The Bombay High Court has clarified that courts in testamentary proceedings may permit the framing of additional issues concerning annexures to a will, even if not initially pleaded, provided such issues arise from the record and serve the ends of justice. This ruling reinforces the procedural flexibility afforded under the Civil Procedure Code to ensure comprehensive adjudication of disputes over testamentary instruments.
Background & Facts
The Dispute
The dispute centers on the validity and scope of a Last Will and Testament dated 27.05.2020, executed by the deceased, Ashwin Suryakant Dani. The Will, comprising six pages, is titled as a single document but designates pages 3 to 6 as "Annexure." The Plaintiffs, heirs and executors under the Will, seek probate of the entire document. The Defendant, the deceased’s son, opposes the grant of probate, challenging the legal status of the Annexure.
Key Facts
- The Will was executed on 27.05.2020 and signed by the Testator and two attesting witnesses.
- Pages 1 and 2 contain the dispositive clauses of the Will.
- Pages 3 to 6, labeled "Annexure," contain narrative statements about the Testator’s family relationships, alleged misconduct by the Defendant, and reasons for disinheritance.
- The Annexure is signed by the Testator and his wife, who is alive at the time of the proceedings.
- Paragraph 2 of the Will states: "The Annexure reflects facts and sentiments of the Testator and his wife, stated only out of caution to protect the Will from contestation, and is not a testamentary disposition."
- The Defendant received a copy of the Probate Petition in March 2024 and filed his Caveat on 04.06.2024, challenging the Will on grounds of undue influence, lack of testamentary capacity, and fraud.
- The Defendant did not initially challenge the legal status of the Annexure in his Caveat.
- Inspection of the video recording of the Will’s execution was provided to the Defendant on 15.01.2025.
- The Court framed initial issues on 28.11.2025, including whether the Will was duly executed and whether undue influence was exercised.
- The Court expressly granted liberty to the parties to suggest additional issues.
- The Defendant filed the present Interim Application on 15.01.2026, seeking to add an issue on whether the Annexure is capable of being probated.
Procedural History
- 27.05.2020: Execution of the Last Will and Testament.
- March 2024: Probate Petition No. 1840 of 2024 filed by Plaintiffs.
- 04.06.2024: Defendant files Affidavit-in-Support of Caveat, opposing probate on grounds of undue influence and lack of testamentary capacity.
- 21.06.2024: Testamentary Petition converted into Testamentary Suit No. 147 of 2024.
- 28.11.2025: Court frames three issues: (i) due execution of Will, (ii) testamentary capacity, (iii) undue influence/fraud; liberty granted to suggest additional issues.
- 15.01.2026: Defendant files Interim Application (L) No. 1264 of 2026 seeking to add an issue on the probative status of the Annexure.
- 01.04.2026: Judgment delivered by the Bombay High Court.
The Parties' Positions
Plaintiffs’ Position: The entire document, including the Annexure, is a single, integrated testamentary instrument. The term "Annexure" is merely descriptive and does not sever the document. Sections 64, 85, and 87 of the Indian Succession Act, 1925 require the Will to be read as a whole. The Annexure explains the Testator’s intent and is therefore part of the Will. The Defendant’s challenge is belated, tactical, and intended to delay trial.
Defendant’s Position: The Annexure is a non-testamentary, non-dispositive document signed by a living person (the Testator’s wife). It cannot be probated as part of the Will. Rule 385 of the Bombay High Court Rules requires such documents to be examined for probative status. The Annexure contains defamatory content and raises questions of undue influence. The Court must permit framing of an additional issue to avoid prejudice and ensure fair adjudication.
Relief Sought
The Defendant seeks:
- Framing of an additional issue: "Whether the Annexure from pages 3 to 6 attached to the Will dated 27.05.2020 is a testamentary instrument capable of being probated as part of the Will?"
- Leave to file an Additional Affidavit-in-Support of the Caveat to formally plead the above contention.
The Legal Issue
Can a court permit the framing of an additional issue in a testamentary suit regarding the probative status of an annexure to a will, even in the absence of prior pleading, under Order XIV of the Civil Procedure Code, 1908?
Arguments Presented
For the Appellant/Petitioner
The Defendant relied on Order XIV Rules 1, 3, and 5 of the CPC, arguing that issues may be framed not only from pleadings but also from documents and materials on record. He cited Snow White Food Product Pvt. Ltd. v. Sohanlal Bagla to establish that courts may draw upon the contents of documents to frame issues. He invoked Rule 385 of the Bombay High Court (Original Side) Rules, 1980, which mandates examination of documents referenced in a will to determine their probative status. He contended that the Annexure, being signed by a living person and non-dispositive, raises a distinct legal question that must be addressed separately to avoid prejudice. He emphasized that the trial had not commenced and that the application was filed in response to the Plaintiffs’ objection to the issue’s absence in pleadings.
For the Respondent/State
The Plaintiffs argued that the Will is a single, integrated document and that the term "Annexure" is merely a label. They relied on Sections 64, 85, and 87 of the Indian Succession Act, 1925, which require the Will to be construed as a whole and give effect to the Testator’s intent. They contended that the Defendant’s challenge is belated, having been raised over a year after receiving the Will and after inspection of the execution video. They argued that the issue is redundant, as the existing issues on undue influence and testamentary capacity already encompass the Defendant’s concerns. They further rejected the claim that a document signed by a living person cannot be part of a Will, citing Raj Kumar Mittal v. Rajesh Venkateshwar Somani, and warned that allowing the issue would encourage dilatory tactics.
The Court's Analysis
The Court declined to adjudicate the merits of whether the Annexure forms part of the Will, recognizing that such a determination requires full appreciation of evidence and pleadings at trial. Instead, it focused on the procedural question: whether the Defendant should be permitted to formally raise the issue through an additional affidavit.
"The limited question which arises for adjudication before me is whether Defendant ought to be permitted to place such contentions on record by way of an additional Affidavit-in-Support of the Caveat?"
The Court held that the Affidavit-in-Support of Caveat is treated as a Written Statement under the CPC, and therefore, the principles governing amendment of pleadings under Order VIII Rule 9 apply. It emphasized that courts must adopt a liberal approach, particularly when trial has not commenced, to ensure that all relevant contentions are placed on record.
The Court relied on Snow White Food Product Pvt. Ltd., observing that issues may be framed not only from pleadings but also from documents, affidavits, and other materials on record under Order XIV Rule 3. It noted that Order XIV Rule 5 explicitly empowers courts to frame additional issues at any stage before decree, if necessary for determining the real controversy.
The Court found that the Defendant’s challenge to the Annexure was not a new or inconsistent defence but an extension of his existing allegations of undue influence and lack of testamentary capacity. The Annexure’s content, including its reference to the Testator’s wife and its non-dispositive nature, raised a legitimate legal question under Rule 385 of the Bombay High Court Rules, which requires examination of referenced documents.
"The applicability and effect of Rule 385 itself reinforces the necessity of permitting the Defendant to raise the said contention on record."
The Court rejected the Plaintiffs’ argument of delay, noting that the liberty to suggest additional issues was expressly granted on 28.11.2025, and the Defendant’s application was filed in direct response to the Plaintiffs’ objection to the absence of pleading. The Court held that delay alone is not a ground to refuse amendment unless serious prejudice is shown, which was not demonstrated.
The Court also dismissed the Plaintiffs’ contention that a document signed by a living person cannot be part of a Will, noting that attesting witnesses are invariably alive at the time of probate, and such an interpretation would render probate impossible.
The Verdict
The Defendant succeeded. The Court allowed Interim Application (L) No. 1264 of 2026 and permitted the Defendant to file an Additional Affidavit-in-Support of the Caveat within four weeks. The Plaintiffs were granted four weeks thereafter to file a rejoinder. The Court expressly kept open all contentions regarding the legal character, admissibility, and effect of the Annexure for adjudication at trial. No costs were awarded.
What This Means For Similar Cases
Additional Issues May Be Framed Without Strict Pleading
- Practitioners may now seek to introduce new legal issues in testamentary suits based on documents already on record, even if not pleaded, under Order XIV Rule 5 CPC.
- Courts are likely to permit such amendments where the issue arises naturally from the document and trial has not commenced.
- The burden shifts to the opposing party to demonstrate actual prejudice from delay, not mere belatedness.
Annexures Are Not Automatically Part of the Will
- The label "Annexure" does not conclusively determine legal status; courts must examine the substance and context.
- A document labeled "Annexure" may be non-testamentary and require separate scrutiny under Rule 385 of the Bombay High Court Rules.
- Counsel must now proactively assess whether referenced documents contain non-dispositive or potentially prejudicial content and seek to frame issues accordingly.
Strategic Use of Rule 385 and Order XIV
- In probate proceedings, counsel should review all referenced documents for potential challenges under Rule 385 and file applications for additional issues early.
- The judgment reinforces that testamentary courts are not bound by rigid pleading rules and must prioritize substantive justice over technicalities.
- This precedent may be extended to other jurisdictions following similar procedural rules under the CPC.
