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

4. The facts leading to the present appeals in nutshell are as under :That the original plaintiff (Respondent No.1 herein)¬S. Ramasamy initially filed a suit being OS No.10 of 2006 in respect of the immovable properties described in the schedule of plaint to restrain original defendant No.2 (appellant herein) from alienating or encumbering or creating any kind of document in respect of plaintiff?s common one-third share of the suit properties, till final partition takes place between the plaintiff and original defendant No.2 by metes and bounds by a decree of permanent injunction. That the said suit was filed by the original plaintiff against his father Sengoda Gounder (died) as well as his younger brother Subramanian. That during the pendency of the said suit, the same plaintiff-Ramasamy filed a suit being OS No.19 of 2005 against his younger brother Subramanian and his father Sengoda Gounder for partition of the suit properties. It was the case on behalf of the original plaintiff that the plaintiff and his father and his younger brother constituted a Hindu Joint Family which owned ancestral properties. It was further the case on behalf of the plaintiff that the father of the plaintiff, namely, Sengoda Gounder, by way of settlement, got the suit properties, vide Ex-A1 dated 07.04.1956¬the Settlement Deed executed by one Kumarasamy Gounder in favour of Sengoda Gounder. It was the case on behalf of the plaintiff that since that time, the suit properties along with the ancestral properties were treated as joint family properties and all the three coparceners were enjoying them together. It was alleged that since the father and the younger brother of the plaintiff, in collusion with each other were attempting to alienate the suit properties, the first injunction suit (OS No.19 of 2005) was filed.4.1 The suit was resisted by the original defendant¬younger brother of the plaintiff Ramasamy. It was the case on behalf of the original defendant that no joint family at all ever existed amongst Sengoda Gounder and his two sons, namely Ramasamy and Subramanian. That the suit properties were obtained by Sengoda Gounder as per Ex-A1¬the Settlement Deed during the year 1956 as his self¬acquired properties. That Sengoda Gounder?s sons, namely Ramasamy and Subramanian had nothing to do with the suit properties and they had no proprietary right or share 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, the Sengoda Gounder, during his lifetime, executed two settlement deeds Ex¬ A13 and A14 in favour of Subramanian and subsequently he also executed Ex¬B24, a will dated 08.11.2004 in favour of Subramanian. It was the case on behalf of the defendant that as such, Subramanian-the defendant became absolute owner of the suit properties. It was also contended on behalf of the defendant that the second suit is also barred by Order 2 Rule 2 of CPC. It was the case on behalf of the defendant that before filing the injunction suit (first suit) the plaintiff issued notice seeking partition and despite the same he initially filed the injunction suit only and thereafter, without any rhyme or reason and without obtaining any permission from the Court at the time of filing the injunction suit to file a partition suit subsequently, he simply filed the second suit, which was barred by Order 2 Rule 2 of CPC.4.2 That the Trial Court framed the issues. Both the suits were tried jointly. The plaintiff-Ramasamy examined himself as PW1 along with PWs 2 to 4 and Exs. A1 to A46 were brought on record. Subramanian-the defendant examined himself as DW1 along with DWs 2 to 4 and he brought on record Exs. B1 to B31. That thereafter, on appreciation of evidence, the learned Trial Court dismissed both the suits. The appeals by the unsuccessful plaintiff came to be dismissed by the learned First Appellate Court.4.3 Feeling aggrieved and dissatisfied with the common Judgment and Order passed by the First Appellate Court dismissing the appeals and confirming the Judgment and Decree passed by the learned Trial Court dismissing the suits, the original plaintiff filed two second appeals before the High Court. The High Court formulated and framed the following questions of law as substantial questions of lawWhether both the Courts below were justified in holding that the generosity shown by Sengoda Gounder should not be treated as an act of blending of the sit properties with the ancestral properties and whether the Courts below were justified in ignoring the factum of describing the properties found in Ex.A1 as ?Pidhirajyam? (Ancestral property) and also Exs.A19, 24, 45 and 46 and in deciding the lis by holding as though there was no blending or treating the suit properties as joint family properties?(2) Whether the courts below were justified in upholding Exs.A13 and A14-the settlement deeds and Ex.B24¬the Will as valid, even though those documents according to the plaintiff were not allegedly proved by the propounder of those documents as per law?(3) Whether the Courts below were justified in rendering judgment, without referring to Order 2 Rule 2 of CPC despite a plea taken in that regard in the written statement?(4) Whether there is any perversity or illegality in the judgments of both the forathereafter, by the impugned Judgment and Order and after re¬appreciating the entire evidence on record, the High Court has answered the aforesaid questions of law/substantial questions of law as underQuestion of Law (1) is decided to the effect that both the Courts below were not justified in holding that the generosity shown by Sengoda Gounder should not be treated as an act of blending of the suit properties with the ancestral properties and the Courts below were not justified in ignoring the factum of describing the properties found in Ex.A1 as ?Pidhirajyam? (Ancestral property) and also Exs. A19, 24, 45 and 46 in deciding the lis by holding as though there was no blending or treating the suit property as a joint family property.Substantial Question of Law No.(2) is decided to the effect that the courts below were justified in upholding the execution of Exs.A13 and A14¬ the settlement deeds and Ex.A24 the Will, however, in view of my discussion supra Sengoda Gounder had no competence to execute the settlement deeds treating the suit property as self¬acquired property in entirely, but his 1/3 rd share could only be considered as the one relinquished by him in favour of the remaining two coparceners namely, his sons. Wherefore, the suit property shall be divided into two shares. The plaintiff and the defendant shall be entitled to half share each in the suit property.Substantial Question of Law No.(3) is decided to the effect that the Courts below were justified in rendering judgment, without referring to Order 2 Rule 2 of CPC, in view of my finding supra that the cause of action for seeking partition is a continuingthe High Court has allowed both the appeals and set aside common Judgment and Decree of the Trial Court as well as the First Appellate Court and has directed to draw the preliminary decree for partition allotting half share each in favour of the plaintiff and the defendant.4.4 Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court by which, while exercising powers under Section 100 of the CPC, the High Court has re-appreciated the entire evidence on record and has set aside the findings of facts recorded by both the Courts below, the original defendant has preferred the present appeals.

Reasoning:
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.