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Suit No.345 of 1982, decided on 17th September, 1986.

‑‑‑Ss. 23 & 16‑‑Dispute over family property‑‑Property partitioned under settlement deed, some units of property were to be awarded to plaintiff and some were to be retained by defendants‑‑Units of property to be transferred to the plaintiff were to be delivered to him physically‑‑Plaintiff, however, having remained out of possession of property awarded to him under Settlement deed, claiming compensation from defendants for their failure to deliver the property and keeping and utilising the same for their benefit for a long period‑‑Controversy not capable of being settled in Court referred to arbitrator whose award challenged by plaintiff in instant suit‑‑Arbitrator in his award observing "keeping in view the clear language used in the clauses of settlement deed, execution of the relinquishment deed by plaintiff is a condition for fulfilment of obligation on the part of opponents"‑ Opinion of Arbitrator not found to be justified because under settlement deed partition of property and consequent steps involving delivery of possession would be actual implementation of the agreement‑‑Partition and delivery must follow documentation visualised in relevant clauses of settlement deed‑‑Arbitrator, held, had fallen into an error by holding that performance of obligations under provisions of the deed by the defendants was dependent upon performance of obligations under the deed by the plaintiff and due to fallacy in his approach had relieved defendants from the obligations which they were bound to perform under deed of Settlement‑‑Defendants must account for the profit and income of the property which belonged to plaintiff‑‑One issue having been left undetermined and another issue decided under defective approach, case remanded to same arbitrator for fresh decision after hearing parties with consent of the counsel of the parties.

Shahinshah Hussain for Plaintiff.

Muhammad Anis for Defendant.

The award which is now under objection, filed by the plaintiff, has been given in the following circumstances:‑------

1. One Haji Abdus Subhan, who possessed vast properties, died some time in 1979. At the time of his death, he had the plaintiff and another son Masood Alam from his first wife and 6 sons and 3 daughters from the second wife. Both the wives had died in his life time. After his death dispute arose between these two sets of heirs and the plaintiff No.l Mehmood Alam, who is settled in England, demanded his share in the property left by the deceased, because at the time of the death of late Subhan only the children from the second wife were living with him and all the properties had fallen in their hands. These disputes were, however, resolved through the intervention of two friends of the family namely Mr. Mujtaba and Mr. Qurban and a settlement deed was drafted. It is the clauses of this settlement deed which are now being interpreted by the parties in their own way and have brought the parties to the Court. Under this Settlement deed the property was partitioned. Some units of the property were to be awarded to the Plaintiff and some were to be retained by the defendants. The details of this partition are given in paras 2 and 3 of the agreement of family Settlement dated 4‑5‑1979.

It is admitted position in the case that certain units of the property which, according to this settlement‑deed, were to be transferred to the Plaintiff, were to be delivered to him physically.

I may state here that in clauses 6 and 7 of this settlement‑deed both the parties have to execute certain documents of release and relinquishment in favour of each other for the satisfaction of each party. This settlement ran into difficulty, because the Plaintiff was insisting that the possession of the property which had fallen to his share, according to the settlement deed, should first be handed over to him, while the defendants were insisting that he should first execute the document of relinquishment and release in respect of the properties which were retained by the defendants. On account of this friction and dispute, which unfortunately remained unresolved between the parties for determination Suit No.387/1985 came to be filed in this Court. The Plaintiff ignoring the settlement deed, claimed his share in all the properties left by his deceased father according to his entitlement as heir of the deceased father. Before this suit could be disposed of, better sense prevailed and the parties again reverted back to the agreement of settlement and the same settlement deed which had remained unimplemented was adopted by the parties and a prayer was made for a compromise decree in terms of the settlement deed. The Court passed decree in terms of the compromise on 26‑3‑1981.

As the plaintiff had remained out of possession of the property which had been awarded to him earlier under this settlement deed, he claimed compensation from the defendants for their failure to deliver the property and keeping and utilising the same for their benefit during this long period. This part of the controversy, which could not be settled in Court, was referred to Arbitration of Mr. Shaikh Haider a senior Advocate of this Court and he has disposed of this dispute by his award which is now challenged by the plaintiff.

The learned Arbitrator, after receiving the reference and in pursuance of the terms of reference, recorded evidence of the parties and has given the award. He has also quoted the order of the Court in formulating the points of controversy which he was called upon to decide in his award. I may quote here the two points of dispute on which the learned Arbitrator has given his award:‑--------

(1) Whether the deed of settlement was not implemented on account of the default of defendants No.l to 9 and what damage/loss, if any was, suffered by the plaintiff on that account If so, the Arbitrator will award the same.

(2) Whether the plaintiff is entitled for any money beyond the scope of the settlement If so, the plaintiff shall be paid the additional amount."

The learned Arbitrator has held that the demand of the defendants for execution of the documents was justified and because the plaintiff failed to execute the documents of relinquishment etc. the defendants were justified in withholding the possession and not implementing the first clause of the Settlement Deed under which the property allocated to the share of the plaintiff was to be transferred to him. This finding the learned Arbitrator has recorded by examining clauses 6 and 11 of the Settlement Deed. It would be better to quote this part of the award in order to show the approach of the learned Arbitrator in resolving this dispute. At page 7 of the award, the learned Arbitrator has observed as under:‑----

"Keeping in view the clear language used in the clauses noted above, execution of the relinquishment deed by plaintiff is a condition for fulfilment of the obligation on the part of the opponents Nos. 1 to 9 which by consent may be signed and executed within 6 months.

I have examined the whole settlement Deed and read carefully all its clauses and have come to the conclusion that the opinion of the Arbitrator that the performance visualised in clauses 6 and 11 was a condition precedent for performance of the obligation contained in clause 1 of the Settlement Deed is not justified. In my view under the Settlement Deed the partition of the property and consequent steps involving delivery would be actual implementation of the agreement. Without physical delivery of the units of the property to its respective share‑holders in terms of the Settlement would mean more paper transaction. Surely partition and delivery must follow the documentation visualised in other clauses of this Settlement Deed. It may be that the documentation may take place earlier than physical delivery, if the parties have mutual trust and goodwill.

In my humble view the physical delivery is the substance of the agreement and documentation is consequential and supplementary in, order to avoid further complications. If at all a reciprocity is to be read in the dealings of the parties under this agreement, it can be read by reading clauses 6 and 7 together and not by reading clause 6 with clause 1 of the Settlement Deed. In my view, clauses 1, 2, 3 and 4 of the Settlement Deed are the substantive clauses and have to be independently implemented by the parties and because the defendants happen to be in possession of the share awarded to the plaintiff, they have to implement this by surrendering the possession in terms of this agreement. Then comes the stage of eliminating shadows of claims of the adversary on the party who has been awarded the property according to his share. This is taken care of in clauses 6 and 7 of this agreement. Under clause 6 the plaintiff has to execute the document of relinquishment and release in favour of the defendants for the property awarded to the defendants and likewise the defendants have to execute similar documents of release and relinquishment in favour of the plaintiff for the property which has been awarded to the plaintiff under this settlement. Therefore, it is very obvious that if there is a reciprocity regarding execution of documents, it is in clauses 6 and 7 of‑the agreement.

In this view of the matter clauses 1 to 4 stand on one footing and clauses 6 and 7 on another footing totally independent from each other. The learned Arbitrator has fallen into an error by holding that performance of the obligations under clause 1 by the defendants is dependent upon performance of the obligations under clause 6 by the plaintiff. On account of the falacy in the approach, the Arbitrator has relieved the defendants from the obligations which they are bound to perform under the Deed of Settlement.

It is further contended by Mr. Shahinshah Hussain learned counsel for the plaintiff /Objector that the learned Arbitrator has further fallen into an error by answering the second question also on account of the fallacious finding under the first issue. According to the learned counsel, this issue pertains to award of some compensation on account of enjoyment of the property which the defendants retained and thus; deprived the plaintiff from the proceeds and profits of the same, which would have gone to the plaintiff, had the plaintiff been able to acquire the property in terms of the settlement.

There is force in the contention that admittedly some‑units of the property which were awarded to the plaintiff, remained with the defendants and they continued to enjoy the benefit out of the same and they must account for the profit and income of the property which under the agreement belonged to the plaintiff.

The learned counsel contends that assuming for the sake of arguments that the possession was not given because the assurance was not forthcoming in the shape of relinquishment and release documents, still the defendants cannot claim the profit and income of the property which they were holding in trust for the benefit of the plaintiff till such time that the documents in respect of the units of the property which were awarded to the defendants themselves had been executed.

It is pertinent to note that the relinquishment and release deed etc. were not for the property awarded to the plaintiff but for the property which was awarded to the defendants. The contention has force. Unfortunately the learned Arbitrator has not given any thought to this contention which the learned counsel for the defendants complaints, he had urged before the Arbitrator.

Both the counsels are anxious that the dispute between the parties should be decided once and for all and have agreed that the matter may be remanded to arbitration again. As issue No.2 has been left undetermined by the learned Arbitrator under a defective approach, both these issues are to be decided afresh by the learned Arbitrator in the light of the observations made in this judgment and liability is to be fixed accordingly. This case is, therefore, remanded to the same Arbitrator for deciding the case afresh after hearing of the parties. The counsel agree to this remand. For this additional work the Arbitrator may be paid a fresh fee in the sum of Rs.4,000 only. Each party to contribute Rs.2,000. Award to be given within two months from the date of receipt of the record and proceedings of the case.

S.Q/M‑131/K Case remanded.

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