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 joint 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.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 45364537 OF 2019
S.Subramanian .Vs S. Ramasamy
M.R. SHAH, J.
Citation: (2019) 6 SCC 46,2019 (7) Scale 254
Dated:May 01, 2019.
Leave granted in both the special leave petitions.
2. As common question of law and facts arise in both
these appeals and as such arise out of the impugned common
Judgment and Order passed by the High Court, both these
appeals are being decided and disposed of together by this
common Judgment and Order.
3. Feeling aggrieved and dissatisfied with the impugned
common Judgment and Order passed by the High Court of
Judicature at Madras in Second Appeal Nos.4 and 5 of 2009 by
which the High Court while exercising powers under Section 100
of the CPC has allowed the said Second Appeals and has quashed
and set aside the Judgement and Decree passed by the Trial
court as well as the First Appellate Court dismissing the suits
and consequently has decreed the suits preferred by the
respondent hereinoriginal
plaintiff, the original defendant has
preferred the present appeals.
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 onethird
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 plaintiffRamasamy
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 ExA1
dated 07.04.1956the
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 defendantyounger
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 ExA1the
Settlement Deed during the
year 1956 as his selfacquired
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 ExA13
and
A14 in favour of Subramanian and subsequently he also
executed ExB24,
a will dated 08.11.2004 in favour of
Subramanian. It was the case on behalf of the defendant that as
such, Subramanianthe
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 plaintiffRamasamy
examined himself as PW1
along with PWs 2 to 4 and Exs. A1 to A46 were brought on
record. Subramanianthe
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 law :
“(1) Whether 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 A14the
settlement deeds
and Ex.B24the
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 fora below?”
That thereafter, by the impugned Judgment and Order and
after reappreciating
the entire evidence on record, the High
Court has answered the aforesaid questions of law/substantial
questions of law as under :
“Substantial Question 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 A14the
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 selfacquired
property in entirely, but his 1/3rd 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
continuing one.”
Consequently, the 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 reappreciated
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.
5. Shri Siddharth Naidu, learned Advocate has appeared on
behalf of the appellantoriginal
defendant and Shri V Prabhakar,
learned Advocate has appeared on behalf of the Respondent
No.1original
plaintiff.
6. Shri Siddharth Naidu, learned Advocate appearing on behalf of
the original defendant has vehemently submitted that in the facts
and circumstances of the case, the High Court has manifestly
committed a grave error in allowing the appeals and interfering
with the findings of facts recorded by the Courts below.
6.1 It is vehemently submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that by
passing the impugned Judgment and Order, the High Court has
exceeded in its jurisdiction while exercising powers under Section
100 of the CPC.
6.2 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that as
held by this Court in catena of decisions and even as per Section
100 of the CPC, while exercising powers under Section 100 of the
CPC, the High Court is not required to reappreciate
the entire
evidence on record as if the High Court is deciding the first
appeal.
6.3 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that the
substantial questions of law framed by the High Court cannot be
said to be the substantial questions of law at all. It is submitted
that Section 100 of the CPC provides for a second appeal only on
the substantial questions of law. It is submitted that even second
appeal is not required to be entertained on question of law only.
It is submitted that the question of law must be a substantial
question of law and not mere a question of law. It is submitted
that the substantial questions of law formulated and framed by
the High Court, while deciding the second appeals, cannot be
said to be substantial questions of law at all. It is submitted that
on the face of it, even the substantial questions of law formulated
and framed by the High Court, are the questions of fact. It is
submitted, therefore, the High Court has committed a grave error
in allowing the Second Appeals.
6.4 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that even
otherwise, the impugned Judgment and Order passed by the
High Court cannot be sustained in as much as while exercising
powers under Section 100 of the CPC, the High Court has reappreciated
the entire evidence on record, which is wholly
impermissible. It is submitted that so far as the question of fact
is concerned, the First Appellate Court is the final Court on facts.
It is submitted that unless and until the findings recorded are
found to be perverse and/or contrary to the evidence on record,
the High Court would not be justified in upsetting such findings
recorded by the Courts below, more particularly, the First
Appellate Court. It is submitted that in the present case, if we see
the entire Judgment and Order passed by the High Court, the
High Court has reappreciated
the entire evidence on record and
has given its own conclusion and findings and thereafter has
interfered with the findings of facts recorded by both the Courts
below, which were on appreciation of evidence, which is wholly
impermissible. In support of his above submissions and on the
scope and ambit of the jurisdiction of the High Court while
deciding the second appeal under Section 100 of the CPC,
learned counsel appearing on behalf of the appellant has heavily
relied upon the decisions of this Court in the case of
Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4
SCC 713; Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar, (1999) 3 SCC 722; Ishwar Dass Jain v. Sohan Lal,
(2000) 1 SCC 434.
6.5 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that even
otherwise the grounds on which the High Court has held that
there was blending of the suit properties with the ancestral
properties, are not sustainable.
6.6 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that
admittedly and even as per the High Court also, the suit
properties were selfacquired
properties of Sengoda Gounder
(father) because those properties were obtained by him not from
his direct male ancestors but from his mother’s sister’s husband.
It is submitted that therefore, merely because as Sengoda
Gounder and his two sons were residing together and some loan
on land might have been taken by all of them, it cannot be said
that there was a blending of the suit properties with the ancestral
properties by Sengoda Gounder. It is submitted that it was the
specific case on behalf of the defendant that the loan was
repaid/discharged by Sengoda Gounder from out of the income
derived by him from the suit property itself.
6.7 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that the
fact that the fatherSengoda
Gounder, during his lifetime,
executed two settlement deeds Exhibits A13 & A14 and
subsequently he also executed Exhibit B24, a will dated
08.11.2004, the same is suggestive of the fact that there was no
intention of the fatherSengoda
Gounder to blend the suit
properties with the joint family properties. It is submitted that as
such the High Court has specifically observed and held that the
Courts below were justified in upholding the execution of
Exhibits A13 & A14 the
Settlement Deeds and Exhibit B24 the
Will. It is submitted that however, thereafter the High Court has
erred in holding that the Sengoda Gounder had no competence to
execute the Settlement Deeds treating the suit property as selfacquired
property in entirely, but his onethird
share could only
be considered as the one relinquished by him in favour of the
remaining two coparceners namely his sons.
6.8 Making the above submissions and relying upon the above
decisions of this Court, it is prayed to allow the present appeals
and quash and set aside the impugned Judgement and Order
passed by the High Court and consequently restore the
Judgement and Decree passed by the Courts below dismissing
the suits.
7. Shri V. Prabhakar, learned counsel appearing on behalf of
the original plaintiff while opposing the present appeals has
vehemently submitted that as such the High Court was cautious
of its limitations while deciding the Second Appeals under
Section 100 of the CPC. It is submitted that however, as the High
Court found that both the Court below have not properly
appreciated the relevant material and evidence on record, more
particularly, Exhibit A1 and also Exhibits A19,24,45, & 46,
thereafter the High Court has rightly held that there was a
blending of the suit properties with the joint family
properties/ancestral properties by Sengoda Gounder.
7.1 It is submitted by Shri V. Prabhakar, learned counsel
appearing on behalf of the original plaintiff that cogent reasons
have been given by the High Court while holding that the
generosity shown by Sengoda Gounder should be treated as an
act of blending of the suit properties with the ancestral
properties/joint family properties.
7.2 It is further submitted by Shri V. Prabhakar, learned
counsel appearing on behalf of the original plaintiff that after
considering the Sale Deed dated 05.02.1975Exhibit
A10 and
Sale Deed dated 25.03.1977Exhibit
A2, by which some of the
properties specified in Exhibit A1Settlement
Deed dated
07.04.1956, were sold treating the same as ancestral properties,
the High Court has rightly held that thereafter there was a
blending of suit properties with the ancestral properties by
Sengoda Gounder and all the properties specified in Exhibit A114
Settlement Deed dated 07.04.1956 were treated as joint family
properties. It is submitted that thereafter and having found so,
the High Court has rightly held that once there was blending of
the suit properties with the ancestral properties by Sengoda
Gounder, thereafter it was not open for him and/or Sengoda
Gounder had no competence to execute the settlement deeds
and/or will treating the suit properties as selfacquired
properties
in entirely.
7.3 Now, so far as the submissions made by the learned counsel
appearing on behalf of the appellants that while passing the
impugned Judgment and Order, the High Court has reappreciated
the entire evidence on record is concerned, it is
submitted by Shri V. Prabhakar, learned counsel appearing on
behalf of the original plaintiff that while discussing and/or
deciding the substantial questions of law, the High Court is
bound to consider and/or appreciate the evidence on record and
to reach to a conclusion that the findings recorded by the Courts
below are perverse or contrary to the evidence on record. It is
submitted therefore that appreciation of evidence by the High
Court while deciding the second appeals in exercise of its powers
under section 100 of the CPC, is permissible.
7.4 Making the above submissions it is prayed to dismiss the
present appeals.
8. Heard learned Counsel appearing on behalf of the respective
parties at length.
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 selfacquired
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 reappreciated
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 reappreciate
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 inadmissible
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 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 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 reappreciated
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 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 reappreciate
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 selfacquired
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
07.04.1956Settlement
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 Sengoda Gounder himself, by
which the same properties were given to the original defendanthis
son Subramanian, the intention of the fatherSengoda
Gounder was very clear and the suit properties were treated as
the selfacquired
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 joint 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 reappreciated
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.
10 In view of the above and as per the reasons stated above,
both the present appeals are allowed. Impugned common
Judgment and Order passed by the High Court in S.A. Nos. 4
and 5 of 2009 is quashed and set aside and common Judgment
and Decree passed by the Trial Court dismissing the suits are
hereby restored. However, in the facts and circumstances of the
case, there shall be no order as to costs.
……………………………….J.
[L. NAGESWARA RAO]
New Delhi; ……………………………….J.
May 01, 2019. [M.R. SHAH]
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 joint 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.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 45364537 OF 2019
S.Subramanian .Vs S. Ramasamy
M.R. SHAH, J.
Citation: (2019) 6 SCC 46,2019 (7) Scale 254
Dated:May 01, 2019.
Leave granted in both the special leave petitions.
2. As common question of law and facts arise in both
these appeals and as such arise out of the impugned common
Judgment and Order passed by the High Court, both these
appeals are being decided and disposed of together by this
common Judgment and Order.
3. Feeling aggrieved and dissatisfied with the impugned
common Judgment and Order passed by the High Court of
Judicature at Madras in Second Appeal Nos.4 and 5 of 2009 by
which the High Court while exercising powers under Section 100
of the CPC has allowed the said Second Appeals and has quashed
and set aside the Judgement and Decree passed by the Trial
court as well as the First Appellate Court dismissing the suits
and consequently has decreed the suits preferred by the
respondent hereinoriginal
plaintiff, the original defendant has
preferred the present appeals.
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 onethird
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 plaintiffRamasamy
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 ExA1
dated 07.04.1956the
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 defendantyounger
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 ExA1the
Settlement Deed during the
year 1956 as his selfacquired
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 ExA13
and
A14 in favour of Subramanian and subsequently he also
executed ExB24,
a will dated 08.11.2004 in favour of
Subramanian. It was the case on behalf of the defendant that as
such, Subramanianthe
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 plaintiffRamasamy
examined himself as PW1
along with PWs 2 to 4 and Exs. A1 to A46 were brought on
record. Subramanianthe
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 law :
“(1) Whether 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 A14the
settlement deeds
and Ex.B24the
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 fora below?”
That thereafter, by the impugned Judgment and Order and
after reappreciating
the entire evidence on record, the High
Court has answered the aforesaid questions of law/substantial
questions of law as under :
“Substantial Question 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 A14the
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 selfacquired
property in entirely, but his 1/3rd 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
continuing one.”
Consequently, the 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 reappreciated
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.
5. Shri Siddharth Naidu, learned Advocate has appeared on
behalf of the appellantoriginal
defendant and Shri V Prabhakar,
learned Advocate has appeared on behalf of the Respondent
No.1original
plaintiff.
6. Shri Siddharth Naidu, learned Advocate appearing on behalf of
the original defendant has vehemently submitted that in the facts
and circumstances of the case, the High Court has manifestly
committed a grave error in allowing the appeals and interfering
with the findings of facts recorded by the Courts below.
6.1 It is vehemently submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that by
passing the impugned Judgment and Order, the High Court has
exceeded in its jurisdiction while exercising powers under Section
100 of the CPC.
6.2 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that as
held by this Court in catena of decisions and even as per Section
100 of the CPC, while exercising powers under Section 100 of the
CPC, the High Court is not required to reappreciate
the entire
evidence on record as if the High Court is deciding the first
appeal.
6.3 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that the
substantial questions of law framed by the High Court cannot be
said to be the substantial questions of law at all. It is submitted
that Section 100 of the CPC provides for a second appeal only on
the substantial questions of law. It is submitted that even second
appeal is not required to be entertained on question of law only.
It is submitted that the question of law must be a substantial
question of law and not mere a question of law. It is submitted
that the substantial questions of law formulated and framed by
the High Court, while deciding the second appeals, cannot be
said to be substantial questions of law at all. It is submitted that
on the face of it, even the substantial questions of law formulated
and framed by the High Court, are the questions of fact. It is
submitted, therefore, the High Court has committed a grave error
in allowing the Second Appeals.
6.4 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that even
otherwise, the impugned Judgment and Order passed by the
High Court cannot be sustained in as much as while exercising
powers under Section 100 of the CPC, the High Court has reappreciated
the entire evidence on record, which is wholly
impermissible. It is submitted that so far as the question of fact
is concerned, the First Appellate Court is the final Court on facts.
It is submitted that unless and until the findings recorded are
found to be perverse and/or contrary to the evidence on record,
the High Court would not be justified in upsetting such findings
recorded by the Courts below, more particularly, the First
Appellate Court. It is submitted that in the present case, if we see
the entire Judgment and Order passed by the High Court, the
High Court has reappreciated
the entire evidence on record and
has given its own conclusion and findings and thereafter has
interfered with the findings of facts recorded by both the Courts
below, which were on appreciation of evidence, which is wholly
impermissible. In support of his above submissions and on the
scope and ambit of the jurisdiction of the High Court while
deciding the second appeal under Section 100 of the CPC,
learned counsel appearing on behalf of the appellant has heavily
relied upon the decisions of this Court in the case of
Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4
SCC 713; Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar, (1999) 3 SCC 722; Ishwar Dass Jain v. Sohan Lal,
(2000) 1 SCC 434.
6.5 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that even
otherwise the grounds on which the High Court has held that
there was blending of the suit properties with the ancestral
properties, are not sustainable.
6.6 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that
admittedly and even as per the High Court also, the suit
properties were selfacquired
properties of Sengoda Gounder
(father) because those properties were obtained by him not from
his direct male ancestors but from his mother’s sister’s husband.
It is submitted that therefore, merely because as Sengoda
Gounder and his two sons were residing together and some loan
on land might have been taken by all of them, it cannot be said
that there was a blending of the suit properties with the ancestral
properties by Sengoda Gounder. It is submitted that it was the
specific case on behalf of the defendant that the loan was
repaid/discharged by Sengoda Gounder from out of the income
derived by him from the suit property itself.
6.7 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that the
fact that the fatherSengoda
Gounder, during his lifetime,
executed two settlement deeds Exhibits A13 & A14 and
subsequently he also executed Exhibit B24, a will dated
08.11.2004, the same is suggestive of the fact that there was no
intention of the fatherSengoda
Gounder to blend the suit
properties with the joint family properties. It is submitted that as
such the High Court has specifically observed and held that the
Courts below were justified in upholding the execution of
Exhibits A13 & A14 the
Settlement Deeds and Exhibit B24 the
Will. It is submitted that however, thereafter the High Court has
erred in holding that the Sengoda Gounder had no competence to
execute the Settlement Deeds treating the suit property as selfacquired
property in entirely, but his onethird
share could only
be considered as the one relinquished by him in favour of the
remaining two coparceners namely his sons.
6.8 Making the above submissions and relying upon the above
decisions of this Court, it is prayed to allow the present appeals
and quash and set aside the impugned Judgement and Order
passed by the High Court and consequently restore the
Judgement and Decree passed by the Courts below dismissing
the suits.
7. Shri V. Prabhakar, learned counsel appearing on behalf of
the original plaintiff while opposing the present appeals has
vehemently submitted that as such the High Court was cautious
of its limitations while deciding the Second Appeals under
Section 100 of the CPC. It is submitted that however, as the High
Court found that both the Court below have not properly
appreciated the relevant material and evidence on record, more
particularly, Exhibit A1 and also Exhibits A19,24,45, & 46,
thereafter the High Court has rightly held that there was a
blending of the suit properties with the joint family
properties/ancestral properties by Sengoda Gounder.
7.1 It is submitted by Shri V. Prabhakar, learned counsel
appearing on behalf of the original plaintiff that cogent reasons
have been given by the High Court while holding that the
generosity shown by Sengoda Gounder should be treated as an
act of blending of the suit properties with the ancestral
properties/joint family properties.
7.2 It is further submitted by Shri V. Prabhakar, learned
counsel appearing on behalf of the original plaintiff that after
considering the Sale Deed dated 05.02.1975Exhibit
A10 and
Sale Deed dated 25.03.1977Exhibit
A2, by which some of the
properties specified in Exhibit A1Settlement
Deed dated
07.04.1956, were sold treating the same as ancestral properties,
the High Court has rightly held that thereafter there was a
blending of suit properties with the ancestral properties by
Sengoda Gounder and all the properties specified in Exhibit A114
Settlement Deed dated 07.04.1956 were treated as joint family
properties. It is submitted that thereafter and having found so,
the High Court has rightly held that once there was blending of
the suit properties with the ancestral properties by Sengoda
Gounder, thereafter it was not open for him and/or Sengoda
Gounder had no competence to execute the settlement deeds
and/or will treating the suit properties as selfacquired
properties
in entirely.
7.3 Now, so far as the submissions made by the learned counsel
appearing on behalf of the appellants that while passing the
impugned Judgment and Order, the High Court has reappreciated
the entire evidence on record is concerned, it is
submitted by Shri V. Prabhakar, learned counsel appearing on
behalf of the original plaintiff that while discussing and/or
deciding the substantial questions of law, the High Court is
bound to consider and/or appreciate the evidence on record and
to reach to a conclusion that the findings recorded by the Courts
below are perverse or contrary to the evidence on record. It is
submitted therefore that appreciation of evidence by the High
Court while deciding the second appeals in exercise of its powers
under section 100 of the CPC, is permissible.
7.4 Making the above submissions it is prayed to dismiss the
present appeals.
8. Heard learned Counsel appearing on behalf of the respective
parties at length.
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 selfacquired
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 reappreciated
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 reappreciate
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 inadmissible
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 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 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 reappreciated
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 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 reappreciate
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 selfacquired
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
07.04.1956Settlement
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 Sengoda Gounder himself, by
which the same properties were given to the original defendanthis
son Subramanian, the intention of the fatherSengoda
Gounder was very clear and the suit properties were treated as
the selfacquired
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 joint 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 reappreciated
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.
10 In view of the above and as per the reasons stated above,
both the present appeals are allowed. Impugned common
Judgment and Order passed by the High Court in S.A. Nos. 4
and 5 of 2009 is quashed and set aside and common Judgment
and Decree passed by the Trial Court dismissing the suits are
hereby restored. However, in the facts and circumstances of the
case, there shall be no order as to costs.
……………………………….J.
[L. NAGESWARA RAO]
New Delhi; ……………………………….J.
May 01, 2019. [M.R. SHAH]
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