The Supreme Court of India, in a significant ruling on civil procedure, has held that a High Court, while hearing a second appeal, cannot frame and decide a new substantial question of law that was never raised in the pleadings or evidence before the lower courts. Setting aside a Kerala High Court judgment that had invalidated a bequest based on Section 67 of the Indian Succession Act, 1925, the apex court restored the validity of a joint will, emphasizing the need to respect the testator’s wishes when a will is duly proved.
The judgment was delivered by a bench of Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti in a property dispute among the children of late C.R. Pius and Philomina Pius.
Background of the Dispute
The case revolves around the estate of C.R. Pius and Philomina Pius, who had executed a registered joint will on January 27, 2003. The will bequeathed their properties (plaint A and B schedules) to one of their sons, C.P. Francis (the Appellant). The will stipulated that Francis was to pay specific monetary sums to his other siblings within five years of the death of both parents. The will explicitly stated that the other children were not entitled to a share in the property, as the daughters had been married off and another son, C.P. Sebastian, had already received a 4-cent plot of land through a settlement deed in 1999.
One of the attesting witnesses to the will was Ponsy, the wife of the beneficiary, C.P. Francis.
Following the death of their parents, some of the siblings (the Respondents) filed a suit for partition (O.S. No. 722/2009) before the Munsiff Court, Ernakulam. They challenged the will, primarily arguing that their father, C.R. Pius, suffered from various ailments and lacked the mental capacity and “sound disposing state of mind” to execute a valid will. They further alleged that the will was a product of “forgery, misrepresentation, and undue influence” orchestrated by C.P. Francis and his wife.
Lower Courts Uphold the Will
Both the Trial Court and the First Appellate Court (Additional District Judge, Ernakulam) gave concurrent findings in favour of C.P. Francis. They dismissed the partition suit, holding that the will was valid and genuine. The courts concluded that the plaintiffs had failed to prove that the testators lacked mental capacity. On the contrary, the evidence, including the testimony of a neurologist (DW7) and the fact that C.R. Pius had witnessed another registered deed in 1999, established his sound mental state. The courts found that the will was duly executed and attested in accordance with Section 63 of the Indian Succession Act, 1925, and was free from any suspicious circumstances.
The High Court’s Reversal on a New Ground
The matter then reached the High Court of Kerala in a second appeal. The High Court, invoking its power under the proviso to Section 100(5) of the Code of Civil Procedure, 1908, framed a new substantial question of law that had not been raised before:
“Whether Ext. A4/B3 Will is void under Section 67 of the Indian Succession Act in view of the attestation of the same, who is the first defendant, and, DW6, who is the husband of the third defendant, since benefits are reserved in the said Will in favour of those defendants?”
Section 67 of the Indian Succession Act renders a bequest void if it is made to a person who attests the will, or to their spouse. Based on this provision, the High Court concluded that since the beneficiary’s (C.P. Francis’s) wife (Ponsy, DW5) was an attesting witness, the bequest in his favour was void. The High Court accordingly allowed the appeal, effectively nullifying the will and opening the property for partition.
Supreme Court’s Analysis and Decision
The Supreme Court, hearing the appeal filed by C.P. Francis, overturned the High Court’s decision, finding it to be a procedural overreach. The bench meticulously examined the scope of a High Court’s power under Section 100 of the CPC.
Arguments of the Parties:
- Appellant (C.P. Francis): Argued that the High Court exceeded its jurisdiction by allowing the appeal on a new question of law that had no basis in the pleadings or evidence. The entire case in the lower courts was fought on the factual issue of the testators’ mental capacity, not the legal issue under Section 67.
- Respondents (Siblings): Contended that the High Court had the power to frame an additional question of law and that the fact of the witness being the beneficiary’s wife was undisputed, making Section 67 applicable.
Court’s Reasoning: The Supreme Court held that the power under the proviso to Section 100(5) is “exceptional” and must be exercised for “strong and convincing reasons to be specifically recorded by the High Court.” The bench found that the High Court “fell in error by not recording reasons for framing the additional substantial question of law.”
The judgment, authored by Justice Bhatti, observed that the plaintiffs’ entire case was built on a factual challenge. The Court stated, “Introducing Section 67 at the stage of Second Appeal does not merely raise a new legal argument; rather, it creates an entirely new case for the plaintiffs.”
The Supreme Court also pointed out that no suggestion regarding the applicability of Section 67 was ever put to the beneficiary (DW1) or his wife (DW5) during cross-examination, which is a fundamental requirement of procedural fairness.
Reaffirming the judiciary’s duty to uphold a testator’s intent, the Court noted: “the wish of a testator as expressed through a duly proved will is upheld by the Court, but not open up succession contrary to the arrangement made by the testator.”
Final Directions
While allowing the appeal and setting aside the High Court judgment, the Supreme Court noted that the Appellant, C.P. Francis, had not fulfilled the obligation of paying the monetary amounts to his siblings as directed in the will. Exercising its extraordinary jurisdiction under Article 136 of the Constitution “by considerations of justice, call of duty and the eradication of injustice,” the Court enhanced the amounts payable and directed the Appellant to pay the revised compensation to the legatees within three months. Failure to do so would attract an interest of 6% per annum, and the amount would become a charge on the properties.
