S. Subramanian vs S. Ramasamy etc. etc.

1.2 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, both the Courts i.e. the trial court and first appellate Court 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 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. [Para 8.1] [261-H; 262-A-B]

1.3 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. 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 inadmissible evidence or no evidence. 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. The Trial Court could have decided differently is not a question of 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 Dass Jain v. Sohan Lal (2000) 1 SCC 434: [1999] 5 Suppl. SCR 24 – relied on.

Panchugopal 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 Court cannot 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. [Para 8.4] [263-E]

1.5 The High Court has re-appreciated the entire evidence on record as if the High Court was deciding the first appeal. While exercising the powers under Section 100 of the CPC and on reappreciation 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. [Para 8, 8.5] [263-F-H; 264-A-B]

2.1 On merits also, the High Court has erred in holding that there was blending of the suit properties with the joint family properties. It is an admitted position that the suit properties were self-acquired properties of the father of the parties pursuant to the Settlement Deed Exhibit A1 dated 07.04.1956 as the properties were obtained by him 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 07.04.1956Settlement 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 father of the parties by which the same properties were given to the original defendant- his son the intention of the father was very clear and the suit properties were treated as the self-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 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. [Para 9] [264-H; 265-A-B]

2.3 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. [Para 9] [265-C-D]