Law: Civil Procedure Code (V of 1908)

Section: O.VI, R. 4, 115

(a) Gift-------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.Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 distinguished.(b) Civil Procedure Code (V of 1908)-------O.VI, R. 4---Pleadings---Fraud, particulars of---Proof---Rule 4 of Order VI of the C.P.C. explicitly provides that in all cases in which the party pleading relies, inter alia, on fraud, it shall state in the pleadings particulars with dates and items if necessary---Ingredients…

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