AAMIR AFZAL vs S. AKMAL (deceased) Oral gift — 2024 SCMR 1649 SUPREME-COURT

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AAMIR AFZAL VS S. AKMAL (deceased) 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 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.

AAMIR AFZAL vs S. AKMAL (deceased) Oral gift — 2024 SCMR 1649 SUPREME-COURT

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