Prahlad Chander Kapoor and Others vs Vishwadeep Kapoor and Others

Dr. Bharat Bhushan Parsoon, J.—At the instance of petitioners herein, a suit for declaration on the basis of family settlement dated 15.6.2007 and in the alternative for specific performance of said family settlement taking it to be an agreement to sell, is pending adjudication before a Civil Court at Panipat, wherein vide impugned order of 15.11.2010, the petitioners-plaintiffs have been called upon to make up deficiency in the court fee taking value of the suit in terms of the agreement under which an amount of Rs. 72 lacs is claimed to have been paid to defendants No. 1 and 2. Claim of the petitioners-plaintiffs is that the suit, in fact is for enforcement of family settlement and for seeking declaration of ownership in terms thereof and has wrongly been taken to be suit for specific performance of such settlement taking it to be an agreement to sell. It is claimed that specific performance of such settlement has been claimed only as an alternative relief, if plea of the petitioners-plaintiffs for enforcement of the family settlement does not carry weight with the court.

Claim of the contesting respondents, on the other hand, is that the suit, in fact, is for enforcement of terms of the document of 15.6.2007 which is in the nature of an agreement and the petitioners-plaintiffs are liable to pay court fee as per the impugned order.

Hearing has been provided to the counsel for the parties while going through the paper book.

Execution of document dated 15.6.2007 claimed to be a family settlement-cum-partition document by the petitioners-plaintiffs and alleged to be an agreement to sell by the respondents-defendants is not in dispute. In terms of this document, respondent-plaintiff No. 1 seeks declaration of his ownership and possession of 2/3rd share in House No. 70 (L&R) and 1/3rd share in House No. 69 (L&R).

It is further a conceded fact that a decree of declaration regarding joint ownership and possession has been sought and it is only in the alternative that a decree for possession by way of specific performance of such settlement has been claimed. It was too early for the lower court to conclude that it was not a family settlement but was a transaction of sale and purchase and, in fact, this observation without evaluation and appreciation of recitals of the document in the interface of contemporaneous circumstances and attending material is uncalled for. After evaluation and appreciation of the evidence produced by the parties, if the lower court comes to a determination that it is not a suit for enforcing a family settlement but, in fact, is a suit for specific performance of the agreement, only then a case for making up deficiency of the court fee would emerge.

Sequelly, accepting the revision petition, the impugned order is set aside. Parties are directed to appear before the lower court on 9.10.2014.

Since the suit is already delayed considerably as it was filed on 5.3.2009, the lower court would decide the same within six months from the date of receipt of certified copy of this order, even by conducting day to day proceedings, if so required. Nothing observed above shall have any bearing on the merits of the suit pending before the lower court.