Summary
In a second appeal, the Kerala High Court set aside concurrent findings upholding a registered joint will by framing an additional substantial question of law under the proviso to Section 100(5) CPC and holding the bequest void under Section 67 of the Indian Succession Act because the legatee's wife was an attesting witness. The Supreme Court held that the High Court erred: the Section 67 plea was never pleaded, no issue was framed, no suggestion was put to the witnesses, and no reasons were recorded for framing the additional question, so an entirely new case could not be set up at the second-appeal stage. The will was restored, with enhanced payments directed to the other legatees.
Issues
- Whether the High Court, invoking the proviso to Section 100(5) CPC, was correct in framing an additional substantial question of law on Section 67 of the Indian Succession Act, 1925 and allowing the second appeal on it, when that plea had no foundation in the pleadings, issues or evidence and no reasons were recorded.
- Whether Section 67 of the Indian Succession Act, 1925 was attracted to determine succession to the suit properties (left unanswered).
- What directions should follow regarding the monetary obligations imposed on the legatee by the will once testamentary succession was restored.
Provisions considered
- Section 100(5), proviso, Civil Procedure Code, 1908The Court summarised the precedents: a substantial question of law must be grounded in the pleadings and lower courts' findings; the power to hear the appeal on an unformulated question is exceptional, presupposes a question already framed at admission, requires the High Court to be satisfied that it is a substantial question and not a mere legal plea, mandatorily requires recorded reasons, and requires a fair opportunity to the opposite party. The High Court recorded no reasons and framed a question without pleadings or issues. (¶¶ 17, 18, 19, 23)
- Section 67, Indian Succession Act, 1925The High Court applied this provision to hold the bequest to the appellant void because his wife attested the will. The Supreme Court held that introducing Section 67 at the second-appeal stage created an entirely new case requiring the legatee to meet a different legal challenge based on the identity of an attesting witness; the foundational facts were assumed rather than pleaded or proved, and the Court declined to decide whether Section 67 was attracted. (¶¶ 5, 19, 20, 23)
- Section 63(c), Indian Succession Act, 1925The trial court and first appellate court found attestation proved through the appellant's wife (DW5), the scribe and the Sub-Registrar, notwithstanding that the other attestor (DW6) did not satisfy the animus attestandi requirement. (¶¶ 13.3, 14.2)
- Section 141, Evidence Act, 1872Relying on the definition of a leading question and the rule in Browne v. Dunn, the Court held that a cross-examiner intending to contradict a witness must put the substance of the contradiction to the witness; no suggestion about the attestor's relationship to the legatee was ever put to DW1 or DW5. Absence of a suggestion is not decisive but is an important factor left to the trial judge's discretion. (¶¶ 21, 21.1, 21.2, 21.3, 22)
- Article 136, Constitution of IndiaThe Court reiterated that the jurisdiction confers no right of appeal but a wide discretion exercised with extraordinary care, only in exceptional cases to eradicate injustice. (¶ 26)
Held
- The High Court's discretionary power under the proviso to Section 100(5) CPC to formulate an additional substantial question of law operates only in exceptional cases, for strong and convincing reasons specifically recorded, and the question must be grounded in the parties' pleadings and the findings of the courts below. (¶¶ 18, 19)
- A plea under Section 67 of the Indian Succession Act, which turns on the identity of an attesting witness, is a distinct additional or alternative plea that would have required its own issue. Raising it for the first time in second appeal does not merely add a legal argument but sets up an entirely new case against a propounder who had only been called upon to prove testamentary capacity and the absence of suspicious circumstances. (¶¶ 20, 22)
- A court may suit or non-suit a party on the pleadings, issues and evidence adduced, but not on a totally new and unexpected case, particularly at the Section 100 stage; the root of the matter is anchored to the pleaded cause of action and factual matrix, not an abstract legal issue. (¶ 22)
- Where the plaintiffs' case rested on lack of sound disposing mind, forgery, misrepresentation and undue influence, and all three courts had found the will validly executed and proved, the High Court erred in framing an additional substantial question without pleadings, issues, suggestions to witnesses or recorded reasons, assuming the attestor's relationship to the legatee. A duly proved will must be given effect to; the Court will not open succession contrary to the testator's arrangement. (¶¶ 22, 23)
- Since testamentary succession reopened only through this adjudication and the appellant had not paid the sums directed by the will, the Court enhanced the amounts payable to the other legatees (Rs. 10,00,000 each to the legatees given Rs. 1,00,000 and Rs. 5,00,000 each to those given Rs. 50,000), payable within three months, failing which interest at 6% per annum and a charge on the suit properties. (¶¶ 24, 25)
Result
Appeal allowed; High Court judgment dated 23.01.2025 in RSA No. 94 of 2014 set aside; the will dated 27.01.2003 stands upheld; appellant to pay the enhanced compensation fixed by the Court to the other legatees within three months, in default with interest at 6% per annum and a charge on the plaint schedule properties; no order as to costs.