2019 Supreme(SC) 523

SUPREME COURT OF INDIA
L. NAGESWARA RAO, M.R. SHAH, JJ.
S.Subramanian – Appellant
Versus
S. Ramasamy Etc. Etc. – Respondents
Civil Appeal Nos. 4536-4537 OF 2019 (Arising out of SLP (C) NOS.31125-26 of 2013)
Decided On : 01-05-2019

IMPORTANT POINTS
(1) Second Appeal would be maintainable only on substantial question of law – Second Appeal does not lie on question of facts or of law.
(2) Property separate or self-acquired of a member of a joint Hindu family may be impressed with character of joint family property if it is voluntarily thrown by owner into common stock with intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established.

Headnote:(A) Civil Procedure Code, 1908 – Section 100 – Second appeal – Disposal of – Parameters – While deciding second appeal under Section 100 of CPC, High Court is not required to re-appreciate entire evidence on record and to come to its own conclusion – High Court cannot set aside findings of facts recorded by both Courts below when findings recorded by both Courts below were on appreciation of evidence – Second Appeal would be maintainable only on substantial question of law – Second Appeal does not lie on question of facts or of law – Existence of ‘a substantial question of law’ is a sine qua non for the exercise of jurisdiction under Section 100 of CPC – In a second appeal under Section 100 of CPC, High Court cannot substitute its own opinion for that of First Appellate Court unless it finds that conclusions drawn by lower Court were erroneous – All can be said to be questions of law or questions of fact and cannot be said to be substantial questions of law – Impugned Judgment and Order, while exercising the powers under Section 100 of CPC and on reappreciation of entire evidence on record, High Court has set aside findings of facts recorded by both Courts below on blending of suit properties with joint family properties – Same is wholly impermissible – Procedure adopted by High Court while deciding Second Appeals, is beyond scope and ambit of exercise of its powers under Section 100 of CPC. (Paras 8.1, 8.2,8.4 and 8.5)

       (B) Hindu Law – Partition – Suit properties were self-acquired properties of father of original plaintiff pursuant to Settlement-Deed as properties were obtained by father of original plaintiff not from his direct male ancestors but from his mother’s sister’s husband – Property separate or self-acquired of a member of a joint Hindu family may be impressed with character of joint family property if it is voluntarily thrown by owner into common stock with 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 separate rights in property must be proved – Even abandonment cannot be inferred from mere allowing other family members also to use property or utilisation of income of separate property out of generosity to support family members – When on appreciation of evidence on record including documentary evidence which came to be reappreciated by High Court, both Courts below came to conclusion that there was no blending of suit properties into joint family properties, High Court in exercise of its powers under Section 100 of CPC, is not justified in reversing those findings which were on appreciation of evidence on record – Impugned common Judgment and Order passed by High Court quashed and set aside and common Judgment and Decree passed by Trial Court dismissing suits restored. (Paras 9, 9.1 and 10)

       Facts of Case:

       Partition of property. Feeling aggrieved and dissatisfied with common Judgment and Order passed by First Appellate Court dismissing appeals and confirming Judgment and Decree passed by Trial Court dismissing suits, original plaintiff filed two second appeals before High Court. High Court while exercising powers under Section 100 of CPC has allowed Second Appeals and has quashed and set aside Judgement and Decree passed by Trial court as well as First Appellate Court dismissing suits and consequently has decreed suits preferred by respondent original plaintiff, original defendant has preferred present appeals.

       Findings of Court:

       If 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. Trial Court could have decided differently is not a question of law justifying interference in Second Appeal. while passing impugned Judgment and Order, the High Court has reappreciated entire evidence on record as if High Court was deciding first appeal. By impugned Judgment and Order, while exercising powers under Section 100 of CPC and on reappreciation of entire evidence on record, High Court has set aside findings of facts recorded by both Courts below on blending of suit properties with joint family properties. Same is wholly impermissible.

       Result : Appeal allowed.