SURJIT SINGH AND ORS ETC. ETC.versusHARBANS SINGH AND ORS ETC. ETC.

A                   SURJIT SINGH AND ORS ETC. ETC.
                                  v.
                   HARBANS SINGH AND ORS ETC. ETC.

                               SEPTEMBER 6, 1995
B
             [M.M. PUNtHHI AND SUJATA V. MANOHAR, JJ.]

          CiJMI~ of Civil Procedure, 1908:


           Order XX/I-Rule JO-Assignment of 1ights under preliminary decree
c against restraint       orde1~Effect of-Suit for partition-Preliminary
    decre~Trial Court passing order pa1tition-Preliminary decre~Tlial Cowt
    passing order restraining parties from alienating suit property-One of the
    plaintiffs assigning his rights under preliminary decree to stranger~Applica­
    tion for impleadment by assignee~Held: Assignment of lights under prelimi-
D   nary decree is per se prope1ty for it relates to immovable property involved
    in suit-Assignment in defiance of restraint order in non est-Assignees have
    no cause to be impleaded as parties to suit.

           'X' was the owner of certain house and landed property. He adopted
    one of the three sons of his daughter, as he had no male heir. Later, when
E   some litigation started between the family members, a family settlement
    deed was registered to the effect that 'X' and the three sons of his daughter
    were recognised as co-sharers of the properties of 'X', and on the death of
    'X' his fourth share would devolve on the remaining three co-sharers.
    Paragraphs 13 and 14 of the settlement deed prohibited alienation of the
F   property during the life time of 'X' without the consent of other co-sharers
    and the property was meant to be preserved from generation to generation
    within the family. On the death ofX', two of the co-sharers filed a suit for
    partition. The trial Court passed a preliminary decree. while proceedings
    for passing the final decree were pending, trial court passed an order
G   restraining all the parties from alienating or otherwise transferring in any
    manner any part of the suit property. Inspite of the order, one of the
    plaintiffs, by a registered deed, assigned_ his rights under the preliminary
    decree in favour of some strangers. The assignees made an application
    under Order XXII Rule 10, CPC for their impleadment as parties to the
    suit. They contended that assignment of the decree could not be treated to
                                                                                    .
H   be a transfe~ or alienation of the property; and that paragraphs 13 and 14
                                         354
                    SURJIT SINGH v. HARBANS SINGH                             355

of the settlement deed could not be stated to have bound the grand-son of A
'X' for ever not to alienate his share of the properties to strangers. The
trial Court granted the prayer of the assignees. The appeal of the legal
representatives of the co-sharers other than the assignor, was dismissed
by the Additional District Judge and their revision petition was also
dismissed by the High Court. Aggrieved, they filed the appeal.
                                                                                     B
      .Allowing the appeal and rejecting the application for impleadment
of the assignees as parties to the suit, this Court.

       HELD : 1.1. The assignment of, the rights under the preliminary
decree is per se property, for it relates to the immovable property involved         c
in the suit. The assignment took place after the passing of the preliminary
decree in which the assignor had been allotted l/3rd share. It clearly and
sc1uarely fell within the ambit of the restraint order. It did not make any
difference whether property per se had been alienated or a decree pertain-
ing to that property. [358-A-B]
                                                                                     D
      1.2. In defiance of the restraint order, the alienation/assignment was
made. If it is allowed to go as such, it would defeat the ends of justice and
the prevalent public policy. When the Court intends a particular state of
affairs to exist while it is in seizin of a tis, that state of affairs is not only
required to be maintained, but it is presumed to exist till the Court orders         E
otherwise. The court, in these circumstances has the duty, as also the right,
to treat the alienation/assignment as having not taken place at all for its
purposes. [358-C-D]

      2. The assignment is non est because of the clear prohibition of the
trial Court to the parties from alienating or transferring in any manner             F
any part of the property involved in the suit. Therefore, the assignees
cannot claim to be impleaded as parties on the basis of assignment. In the
circumstances, there was no cause for the courts below to go into the
question of interpretation of paragraphs 13 and 14 of the settlement deed.
                                                            [357-F-G; 358-E-F]       G
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3413 of
1990.                                     '

     From the Judgment and Order dated 6.10.89 of the Punjab &
Haryana High Court in C.R.P. No. 3086 of 1989.                                       H
    356                   SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A                                       With

          S.L.P.(C) No. :d62 of 1986.

         From the Judgment and Order dated 23.4.86 of the Punjab &
    Haryana High Court in C.A. No. 4 of 1986.
B
                                        With

          Con. Petition No. 158 of 1994.

         B.N. Naik, R.C. Mishra, (Dr. Meera Aggarwal,) for Aggarwal Mishra
C   & Co., KB. Rohtagi, Ms. Aparna Rohtagi, J.C. Nagpal, Satish Viz, and
    Manoj Swarup, for the appearing parties.

          The following Order of the Court was delivered :
                                                                                  -.
        Here is an unfortunate dispute between members of a family, the
D head of which was one Janak Singh. It appears that Janak Singh had no
  son, but had a daughter, who on marriage had given birth to three sons,
  namely Gurdial Singh, Jeevan Singh and Pritam Singh. Janak Singh appears
  to have adopted Gurdial Singh as a son. He had considerable house and
  landed property. And since property divides, the members of the family
E got to be litigating with each other. With all sincerity, and in putting an
  end to it, Janak singh, Gurdial Singh, Jeevan Singh and Pritam Singh,
  executed a family settlement deed on 27.6.1930, which was registered in the
  Office of the Sub-Registrar, Patiala. A broad feature of that settlement was
  that all the four recognised each other as co-sharers of the properties of
F Janak Singh under the settlement and it was contemplated that on the
  death of Janak Singh, his fourth share would also devolve on the remaining
  three co-sharers. Prima-facie, their aspirations embodied in paragraphs 13
  and 14 thereof, disclose that alienation of property, during the life time of
  Janak Singh, was prohibited without consent of others and the property
G was meant to be preserved from generation to generation within the family.
          On the demise of Janak Singh, suit for partition for separate posses-
    sions of properties was filed in 1948 by Jeevan Singh and Pritam Singh
    against Gurdial Singh. A preliminary decree was passed by the Sub-Judges'
    Court at Patiala on 7th April, 1950. While proceedings for passing a final
H   decree were pending, parties move for accounting and .preservation of
                        SURJIT SINGH v. HARBANS SINGH                       357

      mesne profits. On July 29, 1977, the trial court passed an order restraining A
      all parties from alienating or otherwise transferring in any manner any part
      of the property involved in the suit. It appears that Pritam Singh assigned
      his rights under the preliminary decree on June 6, 1979 by a registered
      deed, partly in favour of the wife of his lawyer Shri Ram Singh Saluja,
      Advocate, and partly in favour of others, in the teeth of the restraint order B
      of the trial court. On the basis of the assignment deed, the assignees made
      an application under Order 22 Rule 10 C.P.C., requiring the trial court to
      permit their impleadment as parties to the proceedings in the suit. Since
      they were aware that their claim for impleadment was precarious on
      account of the existence of the restraint order, they indulged therefore in
      legalistics in projecting that the assignment of a decree cannot be confused
                                                                                   c
      to be a transfer or alienation of any property and that the decree was barely
      a paper which had been assigned. They also tried to interpret paragraphs
      13 and 14 to the settlement deed to be saying that the grand son of Janak
      Singh (Pritam Singh being the daughter's Son of Janak Singh) could not be
      bound for ever to be not alienating his share of the properties to strangers. D
      The trail court granted the prayer of the assignees. The appeal of Gurdial
      Singh and Jeevan Singh, plaintiffs (represented by their LRs), before the
      Additional District Judge failed on both counts and the High Court dis-
      missed their revision petition in limine, which has given cause to them to
      appeal to this Court.                                                         E

               We could have arrived at the conclusion, which we are about to, by
...     treading on two different parts. One was the way in which the trial court
        and the Additional District Judge have been led to in pronouncing on the
        two contentions raised as to the nature of assignment of a decree, being
                                                                                   F
        property or not; and the interpretation of paragraphs 13 and 14 of the
        settlement deed. The other was in treating the assignment as non est
        because of the clear prohibition of the trial court to the parties from
        alienating or transferring in any manner any part of the property involved
      · in the suit. Having heard learned counsel for the parties at great length
        and having examined the settlement deed as also the assignment, we are G
        of the view that it would be far more prudent to tread the second path and
        to arrive at the conclusion laying the matter back to the trial court for
        finalisation of the suit by passing a final decree for partition.

            As said before, the assignment is by means of a registered deed. The   H
    358                    SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A assignment had taken place after the passing of the preliminary decree in
    which Pritam Singh has been allotted 1/3rd ~ '1 are. His right to property to
    that extent stood established. A decree relating to immovable property
    worth more than hundred rupees, if being assigned, was required to be
    registered. That has instantly been done. It is per se property, for it relates
B   to the immovable property involved in the suit. It clearly and squarel1 tell
    within the ambit of the restraint order. In sum, it did not make any
    appreciable difference whether property per se had been alienated or a
    decree pertaining to that property. In defiance of the restraint order, the
    alienation/assignment was made. If we were to let it go a such, it would
    defeat the ends of justice and the prevalent public policy. When the Court
c   intends a particular state of affairs to exist while it is in seizin of a lis, that
    state of affairs is not only required to be maintained, but it is presumed to
    exist till the Court orders otherwise. The Court, in these circumstances has
    the duty, as also the right, to treat the alienation/assignment as having not
    taken place at all for its purposes. Once that is so, Pritam Singh and his
D   assignees, respondents herein, cannot claim to be impleaded as parties on
    the basis of assignment. Therefore, the assignees--respondents could not
    have been impleaded by the trial court as parties to the suit, in dis-
    obedience of its orders. The principles of !is pendens are altogether on a
    different footing. We do not propose to examine their involvement present-
E   ly. All what is emphasised is that the assignees in the present facts and
    circumstances had no cause to be impleaded as parties to the suit. On that
    basis, there was no cause for going into the question of interpretation of
    paragraphs 13 and 14 of the settlement deed. The path treaded by the
    courts below was, in our view, out of their bounds. Unhesitatingly, we upset
F   all the three orders of the courts below and reject the application of the
    assignees for impleadment under Order 22 Rule 10 C.P.C.

          For the foregoing reasons, we allow this appeal with costs.

          Before parting with the judgment, we must express our sense of
G anguish in this matter, lying pending in the Civil Court at Patiala since the
    year 1948, with no sight of its finalisation, when half a century is about to
    expire. It tells adversely, not only the system, but in the slow and tardy way
    in which proceedings in the suit have gone on. We therefore request the
    High Court of Punjab and Haryana to depute its Registrar to oversee
H   proceedings in the suit so that its progress is kept reported to him from
                        SURJIT SINGH v. HARBANS SINGH                        359

     time to time. We direct the trial court to dispose of the suit as expeditiously A
     as possible, but in all events, before the onset of the summer vacation of
     the years 1996. The trial court may resort to day today hearing in the
     matter, if considered necessary.

           In view of the decision in the Civil Appeal, no orders are necessary
     in the special leave petition as also in the contempt petition.                B

     R.P.                                                       Appeal allowed.




-.