AFZAL AHMAD Versus IJAZ AHMAD

1. This is a suit which was filed by Sheikh Afzal Ahmed against (i) Mr. Ijaz Ahmed, defendant No. 1, (ii) Mr. Iqbal Ahmed alias Jamshed Haroon defendant No. 2, (ii) Mr. Sajjad Ahmed J.tn, defenJant No 3. (iv) Mst. Dilshad Jahan defendant No. 4 and (v) asst. Aqua Khatoon defendant No 5 for partitioning of the properties hereinafter mentioned. The following pedigree-table will also help in a understanding the facts of this case

2. Sh. Mohammed Sharif (died in 1935)

3. Mst. Dilshad Jahan First wife

4. Second wife defendant No. 4 Sajjad Ahrrmed Jan

5. | defendant No. 3

6. IqbarAhmad Masood Afzal Ahmed Ijaz Mst. Asma, alias Jamshed Ahmed Plaintiff Ahmed Khatoon

7. Haroon died in defendant defendant defendant 1940 No.1 No. 5

8. No. 2

9. The property in dispute belongs to Sh. Mohammad Sharif who died some where in the year 1935. From the first wife he has one son, defendant No. 3, mentioned above. From the second wife, who is herself described as defendant No. 4, the prepositor had four sons, namely, Mr. Ijaz Ahmed, defendant No. 1, Mr. Ifzal Ahmed, plaintiff, Mr. Masood Ahmed. who died in 1940 as agreed before me by the learned counsel for the parties (though wrongly described in the plaint as having died in the year 1937), Mr. Iqbal Ahmed alias Jamshed Haroon, defendant No. 2. The properties which are the subject-matter of partition are those which are mentioned in sub-paras. (a) and (b) of para. 2 of the plaint which so far as relevant for the present case read as follows :

10. "Sub para. (a) of para. 2

11. Urban property inclusive of and standing on land measuring 25 kanals 15 marlas and 189 sq. ft. bearing Khasra Nos. (Imarti) 6357/1, 6481, 6463, 6494, 6462, 6495, 6496, 6457, 6397. 6434, 6456, 6458, 6459, 6476. 6373, 6477, 6478, 6479, 6480, 6453, 6454, 6435. 6448. 6449, 6450. 6451. 6455, 6452. 6410, according to Kaasra Imarti 1967-68 and Jamabandi 1967-68, Revenue Estate Qila Gujar Singly, Tehsil and District Lahore. situated in Gowalmandi, Lahore. The said property is shown in red in Plan No. 1 attached to this plaint.

12. Sub-para. (b) of Para. 2

13. Agricultural land measuring 14 kanals 13 marlas and 211 sq. ft. situated in village Mian Mir, tehsil and District Lahore, bearing Khasra No. 2181 according to Jamabandi 1967-68. This land is shown in Plan No. 2 attached hereto alongwith the bungalow constructed thereupon by defendant No. 3 as hereinafter mentioned."

2. The suit was originally filed in the Court of Senior Civil Judge, .Lahore, but was later on transferred to this Court under its suo motu jurisdiction under section 24 of the Code of Civil Procedure and was put up before me for adjudication on 29-9-1973.

3. The parties thereafter had been taking time for settling the whole affair by a compromise or a family settlement. Ultimately they succeeded in this attempt and on 4-4-1974 they filed an application bearing C. M. No. 953/C-1974 under Order XXIII, rule 3 and section 151, C. P. C. praying that a preliminary decree may be passed in terms of the foregoing compromise which had been detailed in the earlier paragraphs of that application. In fact this application constitutes both a petition as well as compromise itself. It reads as follows

14. '`IN THE LAHORE HIGH COURT, LAHORE.

15. Civil Original No. 1 of 1973. C. M. 953/C-74.

16. In re : Sh. Afzal Ahmed v. Mr. Ijaz Ahmed and 4 others.

17. Application under Order XXIII, rule 3 and section 151, C. P. C. Respect fully sheweth

(1) The above-noted suit is pending in this learned Court. The parties have come to a compromise on the following terms and conditions :-

(1) Property shown in clause (a) of Para. 2 of the plaint as urban property inclusive of and standing on land measuring 25 kanals 8 marlas and 27 sq. ft. situate in Gowalmandi, Lahore, and property mentioned in Para. 6 of plaint will be treated as separate units and each unit will be divided between the parties into five shares as follows :-

18. Mr. Afzal Ahmed (Plaintiff)=1/5

19. Mr. Ijaz Ahmed (Defendant No. 1)=1/5

20. Mr. Iqbal Ahmed alias Jamshed (Defendant No. 2)=1/5

21. Haroon

22. Mr. Sajjad Ahmed Jan (Defendant No. 3)=1/5

23. Heirs of the deceased Masud Ahmed under =1/5

24. Muhammadan Law.

25. For the purposes of division of the said property, five lots will be made in each unit as aforementioned according to the prevailing market value of the same keeping also in view the scheme of the Improvement Trust already sanctioned in respect of the said property ensuring the equitableness of the division from the point of view of area and its nature and situation. The lots will be made by a Local Commissioner to be appointed by the Court with whom may be associated the representatives of the parties. The lots so made by the Commissioner shall be subject to adjudication by the Court. The fee of the local Commissioner shall be payable by parties in proportion to their respective shares in the said property. In so far as a portion of the said property is in possession of a tenant, the constructive possession of the same shall be deemed to have been delivered to the party in whose lot such portion falls. Unless the parties agree otherwise, the allocation of these lots to the parties shall be made by drawing of lots by the Court. The possession shall be deliverable to the party in whose lot any portion of the property falls within four months from the date of the final decree, failing which the possession shall be recoverable by executing the decree along its mesne profits and damages. Nothing herein in this clause contained shall be deemed to preclude any two or more parties from mutually agreeing to any adjustment of their lots within 21 days of the drawing of the lots by the Court and final decree shall be passed accordingly.

(ii) Property mentioned in clause (b) of Para. 2 of the plaint, vie. agricultural land roughly measuring 14 kanals 13 marlas 211 sq. ft. situate in village Mianmir (precise measurement of which will be made by the local Commissioner), on which stands a bungalow con structed by defendant No. 3, Sh. Sajjad Ahmed Jan, will be allotted to him in its entirely to the exclusion of the other parties subject to payment by him of a sum of money equivalent to the fractional share in the property belonging to Sh. Ijaz Ahmed as representing his share therein by virtue of inheritance to his deceased father and to his deceased brothcr Sh. Masud Ahmed, The prevailing market value of the said fractional share of Sh. Ijaz Ahmed will be determined by the local Commissioner to be appointed by the Court subject to final adjudication by Court. The price so determined of the share of Sh. Ijaz Ahmed shall be payable by defendant No. 3, Sh. Sajjad Ahmed Jan, within six months of the first disposition made by him of any portion of his property situate in Gowalmaiydi comprised in clause (a) para. 2 of the plaint as falls to his lot, or within one year from the date of final decree whichever date is earlier. Failing payment as aforementioned, the amount so assessed shall be recoverable by Sh. Ijaz Ahmed through execution of the final decree from Sh. Sajjad Ahmed Jan, defendant No. 3.

(iii) As regards the property left by S. Masud Ahmed deceased out of property mentioned in clause (a) of para. 2 of the plaint (i.e. Gowalmandi property) as aforementioned, which is to be distributed among his heirs under Muslim Law, Dilshad Begum (defendant No. 4) shall have the first choice to take her 1/6th share and of the rest of the said property of Sh. Masud Ahmed, seven lots shall be made of which one lot shall go to Asma Khatoon (defendant) and two lots each to Sh. Ijaz Ahmed and Jamshed Haroon (defendants) and Sh. Afzal Ahmed (Plaintiff). These lots shall be made by the local Commissioner appointed by the Court subject to adjudication by Court. The local Commissioner will be paid his remuneration by the heirs of Sh. Masud Ahmed deceased in proportion to their shares. The above-mentioned lots will also be drawn by the Court. The distribution of the said property of Sh. Masud Ahmed deceased shall be made as aforementioned within two weeks from the drawing of the main lots unless the said period is extended by the Court.

(iv) Out of two lots each received by Sh. Afzal Ahmed (plaintiff), Sh. Ijaz Ahmed (defendant No. 1) and Iqbal Ahmed alias Jamshed Haroon (defendant No. 2) from the property of Sh. Masud Ahmed deceased the income of their one lot each will be earmarked by them to Mst Dilshad Jahan (defendant No. 4) by way of her maintenance for her life time. The right of ownership in those lots shall, however, vest in Sh. Afzal Ahmed, Sh. Ijaz Ahmed and Jamshed Haroon respectively. They will also be responsible to provide for a suitable residence to Mst. Dilshad Jahan (defendant No. 4) for her life time.

(v) As regards improvements made by Sh. Afzal Ahmed (plaintiff) by construction of incomplete Annexe in Gowalmandi, it is agreed between the parties that he shall be entitled to receive compensation for the same as assessed by the local Commissioner from any other party in whose lot the said Annexe falls, unless he comes to an adjustment otherwise with such party. Sh. Afzal Ahmed hereby undertakes to pay such compensation as may be assessed by the local Commissioner as aforementioned to his mother Mst. Dilshad Jahan who had furnished to him funds for construction of the said Annexe, irrespective of whether he received compensation in cash or comes to an adjustment otherwise with the concerned party.

(vi) Sh. Ijaz Ahmed (defendant) has assured Sh. Sajjad Ahmed Jan (defendant No. 3) that no claim is pending on the basis of a transaction entered into by him for sale of a portion of agricultural land mentioned in clause (b) of Para. 2 of the plaint. In case, however, any such claim is later on found pending or is hereinafter brought by any person against Sh. Ijaz Ahmed, the latter undertakes to keep Sh. Sajjad Ahmed Jan fully indemnified for any loss suffered by Sh. Sajjad Ahmed Jan.

(vii) All rights, interests and claims as between the parties in respect of the property in suit and the estates of late Sh. Mohammad Sharif or arising for succession to him shall be deemed to have been disposed of hereby and no such right, interest or claim shall be considered to remain outstanding between them and shall, if any, be deemed to have been abandoned.

26. It is requested that a preliminary decree may be passed in terms of the foregoing compromise.

27. (Sd.) (Sd.) (Sd.)

28. Plaintiff Defendant No. 1 Defendant No. 2

29. (Sd.) (Sd.) (Sd.)

30. Defendant No. 3 Defendant No. 4 Defendant No. 5

31. (Sd.) (Sd.) (Sd.)

32. GHIAS MOHAMMED HAKAM QURESHI KHAWAJA A. QAYYUM

33. Advocate for Defendant Advocate for Defendants Advocate for Defendant

34. No. 3 Nos. 1 & 4 No. 5

35. (Sd.) (Sd.)

36. S. M. ZUBAIR MR. EHSANUL HAQ

37. Advocate for Defendant Advocate for Plaintiff

38. No. 2.

4. In support of this application I recorded the statements of Sh. Afzal Ahmed, Plaintiff, Sh. Iiaz Ahmed; defendant No. 1, and Iqbal Ahmed alias Jamshed Haroon, defendant No. 2. Statement on behalf of Mr. Sajjad Ahmed Jan defendant No. 3 was made by his learned counsel Sh. Ghias Mohammed, Advocate. Similarly statement on behalf of Ijaz Ahmed defendant No. I and Msr. Dilshad Janan defendant No. 4 was made by their learned counsel Mr. Hakam Qureshi, Advocate. Statement on behalf of Mst. Asma Khatoon defendant No. 5 was made by her learned counsel Khawaja Abdul Qayyum, Advocate. In all these statements it was deposed that the original application bearing C M. No. 953/C-74, which had been marked in Court as Exh. P. I was seen by all the parties concerned and their learned counsel and that it contained the terms of the compromise/ settlement which had been arrived at between them. The statements went on to narrate that the document contained the signatures of all the parties and that they had understood the contents of this compromise in which there was no ambiguity on their part. It was further stated that the parties had signed this deed after carefully understanding it and that they had independent legal advice and had also consulted Advocates. It was deposed that there had not been practised any coercion, fraud or misrepresentation on them and that the document had been agreed to by all the parties of their own free will and consent. The statements repeated the prayer contained in the application that a decree may be passed in this suit in accordance with the compromise. The learned counsel who made their statements had also duly filed their proper powers of Attorney which are contained on the file. I have attended to the factum and the terms of the compromise. In view of the statements hereinbefore mentioned it is absolutely proved on the record that the compromise has duly been agreed to by all the parties and that there is no ambiguity on their part as regards its terms. It is also in evidence that the parties have come to this settlement of their own free will and that no coercion, undue influence or misrepresentation of any kind was practised on any of them. The two of the parties are ladies and on their behalf their learned counsel have stated in unequivocal terms that they i.e. the ladies have fully understood the contents of the compromise and have agreed to the same out of their own free will and consent after taking independent legal advice. As the above pedigree-table will show all the parties constitute one family. The parties otherwise are respectable persons of high status and position in life. Defendant No. 3 Mr. Sajjad Ahmed Jan is an ex-Judge of this Court and the Supreme Court. Sh. Ijaz Ahmed Defendant No. 2 in these days posted as Settlement Commissioner in Lahore and Mr. Afzal Ahmed similarly is serving on a good post in the National Bank of Pakistan and Mr. Iqbal Ahmed alias Mr. Jamshed Haroon is doing independent business. Naturally it is in the interest of the whole family to avoid litigation and to end their disputes amicably and if they have agreed to do the same there is no justification as not to accept the settlement arrived at between them. The terms of the compromise appear to me to be quite fair and just and there is nothing unconscionable therein viz-a-viz any party. Each party has been fairly accommodated and given prominent portions of the property in dispute. The ladies also are in no ambiguity in this respect and it will be in the welfare of these ladies in particular and all others in general if the unity of the family is allowed to be maintained on the terms and conditions contained in the family settlement under consideration. Even if, without conceding that there have been any sacrifices on the part of one party in favour of any other in the adjustments of their rights and shares, in the peculiar circumstances of the present case, I think the same was well advised. See Martin Cashin and others v. Peter J. Cashin A I R 1938 P C 103 at page 108 cols 1 and 2 where it was held that family settlements which from the stand-point of the family are generous as well as just are in the eye f-f law perfectly fair. As no party in the instant case, on the whole, appears to have been unfairly dealt with in any manner, in my opinion, therefore, this is a perfectly fair, lawful and valid family settlement within the terms of Order XXIII, rule 3 of the C. P. C. and having recorded the same and placed on record I think that a judgment in terms of that settlement must follow. I order accordingly.

5. The result is that a preliminary decree in the terms of the family settlement Exh. P. 1 is hereby passed. The terms of the aforesaid family settlement should specifically be embodied in the preliminary decree. There shall be no order as to costs.

39. S. A. H. Settlement embodied in preliminary decree.