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PETITIONER: SURJIT SINGH & ORS. ETC. ETC.

       Vs.

RESPONDENT: HARBANS SINGH & ORS. ETC. ETC.

DATE OF JUDGMENT06/09/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 AIR  135            1995 SCC  (6)  50  JT 1995 (6)   415        1995 SCALE  (5)212

ACT:

HEADNOTE:

JUDGMENT:                           O R D E R      Here is  an unfortunate  dispute between  members of  a family, the  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 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 Officer  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 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  was meant  to be  preserved from generation to generation within the family.      On the  demise of  Janak Singh,  suit for partition for separate possessions  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 decree  were pending, parties moved for accounting and preservation of  mense profits.  On July 29, 1977, the trial court  passed   an  order   restraining  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

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wife of  his lawyer  Shri Ram  Singh Saluja,  Advocate,  and partly in  favour of  others, in  the teeth of the restraint order 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 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 of 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.  The  trial  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 dismissed their revision petition in limine, which has given cause to them to appeal to this Court.      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 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 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 assignment  had taken  place after the passing of  the preliminary decree in which Pritam Singh has been allotted  1/3rd share.  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  to  the  immovable property involved  in the suit. It clearly and squarely fell 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 as such, it would defeat the ends  of justice  and the  prelavent public policy, When the Court  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 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 disobedience of its

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orders. The  principles of  lis pendens  are altogether on a different footing.  We  do  not  propose  to  examine  their involvement presently.  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 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  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 proceedings in the suit so that its progress is kept reported to him from time to time. We direct  the  trial  court  to  dispose  of  the  suit  as expeditiously as  possible, but  in all  events, before  the onset of  the summer  vacation of  the year  1996. The trial court may  resort to  day to  day 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.