Case: S. SUBRAMANIAN Vs. S. RAMASAMY AND ORS

has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :?Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.?8.4 Applying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact and cannot be said to be Substantial Questions of law.8.5 As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re¬appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re¬ appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re-appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.9. Even otherwise, on merits also, the High Court has erred in holding that there was blending of the suit properties with the joint family properties by Sengoda Gounder. It is an admitted position that and even as observed and held by the High Court, the suit properties were self¬acquired properties of Sengoda Gounder pursuant to the Settlement Deed Exhibit A1 dated 07.04.1956 as the properties were obtained by Sengoda Gounder not from his direct male ancestors but from his mother?s sister?s husband. High Court also held that when some of the properties were sold, some of these properties specified in Exhibit A1 dated 07.04.1956-Settlement Deed were sold, in the recitals it was mentioned that the properties sold for urgent necessity of family expenses and farm expenses and it was mentioned that the same properties were belonging to them jointly through their ancestors However, considering the documentary evidence, more particularly, the settlement deeds Exhibits A13 and A14 and Exhibit B24, Will, executed by the Sengoda Gounder himself, by which the same properties were given to the original defendant¬ his son Subramanian, the intention of the father¬Sengoda Gounder was very clear and the suit properties were treated as the self-acquired properties and not the joint family properties.9.1 Even the reasons given by the High Court that as the loans were taken on the suit properties for borewell, crop loan, electric motor pump set loan, jewel loan by all the three joint family members, namely Sengoda Gounder, Ramasamy and Subramanian and, therefore, there was a blending of the suit properties into join family properties also, cannot be accepted. As all the three were residing together and some loans might have been taken by the family members residing together, by that itself, it cannot be said that there was a blending of the suit properties into joint family properties. The law on the aspect of blending is well settled that property separate or self¬acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members. At this stage, it is required to be noted that there was a serious dispute regarding who repaid the loan. It was the plaintiff who claimed that he only discharged that loan, however, the defendant Subramanian contended that the loan was discharged by Sengoda Gounder from out of the income derived by him from the suit properties itself. In any case, when on appreciation of evidence on record including the documentary evidence which came to be re¬ appreciated by the High Court, both the Courts below came to the conclusion that there was no blending of the suit properties into joint family properties, the High Court in exercise of its powers under Section 100 of the CPC, is not justified in reversing those findings which were on appreciation of evidence on record.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8.1 At the outset, it is required to be noted that as such, both, the learned Trial Court as well as the First Appellate Court dismissed the suits, more particularly, the suit for partition filed by the original plaintiff by holding that the suit properties were not ancestral properties of Sengoda Gounder but were self¬ acquired properties of Sengoda Gounder. That on appreciation of evidence, both the Courts below specifically came to the conclusion that, as such, there was no blending of the suit properties with the ancestral properties by Sengoda Gounder. However, the said findings recorded by both the Courts below have been upset and set aside by the High Court, while deciding the second appeals in exercise of its powers under Section 100 of the CPC. We have gone through and considered the findings recorded by the learned Trial Court as well as the First Appellate Court. On appreciation of entire evidence on record, more particularly, the documentary evidence which came to be considered by 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 was no blending or treating of the suit property as a joint family property. Despite the above, the High Court while passing the impugned common Judgment and Order, has re-appreciated the entire evidence on record including the documentary evidence which as such were considered by both the Courts below and has upset the findings of facts recorded by both the Courts below on the blending of suit property as a joint family property and has given its own findings, which in exercise of its powers under Section 100 of the CPC is wholly impermissible. As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re¬appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.8.2 Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of ‘a substantial question of law? is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions 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 in-admissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in SecondApplying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact and cannot be said to be Substantial Questions of law.8.5 As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re¬appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re¬ appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re-appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.9. Even otherwise, on merits also, the High Court has erred in holding that there was blending of the suit properties with the joint family properties by Sengoda Gounder. It is an admitted position that and even as observed and held by the High Court, the suit properties were self¬acquired properties of Sengoda Gounder pursuant to the Settlement Deed Exhibit A1 dated 07.04.1956 as the properties were obtained by Sengoda Gounder not from his direct male ancestors but from his mother?s sister?s husband. High Court also held that when some of the properties were sold, some of these properties specified in Exhibit A1 dated 07.04.1956-Settlement Deed were sold, in the recitals it was mentioned that the properties sold for urgent necessity of family expenses and farm expenses and it was mentioned that the same properties were belonging to them jointly through their ancestors However, considering the documentary evidence, more particularly, the settlement deeds Exhibits A13 and A14 and Exhibit B24, Will, executed by the Sengoda Gounder himself, by which the same properties were given to the original defendant¬ his son Subramanian, the intention of the father¬Sengoda Gounder was very clear and the suit properties were treated as the self-acquired properties and not the joint family properties.9.1 Even the reasons given by the High Court that as the loans were taken on the suit properties for borewell, crop loan, electric motor pump set loan, jewel loan by all the three joint family members, namely Sengoda Gounder, Ramasamy and Subramanian and, therefore, there was a blending of the suit properties into join family properties also, cannot be accepted. As all the three were residing together and some loans might have been taken by the family members residing together, by that itself, it cannot be said that there was a blending of the suit properties into joint family properties. The law on the aspect of blending is well settled that property separate or self¬acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members. At this stage, it is required to be noted that there was a serious dispute regarding who repaid the loan. It was the plaintiff who claimed that he only discharged that loan, however, the defendant Subramanian contended that the loan was discharged by Sengoda Gounder from out of the income derived by him from the suit properties itself. In any case, when on appreciation of evidence on record including the documentary evidence which came to be re¬ appreciated by the High Court, both the Courts below came to the conclusion that there was no blending of the suit properties into joint family properties, the High Court in exercise of its powers under Section 100 of the CPC, is not justified in reversing those findings which were on appreciation of evidence on record.