SURJIT SINGH Vs. HARBANS SINGH

JUDGEMENT

(1.) 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 Office of the Sub-Registrar, Patiala. A broad feature of that settlement was that all 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-shares. Prima-facie, their aspiration 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.

(2.) 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-Judge's Court at Patiala on 7th April, 1950. While proceedings for passing a final decree were pending, parties moved for accounting and preservation of mesne 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 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 grandson 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.

(3.) 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.