Reportable

       IN THE SUPREME COURT OF INDIA

           CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NOS. 4536­4537  OF 2019                  (Arising out of SLP (C) NOS.31125­26 of 2013)

S.Subramanian                                    ..Appellant

            Versus

S. Ramasamy Etc. Etc.                                        ..Respondents

J U D G M E N T

M.R. SHAH, J.

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.

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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.

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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.

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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 Ex­ A13 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

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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.

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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 :

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“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 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 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

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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

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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

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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 re­

appreciated 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

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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

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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

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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 self­

acquired  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

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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 A1­

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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 re­

appreciated 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

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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 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

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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

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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

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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

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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 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

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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

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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 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 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 self­acquired of

a member of a joint Hindu family may be impressed with the

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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

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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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