UNJAB AND H D HARYANA AT CHANDIGARH arda Suman Sharda Harish Kumar mar Sharma v. M) RSA No
Case Details
RSA No. 4038 038 of 2014 IN THE H HE HIGH COURT OF PUNJAB AND H D HARYANA AT CHANDIGARH arda Suman Sharda Harish Kumar mar Sharma Versus M) RSA No. 4038 of 2014 (O&M) 25 Reserved on: 25.08.2025 25 Pronounced on: 28.08.2025 nt …Appellant nt …Respondent CORAM: HON’ ON’BLE MR. JUSTICE DEEPAK GUPT UPTA Argued by:-Mr Mr. M.K. Singla, Advocate with Mr. Dinesh Kumar, Advocate for the appellant. *** *** DEEPAK GUPT UPTA, J. Plaintiff of the case has approac he roached this court by way of the present regula gular second appeal against the con rts concurrent findings of the Courts below, inasmu smuch as the suit for declaration by ion filed by her was dismissed by the trial court ourt on 04.08.2012 and the said judg he udgment has been upheld by the
Legal Reasoning
First Appellate llate Court on 10.04.2014, thereby he reby dismissing the appeal of the plaintiff- appe ppellant. 2.
Legal Reasoning
The facts are quite simple. Shri he Shri Ram Sarup Sharma was the owner of suit suit property. He died on 03.10.2 f .10.2010, leaving behind plaintiff (daughter) and and defendant (son) as his only leg y legal heirs. 3. The case set up by the plaintiff er tiff is that, on the demise of her father, she inh e inherited ½ share in the suit prope er roperty. She questioned the order dated 29.10.2 .10.2010 passed by the Assistant la, tant Collector Ist Grade, Patiala, sanctioning M g Mutation No. 3954 in favour of er of the defendant, and the order dated 17.03.2 03.2011 of the Collector, Sub Divisio e. ivision Patiala, affirming the same. It is her plea plea that the mutation was found ed unded on an alleged Will dated 06.09.2010, w 0, which is forged, fabricated and on, nd a result of misrepresentation, and which ha had never been disclosed during ed. ring the lifetime of the deceased. She further co er contends that the revenue auth ut authority acted ex parte, without JITEN SHARMA 2025.09.01 18:21 I attest to the accuracy and integrity of this document Page N: 1 of 5 Page ages RSA No. 4038 038 of 2014 issuing notice tice or affording her an opportuni he rtunity of hearing. In view of the defendant’s a t’s attempt to alienate the propert nt perty, she instituted the present suit seeking ing declaration of ownership to nd to the extent of ½ share and consequential ntial injunction restraining the d or e defendant from alienating or encumbering t ing the same. 4. Despite notice sent to the defend re fendant, he did not appear before the trial Court ourt so as to contest the suit and w ter nd was proceeded ex-parte. After taking ex-part parte evidence produced by the pla ed plaintiff, the trial court dismissed the suit on 04 04.08.2012. Aggrieved plaintiff ap ate iff approached the First Appellate Court, where ere again the notice was sent to t ut to the respondent-defendant but again he failed ailed to turn up despite service and and was proceeded ex-parte. 5. While upholding the findings irst gs of the trial Court, the First Appellate Cou ourt held that as it was the plainti of aintiff, who had alleged the Will of r her father in favour of defendant to in nd to be based upon fraud and misrepresenta entation and that as she failed to p he to prove the same, therefore, the suit had been een rightly dismissed. Accordingly, by gly, the appeal was dismissed by the First Appe ppellate Court on 10.04.2014. 6. Assailing the aforesaid concurren by rrent findings, it is contended by learned couns ounsel for the appellant-plaintiff th uit iff that plaintiff inherited the suit property after fter the death of her father to the in the extent of ½ share and that in case defendan ndant wanted to displace the said s to id succession, he was required to prove the va validity of the Will, as it is o ad is only the defendant who had propounded the Will and was bound to produ er roduce to prove its validity as per law. Learned c ed counsel contends that since def ed defendant-respondent preferred to be procee ceeded against ex-parte and did he did not contest the suit, so the contention of of the plaintiff that Will is forged , is ged & fabricated and unproved, is liable to be su e sustained. 7. Notice of the appeal to the as the respondent-defendant was dispensed wit with considering the fact that he rial he was ex-parte before the trial Court as well a ell as the First Appellate Court. JITEN SHARMA 2025.09.01 18:21 I attest to the accuracy and integrity of this document Page N: 2 of 5 Page ages RSA No. 4038 038 of 2014 8. This court has considered subm for bmissions of learned counsel for appellant and rd. and have gone through the record. 9. PW1 Megh Chand as well as PW2 to PW2 Jora Singh are both known to the parties. Both of them have supported th he d the case of the plaintiff to the effect that pla t plaintiff & defendant are the ch , e children of Ram Sarup Sharma, who was the o the owner of the suit property and p, and after the death of Ram Sarup, plaintiff becam ecame owner of ½ share in the suit ion suit property. Impugned mutation No. 3954 has has been sanctioned by the revenu he venue authorities in favour of the defendant reg t regarding the suit property based u ed upon a Will. 10. The trial Court as well as the the First Appellate Court, while ile dismissing the the claim of the plaintiff, proceede it eeded on the footing that since it was the plaint laintiff who had alleged the Will to he ll to be forged and fabricated, the burden to pro prove the same lay entirely upon re, pon her. Both Courts, therefore, dismissed the the suit and appeal on the ground to und that the plaintiff had failed to establish her a er allegations. 11. However, this reasoning does not t is not withstand judicial scrutiny. It is a settled propo roposition of law that where a Will is he ill is set up in order to displace the natural course urse of succession, the onus of provi ion roving the due and valid execution of such Will is ill is squarely upon the person who ary who propounds it. The beneficiary under the Wi Will, if he seeks to rely upon it, it, must prove its execution and nd attestation in in accordance with Section 63 of t 25 of the Indian Succession Act, 1925 read with Sect Section 68 of the Indian Evidence A he ce Act, 1872. Unless and until the Will is duly p ly proved by the propounder, the the statutory scheme of intestate ate succession can cannot be defeated. 12. In the present case, the Will wa l was set up by the defendant to to exclude the p e plaintiff from succession and to d to confer exclusive rights upon on himself. Thus, hus, it was incumbent upon him to m to enter the witness box, lead ad evidence, and and prove the genuineness, due exe he execution, and attestation of the Will. Unfortun rtunately for him, the defendant cho nly chose to remain ex-parte not only before the tria trial Court but also before the First tly, irst Appellate Court. Consequently, there was abs absolutely no evidence on record ed cord to show that the Will dated JITEN SHARMA 2025.09.01 18:21 I attest to the accuracy and integrity of this document Page N: 3 of 5 Page ages RSA No. 4038 038 of 2014 06.09.2010 wa 0 was ever validly executed or atteste l or ested. Mere production of a Will or reliance upon on a mutation sanctioned on its bas he s basis is not sufficient proof in the eyes of law. 13. In contrast, the plaintiff has led 1 s led oral evidence through PW1 Megh Chand nd and PW2 Jora Singh, both of wh ies f whom are known to the parties and have sup supported her case. They have co th e consistently deposed that both plaintiff and d nd defendant are the children of the n- f the deceased and, therefore, en- titled to equal qual shares in the estate. In the abs absence of proof of the Will, their eir testimonies le es lend weight to the natural presum ed esumption that succession opened equally in favo favour of both legal heirs. 14. Thus, the finding of the Courts be to ts below that the plaintiff failed to discharge her her burden is legally erroneous. us. Once the defendant, as the he propounder o er of the Will, abstained from conte to ontesting the matter and failed to prove the Wil Will in accordance with law, the in at he inevitable consequence is that the Will rema emains unproved. The effect of suc ate such non-proof is that the estate of the decease eased devolves by intestate success ½ cession, entitling the plaintiff to ½ share in the su e suit property. 15. Accordingly, this Court is of the he the considered opinion that the concurrent fi t findings of the Courts below low suffer from a fundamental tal misdirection i on in law and cannot be sustain stained. The plaintiff cannot be be deprived of he of her lawful share in the estate m he e merely because she alleged the Will to be forg forged, when in law the initial burd on urden to prove the Will was upon the defendant dant who sought to rely upon it. 16. Consequently, the present appe nts ppeal is allowed. The judgments and decrees p es passed by the trial Court and re nd the First Appellate Court are hereby set asi t aside. The suit of the plaintiff is d he is decreed. It is declared that the plaintiff is the the owner in possession of the s f ½ e suit property to the extent of ½ share. Mutati utation No. 3954, sanctioned in in favour of the defendant, is is declared null a ull and void to the extent it denies he nies the share of the plaintiff. The defendant-res respondent is further restrained fr ny ed from alienating or creating any JITEN SHARMA 2025.09.01 18:21 I attest to the accuracy and integrity of this document Page N: 4 of 5 Page ages RSA No. 4038 038 of 2014 encumbrance nce over the suit property to the ex . e extent of the plaintiff’s ½ share. Decree-sheet eet be prepared accordingly. 28.08.2025 Jiten (DEEPAK GUPTA) JUDGE Whether speaking/reasoned : : Whether reportable Yes/No Yes/No JITEN SHARMA 2025.09.01 18:21 I attest to the accuracy and integrity of this document Page N: 5 of 5 Page ages