satisfied on the point that the compromise is really for the minor's benefit. In sanctioning a compromise on behalf of an infant, the order granting the sanction should in terms state that the question whether the compromise was for the benefit of the infant was considered." Besides we can take benefit from the dictum as laid down in AIR 1917 All. 481 which though relates to family settlement under Hindu Law, but simultaneously it lays down a principle of law, which would be .beneficial to resolve the controversy. The observations are as under:

"A family settlement is valid in law if at the time it was arrived at there was a bona fide dispute, bona fide settled by the members of the family .It is reasonable that it should bind the members of the family even though they have been minors at the time." (Underlining is ours) This matter yet can be seen from the point of view whether signatures of parties to arbitration agreement is necessary. From perusal of the case-laws on the point we have found that contrary views have been taken by different Courts of law both in England and India. However, the Privy Council in the case of Umed Singh v. Sobhag Mal AIR 1943 Cal. 290 took the view that signatures of the parties were not necessary.. This. view was also taken by Supreme Court (India) AIR 1963 SC 1685. Earlier to this the Supreme Court of India also took that same view in AIR 1955 SC 812 holding as under: "It is settled law to constitute an arbitration agreement in writing, it is not necessary that it should be signed by the parties, and decision sufficient if the terms are reduced in writing, and the agreement of the parties thereto is established:-- From all what has been discussed above, we are fully satisfied that the agreement to refer the matter was duly executed with bona fide intention to settle the shares of the properties left by late Karam Ellahi Khan and late Khalid Malik by their L.Rs. through arbitrators duly appointed by the parties. The objection is thus answered accordingly. The next pertinent question was that according to Mr. Zafar, as well as Raja M. Afsar, followed by the remaining counsel for the respondents, that in fact the arbitrators failed to give an award within the meaning of section 2 of the Arbitration Act; whereas on the other hand, according to Mr. Basharatullah, Advocate for appellants it was an award for all intents and purposes. Section 2(b) of the Arbitration Act defines the award as under:

"award" means an arbitration award. An award is an adjudication and decision by the arbitrator or arbitrators upon the matter or issues as referred to it in the agreement. It is thus final determination of the lis between the parties who according to their own concurrence authorised the arbitrators to finally settle their dispute through arbitration. An award is not necessarily a reasoned judicial decision giving detailed reasons for the arbitrator's conclusions. However "it is an intelligible decision which defines the right of the parties, in relation to the subject-matter of the reference is of that is required". The arbitrators are not bound to state as I to why they came to such conclusion, until it is provided in the reference. It is not necessary for the arbitrators to give detailed reasons. What is important in this respect is whether the arbitrators gave a decision finally determining the issues or not and if it is found that the award is m consonance with reference and is an intelligible decision of the terms of reference it cannot be set aside. Mere fact that the arbitrators in the present case concluded proceedings in presence of the parties only in one sitting shall not provide a ground to set aside the same or to term it something else than an award. The main objection raised was that the arbitrators did not draw lengthy proceedings but decided the issue in their first sitting. However, it is not the case of any of the parties that this was done in their absence or they were not given an opportunity of hearing. Mere fact that the award was on a rough paper and at the time of signing of the award proper stamp has not been fixed would not render the award illegal. Raja M. Afsar while relying on PLD 1971 SC 516 urged with considerable vehemence that award in the instant case is not an award -but merely an attempt to bring understanding between the parties in order to harmonize their relations which is none of the functions of the arbitrators. We have perused the aforementioned judgment in which the Hon'ble Supreme Court held as under:

"The most important characteristic of an award, of course, is that it must emanate from a judicial determination. If a dispute is referred to a person and if that person decides that dispute by holding an enquiry and coming to a decision then undoubtedly what that person decides would constitute an award. On the other hand, if a matter is referred to a person and he is not called upon either to hold an enquiry or to give a decision but by the exercise of his sagacity, knowledge or experience to bring about merely an understanding between the parties and restoring peace between them than he would only be discharging functions other than those of an arbitrator. But in order to determine this question one must not look at the form adopted or the expressions employed but rather at the substance of what the parties to the dispute really intended the person approached in that behalf to do and how that person acted in that particular matter. " From perusal of the observations it becomes abundantly clear that if the parties had not referred the matter to arbitration but only they have nominated a person as Nek Mard or an elder to bring about a family settlement and not to conduct an enquiry or proceedings then such adjudication would be anything else but not an award. On the other hand if the parties have agreed to refer the matter to arbitrators duly appointed so that they may conduct a judicial enquiry and give their award, such finding shall be an award. In the instant case the parties gave in writing appointing arbitrators of their choice to adjudicate upon and to settle the issue. In this regard the agreement of reference and its contents shall be taken into consideration. We have perused the agreement of referring the matter to arbitration and we found that all the parties agreed that the shares of the legal heirs of late Malik Karam Ellahi Khan and late Khalid Malik shall be determined by the arbitrators whose decision shall be binding upon the parties and they will have no objection whatsoever to the findings/award so made. The terms of reference and names of arbitrators are clearly laid down and it is further mentioned that the parties shall provide all the material to be placed before the arbitrators for deciding the issue. 'Thus it cannot be said that it was in fact -an agreement to appoint arbitrators to reconcile the dispute but adjudicate upon and give a decision regarding the property and the respective shares of each of the legal heirs. We do not find any illegality in the award on this count. Reverting back to the objection that the award was not legally award. We have already dilated upon and concluded that the same was an award and that it would have a binding effect provided it is made rule of the Court. Because from perusal of the award we have seen that it is a judicial adjudication determining the share of each legal heir in the property left by the late Karam Ellahi Khan, Advocate and his son late Khalid Malik. The arbitrators have put their signatures on the award which they do not deny. The only objection, however, was that it was not written on a stamp paper. This objection hardly affects the nature of the award because when filed in the Court the necessary stamps were provided. Furthermore we know that the award has been made and signed which fact is not disputed. Whether it was on a rough paper or on a stamp paper would hardly change the nature of award once it is signed. None of the Advocates challenged the signatures on the award. All the arguments challenging the award are that some new facts came to the knowledge of one Abdul Rashid regarding property No.2 that it had already been transferred to Khalid Malik by his late father, therefore, he wanted to bring this fact to the notice of the arbitrators. This fact is belied from the record because Abdul Rashid had the knowledge and the documents were with him much prior to the making of the award as is borne from the record. The arbitrators in fact have taken into consideration the revenue record and documents placed before them and they gave their award which otherwise appears to be just and proper. From perusal of award it becomes abundantly clear that the shares of each legal heir have been determined justly and properly., We have to mention here that although there is a mention that the award of the arbitrators shall be acted upon as a family settlement but it would not render the award as illegal because arbitrators were not appointed to bring about an understanding between the family members of late Malik Karam Ellahi Khan but to give expressly their decision in respect of the shares in the property of late Karam Ellahi Khan and Khalid Malik. However, it was agreed that the award shall be accepted as a family settlement and mutation shall be effected accordingly. This objection has already been answered. Another important aspect which prevailed with the learned trial Judge was that the arbitrators' award contained a clause that whenever there arises a dispute regarding interpretation of award the same would again be referred to or determined by the arbitrators. We have perused the said para. In fact this sentence has been written as of abundant precaution. It has been clearly laid down that the award has been given and it is neither ambiguous nor evasive but in any case if the parties think so on certain point, the same can be clarified by the arbitrators. The trial Judge was much impressed from this argument and he did not make award rule of the Court for the simple reason that it was premature and it requires further interpretation or re-reference to the arbitrators. To our calculated view this conclusion was totally illegal and unjustified. It was an award in terms of section 2 of the Arbitration Act because it decided the shares of each legal heir and the award is found to be within the encompass of the terms of reference and nothing is found to be beyond the same. It is signed by all the arbitrators who did not deny their signatures. Even during arguments before us the learned counsel for the parties did not deny the signatures of the arbitrators on the award. In the beginning of the judgment we had referred to Fatwaha of Amir Jamiat Ahmadia Balochistan Mr. Ehsanul Haque, Advocate, who issued first Fatwaha and we found that the award is also in conformity with the said Fatwaha or at least it is not in derogation of the same. Furthermore objection that in fact there was no cause to be referred for decision by the arbitrators as raised by Raja M. Afsar also does not find support from the record because after Fatwaha and mutations duly effected still there was dispute regarding the shares of the legal heirs towards the property of late Malik Karam Ellahi Khan and late Khalid Malik. It is clearly written in the arbitration agreement. Therefore, this argument is devoid of any force. The last argument of Raja M. Afsar that even if the award is made rule of the Court, no effective decree which could be executed could be passed. This argument is devoid of any force because the right of each legal heir in all the properties have been fully determined and to our anxious consideration are executable. From the abovementioned discussion we have come to the conclusion that the Additional District Judge-I, Quetta absolutely failed in exercise of its jurisdiction to make the award rule of the Court. The grounds upon which he had rejected the application moved by appellants under section 14 of the Act are flimsy and untenable in law. The two reasons which prevailed with learned Additional District .Judge-I, were that the award was not an award and that it was premature are totally belied from the record. Moreover, the learned Judge absolutely failed to take into consideration sections 30 and 33 of the Arbitration Act, while dismissing the application filed under section 14 of the Arbitration Act. The reasons which prevailed with the learned Judge had no nexus with the relevant provisions of law. We, therefore, accept this appeal, set aside the order dated 18-12-1993 Passed by learned Additional District Judge-I, Quetta and we order that the award dated 18-10-1992 is made Rule of the Court. A decree-sheet, therefore, be drawn in terms of the award. We pass no orders as to costs. A.A./482/Q Appeal accepted