1998S C M R 816 (PLP)

KHALIL-UR-REHMAN KHAN, J.

This judgment will dispose of Civil Appeals Nos.59-Q of 1994 and 60-Q of 1994 both filed as of right, as questions of law and fact involved are one and the same and both are directed against judgment dated 14-6-1994 of learned Division Bench of High Court of Balochistan, Quetta.

2. These appeals pertain to dispute amongst the legal heirs of late Malik Karam Elahi, Advocate and his son late Khalid Malik, Advocate. The former expired in Quetta in 1982, and his wife Mst. Zubeda Zarrin also died after two months of his death leaving behind one son namely, Khalid Malik and three daughters namely, Khalida Malik, Fauzia Malik and Shahnaz Malik. Khalid Malik, the only son was murdered at Bhera (Punjab) on 19-7-1991. He had contracted two marriages. The name of first wife is Mst. Farida who left in 1983 for U.S.A. where she obtained divorce and from this marriage he had two issues namely, Taimoor Malik, son and Mst. Aneela Malik, daughter. Mst. Naheed Malik is the second wife having been married on 19-7-1988 and from her there is a son named Hassan Malik.

3. The details of the property, subject-matter of appeals, are:-- A Bungalow on Survey No. 12-A, Khojak Road, Quetta Cantt., the land underneath the Bungalow was leased out to late Zubeda Zarrin, wife of late Malik Karam Elahi. She constructed a Bungalow over it. PROPERTY NO 2: A plot measuring 1282 sq.ft. on Khasra No.386, bearing Municipal No.42-4/4, Chauhar Mal Road, Quetta. This plot was in the name of late Karam Elahi, Advocate, as per entries of Fard for the year 1979

80. Malik Karam Elahi, Advocate statedly executed a sale-deed in respect of this plot in favour of his son Khalid Malik for a sum of Rs.20,000 vide sale-deed dated 6-8-1980. A three-storeyed residential and commercial building with basement and 19 shops were constructed on this plot. PROPERTY N0.3: An orchard over an area of fifty acres entered in the name of late Khalid Malik. PROPERTY NO. 4: Houses situated in Rabwa in the name of late Karam Elahi. PROPERTY N0.5: Land situated at Bhera in the name of late Karam Elahi.

4. Learned Judges of High Court have noted in the impugned judgment that as per record, Mr. Ehsanul Haque, Ameer of Jamat-e-Ahmadia, after the death of Khalid Malik issued a Fatwah in respect of property of Malik Karam Elahi to be inherited as under:-- . (1) Khalid Malik, son : 2/5th share (2) Three daughters : 1/5th share each, and on the basis of this Fatwah, an application was moved by Khalida Malik, one of the daughters of Malik Karam Elahi, to the Collector for effecting mutation. Accordingly, Mutation No.270 was attested and shares were determined and entered on the basis of the said Fatwah. Thereafter, Mr. Abdur Rashid, father of Mst. Naheed Malik--second wife of Khalid Malik, presented this very Fatwah and Mutation No.271 was effected and entries incorporated in the record regarding the shares of legal heirs of late Khalid Malik. These two mutations pertain to Property No.2 situated at Chauhar Mal Road, Quetta. Mst. Farida Malik, the first wife of "alid Malik, who had been divorced in 1983, reached Quetta from abroad and filed a suit for administration on 1-2-1992, as widow of Khalid Malik in the Court of District Judge, Quetta. This suit was transferred to Senior Civil Judge, who dismissed the same on 4-6-1992. The appeal filed on 9-7-1992 against this order rejecting the plaint was also dismissed by the District Judge vide judgment dated 27-9-1992.

5. Malik Karam Elahi and Khalid Malik as well as their survivors, the parties to the appeals were all Qadianis/Ahmedis by faith. The three sisters namely Khalida Malik, Fauzia Malik and Shahnaz Malik, however, on 9th July, 1992 gave up Qadiani faith, embraced Islam and declared themselves Muslim. This parting of ways appears to have given rise to the question of distribution of the properties left by the two deceased. So, on 18th October, 1992, the parties hereto got together to have the properties distributed amongst them. All the three parties i.e. the two lines of descendants of Khalid Malik deceased minors through their mothers and the sisters signed an agreement on 18th October, 1992. nominating one Advocate by each to act on their behalf-- (a) to identify the properties; and (b) to distribute the identified properties amongst the three parties. The three nominated Advocates statedly in consultation with their respective parties arrived at a decision which was recorded on the same day with their signatures. Respondents Nos. l to 3 then filed an application under section 14 of the Arbitration Act for having made the Award dated 18-10-1992 of three nominated Advocates, rule of the Court. Both set of present appellants as well as the two Arbitrators namely Mujeebur Rehman and Ch. Ejaz Yousaf, Advocates nominated by the appellants who were cited as respondents Nos.7 and 8 in the application filed Objections. Respondents Nos. l to 3 herein and respondent No.6 Syed Ghulam Haider Shah filed Rejoinders alongwith two affidavits; one by Muhammad Sharif, Advocate and the other by Manzoor Ahmed.

6. Learned Additional District Judge-1, Quetta after hearing the arguments rejected the application vide order dated 18-12-1993 holding the same as premature. This order was then assailed by respondents Nos.1 to 3 before the High Court by filing an appeal under section 39 of the Arbitration Act, 1940. This appeal was accepted by a Division Bench of the High Court of Balochistan, Quetta vide impugned judgment dated 14-6-1994. The learned Judges held, inter alia, that Muhammadan Law had no application at the time when agreement to refer the matter to Arbitration was executed and as such the question raised had to be considered in the light of the provisions of Code of Civil Procedure and the Contract Act. Thus the plea that "an agreement to refer the matter to Arbitration by the mothers of minors is void as the mother under the Muslim Law is disqualified within the meaning of section 11 of the Contract Act to enter into a legal contract and so the Award was void" was not accepted. The provisions of Order XXXII, Rule 7, C.P.C. were held to be not attracted as the reference was made out of Court and not through the Court. It was further noted and observed that as regards the proceedings for making the Award rule of the Court the mothers were duly appointed as guardians ad litem. With regard to the objection based on section 11 of the Contract Act learned Judges held that mothers of the minors never acted against the interest of the minors; rather they did so to fully and adequately protect their interest and their conscience was fully satisfied that the agreement to refer the matter to Arbitration was executed with bona fide intention to settle the shares in the properties left by the two deceased. With regard to the objection as to non-execution of the Award on stamp paper it was observed that this objection hardly affects the nature of the Award because when it was filed in the Court necessary stamps were provided and that the signatures on the Award by the Arbitrators/Advocates were not challenged and the objection taken was that some new facts came to the knowledge of Abdul Rashid father of one of the wives of Khalid Malik regarding Property No.2 which had statedly been transferred to Khalid Malik by his late father Malik Karam Elahi, therefore, he brought these new facts to the notice of the Arbitrators. Learned Judges held that this fact stand belied from the record as said Abdul Rashid had the knowledge and the documents were with him much prior to the making of the Award and the Arbitrators had in fact taken into consideration the Revenue Record and the documents placed before them and they gave the Award which otherwise appears to be just and proper.

7. The other important thing to be noted is the stance taken by learned counsel appearing for Mst. Naheed Malik and her son Hassan Malik (appellants in Civil Appeal No.60-Q of 1994) before the. learned Judges of the High-Court where he had stated that these appellants had no objection regarding shares in properties No. l , 3, 4 and 5 and that the dispute relates only to Property No.2 which according to him was sold out by late Karam Elahi to his son Khalid Malik during his lifetime and that the parties had agreed to refer the matter to the Arbitrators. Thus, the controversy as regards these appellants was restricted to Property No.2 alone before the High Court.

8. In the Memorandum of Appeal (Civil Appeal No.60-Q/94) filed by the >:dd Mst. Naheed Malik and her son Hassan Malik, the plea, inter alia, taken is that all the Properties Nos. l to 5 have already been distributed and the relevant entries have already made to the Revenue Record except Property No.2 which was not entered into the record to spite of the fact that it was exclusive property of late Khalid Malik and that according to clause III of the agreement the property of late Khalid Malik was to be dealt with by both the families of Khalid Malik, and the Arbitrators/Mediators/Nominees had nothing to do with this property and they wrongly introduced the sisters to share these properties which amounted to depriving the minors and hence they violated the agreement dated 18-10-1992.

9. Mr. K.M.A. Samdani, Advocate, learned counsel for the appellants in Civil Appeal No.60-Q of 1994 in the written arguments, has. however, asserted that the case of the appellants in Civil Appeal No.60-Q of 1994 is that three properties i.c. Properties Nos. l, 2 and 3 should not have been included In the pool referred to the three nominated Advocates and so the crux of the matter is whether in a situation like this where owing to the lack of knowledge or negligence of two adults namely the widow and the divorced wife of Mr. Khalid Malik, the minors could be deprived of their share in the properties in dispute which automatically devolved on them upon the death of their father, Mr. Khalid Malik. It was further reiterated that when the registered sale-deed came to light on 19-10-1992 and was brought to the notice of the nominated Advocates, two of them refused to sign the Award which is named as "Minutes of the meeting/decision" of the previous date now transferred on a stamped paper. In these written arguments emphasis has been laid on claim made in respect of Property No.2 by reiterating the plea that in the presence of the registered sale-deed which clearly shows property No.2 to be the exclusive property of Khalid Malik, the Advocates retracted from their decision which as such is neither a "final Award" in terms of Arbitration Act nor enforcible as such in equity as minors' rights are adversely affected thereby. It is also to be noted that a specific plea has been made seeking declaration that the First Party has no lawful claim at least on Property No.2 situate at Chuhar Mal Road, Quetta" and that "properties Nos. l and 3 may also be declared to have already been distributed by way of family settlement".

10. Raja M. Afsar, Advocate/Advocate-on-Record appearing on behalf of appellants in Civil Appeal No.59-Q of 1994 in oral submissions as well as in the written arguments urged the contentions that Mst. Fareeda Malik the mother of the two minor appellants was not formally appointed as guardian prior to the signing of the reference and as permission of the Court was not obtained to bind the minors with Arbitration Agreement the reference made. is illegal. It was argued that the parties are agreed that disposition of the property which is subject-matter of the case is to be governed by the rules of Mulsim Personal Law so Mst. Fareda Malik stood disqualified under the Muslim Law as well as in terms of section 11 of the Contract Act to refer the matter pertaining to the property of the minors to Arbitration. It was added that Paragraph 5 of the Second Schedule to the Arbitration Act and Order XXXII, Rule 3, C.P.C. required appointment of guardian for a minor and in any case the pre-emptory provisions of Order XXXII, Rule 7 had been contravened as express leave of the Court was not obtained before entering into an agreement on behalf of the minors. Reliance was placed on Imambandi and others v. Haji Mutsaddi and others (AIR 1918 Privy Council 11), Muhammad Ejaz Hussain and another v. Muhammad lftikhar Hussain and others (AIR 1932 Privy Council 76), Muhammad Anwar and another v. Muhammad Aslam and others (PLD 1955 Sindh 289) and Mst. Zarel Bibi and others v. Shamsuldin Khan and others (PLD 1956 (W.P.) Karachi 150).

11. It was next contended that Properties Nos. 1, 2 and 3 stood disposed of and distributed prior to signing of reference and thus were not intended to be included in the pool of reference. So, reference was intended to cover properties Nos.4 and 5 only. He further contended that there exists no Award in the eye of law as the document dated 18-10-1992 contains only record or deliberations made by the three Arbitrators which was the first and the only sitting of the Arbitrators and if the three Arbitrators had intended the document to be the Award, they must not have failed to give notice in writing to the parties of their having made and signed the Award in terms of section 14 of the Arbitration Act. The fact that no such notice was even contemplated at the time of preparing the said document, is proof enough of the fact that no Award had been made. It was added that the telegram dated 21-10-1992 of Mujeebur Rehman and written intimation dated 19-10-1992 of Ch. Ejaz Yousaf, the two Arbitrators, show that they had disowned the said document on the ground that certain new fact had come to their notice which went to the root of the matter. It was next contended that there was no unanimity of the Arbitrators and document dated 18-10-1992 on account of lack of unanimity and also being not registered one is of no legal effect and is liable to be cancelled and that it was for these reasons that the learned Additional District Judge held that document dated 18=10-1992 was pre mature and has yet to culminate into an Award.

12. Mr. Basharat Ullah, Advocate, learned counsel for respondents Nos. l to 3 on the other hand, in reply, pointed out that the plea of Raja M. Afsar, Advocate, learned counsel for the appellants in Civil Appeal No.59-Q of 1994 that the parties are in agreement that disposition of the property is to be governed by rules of Mulsim Personal Law is factually incorrect as the appellants are admittedly Qadianis/Ahmadis while the respondents having embraced Islam are Muslims. It was pointed out that learned Judges in the impugned judgment have specifically held that Muhammadan Law had no application at the time when agreement to refer the matter to Arbitration was executed, and therefore, the matter has to be seen from the second angle i.e. considering provisions of C.P.C. and the Contract Act. It was added that this finding has not been specifically controverted rather refuge has been taken behind the assumption that parties are agreed that the disposition of property is agreed to be governed by the rule of Muslim Personal Law, which assumption is contrary 'to record. Mr. Basharat Ullah referred to Article 260 of the Constitution as well as to Muhammad Ashraf and 2 others v. Mst. Niamat Bibi and 2 others (PLD 1981 Lahore 520), Mujibur Rehman and 3 others v. Federal Government of Pakistan and another (PLD 1985 FSC 8), Mirza Khurshid Ahmad and another v. Government of Punjab and others (PLD 1992 Lahore 1) and Rehmat Ali v. Sooba Khan and 25 others (PLD 1994 Lahore 259) in support of the plea that the appellants who are Qadianis by faith cannot claim to be Muslims and as such to be governed by Muslim Personal Law.

13. Having given serious consideration to the respective submissions, we find that the assumption of Raja M. Afsar learned counsel for the appellants in Civil Appeal No.59-Q of 1994 that parties agreed that disposition of properties is to be governed by the rules of Muslim Personal Law, is incorrect as the same is contrary to record. Even the finding recorded in the impugned judgment on this question by the learned Judges of the High Court is that "Muslim Law had no application at the time when the agreement to refer the matter to Arbitration was executed". The position that the members of the Qadianis faith having been declared to be non-Muslims by the Constitution under Article 260, the plea that they are governed by the Personal Law of the Muslims cannot be accepted. In the case of Muhammad Ashraf (supra), learned Judge of the High Court observed "as long as the appellants profess themselves as 'Ahmadis', their personal notion about the views of Mirza Ghulam Ahmad are immaterial, for ' Ahmadi' tenets are well-known and according to Constitution both the sections of Qadianis denomination stand excluded from the pale of Islam". It was further observed that there was ample authority for the rule that under Shariah there is a prohibition against succession to the estate of a Muslim by his descendants who is a non-Muslim. In the case of Mujibur Rehman (supra), learned Judges of the Federal Shariat Court, after elaborate discussion of the views of Mirza Ghulam Ahmad and the Muslim concept of finality of prophethood of Muhammad (p.b.u.h.) held that Qadianis are not part of Muslim Ummah as proved by their conduct and that Qadianis constitute a separate Ummaft. In the case of Khurshid Ahmad (supra), on the question of integration of Muslim Ummah, the views of the great luminary of Muslim society to the effect that Muslim Ummah is secured by the idea of the finality of prophethood alone were noted and observed that there is no meeting' point between the Ahmadis and Muslims as Muslims believe in the finality of prophethood while the Ahmadis on the contrary believe Mirza Ghulam Ahmad as a new prophet. It was further observed that Qadianis or Ahmadis constitute a separate Ummah, so they are not part of Muslim Ummah as is evident from their own conduct and beliefs. This judgment was affirmed by the Supreme Court in Zaheeruddin and others v. The State, etc. (1993 SCMR 1718) observing that Ahmadis being non-Muslims use of Shaaire Islam etc. by them amounts to either posing as Muslims or to deceive others or to ridicule. In the case of Rehmat Ali (supra), learned Judge observed that it was an agreed legal premise that Ahmadis were declared non-Muslims in Pakistan by Article 260(3) of the Constitution of 1973 and that it was a common ground that Punjab Ordinance XIII of 1983 did not apply to non-Muslims.

14. Even in the Fatwah issued by Ameer of Jam at-e-Ahmadia (page 325 of the Paper Book in Civil Appeal No.59-Q of 1994) they are shown to be following Fiqh-e-Ahmadia and not the rules of Hanafi law/Muslim Law. What is the rule of Fiqh-e-Ahmadia with regard to the authority of the mother, who is otherwise de facto and natural guardian of a minor, has not been established by producing any relevant material. This being the position, the rule of Mulsim Law expressed in two judgments of the Privy Council rendered in the cases of Imambandi and Muhammad Ejaz Hussain (supra) cannot be pressed into service by the learned counsel for the appellants.

15. The plea that Agreement of reference entered into by the mothers as guardians has the effect of depriving the minors of their due share vesting in them on the death of Khalid Malik is factually incorrect, as no such right was conceded or given away in the Agreement. Relevant part of the Agreement reads as under:-- So, the mandate given or the authority conferred was-- (1) to identify, locate and determine the properties vesting in and left behind by the three deceased namely; Malik Karam Elahi, Zubeda Zarrin and Khalid Malik; and (2) to separate by partition or otherwise the two fifth share of Khalid Malik in the properties left behind by the other two deceased, the said share of Khalid Malik in the properties so falling to the lot of second and third parties and the self-acquired properties was to be divided by the second and third party themselves. It was, thus, made clear that all the three parties to the agreement were in agreement as to 2/5th share to be received by Khalid Malik in he properties left by Malik Karam Elahi and Mst. Zubeda Zarrin deceased, and that the two set of heirs from two wives will themselves divide their respective shares in the properties left by Khalid Malik. The Arbitrators were, thus, not given the authority to divide the properties falling to the share of Khalid Malik amongst his heirs. It was only the share respecting which there was no dispute, was to be separated out of the properties of the father and mother of Khalid Malik and sisters. The reference to Arbitration so made on no hypothesis can be said to be prejudicial to the interest of the minors, or having the effect of depriving the minors of their share in the properties otherwise vesting in Khalid Malik.

16. The question of legal capacity to make reference by the mothers with reference to provisions of Order XXXII, Rules 3 and 7, C.P.C. and section 11 of the Contract Act may now be taken up. Reference to Arbitration was made without intervention of the Court, while in the application for making the award rule of the Court, the minors were arrayed through their mothers and order of the Court for appointment of the mother as guardian ad litem was obtained. Provisions of Order XXXII, C.P.C. were, thus, complied with as regards the proceedings the application for making the award rule of the Court was, concerned. Learned Judges of the High Court held in the impugned judgment that Order 3,XXII, C.P.C. is not relevant with regard to the execution of Agreement of Reference.

17. As regards provisions of section 11 of the Contract Act, it was observed by the learned Judges of the High Court that main object of the provision is to protect interest of minor and in the instant case mothers of the minors have never acted against the interest of minors, rather they acted to adequately protect their interest; the agreement to refer was duly executed bona fide with a view to secure the share in the properties left by Malik Karam Elahi and Khalid Malik through Arbitrators duly appointed by the parties. Learned Judges, after examining the decided cases noted in the impugned judgment observed that duty of the Court is to see that the interest of minors is adequately protected and conscience of the Court should be satisfied that compromise entered on behalf of the minors is really in the interest of minors and that in the instant case, their conscience is satisfied that the mothers acted bona fide to secure share of the minors. Irrespective of the question of true meaning and scope of section 11 of the Contract Act, which question we propose not to deal with as detailed arguments were not addressed and so should better be left to be decided in some other case and as these appeals can be decided on other questions, the plea urged by the learned counsel for appellants was that Mst. Farida Malik, the divorced wife had no knowledge of the sale-deed executed by Malik Karam Elahi, the father in 1980 in favour of Kahlid Malik, making him the exclusive owner of the property and had she known this fact, she would not have agreed to include Property No.2 in the common pool for distribution amongst all heirs. Even the other Properties Nos. l and 3 having already been distributed, were not intended to form part of common pool for distribution and as such agreement to refer the matter to Arbitration could not be considered to have been entered for the benefit of the minors rather this agreement had the effect of depriving the minors of their properties which came to vest in them on the death of their father. Both the learned counsel for the appellants raised serious objection with regard to Property No.2 specially, so much so that Mr. K.M.A. Samdani, as noted above, requested that Property No.2 situate at Chauhar Mal Road, Quetta be declared to be the exclusive property of the minors and that Properties Nos. l and 3 be declared to have already been distributed by way of family settlement.

18. The position which obtains with regard to each of the properties as per the material available on record is as under:-- "Property No. l: Building and land on Khojak Road, Quetta Cantt., admittedly leased in the name of Zubeda Zarrin, widow of Malik Karam Elahi till her death in 1982. On 25-11-1989, deed of surrender was executed by Khalid Malik and three sisters, the heirs of Mst. Zubeda Zarrin, in favour of Government of Pakistan and four separate lease deeds were executed in the names of Khalid Malik, Khalida Malik, Fauzia Malik and Shahnaz Malik. The plot of land was, thus, divided into four parts and the Survey Numbers assigned are:-- (a) Survey NoA2-A, measuring 1868 sq.yards in favour of late Khalid Malik - the constructed portion existing on this portion of the land; (b) Survey No. 12-A/1, measuring 934 sq.yards leased in favour of Shahnaz Malik; (c) Survey No. 12-A/2, measuring 934 sq.yards leased ill favour of Fauzia Malik; and (d) Survey No. 12-A/3, measuring 934 sq.yards leased in favour of Khalida Malik. Property No.2: A plot measuring 1282 sq.ft. on Khasra No.386, bearing Municipal No.42-4/4, Chauhar Mal Road, Quetta. this plot was in the name of late Karam Elahi, Advocate, as per entries of Fard for the year 1979

80. Malik Karam Elahi, Advocate, statedly executed a sale-deed in respect of this plot in favour of his son Khalid Malik for a sum of Rs.20,000 vide sale-deed dated 6-8-1980. A three-storeyed residential and commercial building with basement and 19 shops were constructed on this plot. Property No.3: An orchard over an area of fifty acres entered in the name of late Khalid Malik. Property No.4: Houses situated in Rabwa in the name of late Karam Elahi. Property No.5: Land situated at Bhera in the name of late Karam Elahi.

19. The share in the Property No.1 assigned in the Lease Deeds is not disputed by the respondents. But this property was made subject-matter of reference as Kahlida Malik was statedly dispossessed from the Annexe of the Bungalow on 7-7-1992 as per report lodged by her on the even date (page 101 of Supplementary Paper Book) and this situation led to the filing of Constitutional Petition No.311 of 1992 in the High Court which was disposed of in terms of order dated 24-8-1992 (page 107 of the Supplementary Paper Book). The Annexe was later sealed by order of SDM and on 12-4-1993, the goods lying therein. were handed over to second wife - Mst. Naheed Malik (page 121 of Supplementary Paper Book). Even an application appears to have been submitted to the Military Estate Officer by widow and divorced wife of Khalid 'Malik seeking that the bungalow on the Khojak Road be transferred in their names. A public notice was issued and pursuant thereto objections were filed by daughters of late Karam Elahi (pages 109, 111 to 113 and 115 of the Supplementary Paper Book). This background sufficiently shows the reason for the parties to the agreement to refer this property to the determination of the arbitrators:

20. Fortunately, learned counsel for the parties did not controvert the division of the properties as was obtained through the four lease deeds in favour of the sisters and Khalid Malik. They as such claim their respective rights in the properties under the said lease deeds.

21. The position with regard to Properties Nos:2 and 3 as taken by the appellants does not reflect the true picture of the rights respectively claimed by them. Property No.2 situate at Chauhar Mal Road, Quetta was initially owned by Malik Karam Elahi. Though this property which consisted of two rooms was ostensibly conveyed vide sale-deed dated 6-8-1980 in favour of Khalid Malik but as is apparent from the voluminous evidence on record the conveyance so made was not acted upon. Even Khalid Malik in his lifetime, neither claimed nor treated the said property as his exclusive property. It will be seen that despite the sale-deed dated 6-8-1980, an application seeking permission to construct a building on the plot was submitted on 6-12-1980: This application was signed by both Malik Karam Elahi and Khalid Malik (page 316 of Supplementary Paper Book). The site plan approved on 14-12-1980 was also in the name of the-father and the son (page 39 of the Supplementary Paper Book). The objection application dated 10-5-1981 filed by neighbours contained the complaint that Malik Karam Elahi is opening windows towards their houses and he should be stopped. Second such application dated 13-5-1981 says that the Mohalladars had no objection regarding construction being raised by Malik Karam Elahi and Khalid Malik (pages 45 and 47 of the Supplementary Paper Book). Again note of Corporation and notice of the Corporation given to Malik Karam Elahi recite that he was still continuing with the construction/possession. Another notice dated 12-5-1981 to Malik Karam Elahi regarding opening of windows towards neighbours is also available at page

51. Again mutation in respect of this very property on the basis of Fatwah of Ameer Jamat-e-Ahmadia was entered and attested. This is Mutation No.270 dated 21-12-1991 (page 57 of Supplementary Paper Book). Then, Abdur Rashid, father of Mst. Naheed Malik, the second wife sought attestation of 2/5th share of Khalid Malik in this property in the name of heirs of Kahlid Malik and Mutation No.271 dated 1-1-1992 was got attested (page 59 of Supplementary Paper Book).

22. All this material fully establish that Malik Karanl Elahi as well as Kahlid Malik never treated the property at Chauhar Mal Road, Quetta as the exclusive property of Khalid Malik. This property was being treated as joint property of both Malik Karam Elahi and Kahlid Malik and this conduct was consistent with the act of sale of the year 1980 as otherwise Malik Karam Elahi would have been the sole owner.

23. It may further be noted that as per sale-deed dated 6-8-1980, the property at the time of execution of sale-deed consisted of a dilapidated-house comprising two rooms whereas after getting the building plan approved, the property built consists, of a three-storeyed residential and commercial building with basement and 19 shops. It is admitted that Malik Karam Elahi, father had joined his son in constructing the building. Kahlid Malik was then only a budding lawyer and obviously the construction was done with the finances provided by the father. The mere fact that Khalid Malik had his office in the building would not show that he was in physical possession of the property to the exclusion of the other heirs i.e., his sisters. The material on record does not support the claim that the property belonged to Khalid Malik exclusively and as such the same should not have formed part of the common pool for the purposes of distribution amongst the heirs of Malik Karam Elahi and Kahlid Malik. Mr. Abdur Rashid father of Mst. Naheed Malik, one of the widows, was also aware of the position obtaining in the matter and had in fact got the names of the heirs of Khalid Malik recorded in the mutation in respect of his share in Property No.2 vide Mutation No.271 dated 1-1-1992.

24. As regards Property No. 3, it is true that the orchard stands recorded in the name of Khalid Malik but it is admitted by all the parties that the said orchard at Saryab Road, Quetta was purchased by Malik Karam Elahi 1n the name of his son in late sixty's. Kahlid Malik was admittedly a Child when the father purchased this orchard in the name of his minor son. It is well-established that the real criterion is, "wherefrom the purchase amount came?" The presumption of law, that a person in whose favour sale was effected in the deed is the owner, stands rebutted by the proof that sale was with the funds of a real owner. Benamidar is a mere name as behind the name of fictitious owner, 'there 'is a real owner. The very admission of the parties that father purchased the property in the name of minor son who had no source of income is sufficient to show that Khalid Malik was Benamidar while the father Malik Karam Elahi was the real own8r [see Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income-tax, Madras (PLD 1957 Supreme Court (Ind.) 188)], for meaning of "Benami".

25. As regards Properties Nos.4 and 5, these properties admittedly stood in the name of Malik Karam Elahi and were rightly formed part of the pool of the properties to be distributed.

26. This brings us to the question whether the writing dated 18-10-1992 is an Award, and if so, whether it is effective ag an Award as the same was neither transcribed on a stamped paper by the Arbitrators nor the same was got registered.

27. The document dated 18-10-1992 has been named as "minutes of the meeting/decision" recorded by the Arbitrators and the same, it was contended, cannot be taken as an award as notices in writing to the parties were not given by the Arbitrators in terms of section 14 of the Arbitration Act and as two out of three Arbitrators had disowned the same on the ground that certain new facts had come to their notice which went to the root of the matter. Neither failure to give R notice nor disowning by the two arbitrators later, after affixing their signatures, can constitute legal basis for treating the decision of the arbitrators as something other than the award. Indeed, despite use of the word "shall" lit section 14 of the Arbitration Act providing for notice by Arbitrator of the making the award, this requirement is not mandatory because the omission does not affect the foundation of the proceedings, nor vitiate the award. After an award is given, any party to arbitration agreement may request the arbitrator to cause the award to be filed in Court, or the party itself can directly come to the Court and seek order to the arbitrator to file the Award. [See Sh. Mahboob Alam v. Sh. Mumtaz Ahmad (PLD 1960 (W.P.) Lahore 601), Janardhanprasad v. Chandrashekhar and others (AIR 1951 Nagpur 198), Seth Shambhu Nath v. Sm. Surja Devi and others (AIR 1961 Allahabad 180) and Hanutmull Boid v. Fatehchand Murlidhar (AIR 1954 Calcutta 1)]. It may be added that in order to invoke penalty of dismissal under Article 178 of the Limitation Act; the factum of service of notice of making and signing the award assumes importance but omission to give notice does not vitiate the award, though such omission gives rise to a controversy as to when the party is posted with the knowledge of making of the award. The assertion that the document having been disowned by the two arbitrators on the ground that certain new facts had come to their notice after signing the document again would not change the nature and status of the determination made by the Arbitrators. Disowning is based on the premises that the sale deed dated 6-8-1980 in favour of Khalid Malik was not brought to the notice of the Arbitrators as this fact was not even known to Mst. Farida Malik, she having been divorced in 1983 and as she was living abroad since then. The sale-deed was executed in 1980 when she was admittedly the wife of Kahlid Malik and was living with him. It was even in that very period that the two rooms building then existing was demolished and the building as is standing now was constructed by the father of Kahlid Malik. Her divorce and her absence from the country as such cannot be taken up as an excuse for not knowing the factum of sale transaction as this property apparently was not treated to be the property exclusively owned and possessed by Kahlid Malik. The Arbitrators having signed the document and having authorised one of them to have the document registered had completed their job except that the matter of clarification of the meaning of any clause of the decision recorded was reserved to be given by them. The Arbitrators, after making and signing the Award, in law cannot modify, reverse or change the award which can only be set aside, reversed, modified or changed under sections 15, 16 17. and 30 of the Arbitration Act, 1940. 27-A. The plea, that the Award as was not drawn on proper stamped paper and was made and signed on a plain paper is invalid, is equally without merit. The Award was scribed on a plain paper on which all the three arbitrators admittedly affixed their signatures and later proper stamp had been supplied and duty was paid. Section 3 of the Stamp Act read with Article 12 thereof prescribe levying of stamp on the award to be delivered by the Arbitrators. So, an unstamped Arbitration Award contravenes Article 12 of the Stamp Act. But, only because the Award is not on a stamped paper it will not make the Award invalid within the meaning of section 30 of the Arbitration Act. In case of unstamped award, it is open to the parties to take such steps, if any, as were available to them at law for curing the deficiency arising from the Award being on an unstamped paper. Section 33 of the Stamp Act prescribes the procedure of impounding the document which is chargeable with a duty and has been filed before any authority including the Court, and by that procedure the deficiency of want of stamp can be cured and rectified, as otherwise, in view of section 35 of the Stamp Act, the award in question could not have been admitted in evidence as it was chargeable with duty under Article 12 of the Stamp Act. Learned Judges of the High Court were, therefore, right in holding that the duty having been paid, the Award given by Arbitrators, without intervention of the Court could be received in evidence and made rule of the Court.

28. At this stage, the plea that the Award was beyond the terms of Reference and in excess of the dispute referred/authority given under the Agreement may be considered. It was also urged that in any case, the Award which is merely "Minutes of the Meeting" does not reflect judicial adjudication of a lis between the parties as it did not proceed on the basis of some inquiry essentially to be held and gone into before making the determination or reaching the conclusions. It was added that the property which stood distributed already was again brought under the process of redistribution and the minors were deprived of the valuable properties through so-called process of distribution and partition. In order to understand these submissions, it appears necessary to note the conclusion/decision recorded by the Arbitrators in respect the properties in dispute. It reads as under:-- Thus, distribution of the properties carried out in the lifetime of Khalid Malik was done, away with and the Property No.1 at Khojak Road, Quetta was redistributed as a result of mutual consent and understanding of the three parties. The division of Properties Nos.2 and 3 was effected in the manner that the sisters, the first party, were to receive Property No.2 in lieu of their share in orchard (Property No.3) and these sisters were also to surrender their share in Properties Nos.4 and 5 to compensate for the difference in the value of the properties. Thus, Property No.2 was agreed to vest exclusively in the sisters the first party, while Properties Nos.3, 4 and 5 were to vest completely and exclusively in the parties Nos.2 and 3--the heirs of Khalid Malik. The decision: so given was stated to be based on the agreement, consent and mutual understanding arrived at by all the three parties.

29. The appellants, who have been referred to as parties Nos.2 and 3 in the agreement, do not accept having consent to the aforesaid mode of division of the properties and giving up of their rights in certain properties in lieu of getting rights in the other properties. Admittedly, the Arbitrators did not obtain in writing the consent of the parties to the statedly agreed mode of division of the properties. The parties being minors, it was incumbent upon the Arbitrators to have received the consent of the mothers of minors in writing in addition to going into the question of capacity of the minors to agree to such a division which will have the effect of depriving the minors of their rights in the immovable property, may be in lieu of receiving exclusive rights in other properties.

30. The fact that the decision of the Arbitrators is based on the compromise/consent or mutual understanding of the parties is also reflected from the direction contained in the Award itself to the effect that the said decision is to be got registered as a family settlement. Such a settlement has been repudiated by the parties. The grievance made by the learned counsel 'for the appellants, Raja M. Afsar, was that the Award was given without hearing the parties. In this view of the matter, the Award which is based entirely on the consent of the mothers of the minors cannot be upheld.

31. It is well-settled that an arbitrator performs his power under the Reference which furnishes the source and prescribes the limits of his authority. He is bound to make an Award in conformity with it both in substance and form. It is also well-settled that an Arbitrator has no right to traverse beyond the limits of the particular matters submitted to him for decision. If the parties had given their consent in respect of matters not specifically mentioned in the Agreement of Reference, it was necessary for the Arbitrators to have recorded the said consent or understanding in writing and obtained the signatures of the parties thereon, or signatures of the parties should have been obtained on the award itself to signify their consent thereto, but nothing of the sort was done. If the Arbitrators, instead of deciding the matters in dispute, pass a compromise order, which they were not entitled to pass, the Award has to be set aside. In the circumstances, there is no alternative but to set aside the award.

32. Next objection to the validity of the Award is on account of non -registration of the same. The award, admittedly, having been made without intervention of the Court, was compulsorily registrable. Such an Award, though in view of the amendment in section 49 of the Registration Act by Ordinance XLV of 1962 is receivable in evidence but by itself it does not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent to or in I the immovable property. The Award in question was, therefore, ineffective to convey the rights in the properties in favour of respective parties. This very view was also taken in Haji Nawab Din v. Sh. Ghulam Haider and another (1988 SCMR 1623). In this view of the matter, the Award cannot be made rule of the Court.

33. For the reasons and subject to observations given above, both the appeals succeed and are hereby accepted. Judgment and decree of the High Court are set aside with the result that the application under section 14 of the Arbitration Act, 1940 stands dismissed. The parties, however, are at liberty to seek appropriate remedy for securing partition of their respective shares by initiating proceedings before Court of competent jurisdiction. The parties are left to bear their own costs. M.B.A./F-18/S Appeal accepted