Research › Search › Judgment

High Court of Punjab and Haryana · body

2025 DAILYLAW 89876 (PNJ)

SUMAN SHARDA v. HARISH KUMAR SHARMA

RSA/4038/2014 · 2025-08-28

Deepak Gupta

body2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

RSA No. 4038 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Suman Sharda Harish Kumar CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Argued by:-Mr. DEEPAK GUPTA, J. present regular second appeal against below, inasmuch as the suit for declaration filed by her was dismissed by the trial court on First Appellate Court plaintiff- appellant. 2. owner of suit (daughter) and defendant 3. father, she inherited ½ share in the suit property. She questioned the order dated 29.10.2010 passed by the Assistant Collect sanctioning Mutation No. 3954 in favour of the defendant, and the order dated 17.03.2011 of the Collector, Sub Division Patiala, affirming the same. It is her plea that the mutation was founded on an alleged Will dated 06.09.2010, wh and which had never been disclosed during the lifetime of the deceased. She further contends that the revenue authority acted ex parte, without 4038 of 2014 Page N: 1 of 5 Pages IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Suman Sharda Versus Harish Kumar Sharma CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Mr. M.K. Singla, Advocate with Mr. Dinesh Kumar, Advocate for the appellant. *** DEEPAK GUPTA, J. Plaintiff of the case has approached this court by way of the present regular second appeal against the concurrent findings of the C below, inasmuch as the suit for declaration filed by her was dismissed by the trial court on 04.08.2012 and the said judgment has been uph First Appellate Court on 10.04.2014, thereby dismissing the appeal of the appellant. The facts are quite simple. Shri Ram suit property. He died on 03.10.2010 and defendant (son) as his only legal heirs. The case set up by the plaintiff is that, on the demise of her father, she inherited ½ share in the suit property. She questioned the order dated 29.10.2010 passed by the Assistant Collect sanctioning Mutation No. 3954 in favour of the defendant, and the order dated 17.03.2011 of the Collector, Sub Division Patiala, affirming the same. It is her plea that the mutation was founded on an alleged Will dated 06.09.2010, which is forged, fabricated and a result of misrepresentation, and which had never been disclosed during the lifetime of the deceased. She further contends that the revenue authority acted ex parte, without Pages IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4038 of 2014 (O&M) Reserved on: 25.08.2025 Pronounced on: 28.08.2025 …Appellant …Respondent CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA *** Plaintiff of the case has approached this court by way of the the concurrent findings of the Courts below, inasmuch as the suit for declaration filed by her was dismissed by udgment has been upheld by the thereby dismissing the appeal of the The facts are quite simple. Shri Ram Sarup Sharma was the 03.10.2010, leaving behind plaintiff as his only legal heirs. The case set up by the plaintiff is that, on the demise of her father, she inherited ½ share in the suit property. She questioned the order dated 29.10.2010 passed by the Assistant Collector Ist Grade, Patiala, sanctioning Mutation No. 3954 in favour of the defendant, and the order dated 17.03.2011 of the Collector, Sub Division Patiala, affirming the same. It is her plea that the mutation was founded on an alleged Will dated ich is forged, fabricated and a result of misrepresentation, and which had never been disclosed during the lifetime of the deceased. She further contends that the revenue authority acted ex parte, without (O&M) 2025 .2025 Appellant Respondent Plaintiff of the case has approached this court by way of the ourts below, inasmuch as the suit for declaration filed by her was dismissed by eld by the thereby dismissing the appeal of the Sharma was the f The case set up by the plaintiff is that, on the demise of her father, she inherited ½ share in the suit property. She questioned the order Grade, Patiala, sanctioning Mutation No. 3954 in favour of the defendant, and the order dated 17.03.2011 of the Collector, Sub Division Patiala, affirming the same. It is her plea that the mutation was founded on an alleged Will dated ich is forged, fabricated and a result of misrepresentation, and which had never been disclosed during the lifetime of the deceased. JITEN SHARMAShe further contends that the revenue authority acted ex parte, without 2025.09.01 18:21 I attest to the accuracy and integrity of this document RSA No. 4038 issuing notice or affording her an opportunity of h defendant’s attempt to alienate the property, she instituted the present suit seeking declaration of ownership to the extent of ½ share and consequential injunction restraining the defendant from alienating or encumbering the same. 4. the trial Court so as to contest the suit and was proceeded ex taking ex-parte the suit on 04.08.2012. Aggrieved Court, where again the notice was sent to the respondent again he failed to turn up despite service and was proceeded 5. Appellate Court held that as it was the plaintiff her father in favour of defendant misrepresentation and that suit had been rightly dismissed. Accordingly, the ap the First Appellate Court on 6. learned counsel property after the death of her father to the extent of case defendant wanted to displace the said succession, he was required to prove the validity of the propounded law. Learned counsel to be proceeded against ex contention of the plaintiff that liable to be sustained. 7. dispensed with considering the fact that he was Court as well as the F 4038 of 2014 Page N: 2 of 5 Pages issuing notice or affording her an opportunity of h defendant’s attempt to alienate the property, she instituted the present suit seeking declaration of ownership to the extent of ½ share and consequential injunction restraining the defendant from alienating or encumbering the same. Despite notice sent to the defendant, he did not appear before ourt so as to contest the suit and was proceeded ex parte evidence produced by the plaintiff, the 04.08.2012. Aggrieved plaintiff approached the where again the notice was sent to the respondent again he failed to turn up despite service and was proceeded While upholding the findings of the trial Court, the F ourt held that as it was the plaintiff her father in favour of defendant to be based upon fraud and misrepresentation and that as she failed to prove the same, therefore, the suit had been rightly dismissed. Accordingly, the ap the First Appellate Court on 10.04.2014. Assailing the aforesaid concurrent learned counsel for the appellant-plaintiff that property after the death of her father to the extent of case defendant wanted to displace the said succession, he was required to prove the validity of the Will, as it is only the defendant who the Will and was bound to produce Learned counsel contends that since defendant to be proceeded against ex-parte and did not contest the suit, so the of the plaintiff that Will is forged liable to be sustained. Notice of the appeal to the respondent dispensed with considering the fact that he was Court as well as the First Appellate Court. Pages issuing notice or affording her an opportunity of hearing. In view of the defendant’s attempt to alienate the property, she instituted the present suit seeking declaration of ownership to the extent of ½ share and consequential injunction restraining the defendant from alienating or Despite notice sent to the defendant, he did not appear before ourt so as to contest the suit and was proceeded ex-parte. After produced by the plaintiff, the trial court dismissed aintiff approached the First Appellate where again the notice was sent to the respondent-defendant but again he failed to turn up despite service and was proceeded ex-parte. ndings of the trial Court, the First ourt held that as it was the plaintiff, who had alleged the Will of to be based upon fraud and she failed to prove the same, therefore, the suit had been rightly dismissed. Accordingly, the appeal was dismissed by concurrent findings, it is contended by laintiff that plaintiff inherited the suit property after the death of her father to the extent of ½ share and that in case defendant wanted to displace the said succession, he was required to as it is only the defendant who had produce to prove its validity as per s that since defendant-respondent preferred parte and did not contest the suit, so the ill is forged & fabricated and unproved, is of the appeal to the respondent-defendant was dispensed with considering the fact that he was ex-parte before the trial earing. In view of the defendant’s attempt to alienate the property, she instituted the present suit seeking declaration of ownership to the extent of ½ share and consequential injunction restraining the defendant from alienating or Despite notice sent to the defendant, he did not appear before After trial court dismissed Appellate defendant but irst of to be based upon fraud and she failed to prove the same, therefore, the peal was dismissed by findings, it is contended by laintiff inherited the suit and that in case defendant wanted to displace the said succession, he was required to had to prove its validity as per respondent preferred parte and did not contest the suit, so the fabricated and unproved, is defendant was the trial JITEN SHARMA 2025.09.01 18:21 I attest to the accuracy and integrity of this document RSA No. 4038 8. appellant and have gone through the record. 9. the parties. effect that plaintiff who was the owner of the suit plaintiff became owner of No. 3954 has been sanctioned by the revenue authorities defendant regarding the suit property based upon a 10. dismissing the claim of the plaintiff, proceeded on the footing that since it was the plaintiff who had alleged the Will to be forg burden to prove the same lay entirely upon her. Both Courts, therefore, dismissed the suit and appeal on the ground that the plaintiff had failed to establish her allegations. 11. a settled proposition of law that where a Will is set up in order to displace the natural course of succession, the onus of proving the due and valid execution of such Will is squarely upo under the Will, if he seeks to rely upon it, must prove its execution and attestation in accordance with Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1 Will is duly proved by the propounder, the statutory scheme of intestate succession cannot be defeated. 12. exclude the plaintiff from succession and to confer exclusive rights upon himself. Thus, it was incumbent upon him to enter the witness box, lead evidence, and prove the genuineness, due execution, and attestation of the Will. Unfortunately for him, before the trial Court but also before the First Appellate Court. Consequently, there was absolutely no evidence on record to show that the Will dated 4038 of 2014 Page N: 3 of 5 Pages This court has considered submissions of and have gone through the record. PW1 Megh Chand as well as PW2 Jora Singh are both known to Both of them have supported the case of the plaintiff to the that plaintiff & defendant are the children of Ram Sa who was the owner of the suit property and af plaintiff became owner of ½ share in the suit 3954 has been sanctioned by the revenue authorities fendant regarding the suit property based upon a The trial Court as well as the First Appellate Court, while dismissing the claim of the plaintiff, proceeded on the footing that since it was the plaintiff who had alleged the Will to be forg burden to prove the same lay entirely upon her. Both Courts, therefore, dismissed the suit and appeal on the ground that the plaintiff had failed to establish her allegations. However, this reasoning does not withstand judicial scrutiny. It is a settled proposition of law that where a Will is set up in order to displace the natural course of succession, the onus of proving the due and valid execution of such Will is squarely upon the person who propounds it. The beneficiary under the Will, if he seeks to rely upon it, must prove its execution and attestation in accordance with Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1 Will is duly proved by the propounder, the statutory scheme of intestate succession cannot be defeated. In the present case, the Will was set up by the defendant to exclude the plaintiff from succession and to confer exclusive rights upon himself. Thus, it was incumbent upon him to enter the witness box, lead evidence, and prove the genuineness, due execution, and attestation of the Will. Unfortunately for him, the defendant chose to remain ex before the trial Court but also before the First Appellate Court. Consequently, there was absolutely no evidence on record to show that the Will dated Pages submissions of learned counsel for and have gone through the record. as well as PW2 Jora Singh are both known to oth of them have supported the case of the plaintiff to the the children of Ram Sarup Sharma, property and after the death of Ram Sarup, suit property. Impugned mutation 3954 has been sanctioned by the revenue authorities in favour of the fendant regarding the suit property based upon a Will. The trial Court as well as the First Appellate Court, while dismissing the claim of the plaintiff, proceeded on the footing that since it was the plaintiff who had alleged the Will to be forged and fabricated, the burden to prove the same lay entirely upon her. Both Courts, therefore, dismissed the suit and appeal on the ground that the plaintiff had failed to However, this reasoning does not withstand judicial scrutiny. It is a settled proposition of law that where a Will is set up in order to displace the natural course of succession, the onus of proving the due and valid execution n the person who propounds it. The beneficiary under the Will, if he seeks to rely upon it, must prove its execution and attestation in accordance with Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872. Unless and until the Will is duly proved by the propounder, the statutory scheme of intestate In the present case, the Will was set up by the defendant to exclude the plaintiff from succession and to confer exclusive rights upon himself. Thus, it was incumbent upon him to enter the witness box, lead evidence, and prove the genuineness, due execution, and attestation of the the defendant chose to remain ex-parte not only before the trial Court but also before the First Appellate Court. Consequently, there was absolutely no evidence on record to show that the Will dated learned counsel for as well as PW2 Jora Singh are both known to oth of them have supported the case of the plaintiff to the , p, Impugned mutation of the The trial Court as well as the First Appellate Court, while dismissing the claim of the plaintiff, proceeded on the footing that since it ed and fabricated, the burden to prove the same lay entirely upon her. Both Courts, therefore, dismissed the suit and appeal on the ground that the plaintiff had failed to However, this reasoning does not withstand judicial scrutiny. It is a settled proposition of law that where a Will is set up in order to displace the natural course of succession, the onus of proving the due and valid execution n the person who propounds it. The beneficiary under the Will, if he seeks to rely upon it, must prove its execution and attestation in accordance with Section 63 of the Indian Succession Act, 1925 872. Unless and until the Will is duly proved by the propounder, the statutory scheme of intestate In the present case, the Will was set up by the defendant to exclude the plaintiff from succession and to confer exclusive rights upon himself. Thus, it was incumbent upon him to enter the witness box, lead evidence, and prove the genuineness, due execution, and attestation of the parte not only before the trial Court but also before the First Appellate Court. Consequently, JITEN SHARMAthere was absolutely no evidence on record to show that the Will dated 2025.09.01 18:21 I attest to the accuracy and integrity of this document RSA No. 4038 06.09.2010 was ever validly executed or attested. Mere p reliance upon a mutation sanctioned on its basis is not sufficient proof in the eyes of law. 13. Megh Chand and have supported her case. They have consistently deposed that both plaintiff and defendant are the children of the deceased and, therefore, e titled to equal shares in the estate. In the absence of proof of the Will, their testimonies lend weight to equally in favour of both legal heirs. 14. discharge her burden is legally erroneous. Once the defendant, as the propounder of the Will, prove the Will in accordance with law, the inevitable consequence is that the Will remains unproved. The effect of such non of the deceased devolves by intestate succession, entitl share in the suit property. 15. concurrent findings of the Courts below suffer from a fundamental misdirection in law and cannot be sustained. The plaintiff cannot deprived of her lawful share in the estate merely because she alleged the Will to be forged, when in law the initial burden to prove the Will was upon the defendant who sought to rely upon it. 16. and decrees passed by the trial Court and the First Appellate Court are hereby set aside. The suit of the plaintiff is decreed. It is declared that the plaintiff is the owner in possession of the s share. Mutation No. 3954, sanctioned in favour of the defendant, is declared null and void to the extent it denies the share of the plaintiff. The defendant-respondent is further restrained from alienating or creatin 4038 of 2014 Page N: 4 of 5 Pages 06.09.2010 was ever validly executed or attested. Mere p reliance upon a mutation sanctioned on its basis is not sufficient proof in the In contrast, the plaintiff has led oral evidence through PW1 Chand and PW2 Jora Singh, both of whom are known to the parties ave supported her case. They have consistently deposed that both plaintiff and defendant are the children of the deceased and, therefore, e titled to equal shares in the estate. In the absence of proof of the Will, their testimonies lend weight to the natural presumption that succession opened equally in favour of both legal heirs. Thus, the finding of the Courts below that the plaintiff failed to discharge her burden is legally erroneous. Once the defendant, as the propounder of the Will, abstained from contesting the matter and failed to prove the Will in accordance with law, the inevitable consequence is that the Will remains unproved. The effect of such non of the deceased devolves by intestate succession, entitl share in the suit property. Accordingly, this Court is of the considered opinion that the concurrent findings of the Courts below suffer from a fundamental misdirection in law and cannot be sustained. The plaintiff cannot deprived of her lawful share in the estate merely because she alleged the Will to be forged, when in law the initial burden to prove the Will was upon the defendant who sought to rely upon it. Consequently, the present appeal is allowed. The judgments and decrees passed by the trial Court and the First Appellate Court are hereby set aside. The suit of the plaintiff is decreed. It is declared that the plaintiff is the owner in possession of the s share. Mutation No. 3954, sanctioned in favour of the defendant, is declared null and void to the extent it denies the share of the plaintiff. The respondent is further restrained from alienating or creatin Pages 06.09.2010 was ever validly executed or attested. Mere production of a Will or reliance upon a mutation sanctioned on its basis is not sufficient proof in the In contrast, the plaintiff has led oral evidence through PW1 and PW2 Jora Singh, both of whom are known to the parties ave supported her case. They have consistently deposed that both plaintiff and defendant are the children of the deceased and, therefore, en- titled to equal shares in the estate. In the absence of proof of the Will, their the natural presumption that succession opened Thus, the finding of the Courts below that the plaintiff failed to discharge her burden is legally erroneous. Once the defendant, as the abstained from contesting the matter and failed to prove the Will in accordance with law, the inevitable consequence is that the Will remains unproved. The effect of such non-proof is that the estate of the deceased devolves by intestate succession, entitling the plaintiff to ½ Accordingly, this Court is of the considered opinion that the concurrent findings of the Courts below suffer from a fundamental misdirection in law and cannot be sustained. The plaintiff cannot be deprived of her lawful share in the estate merely because she alleged the Will to be forged, when in law the initial burden to prove the Will was upon Consequently, the present appeal is allowed. The judgments and decrees passed by the trial Court and the First Appellate Court are hereby set aside. The suit of the plaintiff is decreed. It is declared that the plaintiff is the owner in possession of the suit property to the extent of ½ share. Mutation No. 3954, sanctioned in favour of the defendant, is declared null and void to the extent it denies the share of the plaintiff. The respondent is further restrained from alienating or creating any roduction of a Will or reliance upon a mutation sanctioned on its basis is not sufficient proof in the In contrast, the plaintiff has led oral evidence through PW1 and PW2 Jora Singh, both of whom are known to the parties ave supported her case. They have consistently deposed that both n- titled to equal shares in the estate. In the absence of proof of the Will, their the natural presumption that succession opened Thus, the finding of the Courts below that the plaintiff failed to discharge her burden is legally erroneous. Once the defendant, as the abstained from contesting the matter and failed to prove the Will in accordance with law, the inevitable consequence is that proof is that the estate ing the plaintiff to ½ Accordingly, this Court is of the considered opinion that the concurrent findings of the Courts below suffer from a fundamental be deprived of her lawful share in the estate merely because she alleged the Will to be forged, when in law the initial burden to prove the Will was upon Consequently, the present appeal is allowed. The judgments and decrees passed by the trial Court and the First Appellate Court are hereby set aside. The suit of the plaintiff is decreed. It is declared that the uit property to the extent of ½ share. Mutation No. 3954, sanctioned in favour of the defendant, is declared null and void to the extent it denies the share of the plaintiff. The g any JITEN SHARMA 2025.09.01 18:21 I attest to the accuracy and integrity of this document RSA No. 4038 encumbrance over the suit property to the extent of the plaintiff’s ½ share Decree-sheet be prepared accordingly. 28.08.2025 Jiten 4038 of 2014 Page N: 5 of 5 Pages encumbrance over the suit property to the extent of the plaintiff’s ½ share sheet be prepared accordingly. Whether speaking/reasoned : Whether reportable : Pages encumbrance over the suit property to the extent of the plaintiff’s ½ share. (DEEPAK GUPTA) JUDGE Yes/No Yes/No . JITEN SHARMA 2025.09.01 18:21 I attest to the accuracy and integrity of this document