S. SUBRAMANIANversusS. RAMASAMY ETC. ETC.

250                      [2019]REPORTS
               SUPREME COURT    8 S.C.R. 250                 [2019] 8 S.C.R.


A                             S. SUBRAMANIAN
                                         v.
                          S. RAMASAMY ETC. ETC.
                      (Civil Appeal Nos.4536-4537 of 2019)
B                                  May 01, 2019
               [L. NAGESWARA RAO AND M.R. SHAH, JJ.]
            Suit:
             Suits for injunction and for partition of suit property –
C     Claiming that the suit property was joint family property – Suit
      defended by appellant on the ground that the suit property was self
      acquired property and not of joint family – Trial court dismissed
      the suits holding that the suit properties were self acquired properties
      of their father and that there was no blending of the suit properties
      with the ancestral properties – First appellate court affirmed the
D
      order of trial Court – High Court in second appeal after formulating
      substantial question of law reversed the orders of courts below and
      decreed the suits – Appeal to Supreme Court – Held: High Court
      by re-appreciating the evidence upset the findings of facts recorded
      by trial court as well as first appellate court and gave its own finding
E     which in exercise of its power u/s. 100 CPC is impermissible – On
      merits also High Court erred in holding that there was blending of
      suit properties with joint family properties – Code of Civil Procedure,
      1908 – s. 100.
            Code of Civil Procedure, 1908:
F           s. 100 – Second appeal – Jurisdiction under – Scope of –
      Held: Second appeal is maintainable only on substantial question
      of law and not on questions of fact or of law – Trial court could
      have decided differently is not a question of law justifying
      interference in second appeal – In exercise of such jurisdiction,
G     High Court cannot substitute it own opinion for that of the first
      appellate court unless it finds that the opinion is erroneous.
            Allowing the appeals, the Court
            HELD: 1.1 While deciding the second appeal under
      Section 100 of the CPC, the High Court is not required to re-
H
                                      250
             S. SUBRAMANIAN v. S. RAMASAMY                                251


appreciate the entire evidence on record and to come to its own           A
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. [Para 8.1] [262-C-D]
      1.2 On appreciation of entire evidence on record, more              B
particularly, the documentary evidence which came to be
considered by the High Court as Exhibit A1 and Exhibits A 19,
24, 45 and 46, both the Courts i.e. the trial court and first appellate
Court came to the conclusion that there was no blending or treating
of the suit property as a joint family property. Despite the above,
the High Court has re-appreciated the entire evidence on record           C
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        D
CPC is wholly impermissible. [Para 8.1] [261-H; 262-A-B]
       1.3 The second appeal would be maintainable only on
substantial question of law. The second appeal does not lie on
question of facts or of law. The existence of ‘a substantial question
of law’ is a sine qua non for the exercise of the jurisdiction under
                                                                          E
Section 100 of the CPC. In a second appeal under Section 100 of
the CPC, the High Court cannot substitute its own opinion for
that of the First Appellate Court, unless it finds that the
conclusions drawn by the lower Court were erroneous being: (i)
Contrary to the mandatory provisions of the applicable law; or
(ii) Contrary to the law as pronounced by the Apex Court; or (iii)        F
Based on inadmissible evidence or no evidence. If the First
Appellate Court has exercised its discretion in a judicial manner,
its decision cannot be recorded as suffering from an error either
of law or of procedure requiring interference in second appeal.
The Trial Court could have decided differently is not a question
                                                                          G
of law justifying interference in second appeal. [Para 8.2]
[262-E-H; 263-A]
        Kondiba Dagadu Kadam v. Savitribai Sopan Gujar
      (1999) 3 SCC 722 : [1999] 2 SCR 728 ; Ishwar Dass
      Jain v. Sohan Lal (2000) 1 SCC 434: [1999] 5 Suppl.
      SCR 24 – relied on.                                                 H
252            SUPREME COURT REPORTS                      [2019] 8 S.C.R.


A           Panchugopal Barua v. Umesh Chandra Goswami
            (1997) 4 SCC 713 : [1997] 2 SCR 12 – referred to
            1.4 The questions of law formulated by the High Court
      cannot be said to be substantial questions of law. All can be said
      to be questions of law or questions of fact and cannot be said to
B     be Substantial Questions of law. [Para 8.4] [263-E]
             1.5 The High Court has re-appreciated the entire evidence
      on record as if the High Court was deciding the first appeal. While
      exercising the powers under Section 100 of the CPC and on re-
      appreciation of entire evidence on record, the High Court has
C     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
D     on record, the High Court would not be justified in setting aside
      the findings of facts recorded by the Courts below which were on
      appreciation of evidence on record. It is not permissible for the
      High Court to re-appreciate the entire evidence on record and
      come to its own finding when the findings recorded by the Courts
E     below, more particularly, the First Appellate Court are on
      appreciation of evidence. Therefore, the procedure adopted by
      the High Court while deciding the second appeals, is beyond the
      scope and ambit of exercise of its powers under Section 100 of
      the CPC. [Para 8, 8.5] [263-F-H; 264-A-B]

F            2.1 On merits also, the High Court has erred in holding
      that there was blending of the suit properties with the joint family
      properties. It is an admitted position that the suit properties were
      self-acquired properties of the father of the parties pursuant to
      the Settlement Deed Exhibit A1 dated 07.04.1956 as the
      properties were obtained by him not from his direct male
G     ancestors but from his mother’s sister’s husband. High Court
      also held that when some of the properties were sold, some of
      these properties specified in Exhibit A1 dated 07.04.1956-
      Settlement Deed were sold, in the recitals it was mentioned that
      the properties sold for urgent necessity of family expenses and
H     farm expenses and it was mentioned that the same properties
             S. SUBRAMANIAN v. S. RAMASAMY                            253


were belonging to them jointly through their ancestors. However,      A
considering the documentary evidence, more particularly, the
settlement deeds Exhibits A13 and A14 and Exhibit B24, Will,
executed by the father of the parties by which the same properties
were given to the original defendant- his son the intention of the
father was very clear and the suit properties were treated as the
                                                                      B
self-acquired properties and not the joint family properties.
[Para 9] [264-C-F]
        2.2 The law on the aspect of blending is well settled that
property separate or self-acquired of a member of a joint Hindu
family may be impressed with the character of joint family property
if it is voluntarily thrown by the owner into the common stock        C
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        D
members also to use the property or utilisation of income of the
separate property out of generosity to support the family
members. [Para 9] [264-H; 265-A-B]
      2.3 When on appreciation of evidence on record including
the documentary evidence which came to be re-appreciated by           E
the High Court, both the Courts below came to the conclusion
that there was no blending of the suit properties into joint family
properties, the High Court in exercise of its powers under Section
100 of the CPC, is not justified in reversing those findings which
were on appreciation of evidence on record. [Para 9] [265-C-D]
                                                                      F
                        Case Law Reference
       [1997] 2 SCR 12            referred to         Para 6.4
       [1999] 2 SCR 728           relied on           Para 6.4
       [1999] 5 Suppl. SCR 24     relied on           Para 6.4
                                                                      G
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4536-
4537 of 2019
      From the Judgment and Order dated 14.06.2013 of the High
Court of Judicature at Madras in Second Appeal Nos. 4 & 5 of 2009
                                                                      H
254             SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A            Siddharth Naidu, V. Balachandran, Advs. for the Appellant.
           V. Prabhakar, Ms. Jyoti Parashar, N. J. Ramchandar, Pramit
      Saxena, Advs. for the Respondents.
             The Judgment of the Court was delivered by
B            M.R. SHAH, J.
             1. Leave granted in both the special leave petitions.
            2. As common question of lawand facts arise in both these appeals
      and as such arise out of theimpugned common Judgment and Order
      passed by the High Court, both these appeals are being decided and
C     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
D     saidSecond 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 herein-original plaintiff, the original defendant has preferred
      the present appeals.
E            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
F     kind of document in respect of plaintiff’s common one-third share of the
      suit properties, till final partition takes place between the plaintiff and
      original defendant No.2 by metes and bounds by a decree of permanent
      injunction. That the said suit was filed by the original plaintiff against his
      father Sengoda Gounder (died) as well as his younger brother
      Subramanian. That during the pendency of the said suit, the same plaintiff-
G     Ramasamy filed a suit being OS No.19 of 2005 against his younger
      brother Subramanian and his father Sengoda Gounder for partition of
      the suit properties. It was the case on behalf of the original plaintiff that
      the plaintiff and his father and his younger brother constituted a Hindu
      Joint Family which owned ancestral properties. It was further the case
H
               S. SUBRAMANIAN v. S. RAMASAMY                                     255
                        [M.R. SHAH, J.]

on behalf of the plaintiff that the father of the plaintiff, namely,Sengoda      A
Gounder, by way of settlement, got the suit properties, vide Ex-A1 dated
07.04.1956-the Settlement Deed executed by one Kumarasamy Gounder
in favour of Sengoda Gounder. It was the case on behalf of the plaintiff
that since that time, the suit properties alongwith the ancestral properties
were treated as joint family properties and all the three coparceners
                                                                                 B
were enjoying them together. It was alleged that since the father and the
younger brother of the plaintiff, in collusion with each other were
attempting to alienate the suit properties, the first injunction suit (OS
No.19 of 2005) was filed.
        4.1 The suit was resisted by the original defendant-younger brother
of the plaintiff Ramasamy. It was the case on behalf of the original             C
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 Gounderas per Ex-A1-the
Settlement Deed during the year 1956 as his self-acquired properties.
That SengodaGounder’s sons, namely Ramasamy and Subramanian had                  D
nothing to do with the suit properties and they had no proprietary right or
share in that and that they were never treated as joint family properties.
It was the specific case on behalf of the defendant that, in fact, the
Sengoda Gounder, during his lifetime, executed two settlement deeds
Ex- A13 and A14 in favour of Subramanian and subsequently he also
executed Ex-B24, a will dated 08.11.2004 in favour of Subramanian. It            E
was the case on behalf of the defendant that as such, Subramanian-the
defendant became absolute owner of the suit properties. It was also
contended on behalf of the defendant that the second suit is also barred
by Order 2 Rule 2 of CPC. It was the case on behalf of the defendant
that before filing the injunction suit(first suit) the plaintiff issued notice   F
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.
                                                                                 G
       4.2 That the Trial Court framed the issues. Both the suits were
tried jointly. The plaintiff-Ramasamy examined himself as PW1 along
with PWs 2 to 4 and Exs. A1 to A46 were brought on record.
Subramanian-the defendant examined himself as DW1 along with DWs
2 to 4 and he brought on record Exs.B1 to B31. That thereafter, on
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256            SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A     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
B     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
C           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
D           or treating the suit properties as joint family properties?
            (2) Whether the courts below were justified in upholding Exs.A13
            and A14-the settlement deeds and Ex.B24-the Will as valid, even
            though those documents according to the plaintiff were not
            allegedly proved by the propounder of those documents as per
E           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?

F           (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
      re-appreciating the entire evidence on record, the High Court has
      answered the aforesaid questions of law/substantial questions of law as
      under :
G
            “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
H
              S. SUBRAMANIAN v. S. RAMASAMY                                      257
                       [M.R. SHAH, J.]

      and the Courts below were not justified in ignoring the factum of          A
      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           B
      the courts below were justified in upholding the execution of
      Exs.A13 and A14- the settlement deeds and Ex.A24 the Will,
      however, in view of my discussion supra Sengoda Gounder had
      no competence to execute the settlement deeds treating the suit
      property as self-acquired property in entirely, but his 1/3rd share
      could only be considered as the one relinquished by him in favour          C
      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             D
      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        E
for partition allotting half share each in favour of the plaintiff and the
defendant.
       4.4 Feeling aggrieved and dissatisfied with the impugned Judgment
and Order passed by the High Court by which, while exercising powers
under Section 100 of the CPC, the High Court has re-appreciated the              F
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 appellant-original defendant and Shri V Prabhakar, learned                G
Advocate has appeared on behalf of the Respondent No.1-original
plaintiff.
       6. Shri Siddharth Naidu, learned Advocate appearing on behalf
of the original defendant has vehemently submitted that in the facts and
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258             SUPREME COURT REPORTS                           [2019] 8 S.C.R.


A     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
B     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
C     CPC, while exercising powers under Section 100 of the CPC,the High
      Court is not required to re-appreciate 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
D     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
E     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,
F     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
G     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
H
              S. SUBRAMANIAN v. S. RAMASAMY                                 259
                       [M.R. SHAH, J.]

High Court would not be justified in upsetting such findings recorded by    A
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 re-appreciated 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
                                                                            B
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 Baruav. Umesh Chandra Goswami,             C
(1997) 4 SCC 713; KondibaDagadu 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            D
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      E
and even as per the High Court also, the suit properties were self-
acquired 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   F
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.                                                                     G
       6.7 It is further submitted by Shri Siddharth Naidu, learned
Advocate appearing on behalf of the original defendant that the fact that
the father-Sengoda 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       H
260             SUPREME COURT REPORTS                           [2019] 8 S.C.R.


A     there was no intention of the father-Sengoda 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
B
      had no competence to execute the Settlement Deeds treating the suit
      property as self-acquired property in entirely, but his one-third 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
C     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
D     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
E     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
F     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
G     appearing on behalf of the original plaintiff that after considering the
      Sale Deed dated 05.02.1975-Exhibit A10and Sale Deed dated 25.03.1977-
      Exhibit A2,by which some of the properties specified in Exhibit A1-
      Settlement 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
H
               S. SUBRAMANIAN v. S. RAMASAMY                                       261
                        [M.R. SHAH, J.]

Gounder and all the properties specified in Exhibit A1-Settlement Deed             A
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
                                                                                   B
treating the suit properties as self-acquired 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           C
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          D
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              E
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       F
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                 G
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
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262             SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A     by the High Court as Exhibit A1 and Exhibits A 19, 24, 45 and 46,
      thereafter both the Courts below came to the conclusion that there was
      no blending or treating of the suit property as a joint family property.
      Despite the above, the High Court while passing the impugned common
      Judgment and Order, has re-appreciated the entire evidence on record
      including the documentary evidence which as such were considered by
B
      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
C     100 of the CPC, the High Court is not required to re-appreciate the
      entire evidence on record and to come to its own conclusion and the
      High Court cannot set aside the findings of facts recorded by both the
      Courts below when the findings recorded by both the Courts below were
      on appreciation of evidence. That is exactly what is done by the High
      Court in the present case while deciding the second appeals, which is
D
      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
E     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
F     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

G           (ii) Contrary to the law as pronounced by the Apex Court;
            OR
            (iii) Based on in-admissible evidence or no evidence.
             It is further observed by this Court in the aforesaid decision that if
      the First Appellate Court has exercised its discretion in a judicial manner,
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              S. SUBRAMANIAN v. S. RAMASAMY                                  263
                       [M.R. SHAH, J.]

its decision cannot be recorded as suffering from an error either of law     A
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       B
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   C
      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       D
      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         E
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               F
Judgment and Order, the High Court has re-appreciated the entire
evidence on record as if the High Court was deciding the first appeal.
By the impugned Judgment and Order, while exercising the powers under
Section 100 of the CPC and on re-appreciation of entire evidence on
record, the High Court has set aside the findings of facts recorded by       G
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
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264             SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A     Court would not be justified in setting aside the findings of facts recorded
      by the Courts below which were on appreciation of evidence on record.
      It is not permissible for the High Court to re-appreciate the entire evidence
      on record and come to its own finding when the findings recorded by the
      Courts below, more particularly, the First Appellate Court areon
      appreciation of evidence. Therefore, the procedure adopted by the High
B
      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
C     as observed and held by the High Court, the suit properties were self-
      acquired properties of Sengoda Gounder pursuant to the Settlement Deed
      Exhibit A1 dated 07.04.1956 as the properties were obtained by Sengoda
      Gounder not from his direct male ancestors but from his mother’s sister’s
      husband. High Court also held that when some of the properties were
D     sold, some of these properties specified in Exhibit A1 dated 07.04.1956-
      Settlement Deed were sold, in the recitals it was mentioned that the
      properties sold for urgent necessity of family expenses and farm expenses
      and it was mentioned that the same properties were belonging to them
      jointly through their ancestorsHowever, considering the documentary
      evidence, more particularly, the settlement deeds Exhibits A13 and A14
E     and Exhibit B24, Will, executed by the Sengoda Gounder himself, by
      which the same properties were given to the original defendant- his son
      Subramanian, the intention of the father-Sengoda Gounder was very
      clear and the suit properties were treated as the self-acquired properties
      and not the joint family properties.
F            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,
G     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
H
              S. SUBRAMANIAN v. S. RAMASAMY                                      265
                       [M.R. SHAH, J.]

property if it is voluntarily thrown by the owner into the common stock          A
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
                                                                                 B
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,       C
when on appreciation of evidence on record including the documentary
evidence which came to be re-appreciated by the High Court, both the
Courts below came to the conclusion that there was no blending of the
suit properties into joint family properties, the High Court in exercise of
its powers under Section 100 of the CPC, is not justified in reversing
                                                                                 D
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            E
and circumstances of the case, there shall be no order as to costs.


Kalpana K. Tripathy                                           Appeals allowed.

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