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 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]
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]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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