Holding

The High Court exceeded its jurisdiction; an additional substantial question of law cannot be framed without basis in the pleadings, and Section 67 of the Indian Succession Act does not apply, rendering the will valid.

Summary

The dispute concerned the succession to the suit‑schedule property of the deceased parents, C.R. Pius and Philomina Pius, who had executed a joint will bequeathing the property to the appellant C.P. Francis. The respondents, other children of the deceased, challenged the will on the grounds of lack of testamentary capacity, undue influence and the fact that the appellant’s wife was an attesting witness, invoking Section 67 of the Indian Succession Act, 1925. The Kerala High Court, on a second appeal, framed an additional substantial question of law under the proviso to Section 100(5) of the CPC, applied Section 67 and declared the will void, thereby allowing the appeal. The Supreme Court examined whether the High Court could validly frame such a question and whether Section 67 was applicable to the suit‑schedule property. It held that the High Court erred in framing a new question not grounded in the pleadings and in applying Section 67, which does not attract in the present factual matrix; consequently the will was upheld and the appellant was ordered to honour the monetary obligations stipulated in the will. The appeal was allowed and the impugned judgment set aside.

Issues considered

Whether the High Court was correct in invoking the proviso to Section 100(5) CPC to frame an additional substantial question of law and apply Section 67 of the Indian Succession Act, 1925.
Whether Section 67 of the Indian Succession Act, 1925 is attracted to determine succession to the suit‑schedule property.

Legislation cited

Headnote

Issue for Consideration Whether the High Court, while invoking the Proviso to s.100(5), CPC, was correct in referring to and applying s.67, Indian Succession Act, 1925; whether s.67, Indian Succession Act, 1925 is attracted to determine the succession to the suit schedule property or not. – s.100(5) – Indian Succession Act, 1925 – s.67 – High Court allowed the second appeal on an additional question of law framed without any basis in the pleadings or evidence and relying on s.67, Indian Succession Act, the Will (Exhibit B-3) was declared as a void

Subjects

Proviso to Section 100(5) CPCAdditional substantial question of lawSection 67 Indian Succession ActTestamentary successionWill validitySuccession to suit schedule propertyCivil Procedure CodeEvidence ActJudicial discretion

Judgment

[2025] 9 S.C.R. 645 : 2025 INSC 1071

C.P. Francis
v.
C.P. Joseph and Others
(Civil Appeal No. 11369 of 2025)
03 September 2025
[Ahsanuddin Amanullah and S.V.N. Bhatti,* JJ.]

Issue for Consideration
Whether the High Court, while invoking the Proviso to s.100(5), CPC,
was correct in referring to and applying s.67, Indian Succession
Act, 1925; whether s.67, Indian Succession Act, 1925 is attracted
to determine the succession to the suit schedule property or not.

Headnotes†
Civil Procedure Code, 1908 – s.100(5) – Indian Succession
Act, 1925 – s.67 – High Court allowed the second appeal on
an additional question of law framed without any basis in the
pleadings or evidence and relying on s.67, Indian Succession
Act, the Will (Exhibit B-3) was declared as a void bequest in
favour of the Appellant – Challenge to:
Held: 1.1 High Court is competent and endowed with discretionary
jurisdiction to formulate a substantial question of law not stated
when the second appeal was admitted – It is entitled to formulate
an additional substantial question of law for reasons to be recorded
if it is of the view that the case involves such a question of law –
The proviso to sub-section 5 of s.100, CPC comes into operation
in exceptional cases, albeit for strong and convincing reasons to
be specifically recorded by the High Court. [Para 19]
1.2 Further, the plea needed for invoking s.67 either by choice
or inadvertence, was not pleaded by Respondents – The plaint
referred to the will and the allegation that “since the will executed
by fraud and misrepresentation upon the ailed mother and forced
upon the ailed father, it carries no legal validity, and it is to be
neglected” – The plea u/s.67 can be an additional or alternative
plea, which would have resulted into an additional issue, and an
establishment of a relationship, where one of the attestors to the
legatee of the will would have fallen for consideration – Introducing

* Author
646 [2025] 9 S.C.R.

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s.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. [Paras 19, 20]
1.3 The original case required the defendant to prove the testators’
mental capacity and also the absence of suspicious circumstances
in bringing into existence Exhibit B-3 – A case u/s.67 would require
the Appellant to meet a completely different legal challenge, one
which is based on the identity of an attesting witness and the
legal consequences arising from the said identity – The evidence
of DW1, the propounder of Exhibit B-3, and DW5, an attesting
witness to Exhibit B-3 is bereft of at least a suggestion that would
be expected in a matter as serious as the present. [Paras 20, 22]
1.4 The Court has power and jurisdiction to suit or non-suit a
party on the adduced pleadings, issues and evidence, but not on
a totally new and unexpected case, more particularly at the stage
of s.100 – The root of the matter is fundamentally anchored to
the specific cause of action and the factual matrix pleaded by the
parties. [Para 22]
1.5 From the beginning, the plaintiffs’ case was built on a factual
challenge; wherein, they contended that the testators lacked a
sound disposing state of mind, and the will was a product of forgery,
misrepresentation, and undue influence – These two aspects have
been successfully established by the Appellant, and the findings
favour the Appellant. [Para 22]
1.6 Thus, in the circumstances of this case, the High Court fell in
error by not recording reasons for framing the additional substantial
question of law – An additional substantial question of law was
framed without pleadings, issues and reasons and a finding was
recorded – The will was duly executed and proved, however was
not given effect to by applying s.67 – The point is answered in
favour of the Appellant – Impugned judgment set aside. [Para 23]
1.7 In the peculiar facts and circumstances of the case, point
no. 2 is not examined and answered – Exhibit B-3 stipulated a few
obligations for discharge by the Appellant – Appellant has neither
deposited nor paid the amount directed in Exhibit B-3 to any of
the other beneficiaries – The parents made a contemporaneous
arrangement in bequeathing the suit schedule to the Appellant –
The testamentary succession finally opens through the present
adjudication, and therefore, Appellant to compensate the other
legatees, as directed. [Para 23]
[2025] 9 S.C.R. 647

C.P. Francis v. C.P. Joseph and Others

Civil Procedure Code, 1908 – s.100(5) – Framing of
additional substantial question of law – Principles for, stated.
[Paras 18-18.6]
Evidence Act, 1872 – s.141 – Leading question – Suggestion
in oral evidence of a party – Importance – Summarised.
[Para 21-21.3]

Case Law Cited
Santosh Hazari v. Purushottam Tiwari [2001] 1 SCR 948 : (2001)
3 SCC 179; Mehboob-Ur-Rehman v. Ahsanul Ghani [2019] 2 SCR
169 : (2019) 19 SCC 415; Gian Dass v. Gram Panchayat [2006]
Supp. 3 SCR 781 : (2006) 6 SCC 271; Kirpa Ram v. Surendra
Deo Gaur [2020] 13 SCR 1030 : (2021) 13 SCC 57; Kshitish
Chandra Purkait v. Santosh Kumar Purkait [1997] Supp. 1 SCR
201 : (1997) 5 SCC 438; R. Nagraj (Dead) through LRs. and Anr. v.
Rajmani and Ors., 2025 INSC 478 : [2025] 4 SCR 734; Suresh
Lataruji Ramteke v. Sumanbai Pandurang Petkar [2023] 12 SCR
488 : (2023) 17 SCC 624 – relied on.
Laxmibai v. Bhagwantbuva [2013] 1 SCR 632 : AIR 2013 SC
1204; Gnanambal Ammal v. T. Raju Ayyar [1950] 1 SCR 949 :
(1950) SCC 978; K.S. Palanisami v. Hindu Community in General
& Citizens of Gobichettipalayam [2017] 4 SCR 511 : (2017) 13
SCC 15 – referred to.
Yeshpal Jashbhai Parikh (Original Accused) v. Rasiklal Umedchand
Parikh (Original Complainant, Opponent, 1955 AIR BOM 318;
Radha Kishan Aggarwal v. Network Ltd., 2011 SCC OnLine DEL
3896; JS Bhalla v. GJ Bhawnani, 23 (1983) DLT 125 – referred to.
Browne v. Dunn (1893) 6 R 67 – referred to.

List of Acts
Indian Succession Act, 1925; Civil Procedure Code, 1908; Evidence
Act, 1872; Constitution of India.

List of Keywords
Proviso to Section 100(5), CPC; Additional substantial question of
law; Additional question of law framed without any basis in pleadings
or evidence; Testamentary succession; Will; Plaint schedule
648 [2025] 9 S.C.R.

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properties; Succession to suit schedule property; Will duly executed
and proved; Testators’ sound disposing state of mind; Section
67, Indian Succession Act, 1925; Testators; Testators’ mental
capacity; Absence of suspicious circumstances; Will not a product
of forgery, misrepresentation, and undue influence; Admission;
Partition; Intestate succession; Forgery; Misrepresentation; Undue
influence; Admission in pleading and evidence; Bequeath; Void
bequest; Settlement deed; Void; Fraud; Suggestion in oral evidence;
Leading question.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11369 of 2025
From the Judgment and Order dated 23.01.2025 of the High Court
of Kerala at Ernakulam in RSA No. 94 of 2014

Appearances for Parties
Advs. for the Appellant:
V. Chitambaresh, Sr. Adv., Sarath S. Janardanan, S.K. Adhithyan,
Mrs. Vishnupriya P. Govind.
Advs. for the Respondents:
Mathai M. Paikaday, Sr. Adv., Shishir Pinaki, Philip Mathai Paikaday,
A.B. Jaleel, Ms. Nazlin Jaleel, Nijaz Jaleel, Akshay Sahay,
Ms. Shradha Narayan.

Judgment / Order of the Supreme Court

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:
[2025] 9 S.C.R. 649

C.P. Francis v. C.P. Joseph and Others

C.R. Pius Philomina Pius
(co-testator)
(co-testatrix)
Died on
Died on
24.11.2004
24.11.2008

C.P. C.P. C.P. C.P. Desty
C.P. Francis -
Joseph Raphel George Sebastian Thomas Clara Mariya
Appellant/ Jacob -
R1/P1 - R2/ - R3/ - R4/P4 - (R5/ (Deceased)
Defendant R6
(DW-3 - P2 P3 (PW-1) P5)
No.1(DW-1)
Scribe)

Kavita Savitha
Antony - R7/ Sachin- R8/
Defendant Defendant
no.3 no.4

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
650 [2025] 9 S.C.R.

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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 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?”
[2025] 9 S.C.R. 651

C.P. Francis v. C.P. Joseph and Others

7.2 The impugned judgment refers to an opportunity of further
hearing given to the counsel on the additional question of law
framed by the Court. According to him, the same should not
have been at the first instance framed or answered. To be
precise, the additional question of law was framed without any
basis in the pleadings or evidence, and was not even put as
a suggestion to the witnesses. The parties to the litigation are
brothers and sisters. Respondent Nos. 1 to 5 have chosen to
regulate the succession to Plaint A and B schedule properties
from testamentary to intestate succession. The emphasis was
on the capacity of late Pius and Philomina in executing a valid
and binding will regulating the succession to the scheduled
properties. Therefore, the Appellant was invited to join issue on
the proof of Exhibits B-2 and B-3. The Appellant discharged the
burden to claim testamentary succession to the suit properties.
The findings of fact on valid execution and sound disposing state
of testators are concurrent findings of fact by all three courts.
The High Court relied on Section 67 of the Act and declared
Exhibit B-3 as a void bequest in favour of the Appellant. The
High Court’s findings grant a new prayer based on an entirely
new reasoning. In this light, it is contended that Respondent
Nos. 1 to 5 have chosen a plea, namely, that the testators
were not having a sound disposing state of mind, and that the
registered will dated 27.01.2003 is not out of their free will. The
impugned judgment, adverting to a new case, ought not to have
ignored the validly executed and proved will. An argument has
been advanced on the interpretation of Section 67, and also
that the grounds available to challenge Section 67 of the Act
as violative of equality of law and equal protection of law under
Article 14 of the Constitution of India. The courts are under
an obligation to give effect to the disposition contemplated by
the testator once the execution of the will dated 27.01.2003 is
proved in accordance with law. He prays for the setting aside
of the impugned judgment.
8. Mr. Mathai M. Paikaday, appearing for Respondent Nos. 1 to 5,
contends that though the impugned judgment refers to an additional
question of law, it is, in fact, a substantial question of law framed
by the High Court under Section 100(5) of the CPC. The impugned
judgment records that further opportunity was afforded to the parties
652 [2025] 9 S.C.R.

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to address the Court on the additional question of law framed by the
Court. There is substantial compliance with Section 100 of the CPC.
He further argues, to sustain the findings recorded on the additional
question of law, that the finding is not based on an incorrect plea or
fact. There is no gainsaying that DW5 is the wife of the Appellant,
and pleadings and issues are absent on the applicability of Section
67 of the Act. A plain reading of Section 67 makes the bequest in
favour of the Appellant void. Section 67 has been on the statute book
for 100 years, and the effect of being void once the circumstances
are satisfied has stood the test of time. The learned senior counsel
argues that the points urged by the Appellant do not fall within
the ambit of Article 136 of the Constitution of India, much as the
succession to the suit schedule is guided by intestate succession
and all the children of Pius and Philomina would be entitled to a
1/8th share. Advocate Akshay Sahay, appearing for Respondents,
adopts the argument of the Appellant and contends that the other
attesting witness is also the son-in-law of the executants of the will.
The wish and desire of the testators must be respected, and the
opening of intestate succession would defeat the last wish of late
Pius and late Philomina.
9. We have taken note of the submissions and perused the record.
Before we take up the submissions of the learned counsel, we preface
the journey of the parties in the present litigation by setting out the
pleadings and the resulting issues between the parties.
10. The plaint in OS No. 722 of 2009 is summarised by retaining the
cause pleaded by Respondent Nos. 1 to 6:
10.1 The plaintiffs sought partition of the properties into eight equal
shares, along with a permanent prohibitory injunction against
alienation. The plaintiffs contend that, though the deed dated
15.12.1999 was styled as a settlement deed, it was expanded
for the marriage of two sisters. The plaintiffs assert that their
father, C.R. Pius, suffered from physical and mental ailments,
including cerebral palsy, senile changes, and Parkinson’s
disease, from 1998 until his death, rendering him mentally
incapable of making rational decisions. They, hence, state that
the said will carries no legal validity, as the first defendant,
his wife and the third defendant’s husband misrepresented
the mother.
[2025] 9 S.C.R. 653

C.P. Francis v. C.P. Joseph and Others

10.2 They note that the joint will was falsely created and forged
by the first defendant, his wife (DW5), and the husband of
the third defendant (DW6) through misrepresentation and
undue influence over their incapacitated father and elderly
mother. They claimed the mother was too old to understand
the document properly.
10.3 The plaintiffs asserted that their parents died intestate, and
therefore, all children held joint ownership and possession of
the plaint schedule properties. The defendants are trying to
alienate the property on the basis of the alleged will, ignoring
the plaintiffs’ 1/8th share each in the plaint schedule properties.
Furthermore, the plaintiffs are not interested in continuing with
joint possession and therefore seek partition.
10.4 The plaintiffs alleged that the cause of action arose on
24.11.2004 (father’s death) and 27.11.2008 (mother’s death).
11. The first defendant, to resist the claim of intestate succession, has
set up Exhibit B-2, a registered settlement deed. The pleadings in
the written statement are summarised as follows:
11.1 The defendants refuted the claims of the plaintiffs and asserted
that the plaintiffs have never obtained any ownership, co-
ownership or are in joint possession of the plaint schedule
property. The defendants asserted that the plaintiffs are
only entitled to get the monetary claims as stipulated in the
registered will. If the claims are unfulfilled within the 5-year
period after the will comes into force, the defendants can
create a charge over the properties.
11.2 They state that the plaintiffs have admitted the execution of
the settlement deed dated 15.12.1999, in which late Pius and
the 1st defendant are the witnesses, and the executant is late
Philomina. Hence, it is admitted that they were capable of
executing the documents. The settlement deed was executed
after Pius and Philomena decided to execute a joint will in
respect of the remaining properties. Thus, their mental capacity
to execute the joint will is admitted. They further contend that
the plaintiffs cannot blow hot and cold at the same time, and
are estopped in fact and law.
654 [2025] 9 S.C.R.

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11.3 It is asserted that the 1st defendant took over the possession of
the plaint schedule after the death of Pius on 24.11.2004, and
Philomina did not have any objection regarding this possession.
The only right created in favour of the plaintiffs is the monetary
claims (mentioned in the will), and a substantial amount was
also paid as the plaintiff’s share during their marriage.
11.4 The defendants claim that the settlement deed was executed in
favour of the fourth plaintiff for the construction of a residential
building for the fourth plaintiff and not for the marriage of two
sisters of the fourth plaintiff. The defendants further asserted
that he looked after his father and mother until his death.
11.5 The defendants contend that after the execution of the will
on 27.01.2003, the father was still alive for a period of one
year and some months in good health. During this period after
execution of the will, there was no objection by the plaintiffs
or the testators.
12. The Trial Court framed the following issues:
“1) Whether the will bearing No. 22/2003 of S.R.O
Ernakulam is valid and genuine?
2) Whether the plaint schedule property is partable? If
so what is the share of each party?
3) Whether the plaintiffs are entitled for a decree of
permanent prohibitory injunction as prayed for?
4) Relief and cost.”
13. The categorical findings of the Trial Court are that:
13.1 The execution of the will was valid and genuine, and it also
concluded that C.R. Pius was capable of making rational
decisions at the time of the will’s execution. He was not suffering
from any mental disease. This was supported by the evidence
of DW7 (Neurologist), who deposed that Pius was not suffering
from any ailment or from any kind of mental disease. In fact,
Pius had witnessed the settlement deed executed in 1999,
thereby proving his sound mental capacity.
13.2 No evidence was present that the execution of the will by
Philomina Pius was vitiated by fraud or misrepresentation.
[2025] 9 S.C.R. 655

C.P. Francis v. C.P. Joseph and Others

It considered the evidence of DW1 to DW4 and concluded
that the execution of Exhibit B-3 is not vitiated by fraud or
misrepresentation.
13.3 DW5 (Appellant’s wife) complied with Section 63(c) of the
Act, testifying that she witnessed the testators’ signatures
and signed in their presence. Despite DW6’s (Antony) non-
compliance with Section 63(c) of the Act (animo attestandi),
the combined evidence of DW3 (scribe), DW4 (Sub-Registrar),
and DW5 sufficiently proved attestation of Exhibit B-3.
13.4 It held that the presence or active participation of the Appellant
or his wife (DW5) as a witness did not raise doubt on the
genuineness of the will or the testamentary capacity of the
testators.
13.5 Based on the valid will, the plaint schedule properties were
deemed not partible, and other legal heirs were only entitled
to the specified monetary amounts.
13.6 Hence, it dismissed the suit for partition.
14. In AS No. 6 of 2012, the Appellate Court, on the competence, capacity,
and the execution of Exhibit B-3 in a free and sound disposing state
of mind, affirmed the findings of the Trial Court.
14.1 The Appellate Court affirmed that Pius was mentally and
physically capable of making rational decisions, considering
that no record of treatment between 14.09.2002 and 06.11.2004
for any ailment was placed. Thus, the plaintiffs’ contention that
he was in poor health is unfounded. The court stated that the
argument that he was in a vegetative state was not established.
14.2 The court accepted DW5’s (Appellant’s wife) testimony
regarding the will’s execution and DW4’s (Sub Registrar)
testimony that the executants signed before attesting
witnesses, substantiating proper attestation under Section 63
of the Act. DW6’s testimony was not relied upon as he did not
witness the executant’s signature.
14.3 The fact that the will remained un-cancelled by the parents
until their deaths (Pius died 1 year 10 months after execution,
mother much later) was deemed to probabilise its voluntary
execution without coercion. The court upheld the reason
656 [2025] 9 S.C.R.

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for excluding the 4th plaintiff (Sebastian) due to his prior
receipt of land via the settlement deed. It noted that specific
monetary provisions for other children indicated the parents’
due deliberation.
14.4 The first appellate Court concurred with the Trial Court that
the will was genuine and free from suspicious circumstances.
15. The contentions canvassed by the respective counsel would present
the following points for consideration.
Point 1: Whether the High Court, while invoking the Proviso to
Section 100(5) of the CPC, was correct in referring to and applying
Section 67 of the Act?
Point 2: Whether Section 67 of the Act is attracted to determine the
succession to the suit schedule property or not?
16. The points for consideration are independent. The need and necessity
to take up point no. 2 arises from the consideration and conclusion
recorded on point no. 1.

Point 1
17. The impugned judgment records that an additional substantial
question of law (sic) was framed and opportunity was provided to the
counsel to address the Court on the said question of law. Section 100
of the CPC reads as follows:
100. Second appeal.--(1) Save as otherwise expressly
provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High
Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is satisfied
that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate
decree passed ex parte.
(3) In an appeal under this section, the memorandum of
appeal shall precisely state the substantial question of
law involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
[2025] 9 S.C.R. 657

C.P. Francis v. C.P. Joseph and Others

(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of
the appeal, be allowed to argue that the case does not
involve such question:
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the Court
to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it,
if it is satisfied that the case involves such question.
(Emphasis supplied)

18. In the above background, before we examine the procedure followed
by the High Court, a few precedents on the point are noted. The
principles emanating from precedents on Section 100(5) of the CPC
can be summed up as follows:
18.1 A substantial question of law must be grounded in the parties’
pleadings and the findings of lower courts. Thus, it must be
exercised if it is so fundamental that it goes to the very root
of the matter.1
18.2 The 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.2
18.3 The proviso allows the court to hear an appeal on “any other
substantial question of law,” which implies that at least one
substantial question of law must have been formulated at the
admission stage. The power to reformulate or add a question
arises only if a substantial question of law has already been
framed.3
18.4 The High Court must be “satisfied” that the new question is a
substantial question of law and not a mere legal plea.4

1 Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.
2 Mehboob-Ur-Rehman v. Ahsanul Ghani, (2019) 19 SCC 415.
3 Gian Dass v. Gram Panchayat, (2006) 6 SCC 271; Kirpa Ram v. Surendra Deo Gaur, (2021) 13 SCC 57.
4 Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438.
658 [2025] 9 S.C.R.

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18.5 The court is mandatorily required to record its reasons for
framing an additional substantial question of law.5
18.6 The opposite party (the respondent) must be given a fair and
proper opportunity to contest the new question. Parties must
be put on notice and be allowed to present their arguments on
the newly framed question. Framing a question while dictating
the judgment without hearing the parties would be improper.6
19. The ratio of the precedents is that the High Court is competent and
endowed with discretionary jurisdiction to formulate a substantial
question of law not stated when the second appeal was admitted.
The High Court is entitled to formulate an additional substantial
question of law for reasons to be recorded if the High Court is of
the view that the case involves such a question of law. The proviso
to sub-section 5 of Section 100 of the CPC comes into operation in
exceptional cases, albeit for strong and convincing reasons to be
specifically recorded by the High Court. Respondent Nos. 1 to 5 have
pleaded a lack of a sound disposing state of mind to late Pius. The
pleadings refer to the line of treatment given to the late Pius. The
plea needed for invoking Section 67 of the Act, either by choice or
inadvertence, is not pleaded by Respondent Nos. 1 to 5. Issue No. 1
deals with whether Exhibit B-3-will is valid and genuine. Mr Mathai
does not dispute that the issue ought to have been different, and
from the expressions used in the issue, consideration falls under
Section 100(5) of the CPC.
20. We have perused the plaint, and the plaint refers to the will and the
allegation that “[s]ince the will executed by fraud and misrepresentation
upon the ailed mother and forced upon the ailed father, it carries
no legal validity, and it is to be neglected.” The plea under Section
67 of the Act can be an additional or alternative plea, which would
have resulted into an additional issue, and an establishment of a
relationship, where one of the attestors to the legatee of the will
would have fallen for consideration. 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 original
case required the defendant to prove the testators’ mental capacity

5 R. Nagraj (Dead) through LRs. and Anr. v. Rajmani and Ors, 2025 INSC 478.
6 Suresh Lataruji Ramteke v. Sumanbai Pandurang Petkar, (2023) 17 SCC 624.
[2025] 9 S.C.R. 659

C.P. Francis v. C.P. Joseph and Others

and also the absence of suspicious circumstances in bringing into
existence Exhibit B-3. A case under Section 67 of the Act would
require the Appellant to meet a completely different legal challenge,
one which is based on the identity of an attesting witness and the
legal consequences arising from the said identity.
21. Section 141 of the Evidence Act, 1872 defines a ‘leading question as
any question that “suggests” the answer which the person questioning
expects to receive.’ We have perused the evidence of DW1 and
DW5, and the suggestion which is otherwise available is not put to
the witnesses. The importance of a suggestion in oral evidence of
a party can crisply be summarised as follows:
21.1 In Browne v. Dunn,7 the English House of Lords established a
rule of practice which dictates that if a cross-examiner intends
to later adduce evidence or make submissions that contradict
the testimony of a witness, they must first put the substance
of the contradiction to the witness during cross-examination.
The purpose is to afford the witness a fair opportunity and is
rooted in the principle of Audi Alteram Partem. This principle
has also been upheld in Indian decisions.8
21.2 In a 1954 decision of the Bombay High Court,9 it was noted
that failing to suggest contrary points during cross-examination
can weaken a party’s position and can be interpreted as an
implicit acceptance of the witness’s testimony. While the
case pertained to criminal defamation, this principle has also
been applied in civil litigation. For instance, in Radha Kishan
Aggarwal v. Network Ltd,10 the Delhi High Court held that
since no suggestion was given to the plaintiffs’ willingness to
dispute the market rent, the witness’s testimony on rent was
accepted as true.
21.3 Absence of a suggestion to a witness may not be the deciding
factor in determining the outcome of a plea. However, in the
wheel of consideration of all facts in issue and their legal
implication, the absence of suggestion constitutes an important

7 (1893) 6 R 67.
8 See, Laxmibai v. Bhagwantbuva, AIR 2013 SC1204
9 Yeshpal Jashbhai Parikh (Original Accused) v. Rasiklal Umedchand Parikh (Original Complainant,
Opponent, 1955 AIR BOM 318.
10 2011 SCC OnLine DEL 3896; See also, JS Bhalla v. GJ Bhawnani, 23 (1983) DLT 125.
660 [2025] 9 S.C.R.

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cog in the wheel of consideration. We hasten to add that the
timing, absence of suggestion, relevance and its impact are
left to the experience, wisdom and discretion of the Judge
appreciating a case.
22. We have perused the evidence of DW1, the propounder of Exhibit
B-3, and DW5, an attesting witness to Exhibit B-3. The evidence is
bereft of at least a suggestion that would be expected in a matter as
serious as the present. The Court has power and jurisdiction to suit
or non-suit a party on the adduced pleadings, issues and evidence,
but not on a totally new and unexpected case, more particularly at
the stage of Section 100. The root of the matter is not an abstract
legal issue floating freely, but it is fundamentally anchored to the
specific cause of action and the factual matrix pleaded by the
parties. From the beginning, the plaintiffs’ case was built on a factual
challenge; wherein, they contend that (i) the testators lacked a sound
disposing state of mind, and (ii) the will was a product of forgery,
misrepresentation, and undue influence. These two aspects have
been successfully established by the Appellant, and the findings
favour the Appellant
23. Therefore, in fine, we record that in the circumstances of this case,
the High Court fell in error by not recording reasons for framing the
additional substantial question of law. The additional substantial
question of law may be an abstract application of Section 67 without
verifying the foundational facts and circumstances. The 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, the Court is entitled to apply the consequence of law.
In the analysis, we notice that the relationship of DW5 with DW1 is
either assumed by the Court or not contested by the parties on any
of the grounds available, namely, want of pleadings, etc., before
the High Court. The above consideration leads to the irrefutable
conclusion that an additional substantial question of law is framed
without pleadings, issues and reasons and a finding is recorded. The
Court is now confronted with a will duly executed and proved, and not
given effect to by applying Section 67 of the Act. It is axiomatic, but
still referred to in often quoted decisions,11 that the wish of a testator

11 Gnanambal Ammal v. T. Raju Ayyar, (1950) SCC 978; 2. K.S. Palanisami v. Hindu Community in General
& Citizens of Gobichettipalayam, (2017) 13 SCC 15.
[2025] 9 S.C.R. 661

C.P. Francis v. C.P. Joseph and Others

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. Thus, the point is answered in favour of the Appellant and
consequently, the impugned judgment is set aside. For the above
reasons, point no. 2 is not, in the peculiar facts and circumstances
of the case, examined and answered.
24. The conclusion to the above points does not give quietus to the
obligations fastened on the Appellant by late Pius and late Philomina.
Exhibit B-3 stipulated a few obligations for discharge by the Appellant.
The parties have been agitating over whether testamentary or
intestate succession is applicable to the plaint schedule. With the
findings recorded by the present judgment, testamentary succession
is again opened. The Appellant has neither deposited nor paid the
amount directed in Exhibit B-3 to any of the other beneficiaries. The
parents made a contemporaneous arrangement in bequeathing the
suit schedule to the Appellant. The testamentary succession finally
opens through the present adjudication, and therefore, it is incumbent
upon the Appellant to compensate the other legatees within three
months from today as summarised in the following table:

Party Name And Compensation
Amount Stipulated
Position In Civil awarded by this
In The Will
Appeal Court
Maria (Deceased)
[Represented by
Kavitha Antony/ Rs. 1,00,000/- Rs. 10,00,000/-
R3 and Savitha
Sachin/R8]
Desty Thomas/R5 Rs. 50,000/- Rs. 5,00,000/-
Clara Jacob/R6 Rs. 50,000/- Rs. 5,00,000/-
C.P. Joseph/R1 Rs. 1,00,000/- Rs. 10,00,000/-
C.P. Raphael/R2 Rs. 1,00,000/- Rs. 10,00,000/-
C.P. George/R4 Rs. 1,00,000/- Rs. 10,00,000/-

25. In default of payment, the 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.
662 [2025] 9 S.C.R.

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26. We hasten to add that extraordinary care and caution have to be
observed in the exercise of jurisdiction under Article 136 of the
Constitution of India. It does not confer a 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 the eradication of injustice.
This overriding power is exercised only in exceptional cases where
special circumstances exist.
27. For the above reasons, the appeal is allowed and there is no order
as to costs.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Divya Pandey