Jurisdiction To Frame New Question Of Law In Second Appeal Is Exceptional: Supreme Court Summarizes Principles Regarding Section 100(5) CPC

The Supreme Court has summed up principles emanating from the precedents on Section 100(5) of the Civil Procedure Code, 1908 (CPC).

The Court was deciding a Civil Appeal filed against the Judgment of the Kerala High Court, which declared a testamentary succession as void.

The two-Judge Bench of Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti summarized the following principles –

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.

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.

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.

4. The High Court must be ‘satisfied’ that the new question is a substantial question of law and not a mere legal plea.

5. The Court is mandatorily required to record its reasons for framing an additional substantial question of law.

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.

Senior Advocate V. Chitambaresh appeared for the Appellant while Senior Advocate Mathai M. Paikaday and AOR Akshay Sahay appeared for the Respondents.

Brief Facts

CR Pius (CR) and Philomina Pius (PP) possessed, as absolute owners, an extent of 7.875 cents of property. In 2004, CR died and in 2008, PP died. Their children and grandchildren were parties to the litigation. In 1999, PP executed a registered settlement deed in favour of CP Sebastian (CP) whereunder she settled an extent of 4 cents in favour of CP and retained 3.235 cents. PP was absolute owner and possessor and in 2003, CR and PP executed the registered joint will in favour of CP Francis i.e., Appellant for the schedule properties. The Respondents filed a suit before the Munsiff Court against the Appellant and three others for the reliefs of partition of properties into 8 equal shares by meets and bounds and allotment of 1/8th share to each one of the children of CR & PP.

The plaint prayed for the perpetual injunction restraining the Appellant from alienating the property or creating third-party interests. The suit was dismissed and this was challenged before the High Court, which allowed the Appeal by recording a finding that one of the attesting witnesses is the wife of the Appellant and consequently, by operation of Section 67 of the Indian Succession Act, 1925 (ISA), the testamentary succession in favour of the Appellant being void, fails as a testamentary succession. Hence, the case was before the Apex Court.

Reasoning

The Supreme Court in the above regard, observed, “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 Court said that the pleadings refer to the line of treatment given to the late Pius and the plea needed for invoking Section 67 of the ISA, either by choice or inadvertence, is not pleaded by the Respondents.

“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 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”, it remarked.

The Court noted that 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”, it added.

The Court further said that the High Court fell in error by not recording reasons for framing the additional substantial question of law and 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”, it also noted.

Direction and Conclusion

The Court, therefore, directed the Appellant to compensate the other legatees within three months.

“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”, it concluded.

Accordingly, the Apex Court allowed the Appeal.

Cause Title- C.P. Francis v. C.P. Joseph and Others (Neutral Citation: 2025 INSC 1071)

Appearance:

Appellant: Senior Advocate V. Chitambaresh, AOR Sarath S. Janardanan, Advocates S.K. Adhithyan, Vishnupriya P. Govind, and Anandhu S Nair.

Respondents: Senior Advocate Mathai M. Paikaday, AORs Akshay Sahay, Shishir Pinaki, Advocates Philip M. Paikaday, and Shradha Narayan.

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