1977 PLP 154 (SCMR)

MUHAMMAD GUL, J.‑This appeal by special leave from the judgment of the High Court dated 22‑9‑1967 seeks to set aside an award which bas been made a rule of the Court by the Courts throughout. One Din Muhammad, resident in Chak No. 3/1‑R. Tehsil Fort Abbas, District Bahawalnagar, became owner of land measuring about 200 Kanals under the Colonization of Land (Punjab) Act, 1912 (Act V of 1912) on pay ment of malikana. On his death in 1961, his holding was mutated in favour of the appellants herein, his widow and daughters who were his Muslim Law heirs. The mutation was attested on 9‑2‑1962. Respondents 1 and 2 herein are sons of Rehmat Ullah respondent 3, a brother of Din Muhammad, who claimed to be donees of the land under an unregistered Tamlik dated 27‑8‑1958 executed by the deceased in their favour. They unsuccessfully filed appeal and revision against the mutation in favour of the appellants herein. Eventually they filed a suit in 1963 for a declaration that they were in possession of the land on the basis of an oral gift made by the deceased after the aforesaid Tamlik. They also prayed for an injunction against the appellants restraining them from interfering with their possession of the land as donee from the deceased. The deceased's two brothers respondents 3 and 4 were also impleaded as defendants in the suit. They admitted the plaintiffs' claim. The appellants however, contested the suit on a number of pleas. They denied factum of oral gift in favour of respondents 1 and

2. However, during the pendency of the suit, the contesting parties with the approval of the Court, agreed to refer the matter in dispute to four arbitrators, each contesting party nominating two arbitrators who in turn appointed one Ghulam Muhammad as umpire. Ghulam Muhammad however, refused to act and therefore, on the joint request of the contesting parties, he was remov ed by the trial Court and in his place Chaudhry Muhammad Malik Ghumman, Pleader, Haroonabad, was appointed as umpire. After hearing the parties evidence the two arbitrators nominated by the respondent and the umpire filed majority award in the Civil Court on 2‑11‑1964 upholding the claim of respondents 1 and 2 as donees under the oral gift by Din Muhammad. The other two arbitrators appointed by the appellants recorded their dissent, and filed the same in the Court on the same date. The appellants filed objections against the majority award which were however, repelled by the trial Court and the award was made a rule of the Court. On appeal by the appellants, the order of the trial Court was maintained. A revision filed under section 115, C. P. C. by the appellants in the High Court, also failed. In the proceedings in revision in the High Court, the appellants question ed the appointment of Chaudhry Muhammad Malik Ghumman as the umpire. It was also pleaded that all arbitrators and the umpire having failed to sign the award as required by section 14 of the Arbitration Act, 1940, the same was vitiated. It appears that 200 Kanals owned by Din Muhammad were state land in which he was initially inducted as tenant subject to certain conditions as to the ultimate acquisition by him of proprietary rights. It was therefore, urged that the gift in favour of respondents 1 and 2 offended against section 19 of the Colonization of Government Lands (Punjab) Act 1912, which was misconstrued by the majority and Which was an error apparent on the face of the record and therefore, too, the award was vitiated. The learned Judge in the High Court after what appears to be a careful consideration of the above objections and an exhaustive review of the relevant case law came to the conclusion that the award was perfectly legal and was rightly made a rule of the Court. Leave was granted by this Court to consider, inter alga, whether in view of the fact that the Transfer of Property Act, 1882 (Act IV of 1882) having been extended to the former State of Bahawalpur in 1931, the arbitrators were right to give effect to the oral gift in favour of the respondents 1 and

2. Mr. Muhammad Afzal Lone, learned counsel for the appellants submitted that the appointment of Mr. Muhammad Malik Ghumman as umpire in place of Ghulam Muhammad was wholly illegal in that, it was never assented to by the appellants. The submission is devoid of substance. It was found b the High Court and the Courts below that it was on a joint request by the contesting parties that Ghulam Muhammad was replaced by Mr. Muhammad Malik Ghumman. It was also found that the parties and the four arbitrator who incidentally were also present, all agreed to the appointment of the latter. Not only that the arbitration council as reconstituted, on the first hearing enquired .from the parties, whether they had any objection to the arbitration council as reconstituted to which the parties replied in the negative. This is a finding of fact and the matter cannot be allowed to be re‑agitated in this Court. As to the argument based on the provision of section 14 of the Arbitra tion Act, section 10(3) ibid furnishes a complete answer. It reads:‑ 10 .. (3) Where an arbitration agreement provides for the appointment of more arbitrators than three, the award of the majority, or if the arbitrators are equally divided in their opinions tire award of the umpire shall, unless the arbitration agreement otherwise provides, prevail." It is not disputed that the two arbitrators appointed by the donees and the umpire constituted the majority all of whom signed the majority award. The argument also overlooks the fact that the other two arbitrators nominated by the appellants, on the same day filed in the Court, their dissent which being minority opinion, in view of the above provision, did not take, effect as the award. Learned counsel for the appellants also argued that award is vitiated because Chaudhry Muhammad Malik Ghumman participated in the arbitra tion proceedings sitting with the four arbitrators from the very beginning. According to learned counsel, Chaudhry Muhammad Malik Ghumman merely agreed with the two arbitrators appointed by the contesting respondents and did not give a separate award as umpire. As observed in paragraph 528 at page 273 of Basu's Arbitration Act, 1965 Edition, an express admission by the arbitrators that they cannot agree is not necessary to gave umpire jurisdiction to make an award. It is sufficient to enable the umpire to make the award upon all matters under reference, if at the conclusion of the proceedings, the arbitrators arrive at different opinions over some of the matters. These observations are made by the learned commentator on the authority of Hill v. Marshal (5 L J (O S) C P 101) and Winteringham v. Robertson (27 L J Ex. 301). Moreover, according to the arbitration agreement dated 30‑6‑1964 at page 19 of the record of the trial Court, the umpire was to participate in the proceedings from the very beginning and any three members of the arbitration council could outvote the other two, even if the latter included the umpire. This provision in the arbitration agreement makes the objection wholly untenable. It was next urged on behalf of the appellants that the gift in favour 'of respondents 1 and 2 whether oral or in writing was void ab initio firstly because it offended against the provisions of section 19 of 1912 Act and secondly because it was not made by a registered instrument as required by section 123 of the Transfer of Property Act. Since the entire case was referr ed to arbitrators and they misdirected themselves on the above law points, which were specifically raised‑in the trial Court, the majority award, is vitiated, according to learned counsel. Section 19 of the 1912 Act reads:‑

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19. Transfer of rights to be void.‑Except as provided yin section. 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub‑lease for not more than one year in the case of a tenant who has not acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has obtained possession, he shall be ejected under the order of the Collector: Provided that the right of subletting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated." As pointed out already Din Muhammad was initially inducted on the land as tenant under the former State of Bahawalpur. It is oat disputed that on the date when he Purported to execute the Tamlik dated 27‑8‑1958 in favour of respondents 1 and 2 he had not paid Malikana, which was a condition precedent for the acquisition of the proprietary rights in the land and therefore was prohibited under section 19 of tic Act to transfer the land by sale, gift or otherwise. It is however, not denied that subsequent to the execution of the Tamlik, Din Muhammad had paid the malikana in 1959 and therefore acquired full proprietary rights in the land about two years before his death in 1961 and therefore the prohibition under section 19 of the 1912 Act no longer operated against him. Respondents 1 and 2 instituted the suit on the definite allegation that the purported Tamlik in their favour was followed by an oral gift in their favour after Din Muhammad had acquired the proprietary rights in the land. This position was upheld in the majority award, the trial Court and the first appellate Court. It was found as a fact that Din Muhammad having paid the malikana acquired the proprietary rights. It was therefore rightly observed by the learned Judge in the High Court, the arbitrators were conscious of the violation of section 19 of the Punjab Coloni zation of Government Lands Act and of absence of possession following the allege gift and agreed with the contention of the petitioners that the tamliknama being unregistered document executed at the time when malikana had not been paid in full by the donor, was inoperative and ineffective. But having taken note of the plea that for purposes of transfer by a tenant prior sanction of the Commissioner under section 19 of the Punjab Colonization of Government Lands Act was necessary, the majority refused to apply the rigour of section 19 to the facts of this case on the ground that irrespective of the tamliknama the subsequent payment of malikana, ensured to the deceased the proprietary rights in the land. The subsequent oral gift before his death was therefore held an effective transaction between the donor and the donees, the latter already in possession of the land in dispute. The learned Judge was therefore, amply justified to conclude, that it cannot be said that the pleas specifically raised in the pleading have not been determined by the arbitrators, or they in any manner mis-conducted themselves or the proceedings. The objection founded on section 123 of the Transfer of Property Act is also misconceived. Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be affected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. See Muslim Law by Soksena, 3rd. Edn., pp. 368‑369 and the precedent cases noticed at the foot of these pages. Among these formalities are, the passing of the possession from the donor and the accep tance of the same by the donee. These are amply satisfied in the instant case. That being so, it is also wrong to suggest that the majority award is vitiated by error of law apparent on the face of the award. For the foregoing reasons there is no substance in this appeal. I would dismiss the same leaving the parties to bear their own costs. MUHAMMAD YAQUB ALI, C. J.‑I agree. MUHAMMAD AKRAM, J.‑I agree. Appeal dismissed.