Supreme Court | S.100 CPC Bars High Courts from Introducing New Grounds Without Pleadings | Kerala HC’s Reliance on S.67 Succession Act Set Aside | Testamentary Succession Restored
Kiran Raj
The Supreme Court of India Division Bench of Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti held that the Kerala High Court erred in applying Section 67 of the Indian Succession Act, 1925, in a family partition dispute concerning properties situated in Elamkulam village, Ernakulam District. The Court restored the testamentary succession under a joint will executed by the deceased testators and directed the appellant-beneficiary to discharge monetary obligations towards other heirs within three months. The appeal was accordingly allowed, setting aside the High Court’s judgment and affirming the will’s validity as established by the trial and first appellate courts.
The dispute arose from succession claims to immovable properties originally owned by spouses C.R. Pius and Philomina Pius in Elamkulam village, Kanyanoor Taluk, Ernakulam District. They jointly held 7.875 cents and 3.233 cents of land, as described in plaint schedules A and B. Upon their deaths—C.R. Pius on 24 November 2004 and Philomina Pius on 27 November 2008—their children and grandchildren became parties to litigation.
On 15 December 1999, Philomina executed a registered settlement deed, transferring four cents from schedule A to her son, C.P. Sebastian (fourth plaintiff), while retaining 3.235 cents forming part of schedule B. Subsequently, on 27 January 2003, both testators executed a registered joint will in favour of their son C.P. Francis, the appellant. The will provided that the properties would devolve to Francis after the death of both testators. It also imposed obligations requiring Francis to pay fixed monetary amounts to other children within five years of the parents’ demise. In default, the beneficiaries were entitled to create charges over the properties.
Respondent Nos. 1 to 5 instituted Original Suit No. 722 of 2009 before the Munsiff Court, Ernakulam. They sought partition of the plaint schedule properties into eight equal shares, each child receiving one-eighth, and an injunction restraining alienation. The plaintiffs alleged that C.R. Pius was mentally incapacitated due to ailments including cerebral palsy, senile changes, and Parkinson’s disease from 1998 until his death, rendering him incapable of valid testamentary disposition. They further alleged that the joint will was fraudulently created through misrepresentation and undue influence by Francis, his wife, and the husband of their sister.
The defendants, led by Francis, refuted these claims, asserting that the plaintiffs had no ownership or joint possession. They maintained that the will was validly executed, conferring the properties solely upon Francis, subject only to the monetary obligations therein. They argued that the plaintiffs were estopped from challenging the will, as they had earlier acknowledged their parents’ capacity in the 1999 settlement deed. Francis claimed exclusive possession of the property since his father’s death in 2004, with his mother raising no objections. He also asserted that his parents provided substantial financial support for the plaintiffs’ marriages, and the will was executed after due deliberation.
The Munsiff Court framed issues on (i) validity and genuineness of the will, (ii) partibility of the property, (iii) entitlement to injunction, and (iv) reliefs. After trial, the court upheld the will as genuine. It found C.R. Pius mentally sound at the time of execution, supported by a neurologist’s testimony. The court rejected claims of fraud or misrepresentation, holding that Philomina executed the will voluntarily. Attestation was deemed sufficient through the scribe, Sub-Registrar, and Francis’s wife, despite some deficiencies in another witness’s compliance with attestation requirements. It concluded that the properties were not partible and dismissed the partition suit on 3 September 2011.
On appeal in A.S. No. 6 of 2012, the Additional District Judge affirmed the trial court’s findings on 26 August 2013. The appellate court reiterated that Pius remained in good health after execution of the will, which was never revoked. It accepted testimony confirming proper attestation and voluntariness. The reasons for excluding Sebastian were held justified, given his prior receipt of land. The appellate court upheld that monetary provisions for other children demonstrated careful deliberation, confirming the will as genuine.
The plaintiffs then filed R.S.A. No. 94 of 2014 before the Kerala High Court. The High Court allowed the appeal, applying Section 67 of the Indian Succession Act. It held that the will was void to the extent it bequeathed property to Francis because one attesting witness, his wife, was legally interested, rendering the disposition invalid. This altered succession from testamentary to intestate, granting each child an equal share.
Aggrieved, Francis approached the Supreme Court, contending that the High Court exceeded its jurisdiction under Section 100 of the Civil Procedure Code by introducing an additional question of law not grounded in pleadings or evidence. He maintained that Section 67 had not been pleaded or suggested in evidence, and the concurrent findings of the lower courts upholding the will were binding.
The Supreme Court extensively considered the procedural and substantive aspects. It noted that the High Court introduced a new legal issue under Section 67 without pleadings or foundational facts.
The Court stated: “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.”
It recorded that the plaintiffs’ case was originally built on claims of unsoundness of mind and fraud: “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.”
The Court further noted the absence of cross-examination on the issue of attestation by an interested witness: “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.”
On the principle of testamentary intention, the Court reiterated: “It is axiomatic, but still referred to in often quoted decisions, that 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.”
Accordingly, the Court held that the High Court’s invocation of Section 67 was unwarranted and unsustainable in law.
Having restored the will’s validity, the Supreme Court directed the appellant to fulfill the obligations imposed by the testators. It observed that the appellant had not discharged the monetary bequests under the will. The Court therefore ordered enhanced compensation to each beneficiary, replacing the original sums:
“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.”
The Court quantified the compensation as follows: Rs. 10,00,000 each to Maria’s legal heirs, Joseph, Raphael, and George; and Rs. 5,00,000 each to Desty Thomas and Clara Jacob. In default of payment, the sums would carry 6% interest per annum, with a charge over the schedule properties.
The Court allowed the appeal, set aside the High Court’s judgment, and confirmed testamentary succession, while stressing careful exercise of jurisdiction under Article 136 of the Constitution, which permits interference only in exceptional cases.
Advocates Representing the Parties
For Petitioner(s): Mr. V. Chitambaresh, Sr. Adv. Mr. Sarath S. Janardanan, AOR Mr. S.K. Adhithyan, Adv. Mrs. Vishnupriya P. Govind, Adv.
For Respondent(s): Mr. Mathai M. Paikaday, Sr. Adv. Mr. Shishir Pinaki, AOR Mr. Philip Mathai Paikaday, Adv. Mr. A.B. Jaleel, Adv. Ms. Nazlin Jaleel, Adv. Mr. Nijaz Jaleel, Adv. Mr. Akshay Sahay, AOR Ms. Shradha Narayan, Adv.
Case Title: C.P. Francis v. C.P. Joseph and Others
Neutral Citation: 2025 INSC 1071
Case Number: Civil Appeal No. of 2025 [@ SLP (C) No. 13348 of 2025]
Bench: Justice Ahsanuddin Amanullah; Justice S.V.N. Bhatti
