SURJIT SINGH AND ORS ETC. ETC. versus HARBANS SINGH AND ORS ETC. ETC.

Citation: [1995] SUPP. 3 S.C.R. 354 · Decided: 06-09-1995 · Supreme Court of India · Bench: M.M. PUNCHHI, SUJATA V. MANOHAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SURJIT SINGH AND ORS ETC. ETC. 
v. 
HARBANS SINGH AND ORS ETC. ETC. 
SEPTEMBER 6, 1995 
[M.M. PUNtHHI AND SUJATA V. MANOHAR, JJ.] 
CiJMI~ of Civil Procedure, 1908: 
Order XX/I-Rule JO-Assignment of 1ights under preliminary decree 
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. 
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'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 
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 
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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 
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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. 
.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 
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] 
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 
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 
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] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3413 of 
1990. 
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From the Judgment and Order dated 6.10.89 of the Punjab & 
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Haryana H
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