S. AKMAL (deceased) vs MODEL TOWN COOPERATIVE HOUSING SOCIETY Ss — 2025 YLR 841 LAHORE-HIGH-COURT-LAHORE

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S. AKMAL (deceased) VS MODEL TOWN COOPERATIVE HOUSING SOCIETY Ss. 42, 39 & 54---Suit for declaration, permanent injunction and cancellation of deed/memorandum of gift on basis of oral gift---Gift in favour of a few legal heirs to the exclusion of other heirs---Oral gift not asserted in written-statement---Effect---Plaintiffs (one being the wife of the deceased while other being one of the two sons) claimed their share in inheritance qua suit-property owned by deceased who died in the year 2005---Defendants, being (second) son and daughter of the deceased, claimed exclusive rights in the property on the basis of alleged transaction of gift, orally made in the year 1962 and acknowledgment thereof allegedly made in 1974---Claim of the plaintiffs was concurrently declined---Validity-- Defendants/respondents, while filing written statement, had not alleged factum of oral gift allegedly made in the year 1962 - which perhaps would be the foundation of their (defendants') case, claiming beneficial ownership based on alleged transaction---Thus, submission of the defendants/ respondents that non-disclosure of said fact was immaterial when memorandum of gift was executed through a written registered deed, must fail---Unless the underlying transaction - oral gift - was proved, the factum of alleged acknowledgement of gift, simply, would be of no tenable assistance---Failure to plead factum of oral gift in the written statement was a fatal defect, which was incurable as proof of mutation/ memorandum of gift itself did not prove earlier oral gift, when the respondents/defendants had failed to claim entitlement to oral gift in their written statement---Even otherwise, transaction of oral gift as well as memorandum of gift remained unproved in accordance with the requirements under the statute of evidence---High Court set-aside the impugned judgments and decrees of both the Courts below, declaring the transaction of oral gift/memorandum of gift, and actions taken on the basis thereof as void and of no effect qua the rights of the petitioners/plaintiff (wife and son of the deceased) with respect to the property-in-question---Revision, filed by plaintiffs, was allowed accordingly.

S. AKMAL (deceased) vs MODEL TOWN COOPERATIVE HOUSING SOCIETY Ss — 2025 YLR 841 LAHORE-HIGH-COURT-LAHORE

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