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2025 Supreme(SC) 1298
SUPREME COURT OF INDIA
Ahsanuddin Amanullah, S.V.N. Bhatti, JJ.
C.P. Francis – Appellant
Versus
C.P. Joseph And Others – Respondents
Civil Appeal No. 11369 of 2025 [@ SLP (C) NO. 13348 of 2025]
Decided On : 03-09-2025
For the Petitioner(s): Mr. V. Chitambaresh, Sr. Adv. Mr. Sarath S. Janardanan, AOR Mr. S.K. Adhithyan, Adv. Mrs. Vishnupriya P. Govind, Adv. Mr. Anandhu S Nair, Adv.
For the Respondent(s): Mr. Mathai M. Paikaday, Sr. Adv. Mr. Shishir Pinaki, AOR Mr. Philip M. Paikaday, Adv. Mr. Akshay Sahay, AOR Ms. Shradha Narayan, Adv.
IMPORTANT POINTS
(1) Second appeal – High Court is competent and endowed with discretionary jurisdiction to formulate a substantial question of law not stated when second appeal was admitted – High Court is entitled to formulate an additional substantial question of law – A substantial question of law must be grounded in parties’ pleadings and findings of lower courts.
(2) Examination of witnesses – Absence of a suggestion to a witness may not be deciding factor in determining outcome of a plea – However, absence of suggestion constitutes an important cog in wheel of consideration.
(3) Appeal by Special Leave – Overriding power under Article 136 of Constitution of India is exercised only in exceptional cases where special circumstances exist.
Headnote:
(A) Civil Procedure Code, 1908 – Section 100 – Indian Succession Act, 1925 – Section 67 – Second appeal – Execution of Will – Fraud and misrepresentation – High Court is competent and endowed with discretionary jurisdiction to formulate a substantial question of law not stated when second appeal was admitted – High Court is entitled to formulate an additional substantial question of law for reasons to be recorded if High Court is of the view that case involves such a question of law – A substantial question of law must be grounded in parties’ pleadings and findings of lower courts – It must be exercised if it is so fundamental that it goes to very root of matter – Jurisdiction to frame a new question of law is exceptional and should not be exercised routinely unless there is a strong and convincing reason to do so – High Court fell in error by not recording reasons for framing the additional substantial question of law – Additional substantial question of law may be an abstract application of Section 67 without verifying foundational facts and circumstances – Admission of a party must be in the manner known to law – An admission in pleading and evidence is certainly an admission – By appreciating an admission, Court is entitled to apply consequence of law – Wish of a testator as expressed through a duly proved will is upheld by Court, but not open up succession contrary to arrangement made by testator – Impugned Judgment set aside. (Paras 18, 19 and 23)
(B) Indian Evidence Act, 1872 – Section 141 – Indian Succession Act, 1925 – Section 67 – Examination of witnesses – Absence of a suggestion to a witness may not be deciding factor in determining outcome of a plea – However, in wheel of consideration of all facts in issue and their legal implication, absence of suggestion constitutes an important cog in wheel of consideration – Timing, absence of suggestion, relevance and its impact are left to experience, wisdom and discretion of Judge appreciating a case – Court has power and jurisdiction to suit or non-suit a party on adduced pleadings, issues and evidence, but not on a totally new and unexpected case, more particularly at stage of Section 100 of CPC. (Para 21.3 and 22)
(C) Constitution of India – Article 136 – Appeal by Special Leave – Extraordinary care and caution have to be observed in exercise of jurisdiction under Article 136 of Constitution of India – It does not confer right of appeal, but it vests with this Court a vast discretion, which is only to be exercised by considerations of justice, call of duty and eradication of injustice – This overriding power is exercised only in exceptional cases where special circumstances exist. (Para 26)
Facts of the case:
Following points arise for consideration: –
Point 1: Whether High Court, while invoking the Proviso to Section 100(5) of CPC, was correct in referring to and applying Section 67 of Indian Succession Act, 1925?
Point 2: Whether Section 67 of Indian Succession Act, 1925 is attracted to determine the succession to suit schedule property or not?
Findings of Court:
In default of payment, amount determined by this Court will carry an interest of 6% per annum, and also charge for realising the same will be on the plaint schedule.
Result : Appeal allowed.
JUDGMENT :
S.V.N. BHATTI, J.
1. Leave granted.
2. CR Pius and Philomina Pius possessed, as absolute owners, an extent of 7.875 cents of property in survey no. 60/6 of Elamkulam village and 3.233 cents in survey no. 60/6 of Elamkulam village, Kanyanoor Taluk, Ernakulam District, as described in plaint A and B schedules. On 24.11.2004, CR Pius died. On 27.11.2008, Philomina Pius died. The children/grandchildren of Pius and Philomina are the parties to the present litigation, and their genealogy is illustrated as follows:
3. On 15.12.1999, Philomina Pius executed a registered settlement deed in favour of CP Sebastian/Fourth Plaintiff, whereunder, she has settled an extent of 4 cents out of 7 cents in favour of the fourth plaintiff and retained 3.235 cents (Plaint B Schedule). Pius, admittedly, has been the absolute owner and possessor of Plaint A schedule property. On 27.01.2003, CR Pius and Philomina Pius executed the registered joint will in favour of CP Francis/Appellant for the Plaint A and B schedule properties. Antony (DW6), husband of Kavitha Antony/Defendant No. 3, and Ponsy (DW5), wife of Appellant, have subscribed their signatures as attestors. The salient features of the will dated 27.01.2003 are noted as follows:
3.1 All three daughters have been given their share and married off. The fourth plaintiff was given 4 cents of the land as per the settlement deed dated 15.12.1999. Hence, they are not entitled to any right in the plaint schedule.
3.2 The properties in the plaint schedule A will be bequeathed to D1 after the death of one of the testators, and after the death of the second testator, properties in the plaint schedule B will be bequeathed to the Appellant.
3.3 That Appellant has to pay Rs.1,00,000/- to Maria, Rs. 50,000/- to daughter Thresia, Rs. 50,000/- to daughter Clara, Rs. 1,00,000/- to Son Joseph, Rs. 1,00,000/- to son Raphael, and Rs. 1,00,000/- to son George, within 5 years of death of both the parents. Reportedly, if the said amount is not paid to the respective children, they can have a charge on the schedule properties to recover the amounts.
4. Respondent Nos. 1 to 5 in the Civil Appeal filed OS No. 722/2009 before the Munsiff Court, Ernakulam, against the Appellant and three others for the reliefs of partition of the plaint schedule properties into eight equal shares by meets and bounds and allotment of 1/8th share to each one of the children of Pius and Philomina. The plaint prays for the perpetual injunction restraining the Appellant from alienating the property or creating third-party interests.
5. OS No. 722/2009 was dismissed on 03.09.2011. Respondent Nos. 1 to 5 filed AS No. 6 of 2012, and the learned Additional District Judge vide the decree and judgment dated 26.08.2013 dismissed the appeal. Respondent Nos. 1 to 5 filed RSA No. 94/2014 before the High Court of Kerala at Ernakulam. Through the impugned judgment, the second appeal was allowed, and hence, the Civil Appeal was filed at the instance of the 1st defendant. The impugned judgment placed reliance on Section 67 of the Indian Succession Act, 1925 (‘the Act’). It allowed the appeal by recording a finding that one of the attesting witnesses/Ponsy (DW5) is the wife of the Appellant, and consequently, by operation of Section 67 of the Act, the testamentary succession in favour of Appellant, being void, fails as a testamentary succession.
6. We have heard Learned Senior Counsel, Mr. V. Chitambaresh and Mr. Mathai M. Paikaday, and the Learned Counsel Mr. Akshay Sahay for the Appellant and Respondents.
7. It is argued for the Appellant that the impugned judgment exceeded the jurisdictional limitation of Section 100 of the Civil Procedure Code, 1908 (‘the CPC’).
7.1 The second appeal was admitted on the substantial questions of law raised in the memorandum of appeal. However, the second appeal has been allowed on an additional question of law framed by the Court, which reads as follows:
“Whether Ext. A4/B3 Will is void under Section 67 of the Indian Succes
