2024 SCMR 1649
PLJ 2024 SC 702
Oral gift --- Fraud --- Proof --- Respondents ( plaintiffs ) had sought a declaration regarding the Memorandum of oral gift and its cancellation was also prayed for --- It was pleaded in the 4 plaint that respondents were in possession of the property and that they had been dispossessed ; that after the filing of the suit for partition , the Memorandum was fraudulently prepared so as to deprive the appellants of their hereditary rights ; and that the Memorandum was fabricated --- Validity --- Plain reading of the plaint showed that the assertion of fraud was of a general nature and the particulars thereof had not been stated --- Initial burden to prove that the Memorandum of gift was forged and fabricated was on the respondents --- During the trial , the initial burden of proving the factum of fraud or fabrication could not be discharged by the respondents --- There was no reference in the plaint to the oral gift made in the year 1962 and , therefore , an issue in this regard had not been framed --- Respondents were also not able to establish that at any time during or after the lifetime of the predecessor - in - interest they had remained in possession of the property let alone having been dispossessed --- It was not disputed that the transfer of shares by the Housing Society in the name of the appellants ( defendats ) was not challenged by the respondents --- It was also not disputed that the appellants were minors when the oral gift was made in their favour by the predecessor - in - interest in 1962- .. Furthermore the respondents had made a reference to the property having been gifted in favour of the appellants in their earlier suit filed for seeking partition --- Appeal was allowed , impugned judgment of the High Court was set - aside , with the consequence that suit filed by respondents was dismissed .
C.A.648/2022
Aamir Afzal and another v. S. Akmal (deceased) through his L.Rs and others
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