23/08/2024
خانگی تقسیم (family settlement) کے موضوع پر انتہائی معلوماتی فیصلہ جس میں اس موضوع پر پاکستان، انڈیا اور ا نگلینڈ وغیرہ کے تمام قدیم ترین اور تازہ ترین فیصلہ جات کا حوالہ دیکر
خانگی تقسیم (family settlement) کے اصول وضوابط مرتب کیے گیے ہیں
General impact and significance of family settlement. .................
A family settlement involves members of the same family striving to resolve their differences and disputes to achieve lasting resolution. Through these arrangements, family members aim to bring about harmony and goodwill, settling conflicting claims or disputed titles to promote peace within the family. Courts recognise the special significance of family arrangements(Naeem) and uphold them when made in good faith. This principle has been developed by courts over a long period of time to discourage litigation driven by greed, particularly in cases involving the distribution of family estates, such as the one being considered here.
The principles governing family settlement or arrangements that may be deducted from the above referred survey of case law and the law books may be outlined in the following form:
(i) The family settlement has to be genuine, bona fide and must aim to resolve family disputes and conflicting claims by ensuring a fair and equitable distribution or allocation of properties among all family members.
(ii) When an agreement is entered into to preserve the honour of a family and is reasonable, the Court will seize any justifiable reason to enforce the agreement and promote peace within the family.
(iii) The settlement must be made willingly and should not be influenced by fraud, social or familial pressure, and undue influence.
(iv) Like an oral contract, family settlements may well also be oral and if it is, no registration of the settlement is necessary. is
(v) It is well established that registration of a family settlement is required only if the terms of the settlement are put into writing. However, it a important to distinguish between a document that includes the terms and details of family settlement and a simple memorandum created after the arrangement has been made, intended either for record purposes or for informing the Court to effect necessary mutation. In such cases, the memorandum does not create or extinguish any rights in immovable property and, therefore, does not fall under the requirements of the Registration Act, 1908 making it not subject to compulsory registration.
(vi) In cases where the parties are not inclined to divide property permanently, they cannot be forced to do so. The decision to distribute the property is based on their own preferences, and it is considered a personal and family matter. In such situations, there is no requirement for registering such an agreement.
(vii) The members involved in the family settlement must have a pre-existing title, claim, or interest, even a potential claim, in the property that is recognised by all parties to the settlement. If one party lacks a title but, under the arrangement, another party relinquishes all claims or titles in favour of that person and acknowledges them as the sole owner, a preexisting title will be assumed. Consequently, the family arrangement will be upheld, and the Courts will readily endorse it.
(viii) A genuine and bona fide family settlement can resolve disputes, whether current or potential, even if they do not involve legal claims. As long as the arrangement is fair and equitable, it is final and binding on all parties involved.
(ix) Courts tend to favour maintaining the family arrangement rather than disturbing it on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal deficiency or a formal defect, the principle of estoppel is invoked and applied to turn down the plea of the person who, being a party to family arrangement, seeks to set aside a settled dispute, and claims to revoke the family arrangement under which he himself has received some material benefits.
C.A.197-L/2019
Bashir Ahmed (deceased) through his L.Rs., etc v. Nazir Ahmad, etc
Mr. Justice Shahid Waheed
19-08-2024
