S. SUBRAMANIAN versus S. RAMASAMY ETC. ETC. on 1 May 2019

[2019] 8 S.C.R. 250

SUPREME COURT REPORTS

[2019] 8 S.C.R.

S. SUBRAMANIAN

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S. RAMASAMY ETC. ETC.

(Civil Appeal Nos.4536-4537 of 2019)

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[L. NAGESWARA RAO AND M.R. SHAH, JJ.]

Suit:

Suits for injunction and for partition of suit property –CClaiming that the suit property was joint family property – Suitdefended by appellant on the ground that the suit property was selfacquired property and not of joint family – Trial court dismissedthe suits holding that the suit properties were self acquired propertiesof their father and that there was no blending of the suit propertieswith the ancestral properties – First appellate court affirmed theDorder of trial Court – High Court in second appeal after formulatingsubstantial question of law reversed the orders of courts below anddecreed the suits – Appeal to Supreme Court – Held: High Courtby re-appreciating the evidence upset the findings of facts recordedby trial court as well as first appellate court and gave its own findingEwhich in exercise of its power u/s. 100 CPC is impermissible – Onmerits also High Court erred in holding that there was blending ofsuit properties with joint family properties – Code of Civil Procedure,1908 – s. 100.

Code of Civil Procedure, 1908:F

s. 100 – Second appeal – Jurisdiction under – Scope of –Held: Second appeal is maintainable only on substantial questionof law and not on questions of fact or of law – Trial court couldhave decided differently is not a question of law justifyinginterference in second appeal – In exercise of such jurisdiction,GHigh Court cannot substitute it own opinion for that of the firstappellate court unless it finds that the opinion is erroneous.

Allowing the appeals, the Court

HELD: 1.1 While deciding the second appeal underSection 100 of the CPC, the High Court is not required to re-H

appreciate the entire evidence on record and to come to its ownconclusion and the High Court cannot set aside the findings offacts recorded by both the Courts below when the findingsrecorded by both the Courts below were on appreciation ofevidence. [Para 8.1] [262-C-D]

1.2 On appreciation of entire evidence on record, moreparticularly, the documentary evidence which came to beconsidered by the High Court as Exhibit A1 and Exhibits A 19,24, 45 and 46, both the Courts i.e. the trial court and first appellateCourt came to the conclusion that there was no blending or treatingof the suit property as a joint family property. Despite the above,the High Court has re-appreciated the entire evidence on recordincluding the documentary evidence which as such wereconsidered by both the Courts below and has upset the findingsof facts recorded by both the Courts below on the blending ofsuit property as a joint family property and has given its ownfindings, which in exercise of its powers under Section 100 of theCPC is wholly impermissible. [Para 8.1] [261-H; 262-A-B]

1.3 The second appeal would be maintainable only onsubstantial question of law. The second appeal does not lie onquestion of facts or of law. The existence of ‘a substantial questionof law’ is a sine qua non for the exercise of the jurisdiction underSection 100 of the CPC. In a second appeal under Section 100 ofthe CPC, the High Court cannot substitute its own opinion forthat of the First Appellate Court, unless it finds that theconclusions drawn by the lower Court were erroneous being: (i)Contrary to the mandatory provisions of the applicable law; or(ii) Contrary to the law as pronounced by the Apex Court; or (iii)Based on inadmissible evidence or no evidence. If the FirstAppellate Court has exercised its discretion in a judicial manner,its decision cannot be recorded as suffering from an error eitherof law or of procedure requiring interference in second appeal.The Trial Court could have decided differently is not a questionof law justifying interference in second appeal. [Para 8.2][262-E-H; 263-A]

Kondiba Dagadu Kadam v. Savitribai Sopan Gujar(1999) 3 SCC 722 : [1999] 2 SCR 728 ; Ishwar DassJain v. Sohan Lal (2000) 1 SCC 434: [1999] 5 Suppl.SCR 24 – relied on.

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APanchugopal Barua v. Umesh Chandra Goswami(1997) 4 SCC 713 : [1997] 2 SCR 12 – referred to 1.4 The questions of law formulated by the High Courtcannot be said to be substantial questions of law. All can be saidto be questions of law or questions of fact and cannot be said toBbe Substantial Questions of law. [Para 8.4] [263-E]

1.5 The High Court has re-appreciated the entire evidenceon record as if the High Court was deciding the first appeal. Whileexercising the powers under Section 100 of the CPC and on re-appreciation of entire evidence on record, the High Court hasCset aside the findings of facts recorded by both the Courts belowon blending of the suit properties with the joint family properties.The same is wholly impermissible. So far as the facts areconcerned, the First Appellate Court is the final court and unlessand until the findings of facts recorded by the Courts below arefound to be manifestly perverse and/or contrary to the evidenceDon record, the High Court would not be justified in setting asidethe findings of facts recorded by the Courts below which were onappreciation of evidence on record. It is not permissible for theHigh Court to re-appreciate the entire evidence on record andcome to its own finding when the findings recorded by the CourtsEbelow, more particularly, the First Appellate Court are onappreciation of evidence. Therefore, the procedure adopted bythe High Court while deciding the second appeals, is beyond thescope and ambit of exercise of its powers under Section 100 ofthe CPC. [Para 8, 8.5] [263-F-H; 264-A-B]

F2.1 On merits also, the High Court has erred in holdingthat there was blending of the suit properties with the joint familyproperties. It is an admitted position that the suit properties wereself-acquired properties of the father of the parties pursuant tothe Settlement Deed Exhibit A1 dated 07.04.1956 as theproperties were obtained by him not from his direct maleGancestors but from his mother’s sister’s husband. High Courtalso held that when some of the properties were sold, some ofthese properties specified in Exhibit A1 dated 07.04.1956-Settlement Deed were sold, in the recitals it was mentioned thatthe properties sold for urgent necessity of family expenses andHfarm expenses and it was mentioned that the same properties were belonging to them jointly through their ancestors. However,considering the documentary evidence, more particularly, thesettlement deeds Exhibits A13 and A14 and Exhibit B24, Will,executed by the father of the parties by which the same propertieswere given to the original defendant- his son the intention of thefather was very clear and the suit properties were treated as theself-acquired properties and not the joint family properties.[Para 9] [264-C-F]

2.2 The law on the aspect of blending is well settled thatproperty separate or self-acquired of a member of a joint Hindufamily may be impressed with the character of joint family propertyif it is voluntarily thrown by the owner into the common stockwith the intention of abandoning his separate claim therein; butto establish such abandonment a clear intention to waive separaterights must be established. Clear intention to abandon theseparate rights in the property must be proved. Evenabandonment cannot be inferred from mere allowing other familymembers also to use the property or utilisation of income of theseparate property out of generosity to support the familymembers. [Para 9] [264-H; 265-A-B]

Issues

2.3 When on appreciation of evidence on record includingthe documentary evidence which came to be re-appreciated bythe High Court, both the Courts below came to the conclusionthat there was no blending of the suit properties into joint familyproperties, the High Court in exercise of its powers under Section100 of the CPC, is not justified in reversing those findings whichwere on appreciation of evidence on record. [Para 9] [265-C-D]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4536-4537 of 2019

From the Judgment and Order dated 14.06.2013 of the HighCourt of Judicature at Madras in Second Appeal Nos. 4 & 5 of 2009

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A Siddharth Naidu, V. Balachandran, Advs. for the Appellant.

V. Prabhakar, Ms. Jyoti Parashar, N. J. Ramchandar, PramitSaxena, Advs. for the Respondents.

The Judgment of the Court was delivered by BM.R. SHAH, J.

1. Leave granted in both the special leave petitions.

2. As common question of lawand facts arise in both these appealsand as such arise out of theimpugned common Judgment and Orderpassed by the High Court, both these appeals are being decided andCdisposed of together by this common Judgment and Order.

3. Feeling aggrieved and dissatisfied with the impugned commonJudgment and Order passed by the High Court of Judicature at Madrasin Second Appeal Nos.4 and 5 of 2009 by which the High Court whileexercising powers under Section 100 of the CPC has allowed theDsaidSecond Appeals and has quashed and set aside the Judgement andDecree passed by the Trial court as well as the First Appellate Courtdismissing the suits and consequently has decreed the suits preferred bythe respondent herein-original plaintiff, the original defendant has preferredthe present appeals.

E4. The facts leading to the present appeals in nutshell are as under That the original plaintiff (Respondent No.1 herein)-S. Ramasamyinitially filed a suit being OS No.10 of 2006 in respect of the immovableproperties described in the schedule of plaint to restrain original defendantNo.2 (appellant herein) from alienating or encumbering or creating anyFkind of document in respect of plaintiff’s common one-third share of thesuit properties, till final partition takes place between the plaintiff andoriginal defendant No.2 by metes and bounds by a decree of permanentinjunction. That the said suit was filed by the original plaintiff against hisfather Sengoda Gounder (died) as well as his younger brotherSubramanian. That during the pendency of the said suit, the same plaintiff-GRamasamy filed a suit being OS No.19 of 2005 against his youngerbrother Subramanian and his father Sengoda Gounder for partition ofthe suit properties. It was the case on behalf of the original plaintiff thatthe plaintiff and his father and his younger brother constituted a HinduJoint Family which owned ancestral properties. It was further the case H

S. SUBRAMANIAN v. S. RAMASAMY[M.R. SHAH, J.]

on behalf of the plaintiff that the father of the plaintiff, namely,SengodaGounder, by way of settlement, got the suit properties, vide Ex-A1 dated07.04.1956-the Settlement Deed executed by one Kumarasamy Gounderin favour of Sengoda Gounder. It was the case on behalf of the plaintiffthat since that time, the suit properties alongwith the ancestral propertieswere treated as joint family properties and all the three coparcenerswere enjoying them together. It was alleged that since the father and theyounger brother of the plaintiff, in collusion with each other wereattempting to alienate the suit properties, the first injunction suit (OSNo.19 of 2005) was filed.

4.1 The suit was resisted by the original defendant-younger brotherof the plaintiff Ramasamy. It was the case on behalf of the originaldefendant that no joint family at all ever existed amongst Sengoda Gounderand his two sons, namely Ramasamy and Subramanian. That the suitproperties were obtained by Sengoda Gounderas per Ex-A1-theSettlement Deed during the year 1956 as his self-acquired properties.That SengodaGounder’s sons, namely Ramasamy and Subramanian hadnothing to do with the suit properties and they had no proprietary right orshare in that and that they were never treated as joint family properties.It was the specific case on behalf of the defendant that, in fact, theSengoda Gounder, during his lifetime, executed two settlement deedsEx- A13 and A14 in favour of Subramanian and subsequently he alsoexecuted Ex-B24, a will dated 08.11.2004 in favour of Subramanian. Itwas the case on behalf of the defendant that as such, Subramanian-thedefendant became absolute owner of the suit properties. It was alsocontended on behalf of the defendant that the second suit is also barredby Order 2 Rule 2 of CPC. It was the case on behalf of the defendantthat before filing the injunction suit(first suit) the plaintiff issued noticeseeking partition and despite the same he initially filed the injunction suitonly and thereafter, without any rhyme or reason and without obtainingany permission from the Court at the time of filing the injunction suit tofile a partition suit subsequently, he simply filed the second suit, whichwas barred by Order 2 Rule 2 of CPC.

4.2 That the Trial Court framed the issues. Both the suits weretried jointly. The plaintiff-Ramasamy examined himself as PW1 alongwith PWs 2 to 4 and Exs. A1 to A46 were brought on record.Subramanian-the defendant examined himself as DW1 along with DWs2 to 4 and he brought on record Exs.B1 to B31. That thereafter, on A

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Aappreciation of evidence, the learned Trial Court dismissed both the suits.The appeals by the unsuccessful plaintiff came to be dismissed by thelearned First Appellate Court.

4.3 Feeling aggrieved and dissatisfied with the common Judgmentand Order passed by the First Appellate Court dismissing the appealsBand confirming the Judgment and Decree passed by the learned TrialCourt dismissing the suits, the original plaintiff filed two second appealsbefore the High Court. The High Court formulated and framed thefollowing questions of law as substantial questions of law :

“(1) Whether both the Courts below were justified in holdingCthat the generosity shown by Sengoda Gounder should not betreated as an act of blending of the sit properties with the ancestralproperties and whether the Courts below were justified in ignoringthe factum of describing the properties found in Ex.A1 as“Pidhirajyam” (Ancestral property) and also Exs.A19, 24, 45 and46 and in deciding the lis by holding as though there was no blendingDor treating the suit properties as joint family properties?

(2) Whether the courts below were justified in upholding Exs.A13and A14-the settlement deeds and Ex.B24-the Will as valid, eventhough those documents according to the plaintiff were notallegedly proved by the propounder of those documents as perElaw?

(3) Whether the Courts below were justified in rendering judgment,without referring to Order 2 Rule 2 of CPC despite a plea takenin that regard in the written statement?

F(4) Whether there is any perversity or illegality in the judgmentsof both the fora below?”

That thereafter, by the impugned Judgment and Order and afterre-appreciating the entire evidence on record, the High Court hasanswered the aforesaid questions of law/substantial questions of law asunder :G

“Substantial Question of Law (1) is decided to the effect thatboth the Courts below were not justified in holding that thegenerosity shown by Sengoda Gounder should not be treated asan act of blending of the suit properties with the ancestral properties

and the Courts below were not justified in ignoring the factum ofdescribing the properties found in Ex.A1 as “Pidhirajyam”(Ancestral property) and also Exs. A19, 24, 45 and 46 in decidingthe lis by holding as though there was no blending or treating thesuit property as a joint family property.

Substantial Question of Law No.(2) is decided to the effect thatthe courts below were justified in upholding the execution ofExs.A13 and A14- the settlement deeds and Ex.A24 the Will,however, in view of my discussion supra Sengoda Gounder hadno competence to execute the settlement deeds treating the suitproperty as self-acquired property in entirely, but his 1/3[rd] sharecould only be considered as the one relinquished by him in favourof the remaining two coparceners namely, his sons. Wherefore,the suit property shall be divided into two shares. The plaintiff andthe defendant shall be entitled to half share each in the suit property.

Substantial Question of Law No.(3) is decided to the effect thatthe Courts below were justified in rendering judgment, withoutreferring to Order 2 Rule 2 of CPC, in view of my finding suprathat the cause of action for seeking partition is a continuing one.”

Consequently, the High Court has allowed both the appeals andset aside common Judgment and Decree of the Trial Court as well asthe First Appellate Court and has directed to draw the preliminary decreefor partition allotting half share each in favour of the plaintiff and thedefendant.

4.4 Feeling aggrieved and dissatisfied with the impugned Judgmentand Order passed by the High Court by which, while exercising powersunder Section 100 of the CPC, the High Court has re-appreciated theentire evidence on record and has set aside the findings of facts recordedby both the Courts below, the original defendant has preferred the presentappeals.

5. Shri Siddharth Naidu, learned Advocate has appeared on behalfof the appellant-original defendant and Shri V Prabhakar, learnedAdvocate has appeared on behalf of the Respondent No.1-originalplaintiff.

6. Shri Siddharth Naidu, learned Advocate appearing on behalfof the original defendant has vehemently submitted that in the facts and A

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Acircumstances of the case, the High Court has manifestly committed agrave error in allowing the appeals and interfering with the findings offacts recorded by the Courts below.

6.1 It is vehemently submitted by Shri Siddharth Naidu, learnedAdvocate appearing on behalf of the original defendant that by passingBthe impugned Judgment and Order, the High Court has exceeded in itsjurisdiction while exercising powers under Section 100 of the CPC.

6.2 It is further submitted by Shri Siddharth Naidu, learnedAdvocate appearing on behalf of the original defendant that as held bythis Court in catena of decisions and even as per Section 100 of theCCPC, while exercising powers under Section 100 of the CPC,the HighCourt is not required to re-appreciate the entire evidence on record as ifthe High Court is deciding the first appeal.

6.3 It is further submitted by Shri Siddharth Naidu, learnedAdvocate appearing on behalf of the original defendant that the substantialDquestions of law framed by the High Court cannot be said to be thesubstantial questions of law at all. It is submitted that Section 100 of theCPC provides for a second appeal only on the substantial questions oflaw. It is submitted that even second appeal is not required to beentertained on question of law only. It is submitted that the question oflaw must be a substantial question of law and not mere a question ofElaw. It is submitted that the substantial questions of law formulated andframed by the High Court, while deciding the second appeals, cannot besaid to be substantial questions of law at all. It is submitted that on theface of it, even the substantial questions of law formulated and framedby the High Court, are the questions of fact. It is submitted, therefore,Fthe High Court has committed a grave error in allowing the SecondAppeals.

6.4 It is further submitted by Shri Siddharth Naidu, learnedAdvocate appearing on behalf of the original defendant that evenotherwise, the impugned Judgment and Order passed by the High CourtGcannot be sustained in as much as while exercising powers under Section100 of the CPC, the High Court has re-appreciated the entire evidenceon record, which is wholly impermissible. It is submitted that so far asthe question of fact is concerned, the First Appellate Court is the finalCourt on facts. It is submitted that unless and until the findings recordedare found to be perverse and/or contrary to the evidence on record, the H

High Court would not be justified in upsetting such findings recorded bythe Courts below, more particularly, the First Appellate Court. It issubmitted that in the present case, if we see the entire Judgment andOrder passed by the High Court, the High Court has re-appreciated theentire evidence on record and has given its own conclusion and findingsand thereafter has interfered with the findings of facts recorded by boththe Courts below, which were on appreciation of evidence, which iswholly impermissible. In support of his above submissions and on thescope and ambit of the jurisdiction of the High Court while deciding thesecond appeal under Section 100 of the CPC, learned counsel appearingon behalf of the appellant has heavily relied upon the decisions of thisCourt in the case of Panchugopal Baruav. Umesh Chandra Goswami,(1997) 4 SCC 713; KondibaDagadu Kadam v. Savitribai SopanGujar, (1999) 3 SCC 722; Ishwar Dass Jain v. Sohan Lal, (2000) 1SCC 434.

6.5 It is further submitted by Shri Siddharth Naidu, learnedAdvocate appearing on behalf of the original defendant that evenotherwise the grounds on which the High Court has held that there wasblending of the suit properties with the ancestral properties, are notsustainable.

6.6 It is further submitted by Shri Siddharth Naidu, learnedAdvocate appearing on behalf of the original defendant that admittedlyand even as per the High Court also, the suit properties were self-acquired properties of Sengoda Gounder (father) because those propertieswere obtained by him not from his direct male ancestors but from hismother’s sister’s husband. It is submitted that therefore, merely becauseas Sengoda Gounder and his two sons were residing together and someloan on land might have been taken by all of them, it cannot be said thatthere was a blending of the suit properties with the ancestral propertiesby Sengoda Gounder. It is submitted that it was the specific case onbehalf of the defendant that the loan was repaid/discharged by SengodaGounder from out of the income derived by him from the suit propertyitself.

6.7 It is further submitted by Shri Siddharth Naidu, learnedAdvocate appearing on behalf of the original defendant that the fact thatthe father-Sengoda Gounder, during his lifetime, executed two settlementdeeds Exhibits A13 & A14 and subsequently he also executed ExhibitB24, a will dated 08.11.2004, the same is suggestive of the fact that A

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Athere was no intention of the father-Sengoda Gounder to blend the suitproperties with the joint family properties. It is submitted that as suchthe High Court has specifically observed and held that the Courts belowwere justified in upholding the execution of Exhibits A13 & A14 - theSettlement Deeds and Exhibit B24 -the Will. It is submitted that however,thereafter the High Court has erred in holding that the Sengoda GounderBhad no competence to execute the Settlement Deeds treating the suitproperty as self-acquired property in entirely, but his one-third sharecould only be considered as the one relinquished by him in favour of theremaining two coparceners namely his sons.

6.8 Making the above submissions and relying upon the aboveCdecisions of this Court, it is prayed to allow the present appeals andquash and set aside the impugned Judgement and Order passed by theHigh Court and consequently restore the Judgement and Decree passedby the Courts below dismissing the suits.

7. Shri V. Prabhakar, learned counsel appearing on behalf of theDoriginal plaintiff while opposing the present appeals has vehementlysubmitted that as such the High Court was cautious of its limitationswhile deciding the Second Appeals under Section 100 of the CPC. It issubmitted that however, as the High Court found that both the Courtbelow have not properly appreciated the relevant material and evidenceEon record, more particularly, Exhibit A1 and also Exhibits A19,24,45,&46,thereafter the High Court has rightly held that there was a blendingof the suit properties with the joint family properties/ancestral propertiesby Sengoda Gounder.

7.1 It is submitted by Shri V. Prabhakar, learned counsel appearingFon behalf of the original plaintiff that cogent reasons have been given bythe High Court while holding that the generosity shown by SengodaGounder should be treated as an act of blending of the suit propertieswith the ancestral properties/joint family properties.

7.2 It is further submitted by Shri V. Prabhakar, learned counselGappearing on behalf of the original plaintiff that after considering theSale Deed dated 05.02.1975-Exhibit A10and Sale Deed dated 25.03.1977-Exhibit A2,by which some of the properties specified in Exhibit A1-Settlement Deed dated 07.04.1956, were sold treating the same asancestral properties, the High Court has rightly held that thereafter therewas a blending of suit properties with the ancestral properties by SengodaH

Gounder and all the properties specified in Exhibit A1-Settlement Deeddated 07.04.1956 were treated as joint family properties. It is submittedthat thereafter and having found so, the High Court has rightly held thatonce there was blending of the suit properties with the ancestral propertiesby Sengoda Gounder, thereafter it was not open for him and/or SengodaGounder had no competence to execute the settlement deeds and/or willtreating the suit properties as self-acquired properties in entirely.

7.3 Now, so far as the submissions made by the learned counselappearing on behalf of the appellants that while passing the impugnedJudgment and Order, the High Court has re-appreciated the entireevidence on record is concerned, it is submitted by Shri V. Prabhakar,learned counsel appearing on behalf of the original plaintiff that whilediscussing and/or deciding the substantial questions of law, the High Courtis bound to consider and/or appreciate the evidence on record and toreach to a conclusion that the findings recorded by the Courts below areperverse or contrary to the evidence on record. It is submitted thereforethat appreciation of evidence by the High Court while deciding the secondappeals in exercise of its powers under section 100 of the CPC, ispermissible.

7.4 Making the above submissions it is prayed to dismiss the presentappeals.

8. Heard learned Counsel appearing on behalf of the respectiveparties at length.

8.1 At the outset, it is required to be noted that as such, both, thelearned Trial Court as well as the First Appellate Court dismissed thesuits, more particularly, the suit for partition filed by the original plaintiffby holding that the suit properties were not ancestral properties of SengodaGounder but were self-acquired properties of Sengoda Gounder. Thaton appreciation of evidence, both the Courts below specifically came tothe conclusion that, as such, there was no blending of the suit propertieswith the ancestral properties by Sengoda Gounder. However, the saidfindings recorded by both the Courts below have been upset and setaside by the High Court, while deciding the second appeals in exerciseof its powers under Section 100 of the CPC. We have gone through andconsidered the findings recorded by the learned Trial Court as well asthe First Appellate Court. On appreciation of entire evidence on record,more particularly, the documentary evidence which came to be considered A

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Aby the High Court as Exhibit A1 and Exhibits A 19, 24, 45 and 46,thereafter both the Courts below came to the conclusion that there wasno blending or treating of the suit property as a joint family property.Despite the above, the High Court while passing the impugned commonJudgment and Order, has re-appreciated the entire evidence on recordincluding the documentary evidence which as such were considered byBboth the Courts below and has upset the findings of facts recorded byboth the Courts below on the blending of suit property as a joint familyproperty and has given its own findings, which in exercise of its powersunder Section 100 of the CPC is wholly impermissible. As per catena ofdecisions of this Court, while deciding the second appeal under SectionC100 of the CPC, the High Court is not required to re-appreciate theentire evidence on record and to come to its own conclusion and theHigh Court cannot set aside the findings of facts recorded by both theCourts below when the findings recorded by both the Courts below wereon appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which isDnot permissible under the law.

8.2 Even otherwise, it is required to be noted that as per catena ofdecisions of this Court and even as provided under Section 100 of theCPC, the Second Appeal would be maintainable only on substantialquestion of law. The Second Appeal does not lie on question of facts orEof law. The existence of ‘a substantial question of law’ is a sine quanon for the exercise of the jurisdiction under Section 100 of the CPC.As observed and held by this Court in the case of Kondiba DagaduKadam (Supra), in a second appeal under Section 100 of the CPC, theHigh Court cannot substitute its own opinion for that of the First AppellateFCourt, unless it finds that the conclusions drawn by the lower Courtwere erroneous being:

(i) Contrary to the mandatory provisions of the applicable law; OR

G(ii) Contrary to the law as pronounced by the Apex Court;OR

(iii) Based on in-admissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that ifthe First Appellate Court has exercised its discretion in a judicial manner,H

its decision cannot be recorded as suffering from an error either of lawor of procedure requiring interference in Second Appeal. It is furtherobserved that the Trial Court could have decided differently is not aquestion of law justifying interference in Second Appeal.

8.3 When a substantial question of law can be said to have arisen,has been dealt with and considered by this Court in the case of IshwarDass Jain (Supra). In the aforesaid decision, this Court has specificallyobserved and held :

“Under Section 100 CPC, after the 1976 amendment, it is essentialfor the High Court to formulate a substantial question of law andit is not permissible to reverse the judgment of the first appellatecourt without doing so. There are two situations in whichinterference with findings of fact is permissible. The first one iswhen material or relevant evidence is not considered which, ifconsidered, would have led to an opposite conclusion. The secondsituation in which interference with findings of fact is permissibleis where a finding has been arrived at by the appellate court byplacing reliance on inadmissible evidence which if it was omitted,an opposite conclusion was possible. In either of the abovesituations, a substantial question of law can arise.”

8.4 Applying the law laid down by this Court in the aforesaiddecisions and the substantial questions of law formulated/framed andanswered by the High Court, reproduced hereinabove, it cannot be saidthat the said questions of law can be said to be substantial questions oflaw. All can be said to be questions of law or questions of fact andcannot be said to be Substantial Questions of law.

8.5 As observed hereinabove, while passing the impugnedJudgment and Order, the High Court has re-appreciated the entireevidence on record as if the High Court was deciding the first appeal.By the impugned Judgment and Order, while exercising the powers underSection 100 of the CPC and on re-appreciation of entire evidence onrecord, the High Court has set aside the findings of facts recorded byboth the Courts below on blending of the suit properties with the jointfamily properties. The same is wholly impermissible. So far as the factsare concerned, the First Appellate Court is the final court and unless anduntil the findings of facts recorded by the Courts below are found to bemanifestly perverse and/or contrary to the evidence on record,the High A

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ACourt would not be justified in setting aside the findings of facts recordedby the Courts below which were on appreciation of evidence on record.It is not permissible for the High Court to re-appreciate the entire evidenceon record and come to its own finding when the findings recorded by theCourts below, more particularly, the First Appellate Court areonappreciation of evidence. Therefore, the procedure adopted by the HighBCourt while deciding the Second Appeals, is beyond the scope and ambitof exercise of its powers under Section 100 of the CPC.

9. Even otherwise, on merits also, the High Court has erred inholding that there was blending of the suit properties with the joint familyproperties by Sengoda Gounder. It is an admitted position that and evenCas observed and held by the High Court, the suit properties were self-acquired properties of Sengoda Gounder pursuant to the Settlement DeedExhibit A1 dated 07.04.1956 as the properties were obtained by SengodaGounder not from his direct male ancestors but from his mother’s sister’shusband. High Court also held that when some of the properties wereDsold, some of these properties specified in Exhibit A1 dated 07.04.1956-Settlement Deed were sold, in the recitals it was mentioned that theproperties sold for urgent necessity of family expenses and farm expensesand it was mentioned that the same properties were belonging to themjointly through their ancestorsHowever, considering the documentaryevidence, more particularly, the settlement deeds Exhibits A13 and A14Eand Exhibit B24, Will, executed by the Sengoda Gounder himself, bywhich the same properties were given to the original defendant- his sonSubramanian, the intention of the father-Sengoda Gounder was veryclear and the suit properties were treated as the self-acquired propertiesand not the joint family properties.F

9.1 Even the reasons given by the High Court that as the loanswere taken on the suit properties for borewell, crop loan, electric motorpump set loan, jewel loan by all the three joint family members, namelySengoda Gounder, Ramasamy and Subramanian and, therefore, therewas a blending of the suit properties into join family properties also,Gcannot be accepted. As all the three were residing together and someloans might have been taken by the family members residing together,by that itself, it cannot be said that there was a blending of the suitproperties into joint family properties. The law on the aspect of blendingis well settled that property separate or self-acquired of a member of ajoint Hindu family may be impressed with the character of joint familyH

S. SUBRAMANIAN v. S. RAMASAMY[M.R. SHAH, J.]

property if it is voluntarily thrown by the owner into the common stockwith the intention of abandoning his separate claim therein; but to establishsuch abandonment a clear intention to waive separate rights must beestablished. Clear intention to abandon the separate rights in the propertymust be proved. Even abandonment cannot be inferred from mereallowing other family members also to use the property or utilisation ofincome of the separate property out of generosity to support the familymembers. At this stage, it is required to be noted that there was a seriousdispute regarding who repaid the loan. It was the plaintiff who claimedthat he only discharged that loan, however, the defendant Subramaniancontended that the loan was discharged by Sengoda Gounder from outof the income derived by him from the suit properties itself. In any case,when on appreciation of evidence on record including the documentaryevidence which came to be re-appreciated by the High Court, both theCourts below came to the conclusion that there was no blending of thesuit properties into joint family properties, the High Court in exercise ofits powers under Section 100 of the CPC, is not justified in reversingthose findings which were on appreciation of evidence on record.

10. In view of the above and as per the reasons stated above,both the present appeals are allowed. Impugned common Judgment andOrder passed by the High Court in S.A. Nos. 4 and 5 of 2009 is quashedand set aside and common Judgment and Decree passed by the TrialCourt dismissing the suits are hereby restored. However, in the factsand circumstances of the case, there shall be no order as to costs.

Kalpana K. Tripathy

Appeals allowed.

A

B

CD

E

F

G

H