Second Appeals Cannot Birth a New Case: Strict Limits on Invoking Section 67 of the Indian Succession Act via Section 100(5) CPC

Commentary on Supreme Court of India decision: C. P. Francis v. C.P. Joseph and Others, 2025 INSC 1071 (decided 3 September 2025)

Introduction

This appeal arose from an intra-family dispute over succession to small urban parcels in Ernakulam, Kerala. The properties originally belonged to spouses C.R. Pius and Philomina Pius. The protagonists are their children and grandchildren. A registered settlement deed (1999) transferred 4 cents to one son (Sebastian). Subsequently, the parents executed a registered joint will on 27 January 2003 in favour of their son, C.P. Francis (the Appellant/Defendant No. 1), bequeathing the remaining A and B schedule properties to him, subject to specified monetary legacies in favour of his siblings.

After the parents’ demise (Pius on 24 November 2004 and Philomina on 27 November 2008), certain siblings (Respondents 1 to 5, who were the plaintiffs in the suit) sued for partition and injunction, alleging the will was forged, procured by misrepresentation/undue influence, and that Pius lacked testamentary capacity due to neurological ailments.

The Trial Court and First Appellate Court concurrently upheld the will’s due execution, testamentary capacity, and absence of suspicious circumstances. However, in second appeal, the Kerala High Court reversed, not on capacity or execution, but by invoking Section 67 of the Indian Succession Act, 1925 (ISA)—which voids bequests to an attesting witness or the spouse of an attesting witness—because one attesting witness (DW5) was the Appellant’s wife, and another (DW6) was the husband of a co-defendant.

The Supreme Court allowed the appeal, set aside the High Court’s judgment, restored the testamentary scheme, and, to do complete justice, significantly enhanced the monetary payments owed under the will to other siblings, securing them by a charge and interest.

Summary of the Judgment

• The Supreme Court framed two points: (1) whether the High Court rightly invoked the proviso to Section 100(5) CPC to add and decide a new substantial question of law premised on Section 67 ISA; and (2) whether Section 67 ISA applied. It answered Point 1 against the High Court and, having done so, declined to examine Point 2 on merits given the case’s posture.
• Key holding: The High Court erred by introducing Section 67 ISA at the second appeal stage without pleadings, issues, or recorded reasons and by effectively setting up a new case that the defendants had no opportunity to meet. The proviso to Section 100(5) CPC is exceptional; it requires strong reasons, must be grounded in the pleadings and findings below, and cannot be used to spring an unpleaded legal bar that depends on foundational facts.
• Consequence: The High Court’s judgment was set aside. The concurrent findings of the Trial Court and First Appellate Court on testamentary capacity, due execution, and genuineness of the will were left undisturbed.
• Equitable directions: Recognizing that the will’s monetary legacies had not been paid in the prolonged litigation, the Court directed the Appellant to pay enhanced sums (Rs. 10,00,000 for siblings originally allotted Rs. 1,00,000; Rs. 5,00,000 for those allotted Rs. 50,000) to specified respondents within three months, failing which the sums would carry 6% interest per annum and stand secured by a charge over the suit properties.

Detailed Analysis

I. Statutory Framework Engaged

• Section 100 CPC (Second Appeals): Limits second appeals to “substantial questions of law,” which must be formulated. The proviso to Section 100(5) allows hearing on “any other” substantial question not earlier formulated, but only for recorded reasons and after notice and opportunity.
• Section 63(c) ISA (Attestation of Wills): Requires that a will be attested by two or more witnesses, each having seen the testator sign and each signing in the presence of the testator, with the animus attestandi (intention to attest).
• Section 67 ISA (Effect of Gift to Attesting Witness): A bequest to a person who attests the will, or to that person’s spouse, is void; however, the will itself and the attestation remain valid. This is a statutory prophylactic against conflict of interest.
• Section 141 Evidence Act (Leading Questions): Defines leading questions and underpins the adversarial rule that contradictions must be fairly put to a witness in cross-examination (see Browne v. Dunn principle).

II. Precedents Cited and Their Influence

• Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179: Establishes that Section 100 CPC confines second appeals to substantial questions of law rooted in the pleadings and findings. The Court drew from this to underscore that a new legal issue must be anchored in the litigation matrix.
• Mehboob-Ur-Rehman v. Ahsanul Ghani (2019) 19 SCC 415: Emphasizes the exceptional nature of the power to frame an additional substantial question; it should not be exercised routinely. This caution resonates in the Court’s insistence on “strong and convincing reasons.”
• Gian Dass v. Gram Panchayat (2006) 6 SCC 271 and Kirpa Ram v. Surendra Deo Gaur (2021) 13 SCC 57: Clarify that the proviso to Section 100(5) presupposes that at least one substantial question was already formulated; adding or reformulating is derivative and conditional.
• Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438: Reinforces that the High Court must be satisfied that the new question is a true substantial question of law, not a mere legal plea.
• R. Nagraj v. Rajmani (2025 INSC 478): Stresses the mandatory requirement to record reasons when invoking the proviso to Section 100(5). The absence of reasons vitiates the exercise.
• Suresh Lataruji Ramteke v. Sumanbai (2023) 17 SCC 624: It is improper to frame a new question at the stage of dictation of judgment without hearing the parties on it. The Supreme Court highlighted that the High Court in this case offered an opportunity but still defaulted in foundational prerequisites (pleadings, issues, and reasons).
• Browne v. Dunn (1893) 6 R 67 (HL), followed in Laxmibai v. Bhagwantbuva, AIR 2013 SC 1204: If a party intends to contradict a witness, the substance of the contradiction must be put to the witness in cross-examination; fairness requires putting one’s case.
• Yeshpal Jashbhai Parikh v. Rasiklal Umedchand Parikh, 1955 AIR Bom 318; Radha Kishan Aggarwal v. Network Ltd., 2011 SCC OnLine Del 3896; JS Bhalla v. GJ Bhawnani, 23 (1983) DLT 125: Failure to put a suggestion can weaken or be taken as acceptance of testimony on that point; used here to stress that no suggestion regarding Section 67’s factual predicates was put to key witnesses.
• Gnanambal Ammal v. T. Raju Ayyar, 1950 SCC 978; K.S. Palanisami v. Hindu Community in General (2017) 13 SCC 15: Courts must, where a will is duly proved, give effect to the testator’s intention, not open intestate succession.

Taken together, these authorities frame a robust discipline: second appeals are not a forum to change the nature of the case; the High Court’s addition of a Section 67 ISA bar at that stage, unsupported by pleadings, issues, or cross-examination, violated this discipline.

III. The Court’s Legal Reasoning

1. The High Court’s misstep under Section 100(5) CPC

• The plaintiffs’ case throughout was factual: alleged lack of testamentary capacity of Pius, undue influence, forgery, and misrepresentation. The defendants were invited to, and did, meet those allegations. Both lower courts recorded concurrent findings in favour of the will’s genuineness and the testators’ capacity.
• Section 67 ISA was neither pleaded nor made an issue. Introducing it at second appeal was not merely a “new legal argument”; it transformed the case into a different legal challenge hinging on identity and relationships of attesting witnesses and the legal effect thereof—a mixed question requiring a factual foundation and fair opportunity.
• The High Court’s additional question (“Whether the will is void under Section 67 because the attesting witnesses were the beneficiary/beneficiaries’ spouses…”) was framed without:
  • Pleadings invoking Section 67;
  • A trial issue focused on Section 67’s applicability;
  • Recorded reasons as mandated by the proviso to Section 100(5); and
  • Cross-examination suggestions that would have warned the witnesses and allowed them to respond (Browne v. Dunn principle).
• On this procedural bedrock, the Supreme Court held the High Court exceeded its jurisdiction and set aside the impugned judgment.

2. Why the merits of Section 67 were not examined

• Because the foundational procedural breach sufficed to dispose of the appeal, the Supreme Court, “in the peculiar facts,” refrained from deciding whether Section 67 ISA would in fact void the bequest to the Appellant where his spouse was an attesting witness. The point was left open.

3. Proof of the Will: What remained undisturbed

• Trial and first appellate findings stood: the will was valid and genuine; Pius had testamentary capacity (DW7, Neurologist, supported this; absence of treatment records during the relevant period undermined the contrary plea); no undue influence/fraud was proved.
• Attestation was proved under Section 63(c) ISA through DW5 (Appellant’s wife), the scribe (DW3), and the Sub-Registrar (DW4). Although DW6’s evidence did not reflect animo attestandi, the combined testimony sufficed to prove attestation.
• The Court reiterated the classical principle: when a will is duly proved, courts effectuate testamentary intention; they do not open intestate succession by substituting their judgment.

4. Moulding relief to do complete justice

• Recognising the long pendency and non-payment of legacies, the Court directed the Appellant to pay enhanced amounts to siblings within three months, with 6% interest upon default and a charge on the suit properties securing recovery. This harmonises formal validity of the testament with equitable adjustments to reflect delay and inflation without rewriting the dispositive scheme (the property still goes per the will).
• The Court also cautioned on the restrained exercise of its vast discretionary jurisdiction under Article 136 of the Constitution—deploying it for justice, not as a routine right of appeal.

IV. Impact and Forward-looking Implications

1. Second Appeal Discipline Strengthened

• High Courts must resist the temptation to transplant an unpleaded statutory bar at the Section 100 CPC stage. The decision re-centres second appeal jurisdiction on precisely formulated substantial questions rooted in the trial record.
• Proviso to Section 100(5) CPC is exceptional. It requires:
  • At least one substantial question of law formulated at admission;
  • Recorded reasons for adding any new question;
  • Notice and real opportunity to address the new question; and
  • An anchorage in pleadings and findings below.

2. Section 67 ISA Litigation Will Shift Earlier

• Parties seeking to rely on Section 67 (void bequest to attesting witness or spouse) must plead it squarely at the outset and ensure an issue is framed. Counsel must deploy targeted cross-examination to establish or contest the relevant relationships and to test attestation.
• Wills practitioners will likely adopt best practices of avoiding legatees, or their spouses, as attesting witnesses altogether to prevent Section 67 issues; scrupulous attestation remains essential.

3. Trial Practice: The Browne v. Dunn Reminder

• The Court’s reliance on the necessity of putting one’s case in cross-examination is a timely reminder: absent suggestions, courts may treat contrary contentions with skepticism. This impacts the conduct of will-contest trials, especially when technical statutory bars like Section 67 are later sought to be raised.

4. Equitable Calibration in Family Will Disputes

• The enhanced monetary directions, backed by a charge and interest, signal that appellate courts may mould relief to reconcile formal testamentary validity with equitable fairness in protracted family disputes. While not a rule, it may encourage negotiated settlements and timely payment of legacies.

5. Open Questions

• The constitutional challenge to Section 67 ISA (argued as violative of Article 14) remains undecided. Future cases may test its validity or seek a nuanced application. This judgment does not pronounce on the merits of Section 67 in this factual setting.

Complex Concepts Simplified

• Testamentary vs. Intestate Succession:
  • Testamentary: Property devolves as per a valid will.
  • Intestate: Property devolves under the default rules (e.g., Hindu Succession Act or ISA) when there is no valid will.
• Attesting Witness: A person who witnesses the testator’s signing (or acknowledgment) of the will and signs in the testator’s presence with intent to attest (animo attestandi). Two such witnesses are required for an unprivileged will (Section 63(c) ISA).
• Section 67 ISA (Effect of Gift to Attesting Witness): The will remains valid, but any bequest to an attesting witness or to that witness’s spouse is void. The attesting witness remains competent as a witness. The rationale is to prevent conflicts of interest.
• Substantial Question of Law (Section 100 CPC): Not every legal point qualifies. It must be significant, affect the case’s outcome, and be rooted in the pleadings/findings. The High Court must formulate it; adding new ones later needs recorded reasons and fairness to parties.
• Browne v. Dunn Rule: If you intend to challenge a witness’s testimony, you must put your contrary case to the witness during cross-examination. Courts view unfair ambushes with disfavor.
• Charge on Property: A statutory security interest created over property to secure payment of money. Here, the enhanced legacies are secured by a charge, enabling recovery from the property if unpaid.
• Joint Will: A single testamentary instrument executed by two or more persons (often spouses) containing bequests that may take effect upon each death, as per the instrument’s terms.

Conclusion

C.P. Francis v. C.P. Joseph crystallizes a crucial procedural principle: High Courts cannot, in second appeal, reconfigure the litigation by introducing an unpleaded statutory bar like Section 67 ISA without recorded reasons, proper notice, and a foundation in the trial pleadings and issues. The judgment reinforces the discipline of Section 100 CPC and the adversarial fairness embedded in cross-examination norms.

On the merits, the Supreme Court respected concurrent findings on testamentary capacity and due execution, re-affirming the guiding tenet that courts must give effect to a duly proved will and not open intestate succession. At the same time, the Court pragmatically moulded relief by enhancing and securing the monetary legacies—balancing testamentary intention with fairness after prolonged litigation.

The decision will likely reshape how Section 67 ISA is pleaded and litigated, pushing such contentions squarely into the trial frame and strengthening the integrity of second appeal jurisdiction. It stands as a precedent on the limits of the proviso to Section 100(5) CPC and a practical instruction manual for will-contest litigation across India.